All written comments will be open for public inspection at the office of the Economic Research Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 1800 M. St., NW., Room N4056, Washington, DC 20036-5801.

All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments and replies will be a matter of public record. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Title: Survey on Rural Community Wealth and Health Care Provision.

OMB Number: 0536-XXXX.

Expiration Date: Three years from the date of approval.

Type of Request: New collection.

Abstract: This survey will collect information on the assets and investments of rural communities and their influence on recruitment and retention of rural health care providers, and on the effects of rural health care provision on economic development of rural communities. This information will contribute to a better understanding of the roles that rural communities play in promoting or retarding the development and provision of health care services, and of how improved health care provision contributes to development of these communities. Such understanding is critical to develop effective policies to address the challenge of inadequate access to health care services in many rural communities, and to realize the opportunities offered by improved health care provision to attract and keep residents in rural areas, provide employment, and improve the quality of life.

Health care services is one of the largest and most rapidly growing industries in rural America, and adequate provision of health care services is increasingly critical for achieving economic development and improved well-being of rural people. In many rural communities, health care services is the largest employer, and rapid growth in this sector is occurring and will continue to occur, especially as the Baby-Boom generation retires. Provision of adequate health care services is likely to be one of the key factors in attracting retirees and other migrants to rural areas, helping to stem persistent outmigration from many of these areas and in some cases, contributing to rural growth and prosperity. Despite recent growth and potential for continued growth in this sector, many rural communities suffer from poor access to health care services, especially because of the limited supply of health care professionals. Addressing these access problems likely will become increasingly important as the Patient Protection and Affordable Care Act is implemented, increasing rural people's access to health insurance.

Although substantial research has investigated the problems of attracting and retaining health care providers in rural areas, very little of this research addresses the issue from the perspective of rural communities themselves. For example, prior research has established that physicians who grew up in a rural area, who attended a medical school with a rural emphasis, or who completed a residency in a rural hospital are more likely than other physicians to locate their practice in a rural community. Policies and programs that provide incentives to physicians to locate in rural areas have also been shown to increase recruitment of physicians to rural areas, although the impacts on retention of physicians are more questionable. Much less research has focused on factors affecting recruitment and retention of health care providers other than physicians to rural areas, or on the roles local communities play in affecting these decisions. Of the research that investigates the roles of local communities, the studies have been conducted in only a few communities with a small number of respondents, limiting the ability to draw conclusions applicable to broader rural regions.

The proposed rural community survey will address this information gap by collecting information from representatives of 150 rural communities in three regions of the United States and from health care providers in the same communities. The survey will investigate the perspectives of community leaders and organizations concerning the need for improved access to health care services, the local community assets that attract or repel health care providers, the investments and efforts undertaken or planned to recruit and retain health care service providers, and the effects of changes in health care service provision on other aspects of community development. The survey will also investigate the perspective of health care providers on the factors affecting their decisions to locate, continue and change their operations in these rural communities, including the influence of community assets and investments such as improvements in local schools, availability of Internet broadband or other infrastructure, provision of child care services, recreational opportunities, and other factors.

The three proposed study regions include the lower Mississippi Delta region (including parts of the States of Mississippi, Louisiana, Arkansas and Tennessee), the Southern Great Plains region (including parts of Texas, Oklahoma, Kansas, Nebraska, New Mexico, and Colorado), and part of the Upper Midwest region (including parts of Missouri, Iowa, Minnesota, Wisconsin and Illinois). These regions include areas with high rates of poverty and severe constraints to health care access—especially in the Delta and Southern Great Plains—while incomes and health care access are relatively more favorable in the Upper Midwest region. All three of these regions include rural areas where growth in health sector employment has been an important contributor to overall employment growth in recent years, as well as areas where less growth has occurred. These regions also include important variations in health status of the populations, presence of different racial and ethnic groups, social capital, and other key factors hypothesized to be related to rural health care provision.

The communities (towns and surrounding counties and hospital service areas (HSAs)) studied in the survey will be selected using a stratified random sample. Potential respondents for each sampled community will be identified by accessing public information sources and by telephone screening. From the town, community leaders such as the town mayor, council representatives, business leaders or other stakeholders involved in recruiting and integrating health care providers to the community will be included on the respondent sample list. A sample of local health care providers in the selected town—in most cases limited to primary health care providers such as administrators of rural clinics, physicians, nurse practitioners, and dentists—will also be identified. At the county level, the list will include relevant representatives of the county government—such as the county executive and officials in the health and economic development departments—as well as civil society organizations and others involved at that level in seeking to improve health care provision. At the HSA level, the sample will include hospital administrators and other provider representatives. A total of 10 to 15 respondents will be interviewed in each selected community (including health care providers and leaders/stakeholders in the town, county and HSA). The interviews will be conducted by telephone and are expected to require on average about 20 minutes per respondent, based upon the experience of the organization that will implement the survey (Survey and Behavioral Research Services Group, Iowa State University) in implementing community level surveys of similar scope and size.

The sample for each selected community will be strategically managed in order to provide the maximum survey response. Advance letters and a colorful information sheet/brochure will be mailed to potential respondents. A project Web site will be available with additional information, and a toll-free number will be provided for those who have questions or concerns. Confidentiality of responses will be both assured and ensured. After the advance letters/packets are sent, all reasonable efforts will be made to contact and interview the respondents in the sample. Paper or online copies of the survey will be made available to those who are unable or unwilling to complete a telephone interview.

All study instruments will be kept as simple and respondent-friendly as possible. Participation in the survey will be voluntary and confidential. Survey responses will be used for statistical analysis and to produce research reports only; not for any other purpose. Data files from the survey will not be released to the public. Responses will be linked to secondary data to augment information with no additional respondent burden. For example, the survey data will be combined with available county level data from the Census Bureau on community socioeconomic and demographic characteristics and data from the Department of Health and Human Services on health care provision and health status indicators, to analyze factors affecting local changes in health care provision.

The telephone survey will be conducted within a six month period during 2012. After the telephone survey and analysis of its results are completed, a follow up information collection will be conducted in a sub-sample of the surveyed communities (at most 40), with the goal of deepening understanding of (i) how and why the community factors that appear to influence recruitment and retention of health care providers (as will be identified by the telephone survey) are able to do so, and (ii) how development of the health care sector contributes to broader economic development in rural communities. This second phase will use more qualitative methods, including in depth individual and focus group interviews, and will be completed in 2013. This notice focuses on the telephone survey; another notice will be provided before the second phase begins.

Affected Public: Respondents will include health care providers, local government and community leaders, and other stakeholders involved in recruiting and retaining health care providers in rural communities.

Estimated Number of Respondents and Respondent Burden : The telephone survey will be completed at one point in time within a six month period in 2012. The survey will have a complex mixed survey administration to include telephone screening, pre-notification letter with Web access, multi-contact telephone interviewing, and follow-up non-respondent mail questionnaires. The time required for respondents and non-respondents to read the notification materials, review instructions, participate in the screening interview, and decide whether to complete the questionnaire is estimated to average 15 minutes per person. Completion time for each questionnaire respondent is estimated to average 20 minutes per completed questionnaire. In addition, the screening interviews used to select the sample will involve telephone conversations with knowledgeable people in each community. We estimate that this may require 15 minute interviews with up to 8 people per community, or a maximum burden of 2 hours per sample community.

Full Study: The maximum sample size for the full study is 2,812 respondents (15 respondents maximum per community × 150 communities/80% response rate). The expected overall response rate is 80 percent. The maximum total estimated response burden for all of those participating in the study is 1,313 hours (2,250 respondents × 35 minutes per respondent  1 ) and for the non-respondents is 141 hours (562 non-respondents × 15 minutes per non-respondent  2 ). In addition, we estimate a maximum burden of 300 hours on non-sample interviewees contacted during the pre-sample screening process for the full study (150 communities × 8 interviewees/community × 15 minutes per interviewee).

Pilot Study: A pilot test of the survey will be done in advance of the full survey. The purpose of the pilot is to evaluate the survey protocol, and test instruments and questionnaires. The initial sample size for this phase of the research is 100 respondents (10 respondents per community × 10 communities). The expected response rate is 80 percent. The total estimated burden for full respondents in the pilot testing is 47 hours (100 respondents × 80 percent × 35 minutes per respondent), and for non-respondents is 5 hours (100 respondents × 20 percent × 15 minutes per non-respondent). In addition, we estimate a maximum burden of 20 hours on non-sample interviewees contacted during the pre-sample screening process for the pilot study (10 communities × 8 interviewees/community × 15 minutes per interviewee).

The total respondent burden, including the pilot and full study, is estimated at 1,826 hours (see table below).

The NACMCF was established in 1988, in response to a recommendation of the National Academy of Sciences for an interagency approach to microbiological criteria for foods, and in response to a recommendation of the U.S. House of Representatives Committee on Appropriations, as expressed in the Rural Development, Agriculture, and Related Agencies Appropriation Bill for fiscal year 1988. The charter for the NACMCF is available for viewing on the FSIS Internet Web page at http://www.fsis.usda.gov/About/NACMCF_Charter/.

The NACMCF provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services on public health issues relative to the safety and wholesomeness of the U.S. food supply, including development of microbiological criteria and review and evaluation of epidemiological and risk assessment data and methodologies for assessing microbiological hazards in foods. The Committee also provides scientific advice and recommendations to the Centers for Disease Control and Prevention and the Departments of Commerce and Defense.

Dr. Elisabeth A. Hagen, Under Secretary for Food Safety, USDA, is the Committee Chair; Mr. Michael Landa, Acting Director of the Food and Drug Administration's Center for Food Safety and Applied Nutrition (CFSAN), is the Vice-Chair; and Ms. Gerri Ransom, FSIS, is the Executive Secretary.

At the subcommittee meetings the week of September 27-29, 2011, the groups will discuss:

• Control strategies for reducing foodborne Norovirus infections, and

• Study of microbiological criteria as indicators of process control or insanitary conditions.

FSIS intends to make available to the public all materials that are reviewed and considered by NACMCF regarding its deliberations. Generally, these materials will be made available as soon as possible after the full Committee meeting. Further, FSIS intends to make these materials available in electronic format on the FSIS Web page ( http://www.fsis.usda.gov ), as well as in hard copy format in the FSIS Docket Room. Often, an attempt is made to make the materials available at the start of the full Committee meeting when sufficient time is allowed in advance to do so.

Disclaimer: NACMCF documents and comments posted on the FSIS Web site are electronic conversions from a variety of source formats. In some cases, document conversion may result in character translation or formatting errors. The original document is the official, legal copy.

In order to meet the electronic and information technology accessibility standards in Section 508 of the Rehabilitation Act, NACMCF may add alternate text descriptors for non-text elements (graphs, charts, tables, multimedia, etc. ). These modifications only affect the online copies of the documents.

Copyrighted documents will not be posted on the FSIS Web site, but will be available for inspection in the FSIS Docket Room.

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status (Not all prohibited bases apply to all programs).

Persons with disabilities who require alternative means for communication of program information (Braille, large print, and audiotape) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).

To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Notices/index.asp .

FSIS will also make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at http://www.fsis.usda.gov/News_&_Events/Email_Subscription/ . Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

Purpose and Need for Action

The purpose of this proposed land exchange is to consolidate land ownership in the upper Lochsa River drainage to provide more efficient and effective resource management.

This purpose can be achieved by exchanging parcels of federal lands for WPT lands. Need—The current ownership pattern has a considerable effect on how the Forest Service manages NFS lands in the upper Locsha River drainage. Over the years, differing management practices on the private lands has influenced resource management decision on the NFS lands. The mixed ownership pattern also reduces the ability to apply ecosystem management principles across the landscape. More effective conservation and management of natural resources can be achieved by consolidating these lands and managing the ecosystem as a whole. For example, current ownership results in an inability to use fuel and topography to engage fires on a cost-effective basis. Also, more efficiency can be gained by reducing administrative costs associated with boundary maintenance and cost share roads.

In general the land exchange provides the opportunity for the Forest Service to acquire checkerboard lands which encompass the headwaters of the Lochsa River and hold outstanding values for aquatic and terrestrial species along with significant cultural resources.

The DEIS identified Alternative B as the Modified Proposed Action. In the Modified Proposed Action, the Forest Service proposes a land-for-land exchange which includes approximately 17,854 acres of National Forest System land for approximately 39,371 acres of WPT land. The lands included in this modified proposed action are located within Benewah, Clearwater, Latah, Bonner, Kootenai and Idaho Counties.

The federal lands consist of scattered parcels located on the Nez Perce, Clearwater and Idaho Panhandle National Forest in north Idaho. For the most part, federal parcels are timbered and are characterized by irregular boundaries surrounded by mixed ownership and small tracts of land isolated from other national Forest land.

The WPT lands proposed for exchange are checkerboard lands intermingled with Clearwater National Forest lands in the upper Lochsa River drainage. For the past 50 years, WPT lands were managed primarily for timber production. For the most part these lands currently meet State Best Management Practices for timber production lands.

The modified proposed action would authorize the transfer of land ownership and management authority, including the mineral estate, between the two parties. The modified proposed action would not authorize any site-specific management activities by either party.

The DEIS analyzed five alternatives: Alternative A—No Action, Alternative B—Modified Proposed Action, Alternative C—Land Exchange with a Purchase Component, Alternative D—Land Exchange and Purchase with Phased Implementation and Alternative E—Direct Purchase of Non-Federal Lands. The DEIS identified Alternative D as the Forest Service Preferred Alternative.

The SDEIS is being completed to analyze the additional alternative where all the Federal lands proposed for exchange are in Idaho County. The additional federal lands being considered for exchange include approximately 45,043 acres of NFS lands on the Nez Perce National Forest. These are generally described as three tracts of land located to the east and to the south of Grangeville, Idaho and two tracts of land located to the northwest of Riggins, Idaho. These five NFS tracts of land are relatively large ranging in size from 3,200 acres to nearly 20,000 acres. They are located along the edge of the Nez Perce National Forest bordering private and State lands. For the most part these tracts are timbered.

These Federal lands are being considered in addition to approximately 17,854 acres that have been analyzed for exchange in the DEIS for a total of approximately 62,897 acres. It is anticipated that this is more than adequate federal acreage to complete an equal value land exchange. The new federal land proposed will be refined through future public involvement processes.

Rick Brazell, Forest Supervisor, Clearwater National Forest, 12730 HWY 12, Orofino, Idaho 83544.

The decision to be made is whether or not to complete a land exchange between the Forest Service and Western Pacific Timber. In the decision, the Forest Supervisor will answer the following questions based on the environmental analysis: (1) Whether the modified proposed action will proceed as proposed, as modified by an alternative, or not at all, (2) whether the project requires any Forest Plan amendments? This decision will be documented in the Record of Decision for the Upper Lochsa Land Exchange Final Environmental Impact Statement (FEIS). If the decision that is made would require an amendment to any of the Forest Plans, the analysis and documentation for the amendment will be included. The decision will be subject to appeal in accordance with 36 CFR 215.

Early Notice of Importance of Public Participation in Subsequent Environmental Review: The SDEIS is expected to be available for public review and comment in October 2011. The comment period for the SDEIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register .

The Forest Service believes it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986) and Wisconsin Heritages, Inc. v. Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement.

To assist the Forest Service in identifying and considering issues and concerns on the project, comments on the SDEIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the SDEIS. Comments may also address the adequacy of the SDEIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.

Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.

On August 27, 2010, pursuant to 19 CFR 351.214(b) and (c), the Department received an NSR request from Shanghai Colour.

On September 29, 2010, the Department published in the Federal Register a notice of initiation of an administrative review of the antidumping duty order on nails from the PRC, for 222 companies. 2

On October 4, 2010, the Department published in the Federal Register a notice of initiation of a new shipper review of nails from the PRC, for Shanghai Colour. 3 On April 28, 2011, the Department published a notice rescinding the administrative review with respect to 160 companies and extending the time period for issuing the preliminary results by 90 days to August 1, 2011. 4 5 6

Between October 25, 2010, and June 30, 2011, Shanghai Colour submitted responses to the Department's original and supplemental questionnaires. Between January 21, 2011, and July 19, 2011, Stanley, Hongli, and Jinchi submitted responses to the Department's original and supplemental questionnaires.

On July 11, 2011, the Department aligned the antidumping duty new shipper and administrative reviews. 7

Section 777A(c)(1) of the Tariff Act of 1930, as amended (“Act”) directs the Department to calculate individual dumping margins for each known exporter or producer of the subject merchandise. However, section 777A(c)(2) of the Act gives the Department discretion to limit its examination to a reasonable number of exporters or producers if it is not practicable to examine all exporters or producers involved in the review.

The Department initiated a review for the 222 companies for which it received a timely request for review. See 2nd AR Initiation. On October 28, 2010, the Department released CBP data for entries of the subject merchandise during the POR under administrative protective order (“APO”) to all interested parties with access to the APO, inviting comments regarding the CBP data and respondent selection. Between November 5, 2010, and November 8, 2010, Stanley and Petitioner  8 submitted comments on the respondent selection process. On November 22 and 24, 2010, respectively, Petitioner met with the Senior Director, China/NME Unit, for AD/CVD Operations and the Deputy Assistant Secretary for Import Administration regarding respondent selection. On November 26, 2010, Hongli requested to be selected as a mandatory respondent or to be permitted to participate as a voluntary respondent. On December 14, 2010, Stanley requested to be selected as a mandatory respondent or to be permitted to participate as a voluntary respondent.

After assessing its resources, on December 16, 2010, the Department issued its respondent selection memorandum. The Department determined that the number of companies ( i.e., 222) was too large a number for individual reviews and that the Department could reasonably examine three exporters subject to this review. Pursuant to section 777A(c)(2)(B) of the Act, the Department selected Stanley, Hongli, and Qingdao Jisco Co., Ltd. (“Jisco”) as mandatory respondents. 9 On December 17, 2010, the Department issued an antidumping duty questionnaire to these three mandatory respondents. On January 21, 2011, after receiving requests for withdrawal of review from Jisco and Petitioner, the Department selected Jinchi as a mandatory respondent in place of Jisco. 10 On January 21, 2011, the Department issued an antidumping duty questionnaire to Jinchi.

Consistent with the Department's practice, we investigated the bona fide nature of Shanghai Colour's sale for this NSR. In evaluating whether a single sale in a NSR is commercially representative, and therefore bona fide, the Department considers, inter alia, such factors as: (1) Timing of the sale; (2) price and quantity; (3) the expenses arising from the transaction; (4) whether the goods were sold at a profit; and (5) whether the transaction was made on an arms-length basis. 11 Accordingly, the Department considers a number of factors in its bona fide analysis, “all of which may be specific to the commercial realities surrounding an alleged sale of subject merchandise.”  12 In examining Shanghai Colour's sale in relation to these factors, the Department found evidence that indicates this sale was non- bona fide. 13 Therefore, we preliminarily find that the new shipper sale by Shanghai Colour was not made on a bona fide basis and, thus, preliminarily determine that Shanghai Colour has not met the requirements to qualify as a new shipper during this POR.

For the foregoing reasons, and as discussed in the bona fide memo, the Department finds that the sale by Shanghai Colour is not bona fide and that the sale does not provide a reasonable or reliable basis for calculating a dumping margin. Because this non- bona fide sale was the only sale of subject merchandise during the POR, the Department is preliminarily rescinding the NSR.

Pursuant to 19 CFR 351.213(d)(3), we have preliminarily determined that the following companies made no shipments of subject merchandise during the POR: (1) Beijing Hongsheng Metal Co., Ltd.; (2) Besco Machinery Industry (Zhejiang) Co., Ltd.; (3) Certified Products International Inc. (“CPI”); (4) Chiieh Yung Metal Ind. Corp.; (5) China Staple Enterprise (Tianjin) Co., Ltd.; (6) CYM (Nanjing) Nail Manufacture Co., Ltd.; (7) Jining Huarong Hardware Products Co., Ltd.; (8) Nanjing Yuechang Hardware Products Co., Ltd.; (9) PT Enterprise Inc.; (10) Qidong Liang Chyuan Metal Industry Co., Ltd.; (11) Shanghai Tengyu Hardware Tools Co., Ltd.; (12) Shanxi Yuci Broad Wire Products Co., Ltd.; and (13) Zhejiang Gem-Chun Hardware Accessory Co., Ltd.; (collectively, the “No Shipment Respondents”).

Subsequent to receiving no-shipment certifications from the No Shipment Respondents, the Department examined entry statistics obtained from CBP. The Department also issued no-shipment inquiries to CBP, asking it to provide any information contrary to our preliminary findings of no entries of subject merchandise for merchandise manufactured and shipped by the above companies. 14 For nine companies, we did not receive any response from CBP, thus indicating that there were no entries of subject merchandise into the United States exported by these companies. CBP did indicate potential entries of nails during the POR for four companies. The Department requested CBP entry packages for the four companies. Between November 24, 2010 and March 2, 2011, we placed these entry packets on the record and requested comments from interested parties. 15 After reviewing the responses, and the corrected entry documents, we preliminarily conclude that these companies did not have entries of subject merchandise during the POR. Consequently, we are preliminarily rescinding the reviews with respect to the No Shipment Respondents.

Section 776(a)(1) of the Act mandates that the Department use facts available (“FA”) if necessary information is not available on the record of an antidumping proceeding. In addition, section 776(a)(2) of the Act mandates that the Department use FA where an interested party or any other person: (A) Withholds information requested by the Department; (B) fails to provide requested information by the requested date or in the form and manner requested; (C) significantly impedes an antidumping proceeding; or (D) provides information that cannot be verified.

Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information. 16

In this case, two of the mandatory respondents, Stanley and Jinchi, used unaffiliated tollers for production of tolled intermediate inputs. Jinchi was unable to obtain the factors of production (“FOPs”) from any of its tollers and Stanley was unable to obtain the FOPs from a number of its galvanizing tollers. Both respondents attempted to obtain the FOPs from their unaffiliated tollers and documented these attempts. 17 We do not find that they failed to cooperate by not acting in the best of their abilities. Consistent with our treatment of missing tolled FOPs of an intermediate input in the first administrative review, 18 the Department has preliminarily applied neutral FA (facts available without an adverse inference) in accordance with section 776(a)(1) of the Act. As neutral FA for Jinchi, the Department is using Jinchi's own production experience because Jinchi also performs the same production steps in-house as the tollers. As neutral FA for Stanley, the Department is using the reported FOPs from Stanley's galvanizers because Stanley did not perform galvanizing itself.

Additionally, all three of the mandatory respondents purchased subject merchandise nails from unaffiliated producers, but were unable to obtain the FOPs for all or a portion of the purchased nails. Hongli eventually was able to obtain the FOPs but because they were submitted to the Department unsolicited and untimely, the Department rejected these FOPs. 19 Because the respondents attempted to obtain the FOPs from the unaffiliated producers and documented these attempts, 20 we do not find that they failed to cooperate by not acting in the best of their abilities. Therefore, for the preliminary results the Department has applied neutral FA in accordance with section 776(a)(1) of the Act. However, after the preliminary results, we intend to issue questionnaires directly to the unaffiliated producers requesting the FOP data. For Hongli and Jinchi, because they do not produce the same type of nails that they purchased from the unaffiliated suppliers ( i.e., masonry nails cut from steel plate), the Department will apply as neutral FA the weighted average margin calculated for these respondents' other U.S. sales of subject merchandise reported by Hongli and Jinchi. As neutral FA for Stanley, the Department will use Stanley's own production data, as it produces the same type of nails for which it was unable to obtain the FOP data.

The merchandise covered by this proceeding includes certain steel nails having a shaft length up to 12 inches. Certain steel nails include, but are not limited to, nails made of round wire and nails that are cut. Certain steel nails may be of one piece construction or constructed of two or more pieces. Certain steel nails may be produced from any type of steel, and have a variety of finishes, heads, shanks, point types, shaft lengths and shaft diameters. Finishes include, but are not limited to, coating in vinyl, zinc (galvanized, whether by electroplating or hot dipping one or more times), phosphate cement, and paint. Head styles include, but are not limited to, flat, projection, cupped, oval, brad, headless, double, countersunk, and sinker. Shank styles include, but are not limited to, smooth, barbed, screw threaded, ring shank and fluted shank styles. Screw-threaded nails subject to this proceeding are driven using direct force and not by turning the fastener using a tool that engages with the head. Point styles include, but are not limited to, diamond, blunt, needle, chisel and no point. Finished nails may be sold in bulk, or they may be collated into strips or coils using materials such as plastic, paper, or wire. Certain steel nails subject to this proceeding are currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7317.00.55, 7317.00.65 and 7317.00.75.

Excluded from the scope are steel roofing nails of all lengths and diameter, whether collated or in bulk, and whether or not galvanized. Steel roofing nails are specifically enumerated and identified in ASTM Standard F 1667 (2005 revision) as Type I, Style 20 nails. Also excluded from the scope are the following steel nails: (1) Non-collated ( i.e., hand-driven or bulk), two-piece steel nails having plastic or steel washers (caps) already assembled to the nail, having a bright or galvanized finish, a ring, fluted or spiral shank, an actual length of 0.500″ to 8″, inclusive; and an actual shank diameter of 0.1015″ to 0.166″, inclusive; and an actual washer or cap diameter of 0.900″ to 1.10″, inclusive; (2) Non-collated ( i.e., hand-driven or bulk), steel nails having a bright or galvanized finish, a smooth, barbed or ringed shank, an actual length of 0.500″ to 4″, inclusive; an actual shank diameter of 0.1015″ to 0.166″, inclusive; and an actual head diameter of 0.3375″ to 0.500″, inclusive; (3) Wire collated steel nails, in coils, having a galvanized finish, a smooth, barbed or ringed shank, an actual length of 0.500″ to 1.75″, inclusive; an actual shank diameter of 0.116″ to 0.166″, inclusive; and an actual head diameter of 0.3375″ to 0.500″, inclusive; and (4) Non-collated ( i.e., hand-driven or bulk), steel nails having a convex head (commonly known as an umbrella head), a smooth or spiral shank, a galvanized finish, an actual length of 1.75″ to 3″, inclusive; an actual shank diameter of 0.131″ to 0.152″, inclusive; and an actual head diameter of 0.450″ to 0.813″, inclusive. 21

Also excluded from the scope of this proceeding are corrugated nails. A corrugated nail is made of a small strip of corrugated steel with sharp points on one side. Also excluded from the scope of this proceeding are fasteners suitable for use in powder-actuated hand tools, not threaded and threaded, which are currently classified under HTSUS 7317.00.20 and 7317.00.30. Also excluded from the scope of this proceeding are thumb tacks, which are currently classified under HTSUS 7317.00.10.00.

Also excluded from the scope of this proceeding are certain brads and finish nails that are equal to or less than 0.0720 inches in shank diameter, round or rectangular in cross section, between 0.375 inches and 2.5 inches in length, and that are collated with adhesive or polyester film tape backed with a heat seal adhesive. Also excluded from the scope of this proceeding are fasteners having a case hardness greater than or equal to 50 HRC, a carbon content greater than or equal to 0.5 percent, a round head, a secondary reduced-diameter raised head section, a centered shank, and a smooth symmetrical point, suitable for use in gas-actuated hand tools. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this proceeding is dispositive.

On February 1, 2011, the Department sent interested parties a letter inviting comments on surrogate country selection and surrogate value data. 22 On March 1, 2011, Petitioner, Hongli, and Jinchi submitted surrogate country comments. For a detailed discussion of the selection of the surrogate country, see “Surrogate Country” section below. On May 2, 2011, the Department received surrogate value information from interested parties. 23 All the surrogate values placed on the record were obtained from sources in India. 24 Between May 12, 2011, and June 24, 2011, parties submitted additional arguments and data regarding the selection and calculation of the surrogate values. 25

The Department considers the PRC to be an NME country. 26 In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. No party has challenged the designation of the PRC as an NME country in this review. Therefore, we continue to treat the PRC as an NME country for purposes of these preliminary results and calculated normal value in accordance with section 773(c) of the Act, which applies to all NME countries.

When the Department reviews imports from an NME country and the available information does not permit the Department to determine NV pursuant to section 773(a) of the Act, then pursuant to section 773(c)(4) of the Act, the Department bases NV on an NME producer's factors of production (“FOPs”), to the extent possible, in one or more market-economy countries that (1) are at a level of economic development comparable to that of the NME country, and (2) are significant producers of comparable merchandise. The Department has determined that India, Philippines, Indonesia, Ukraine, Thailand, and Peru are countries comparable to the PRC in terms of economic development. See Surrogate Country List.

Based on publicly available information placed on the record, the Department determines India to be a reliable source for surrogate values because India is at a comparable level of economic development, pursuant to section 773(c)(4) of the Act, is a significant producer of comparable merchandise, and has publicly available and reliable data with which to value FOPs. See Surrogate Country List. Furthermore, all the surrogate values placed on the record by the parties were obtained from sources in India. Accordingly, the Department has selected India as the surrogate country for purposes of valuing the FOPs because it meets the Department's criteria for surrogate country selection. India is also the surrogate country the Department selected in the last administrative review and investigation. 27

In proceedings involving NME countries, there is a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. 28 Exporters can demonstrate this independence through the absence of both de jure and de facto government control over export activities. Id. The Department analyzes each entity exporting the subject merchandise under a test arising from the Notice of Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China, 56 FR 20588, 20589 (May 6, 1991) (“ Sparklers ”), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585, 22586-87 (May 2, 1994) (“ Silicon Carbide ”). However, if the Department determines that a company is wholly foreign-owned or located in a market economy (“ME”), then a separate rate analysis is not necessary to determine whether it is independent from government control. See, e.g., PET Film, 73 FR at 55040. In addition to the three mandatory respondents, Stanley, Hongli, and Jinchi, the Department received separate rate applications (“SRAs”) or certifications (“SRCs”) from 15 companies (the “Separate Rate Applicants”). 29 Because Stanley is wholly foreign-owned, a separate-rate analysis is not necessary to determine whether it is independent from government control, so we preliminarily grant Stanley a separate rate. In contrast, because Hongli, Jinchi, and the Separate Rate Applicants have all stated that they are either joint ventures between Chinese and foreign companies, or are wholly Chinese-owned companies, the Department must analyze whether these companies can demonstrate the absence of both de jure and de facto governmental control over export activities.

The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies, and; (3) other formal measures by the government decentralizing control of companies. See Sparklers at 20589.

The evidence submitted by Hongli, Jinchi, and the Separate Rate Applicants supports a preliminary finding of absence of de jure governmental control based on the following: (1) An absence of restrictive stipulations associated with the individual exporter's business and export licenses; (2) applicable legislative enactments decentralizing control of the companies; and (3) other formal measures by the government decentralizing control of companies. See each company's SRA, SRC, and/or Section A response, dated November 3, 2010, through February 28, 2011 (where each individually-reviewed or separate-rate respondent stated that it had no relationship with any level of the PRC government with respect to ownership, internal management, and business operations).

Typically the Department considers four factors in evaluating whether each respondent is subject to de facto governmental control of its export functions: (1) Whether the export prices are set by or are subject to the approval of a governmental agency; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. 30 The Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates.

We determine that, for the individually-reviewed respondents and Separate Rate Applicants, the evidence on the record supports a preliminary finding of absence of de facto governmental control based on record statements and supporting documentation showing the following: (1) Each exporter sets its own export prices independent of the government and without the approval of a government authority; (2) each exporter retains the proceeds from its sales and makes independent decisions regarding disposition of profits or financing of losses; (3) each exporter has the authority to negotiate and sign contracts and other agreements, and; (4) each exporter has autonomy from the government regarding the selection of management. See each company's SRA, SRC, and/or Section A response, dated November 3, 2010, through February 28, 2011.

The evidence placed on the record of this investigation by the individually-reviewed respondents and the Separate Rate Applicants demonstrates an absence of de jure and de facto government control with respect to each of the exporter's exports of the merchandise under investigation, in accordance with the criteria identified in Sparklers and Silicon Carbide. As a result, we have preliminarily determined that it is appropriate to grant the Separate Rate Applicants a margin based on the experience of the individually-reviewed respondents.

The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. Section 735(c)(5)(A) of the Act instructs that we are not to calculate an all-others rate using any zero or de minimis margins or any margins based entirely on facts available. Accordingly, the Department's practice in this regard, in reviews involving limited respondent selection based on exporters accounting for the largest volume of trade, has been to average the rates for the selected companies, excluding zero and de minimis rates and rates based entirely on facts available. 31 Section 735(c)(5)(B) of the Act also provides that, where all margins are zero, de minimis, or based entirely on facts available, we may use “any reasonable method” for assigning the rate to non-selected respondents, including “averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.” In this instance, consistent with our practice, we have preliminarily established a margin for the Separate Rate Applicants based on the rate we calculated for the mandatory respondents whose rates were not zero, de minimis, or based entirely on facts available. 32

As discussed above, in this administrative review we limited the selection of respondents using CBP import data. See First and Second Respondent Selection Memos. In this case, we made available to the companies who were not selected, the separate rates application and certification, which were put on the Department's Web site. See 2nd AR Initiation. Because some parties for which a review was requested did not apply for separate rate status, the PRC-Wide entity is considered to be part of this review. 33 The following companies did not apply for separate rates and are thus considered to be part of the PRC-wide entity:

The date of sale is generally the date on which the parties agree upon all substantive terms of the sale, which normally includes the price, quantity, delivery terms and payment terms. 34

19 CFR 351.401(i) states that, “{i}n identifying the date of sale of the merchandise under consideration or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the normal course of business. The Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.”  35 However, as noted by the Court of International Trade (“CIT”) in Allied Tube, a party seeking to establish a date of sale other than invoice date bears the burden of establishing that “a different date better reflects the date on which the exporter or producer establishes the material terms of sale.” See Allied Tube, 132 F. Supp. 2d at 1090 (quoting 19 CFR 351.401(i)).

Stanley reported that the earlier of invoice date or shipment date is the appropriate date of sale. See Stanley's section A questionnaire response at 27-29, dated January 21, 2011, and Stanley's supplemental section A questionnaire response at 15-17, dated March 4, 2011. Consistent with the regulatory presumption for invoice date and because the Department found no evidence on the record contrary to Stanley's claims, for these preliminary results, the Department used the invoice date as the date of sale. Consistent with the Department's practice, for those sales where shipment date preceded invoice date, the Department used the shipment date as the date of sale. 36

Hongli and Jinchi reported that the PRC Export Declaration is the appropriate date of sale. See Hongli's section A questionnaire response at 12, dated January 21, 2011, and Hongli's supplemental A questionnaire response at 12-14, dated March 16, 2011, and Jinchi's section A questionnaire response at 11, dated February 28, 2011, and Jinchi's supplemental section A at 1, dated April 7, 2011. As explained above, the Department will not use a date other than the date of invoice unless a party provides sufficient evidence that a different date better reflects the date on which the material terms of sale were established. See 19 CFR 351.401(i). Hongli and Jinchi did not provide such evidence. Instead, Hongli and Jinchi merely asserted that the PRC Export Declaration date is the correct date of sale without any discussion of when the material terms of sale such as price and quantity were established for their sales. Therefore, given the respondents' failure to demonstrate that a date other then invoice date better reflects the date on which the material terms of sale were established the Department is following the presumption established in its regulation and using the invoice date as the date of sale.

In accordance with section 751(a)(2)(A) of the Act, to determine whether sales of nails to the United States by Stanley, Hongli, or Jinchi, were made at less than normal value, we compared the export price (“EP”) or constructed export price (“CEP”), as appropriate, to NV, as described in the “U.S. Price,” and “Normal Value” sections of this notice.

For Hongli and Jinchi, in accordance with section 772(a) of the Act, we based the U.S. price for sales on EP because the first sale to an unaffiliated purchaser in the United States was made prior to importation, and the use of CEP was not otherwise warranted. In accordance with section 772(c) of the Act, we calculated EP by deducting the applicable movement expenses and adjustments from the gross unit price. We based these movement expenses on surrogate values where a PRC company provided the service and was paid in Renminbi (“RMB”). See “Factors of Production” section below for further discussion. For details regarding our EP calculations, see Memorandum regarding: Antidumping Duty Administrative Review of Certain Steel Nails from the People's Republic of China: Tianjin Jinchi Metal Products Co., Ltd., dated concurrently with this notice; see also Memorandum regarding: Antidumping Duty Administrative Review of Certain Steel Nails from the People's Republic of China: Tianjin Jinghai County Hongli Industry and Business Co., Ltd.,” dated concurrently with this notice.

In accordance with section 772(b) of the Act, we based the U.S. price for Stanley's sales on CEP because the first sale to an unaffiliated customer was made by Stanley's U.S. affiliate. In accordance with section 772(c)(2)(A) of the Act, we calculated CEP by deducting the applicable expenses from the gross unit price charged to the first unaffiliated customer in the United States. Further, in accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), where appropriate, we deducted from the starting price the applicable selling expenses associated with economic activities occurring in the United States. In addition, pursuant to section 772(d)(3) of the Act, we made an adjustment to the starting price for CEP profit. We based movement expenses on either surrogate values or actual expenses, where appropriate. For details regarding our CEP calculations, and for a complete discussion of the calculation of the U.S. price for Stanley, see Memorandum regarding: Antidumping Duty Administrative Review of Certain Steel Nails from the People's Republic of China: Stanley,” dated concurrently with this notice.

Section 773(c)(1) of the Act provides that the Department shall determine NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies. 37

In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to value the FOPs, but when a producer sources an input from an ME country and pays for it in an ME currency, the Department may value the factor using the actual price paid for the input. During the POR, Stanley reported that it purchased certain inputs from an ME supplier and paid for the inputs in an ME currency. See Stanley's Supplemental Section D, dated May 13, 2011. The Department has a rebuttable presumption that ME input prices are the best available information for valuing an input when the total volume of the input purchased from all ME sources during the period of investigation or review exceeds 33 percent of the total volume of the input purchased from all sources during the period. See Antidumping Methodologies: Market Economy Inputs, Expected Non-Market Economy Wages, Duty Drawback; and Request for Comments, 71 FR 61716, 61717-18 (October 19, 2006) (“ Antidumping Methodologies” ).

In this case, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average ME purchase price to value the input. Alternatively, when the volume of an NME firm's purchases of an input from ME suppliers during the period is below 33 percent of its total volume of purchases of the input during the period, but where these purchases are otherwise valid and there is no reason to disregard the prices, the Department will weight-average the ME purchase price with an appropriate SV according to their respective shares of the total volume of purchases, unless case-specific facts provide adequate grounds to rebut the presumption. See Antidumping Methodologies. When a firm has made ME input purchases that may have been dumped or subsidized, are not bona fide, or are otherwise not acceptable for use in a dumping calculation, the Department will exclude them from the numerator of the ratio to ensure a fair determination of whether valid ME purchases meet the 33 percent threshold. See Antidumping Methodologies.

In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by the respondents. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available surrogate values. In selecting surrogate values, the Department is tasked with using the best available information on the record. See section 773(c) of the Act. To satisfy this statutory requirement, we compared the quality, specificity, and contemporaneity of the potential surrogate value data. 38 The Department's practice is to select, to the extent practicable, surrogate values which are: publicly available; representative of non-export, broad market average values; contemporaneous with the POR; product-specific; and exclusive of taxes and import duties. 39 As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to the surrogate values derived from Indian Import Statistics a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in Sigma Corp. v. United States, 117 F.3d 1401, 1407-08 (Fed. Cir. 1997). For a detailed description of all surrogate values selected in these preliminary results, see Memorandum regarding: Antidumping Duty Administrative Review of Certain Steel Nails from the People's Republic of China: Surrogate Values for the Preliminary Results, dated concurrently with this notice (“Preliminary Surrogate Value Memo”).

For these preliminary results, we concluded that data from Indian Import Statistics and other publicly available Indian sources constitute the best available information on the record for the surrogate values for the respondents' raw materials, packing, by-products, energy, and the surrogate financial ratios. The record shows that data in the Indian Import Statistics, as well as those from the other publicly available Indian sources, are contemporaneous with the POR, product-specific, tax-exclusive, and represent a broad market average. See Preliminary Surrogate Value Memo. In those instances where we could not obtain publicly available information contemporaneous with the POR we adjusted the surrogate values, consistent with our practice using where appropriate the Indian Wholesale Price Index (“WPI”) as published in the International Financial Statistics of the International Monetary Fund. 40

The Department used Indian import data from the Global Trade Atlas (“GTA”) published by Global Trade Information Services, Inc., which is sourced from the Directorate General of Commercial Intelligence & Statistics, Indian Ministry of Commerce, to determine the surrogate values for certain raw materials, by-products, and packing material inputs. The Department has disregarded statistics from NMEs, countries with generally available export subsidies, and countries listed as “unidentified” in GTA in calculating the average value. In accordance with the Omnibus Trade and Competitiveness Act of 1988 legislative history, the Department continues to apply its long-standing practice of disregarding surrogate values if it has a reason to believe or suspect the source data may be subsidized. 41 In this regard, the Department has previously found that it is appropriate to disregard such prices from e.g., Indonesia, South Korea and Thailand, because we have determined that these countries maintain broadly available, non-industry specific export subsidies. 42 Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POI, the Department finds that it is reasonable to infer that all exporters from Indonesia, South Korea and Thailand may have benefitted from these subsidies.

Additionally, consistent with our practice, we disregarded prices from NME countries and excluded imports labeled as originating from an “unspecified” country from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies. 43

The Department valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled Electricity Tariff & Duty and Average Rates of Electricity Supply in India, dated March 2008. These electricity rates represent actual country-wide, publicly-available information on tax-exclusive electricity rates charged to small, medium, and large industries in India. We did not inflate this value because utility rates represent current rates, as indicated by the effective dates listed for each of the rates provided.

The Department valued water using data from the Maharashtra Industrial Development Corporation (“MIDC”) as it includes a wide range of industrial water tariffs. To value water, we used the average rate for industrial use from MIDC water rates at http://www.midcindia.org.

The Department valued truck freight expenses using a per-unit average rate calculated from data on the Infobanc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this Web site contains inland freight truck rates between many large Indian cities. Since this value is not contemporaneous with the POR, the Department deflated the rate using WPI.

To value factory overhead, selling, general, and administrative (“SG&A”) expenses, and profit, the Department used the audited financial statements of Bansidhar Granites, Nasco Steel Pvt Ltd., and J&K Wire and Steel.

Section 773(c) of the Act provides that the Department will value the FOPs in NME cases using the best available information regarding the value of such factors in an ME country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOPs, the Department utilize, to the extent possible, the prices or costs of factors of production in one or more ME countries that are (1) at a comparable level of economic development and (2) significant producers of comparable merchandise. See section 773(c)(4) of the Act.

Previously, the Department used regression-based wages that captured the worldwide relationship between per capita Gross National Income (“GNI”) and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the respondent's cost of labor. However, on May 14, 2010, the Court of Appeals for the Federal Circuit (“CAFC”), in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (“ Dorbest” ), invalidated 19 CFR 351.408(c)(3). As a consequence of the CAFC's ruling in Dorbest, the Department no longer relies on the regression-based wage rate methodology described in its regulations. On February 18, 2011, the Department published in the Federal Register a request for public comment on the interim methodology, and the data sources. 44

On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings. 45 In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry-specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry-specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from the International Labor Organization (ILO) Yearbook of Labor Statistics (“Yearbook”).

In these preliminary results, the Department calculated the labor input using the wage method described in Labor Methodologies. To value the respondent's labor input, the Department relied on data reported by India to the ILO in Chapter 6A of the Yearbook. The Department further finds the two-digit description under ISIC-Revision 3 (“Manufacture of Fabricated Metal Products, Except Machinery and Equipment”) to be the best available information on the record because it is specific to the industry being examined, and is therefore derived from industries that produce comparable merchandise. Accordingly, relying on Chapter 6A of the Yearbook, the Department calculated the labor input using labor data reported by India to the ILO under Sub-Classification 28 of the ISIC-Revision 3 standard, in accordance with section 773(c)(4) of the Act. For these preliminary results, the calculated industry-specific wage rate is $1.22. A more detailed description of the wage rate calculation methodology is provided in the Preliminary Surrogate Value Memo.

As stated above, the Department used India ILO data reported under Chapter 6A of Yearbook, which reflects all costs related to labor, including wages, benefits, housing, training, etc. Because the financial statements used to calculate the surrogate financial ratios include itemized detail of labor costs, the Department made adjustments to certain labor costs in the surrogate financial ratios. See Labor Methodologies, 76 FR at 36093.

Where necessary, the Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.

The Department preliminarily determines that the following weighted-average dumping margins exist:

The Department intends to disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. 47

In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. In regard to this publicly available information and in accordance with 19 CFR 351.301(c)(1), interested parties may submit factual information to rebut, clarify, or correct such factual information no later than ten days after the date such factual information is served on the interested party. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent-from-the-record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1). 48 Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. 49 Rebuttal briefs and rebuttals to written comments must be limited to issues raised in such briefs or comments and must be filed no later than five days after the deadline for filing case briefs. 50 The Department requests that interested parties provide an executive summary of each argument contained within the case briefs and rebuttal briefs.

The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. In accordance with 19 CFR 351.212(b)(1), we are calculating importer- (or customer-) specific assessment rates for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculate importer- (or customer-) specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to each importer (or customer) and dividing this amount by the total entered value of the sales to each importer (or customer). Where an importer- (or customer-) specific ad valorem rate is greater than de minimis, we will apply the assessment rate to the entered value of the importers'/customers' entries during the POR, pursuant to 19 CFR 351.212(b)(1).

Where we do not have entered values for all U.S. sales to a particular importer/customer, we calculate a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to that importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer). 51 To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer- (or customer-) specific ad valorem ratios based on the estimated entered value. Where an importer- (or customer-) specific ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. 52

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 118.04 percent;  53 and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

These preliminary results are issued and published in accordance with sections 751(a)(1), 751(a)(2)(B) and 777(i)(1) of the Act, 19 CFR 351.221(b)(4), and 19 CFR 351.214.

Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.

Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established Rules of Procedure for Article 1904 Binational Panel Reviews (“Rules”). These Rules were published in the Federal Register on February 23, 1994 (59 FR 8686). The panel review in this matter has been conducted in accordance with these Rules.

Panel Decision: On April 14, 2010, the initial decision was issued by this panel remanding to the U.S. Department of Commerce to: (1) Recalculate Mexinox's dumping margins without zeroing, and (2) to recalculate the indirect selling expense ratio (ISE) in a manner not inconsistent with the panel's opinion and affirming Commerce's determinations on all other issues being contested. The Department's decision in the final results of the 2004/2005 antidumping review was, in all other respects, upheld.

On August 19, 2011, with two dissenting views, the panel majority remanded to Commerce its Remand Determination to comply with its instructions in the April 2010 initial decision. The panel directed Commerce to issue its Final Re-determination on this second remand within thirty (30) days from the date of this panel decision.

On June 8, 2011, the Department of Commerce (“Department”) published the preliminary results of the administrative review of the countervailing duty order on citric acid and certain citrate sales from People's Republic of China, covering the period September 19, 2008, through December 31, 2009. See Citric Acid and Certain Citrate Sales from the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review, 76 FR 33219 (June 8, 2011) (“ Preliminary Results” ). In the Preliminary Results we stated that we would issue our final results for the countervailing duty administrative review no later than 120 days after the date of publication of the Preliminary Results.

Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the final results of an administrative review within 120 days of the publication of the Preliminary Results. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend this deadline to a maximum of 180 days.

The Department has determined that completion of the final results of this review within the original time period ( i.e., by October 6, 2011) is not practicable. We are currently verifying the responses of the respondents, and will require time to write verification reports and allow interested parties adequate time to comment. Also, in the instant review, the Department needs additional time to conduct a post-preliminary analysis of lending programs, the respondents' creditworthiness, and inputs supplied for less than adequate remuneration. See Preliminary Results, 76 FR at 33238. Therefore, the Department is extending the time limit for completion of the final results to not later than December 5, 2011, which is 180 days from the date of publication of the Preliminary Results, in accordance with section 751(a)(3)(A) of the Act.

We are issuing and publishing this notice in accordance with sections 751(a) and 777(i)(1) of the Act.

Case History

As noted above, on March 4, 2011, the Department published the Preliminary Results of this administrative review. Between March 9, 2011, and March 31, 2011, the Department requested that Camimex, Minh Phu Seafood Corporation (and its affiliates Minh Qui Seafood Co., Ltd., and Minh Phat Seafood Co., Ltd.) (collectively “the Minh Phu Group”), and Nha Trang Seaproduct Company (and its affiliates, NT Seafoods Corporation, Nha Trang Seafoods—F.89 Joint Stock Company, and NTSF Seafoods Joint Stock Company) (collectively, “Nha Trang Seafoods Group”) (hereinafter collectively “mandatory respondents”), submit publicly ranged quantities of their reported U.S. transactions. On March 14, 2011, through April 1, 2011, the mandatory respondents submitted the publicly ranged quantities of their reported U.S. transactions to the Department.

On March 24, 2011, the Department received post- Preliminary Results surrogate value information to value factors of production (“FOP”) for the final results from the Petitioners, 2 the Processors, 3 and the Respondents. 4 On April 4, 2011, the Department received information to rebut the post- Preliminary Results surrogate value information from the Processors.

The Department invited interested parties to comment on the Preliminary Results. Between April 4, 2011, and April 25, 2011, the Department received case and rebuttal briefs from the Petitioners, the Processors, the Respondents, and CamRanh/Contessa. 5 6 On June 22, 2011, the Department extended the time limit for completion of the final results of this administrative review until August 16, 2011. 7 On June 23, 2011, following the Court of Appeals for the Federal Circuit's decision in Dorbest, 8 the Department invited comments from parties regarding the Department's wage rate methodology. 9 Between July 7, 2011, and July 15, 2011, the Department received labor wage rate comments and rebuttals from Petitioners, Processors, and certain Vietnamese Respondents. As a result of our analysis, the Department has made changes to the Preliminary Results. On August 11, 2011, the Department extended the time limit for completion of the final results of this administrative review until August 31, 2011. 10

The scope of the order includes certain warmwater shrimp and prawns, whether frozen, wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, 11 deveined or not deveined, cooked or raw, or otherwise processed in frozen form.

The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.

The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp ( Penaeus vannemei ), banana prawn ( Penaeus merguiensis ), fleshy prawn ( Penaeus chinensis ), giant river prawn ( Macrobrachium rosenbergii ), giant tiger prawn ( Penaeus monodon ), redspotted shrimp ( Penaeus brasiliensis ), southern brown shrimp ( Penaeus subtilis ), southern pink shrimp ( Penaeus notialis ), southern rough shrimp ( Trachypenaeus curvirostris ), southern white shrimp ( Penaeus schmitti ), blue shrimp ( Penaeus stylirostris ), western white shrimp ( Penaeus occidentalis ), and Indian white prawn ( Penaeus indicus ).

Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations (including dusted shrimp), which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order. Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.1020); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (HTS subheadings 0306.23.0020 and 0306.23.0040); (4) shrimp and prawns in prepared meals (HTS subheading 1605.20.0510); (5) dried shrimp and prawns; (6) canned warmwater shrimp and prawns (HTS subheading 1605.20.1040); and (7) certain battered shrimp. Battered shrimp is a shrimp-based product: (1) That is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; (3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; (4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and (5) that is subjected to individually quick frozen (“IQF”) freezing immediately after application of the dusting layer. When dusted in accordance with the definition of dusting above, the battered shrimp product is also coated with a wet viscous layer containing egg and/or milk, and par-fried.

The products covered by the order are currently classified under the following HTS subheadings: 0306.13.0003, 0306.13.0006, 0306.13.0009, 0306.13.0012, 0306.13.0015, 0306.13.0018, 0306.13.0021, 0306.13.0024, 0306.13.0027, 0306.13.0040, 1605.20.1010, and 1605.20.1030. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of the order is dispositive.

All issues raised in the case and rebuttal briefs by parties are addressed in “Fifth Administrative Review of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Issues and Decision Memorandum for the Final Results,” (August 31, 2011) (“I&D Memo”). A list of the issues which parties raised, and to which the Department responded in the I&D Memo, is attached to this notice as an Appendix. The I&D Memo is a public document and is on file in the Central Records Unit (“CRU”), main Commerce Building, Room 7046, and is accessible on the Department's Web site at http://www.trade.gov/ia. The paper copy and electronic version of the memorandum are identical in content.

Based on a review of the record and comments received from interested parties regarding our Preliminary Results, the Department has made certain revisions to the margin calculation for Camimex, the Nha Trang Seafoods Group, and the Minh Phu Group. For further analysis of these revisions, see the I&D Memo and company specific analysis memoranda. For changes to the surrogate values, see the I&D Memo and “Memorandum to the File, through Scot T. Fullerton, Program Manager, AC/CVD Operations, Office 9, from Jerry Huang, International Trade Analyst, AD/CVD Operations, Office 9, Fifth Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Surrogate Values for the Final Results,” (August 31, 2011).

In the Preliminary Results, the Department preliminarily rescinded the review with respect to Gallant Ocean (Vietnam) Co., Ltd., Kien Cuong Seafood Processing Import Export Joint-Stock Company, Quoc Viet Seaproducts Processing Trading Import and Export Co., Ltd., Viet Hai Foods Co., Ltd. and its branch Nam Hai Foodstuff and Export Company Ltd., 12 Vinh Loi Import Export Company, and Vinh Hoan Corporation. These companies reported that they had no shipments of subject merchandise to the United States during the POR. As stated in the Preliminary Results, the Department's examination of shipment data from U.S. Customs and Border Protection (“CBP”) for these companies confirmed that there were no entries of subject merchandise from them during the POR. 13 The Department did not receive any comments regarding the preliminary rescission of these companies. Therefore, the Department is rescinding the administrative review with respect to these companies.

In proceedings involving NME countries, it is the Department's practice to begin with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. See Separate Rates and Combination Rates in Antidumping Investigations involving Non-Market Economy Countries, 70 FR 17233 (April 5, 2005); see also Notice of Final Determination of Sales at Less Than Fair Value, and Affirmative Critical Circumstances, In Part: Certain Lined Paper Products From the People's Republic of China, 71 FR 53079, 53080 (September 8, 2006); and Final Determination of Sales at Less Than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China, 71 FR 29303, 29307 (May 22, 2006).

In our Preliminary Results, we determined that, in addition to the mandatory respondents, the following 27 companies met the criteria for separate rate status: Amanda Foods (Vietnam) Limited; Bac Lieu Fisheries Joint Stock Company; C.P. Vietnam Livestock Corporation; Cafatex Fishery Joint Stock Corporation, aka Cafatex Corp.; Cadovimex Seafood Import-Export and Processing Joint Stock Company, aka CADOVIMEX-VIETNAM; Ca Mau Seafood Joint Stock Company, aka Seaprimexco Vietnam; Camranh Seafoods and Branch of Cam Ranh; Can Tho Import Export Fishery Limited Company, aka CAFISH; CATACO Sole Member Limited Liability Company, aka CATACO; Coastal Fisheries Development Corporation, aka COFIDEX; Cuulong Seaproducts Company, aka Cuulong Seapro; Danang Seaproducts Import Export Corporation, aka Seaprodex Danang and its branch Tho Quang Seafood Processing and Export Company; Grobest & I-Mei Industrial Vietnam Co., Ltd., aka Grobest; Investment Commerce Fisheries Corporation, aka INCOMFISH; Kim Anh Company, Limited; Minh Hai Export Frozen Seafood Processing Joint Stock Company, aka Minh Hai Jostoco; Minh Hai Joint-Stock Seafoods Processing Company, aka Seaprodex Minh Hai; Ngoc Sinh Private Enterprise and its branch, Ngoc Sinh Seafoods Processing and Trading Enterprise, aka Ngoc Sinh Seafoods; Nhat Dhuc Co., Ltd.; Nha Trang Fisheries Joint Stock Company, aka Nha Trang Fisco; Phu Cuong Jostoco Seafood Corporation; Phuong Nam Foodstuff Corp., aka Phuong Nam Co., Ltd.; Sao Ta Foods Joint Stock Company, aka FIMEX VN; Soc Trang Seafood Joint Stock Company, aka STAPIMEX; Thuan Phuoc Seafoods and Trading Corporation; UTXI Aquatic Products Corporation, aka UTXICO; and Viet Hai Seafood Co., Ltd., a/k/a Vietnam Fish One Co., Ltd. The Department has not received any information since the issuance of the Preliminary Results that provides a basis for reconsideration of this treatment. Therefore, the Department continues to find that the above-named companies meet the criteria for a separate rate.

The separate rate is determined based on the estimated weighted-average antidumping margins established for exporters and producers individually investigated, excluding zero and de minimis margins or margins based entirely on facts available. 14 15 We note that it is the Department's practice to calculate the rate based on the average of the margins calculated for those companies selected for individual review, weighted by each company's publicly-ranged quantity of reported U.S. transactions. 16 Due to requests to protect business proprietary information, we were unable to apply our normal methodology of calculating a weighted-average margin in the Preliminary Results, and instead calculated a simple average. 17 Since the Preliminary Results, the Department has obtained publicly-ranged quantities of reported U.S. transactions. Therefore, for these final results, the Department has assigned to the separate rate respondents a weighted-average of the Minh Phu Group and Camimex's margin to the companies not selected for individual examination.

In the Preliminary Results the Department treated certain Vietnamese exporters/producers as part of the Vietnam-wide entity because they did not demonstrate that they operate free of government control. 18 Since the Preliminary Results, the Department has received comments noting that several companies were incorrectly included in the Vietnam-wide entity. 19 As discussed in the I&D Memo, the Department inadvertently included certain company names in the Vietnam-wide entity. 20 For the final results, the Department has updated the list indicating which companies are to be included in the Vietnam-wide entity. 21 No additional information was placed on the record with respect to the remaining 41 companies after the Preliminary Results. Because the Department begins with the presumption that all companies within a NME country are subject to government control, and because only the companies listed under the “Final Results of Review” section below have overcome that presumption, the Department is applying a single antidumping rate, i.e., the Vietnam-wide entity rate, to all other exporters of subject merchandise from Vietnam. The Vietnam-wide rate applies to all entries of the merchandise under consideration, except for those from companies which have received a separate rate.

In the Preliminary Results, the Department noted that four companies  22 requested revocation pursuant to 19 CFR 351.222. Also, in the Preliminary Results, the Department denied these requests for revocation. The Department has not received any information since the issuance of the Preliminary Results that provides a basis for reconsideration of this treatment. For the final results we have continued to deny these companies' revocation requests.

The weighted-average dumping margins for the POR are as follows:

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), the Department will calculate importer-specific (or customer) per unit duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. The Department will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate is above de minimis.

The following cash-deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (“the Act”): (1) For the exporters listed above, the cash deposit rate will be the rate established in these final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed Vietnamese and non-Vietnamese exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all Vietnamese exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the Vietnamese-wide rate of 25.76 percent; and (4) for all non-Vietnamese exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnamese exporters that supplied that non-Vietnamese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

This notice also serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act.

The public safety community (law enforcement, fire, and emergency medical service) is experiencing a generational shift in technology that will revolutionize the way it communicates. Traditionally, emergency responders have used land mobile radio technology. This technology has limited data capabilities and suffers from a large installed base of thousands of stand-alone proprietary systems with non-contiguous spectrum assignments. As a result, public safety has long struggled with effective cross-agency/jurisdiction communications and lags far behind the commercial sector in data capability. Congressional legislation has made broadband spectrum that was cleared by the transition from analog to digital broadcast television (referred to as the Digital Television (DTV) Transition) available to public safety for broadband communications. The newly available spectrum will allow for a unified system operating on common spectrum bands, fostering nationwide roaming, interoperability, and access to broadband data. However, public safety has several unique requirements that are not currently reflected in broadband technology.

In August 2010, the U.S. Department of Justice Community Oriented Policing Services (COPS) office held the National Forum on Public Safety Broadband Needs. More than 20 public safety practitioners identified the following 15 operational requirements, each of which relate to at least four overarching themes (resiliency, availability and reliability, security, and affordability/commercial alignment):

(1) A dedicated high-quality network connection always available for sending and receiving continual data streams to support monitoring and resource tracking;

(2) At a minimum, access to initial and updated basic incident information (voice- and text-based incident data);

(3) An infrastructure that is hardened and secure, providing a high level of system availability;

(4) When voice is converged for normal operations and in the event the infrastructure is compromised, public safety communications must remain stable and with clear voice communications;

• Infrastructure-less communications, with talk-around for the ability to talk one-to-one and one-to-many

• Optimal audio quality during adverse field conditions

• No latency on mission critical voice applications

(5) Geographic coverage that has no limitations within the footprint of the National Public Safety Broadband Network;

(6) Dynamic management and control of the network;

(7) Interoperability, including with existing public safety-based systems;

(8) Ability to send and receive large amounts of information;

(9) A non-proprietary network based on industry standards;

(10) Single devices that support voice, video, and data;

(11) Access to and from external information sources;

(12) Easy integration with other technologies;

(13) Automatic management and control of the network;

(14) Current and future enhancements available to commercial consumers are provided to public safety with no limitations; and

(15) Ability to send, receive, and process information from the public (citizens and media).

The COPS report is available at: http://www.cops.usdoj.gov/files/RIC/Publications/e021111338-broadband-forum.pdf.

Since then, the Obama Administration has announced its support for legislation that would create a not-for-profit Public Safety Broadband Corporation to oversee the deployment of a nationwide network that meets the needs of local, state, Tribal, and Federal public safety communities. 1 The Administration has also proposed a $3 billion WIN Fund to help drive innovation through research, experimentation, testbeds, and applied development. Of the $3 billion, $500 million will be devoted to research and development (R&D) for the new public safety broadband network. 2 The Public Safety Innovation Fund (PSIF), NIST's component of the proposed WIN Fund, helps spur the development of cutting-edge wireless technologies. NIST is working with industry, its Federal partners and public safety organizations to conduct R&D to support new standards, technologies and applications to advance public safety communications. Core components of this program include documenting public safety requirements and driving the adoption of those requirements into the appropriate standards; developing the capability for communications between currently deployed public safety narrowband systems and the future nationwide broadband network; and establishing a roadmap that seeks to capture and address public safety's needs beyond what can be provided by the current generation of broadband technology and driving technological progress in that direction. Through pre-competitive research, development, reference applications, and demonstration projects, NIST will accomplish these goals.

In pursuit of these goals, NIST seeks comments on the following possible features of the nationwide public safety broadband network. These more technical features were identified by the NIST Visiting Committee on Advanced Technology with the input of public safety and their identified operational requirements. Among other things, NIST seeks to understand the extent to which these features and requirements can be satisfied through existing commercially available technology or though technology that could become available in the relative short-term, assuming appropriate research and development. Information obtained from this solicitation will be used to inform the potential use of grant funds to spur innovation in those areas not currently commercialized.

Feature List (organized around the four overarching themes noted above) :

To ensure resiliency in an emergency:

• Resiliency: The ability of operable systems to recover from mishap, change, misfortune, or variation in mission or operating requirements. 3

• Self-Organizing: Self-organizing networks dynamically manage their own configuration by automatically making changes to ensure messages reach their destinations. 4

• Meshing (ad-hoc device-to-device communication): A type of networking where each node must not only capture and disseminate its own data, but also serve as a relay for other sensor nodes, that is, it must collaborate to propagate the data in the network. 5

• Adaptability: The ability of the network and/or device to modify/change behavior based upon external conditions.

To ensure reliability and availability:

• Prioritization: The ability to prioritize network traffic based on assigned priority schemes.

• Quality of Service (QoS): The set of standards and mechanisms for ensuring high-quality performance for critical applications. By using QoS mechanisms, network administrators can use existing resources efficiently and ensure the required level of service without reactively expanding or over-provisioning their networks. The goal of QoS is to provide preferential delivery service for the applications that need it by ensuring sufficient bandwidth, controlling latency and jitter, and reducing data loss. 6

To enable security:

• Strong, Dynamic Access Control: Access control lists can be configured to control both inbound and outbound traffic on networks and authentication/verification of users/devices on the network. 7 The level of access control should be sufficient to allow for entree into a broad set of systems and databases needed by public safety ( e.g., criminal history databases, medical records, public work records, etc. ).

To ensure affordability/commercial alignment:

• Compatibility with Commercial Infrastructure: The utilization of a variety of commercial services when public safety is in areas not covered by the public safety broadband network.

• Network sharing: The shared use of infrastructure between commercial and public safety users.

• Multi-Modal: The ability of the network to support voice, video, data, and multimedia simultaneously.

• Scalability: The ability of a system, network, or process to handle growing amounts of work in a graceful manner or its ability to be enlarged to accommodate that growth. 8 At the design phase, this could include requirements to ensure that scalability can be achieved, to the extent possible, by software enhancements and upgrades as opposed to by hardware replacements. Scalability also includes the need, in the case of a large scale event, to accommodate a rapid increase in the number of users in a limited geographic area.

• Power Awareness: The ability of network/devices to control power functions.

• Standardized Common Interfaces: Protocols, Application Program Interfaces, application platforms, radio capabilities, etc. that allow for competitive provisioning.

• Uniform, Universal Access: The ability to access the network and data anywhere at any time through any device.

For each feature listed above, NIST is requesting input on the following:

• Your assessment of the importance of the feature in relation to a Nationwide Public Safety Broadband Network;

• Current gaps that exist preventing the realization of the full potential of the feature;

• Possible research and development that could take place to close any technical gaps;

• Any challenges that public safety could face in realizing the full potential of these features given currently implemented solutions;

• Best practices from other industries that could be leveraged to expedite public safety's realization of these key features.

Additionally, NIST is requesting input on the following further considerations for the nationwide public safety network:

• What is the importance of employing open standards for the nationwide public safety network?

• What is the need, if any, for commonality of functions across the system?

• What is the importance of a multi-vendor environment for the network and what are the lessons learned in deploying a multi-vendor environment from the cellular and other industries?

• What can be done to ensure both short- and long-term affordability of the network for all types of public safety agencies?

• In a recent report, the President's Council of Advisors on Science and Technology suggested the need to develop methods for implementing a “survivable core” of cyber-infrastructure that would be relied upon to provide truly essential services in the event of a catastrophic cyber-attack. 9 Please comment on how NIST should pursue this recommendation. Among other things, commenters should address whether the goal should be to design a separate survivable core that is integrated and interoperable with the primary public safety network, or instead to design the primary network such that it can reconstitute rapidly—following a catastrophic event—to achieve some “core” level of service.

• What is the marginal cost of the feature/functionality versus equipment available today?

• What network features or requirements have not been identified above, the lack of which may impair the network's ability to adequately serve the needs of public safety?

• How should NIST engage public safety practitioners and technologists as part of the planned R&D projects to ensure proper prioritization of efforts and effectiveness of developed solutions?

This request for information coincides with other work NIST is doing to support the nationwide public safety broadband network, including a demonstration network from the Public Safety Communications Research program in Boulder, Colorado. 10

Electronic Access

Further information is available via the Internet, including the states' application, background information on pinniped predation on listed salmonids, NMFS' past authorizations of lethal removal at Bonneville Dam, descriptions of nonlethal efforts to address the predation, NMFS' 2008 Final Environmental Assessment, and 2011 Supplemental Information Report to the 2008 Final Environmental Assessment. The Internet address is: http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm

Section 120 of the MMPA (16 U.S.C. 1361, et seq. ) allows the Secretary of Commerce, acting through the Assistant Administrator for Fisheries (Assistant Administrator), NMFS, to authorize the intentional lethal taking of individually identifiable pinnipeds that are having a significant negative impact on the decline or recovery of salmonids that are listed as threatened or endangered under the ESA. The authorization applies only to pinnipeds that are not listed under the ESA, or designated as a depleted or strategic stock under the MMPA. Pursuant to section 120(b) and (c), a state may request authorization to lethally remove pinnipeds, and the Assistant Administrator is required to: (1) Review the application to determine whether the applicant has produced sufficient evidence to warrant establishing a Task Force to address the situation described in the application; (2) Establish the Task Force and publish a notice in the Federal Register requesting public comment on the application if sufficient evidence has been produced; (3) Consider any recommendations made by the Task Force in making a determination whether to approve or deny the application; and (4) If approved, immediately takes steps to implement the intentional lethal taking, which shall be performed by Federal or state agencies, or qualified individuals under contract to such agencies.

The MMPA requires the Task Force be composed of the following: (1) NMFS/NOAA staff, (2) scientists who are knowledgeable about the pinniped interaction, (3) representatives of affected conservation and fishing community organizations, (4) treaty Indian tribes, (5) the states, and (6) such other organizations as NMFS deems appropriate. The Task Force reviews the application, other background information, the factors contained in section 120(d), and public comments and, as required by section 120, recommends to NMFS whether to approve or deny the application. The Task Force is also required to submit with its recommendation a description of the specific pinniped individual or individuals; the proposed location, time, and method of such taking; criteria for evaluating the success of the action; the duration of the intentional lethal taking authority; and a suggestion for non-lethal alternatives, if available and practicable, including a recommended course of action.

In December 2006, NMFS received an application co-signed by the Washington Department of Fish and Wildlife, the Oregon Department of Fish and Wildlife, and the Idaho Department of Fish and Game requesting authorization to intentionally take, by lethal methods, individually identifiable California sea lions in the Columbia River, which are having a significant negative impact on the recovery of threatened and endangered Pacific salmon and steelhead. After deeming the states' application complete, NMFS published a notice in the Federal Register seeking public comment on the application and also requested names of potential members of the Task Force (see 72 FR 4239, January 30, 2007). After the close of the public comment period, NMFS announced the formation of the Task Force, which consisted of 18 members (72 FR 44833, August 9, 2007). The notice also identified a list of questions that NMFS considered relevant to its section 120 decision-making process. The Task Force completed and submitted its report to NMFS on November 5, 2007. Of the 18 Task Force members, all recommended that non-lethal sea lion deterrence measures continue. Seventeen of the eighteen members supported lethal removal of California sea lions while one member from the Humane Society of the United States (HSUS) opposed the states' application and any lethal removal.

After receiving and reviewing the Task Force recommendations, NMFS developed a proposed action and a range of reasonable alternatives and evaluated the environmental impacts of the proposed action and alternatives in a draft Environmental Assessment (EA) in accordance with the National Environmental Policy Act (NEPA). The draft EA, entitled Reducing the Impact on At-Risk Salmon and Steelhead by California Sea Lions in the Area Downstream of Bonneville Dam on the Columbia River, Oregon and Washington, was made available for public comment for a 30-day comment period (73 FR 3453, January 18, 2008). More than 3,500 comments were received, including comments from several Task Force member organizations (e.g., states, tribes, HSUS) and others including the Marine Mammal Commission and a member of Congress. NMFS considered all public comments received on the states' application, the draft EA, and other relevant information, and finalized its EA and MMPA analyses. NMFS determined that its proposed action of authorizing the lethal removal of a limited number of individually identifiable California sea lions would not, pursuant to NEPA, result in a significant impact on the human environment, and that, pursuant to the MMPA, individually identifiable pinnipeds are having a significant negative impact on the decline or recovery of at-risk salmonids. Following these determinations, NMFS issued letters of authorization to Idaho, Oregon and Washington on March 17, 2008, and included specific terms and conditions related to the lethal removal program. On March 24, 2008, NMFS published a notice in the Federal Register informing the public of its final decision on the states' application (73 FR 15483, March 24, 2008).

Shortly after NMFS issued the 2008 section 120 LOA, HSUS and others filed a complaint in the U.S. District Court for the District of Oregon. Plaintiffs alleged that NMFS' approval of the lethal removal of California sea lions violated the MMPA and NEPA. In November 2008, the district court issued an order upholding NMFS' approval of the lethal removal program and NMFS' evaluation of impacts under NEPA. Plaintiffs appealed, and on November 23, 2010, the Ninth Circuit issued a decision overturning NMFS' section 120 LOA, but upheld NMFS' analysis and finding under NEPA. The Ninth Circuit recognized the significance of pinniped predation at Bonneville Dam and noted there are many sources of mortality that need to be controlled in order to recover endangered and threatened salmonids. The court also recognized that “sea lion predation is a serious and potentially significant problem [at Bonneville Dam], and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances.” Humane Society of the U.S. v. Locke, 626 F.3d 1040, 1054 (9th Cir. 2010). However, the court concluded that NMFS' record lacked a satisfactory explanation concerning two main points: (1) The seemingly inconsistent findings that sea lion predation is significant for purposes of the MMPA, but similar or greater levels of take of the same salmonid populations by fisheries and hydropower operations on the Columbia River is not significant under other authorities ( e.g., NEPA); and (2) the agency's failure to explain adequately why a California sea lion predation rate of greater than 1 percent results in a significant negative impact on the decline or recovery of salmonid populations. The Ninth Circuit instructed the district court to vacate NMFS' section 120 decision and remand the decision to NMFS “to afford the agency the opportunity either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it” (Id. at 1053).

In response to the litigation, the states submitted a letter to NMFS dated December 7, 2010 requesting that their LOA be reissued. NMFS evaluated the states' request, developed a supplemental information report to determine whether there was a need to supplement the 2008 EA and Finding of No Significant Impact (FONSI), considered a recently completed program effectiveness report by the Task Force Final Report and Recommendations of the Marine Mammal Protection Act Section 120 Pinniped-Fishery Interaction Task Force: Columbia River 3-Year Review and Evaluation, December 17, 2010, and prepared a comprehensive analysis which took into account the Ninth Circuit's concerns and also included a more robust explanation of the agency's decision to authorize lethal removal of individually identifiable pinnipeds. On May 12, 2011, NMFS reissued an LOA to the states, relying in large part on its administrative record supporting the 2008 LOA and the new analyses prepared since the Ninth Circuit decision. See http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm for this LOA.

One week after NMFS issued the 2011 LOA, HSUS filed a lawsuit in the U.S. District Court for the District of Columbia. HSUS once again challenged NMFS' decision alleging, among other things, that the agency: (1) Violated the MMPA when it failed to follow section 120's procedural requirements, (2) failed to adequately explain the agency's inconsistent factual findings that sea lion predation is having a significant negative impact on the decline or recovery of listed salmonids and that much greater take levels by fisheries and hydropower operations are insignificant under NEPA, and (3) violated NEPA when it issued a supplemental information report instead of preparing a supplemental EA or an EIS. After considering HSUS' filing, particularly its allegation that NMFS did not afford the public an opportunity to participate in the section 120 process, NMFS, after consulting with the states, revoked the 2011 LOA on July 27, 2011. HSUS subsequently filed a Notice of Voluntary dismissal and the case was dismissed on August 15, 2011.

In order to prepare for the 2012 pinniped-salmonid conflict, Oregon, Washington and Idaho submitted a new application for lethal removal on August 18, 2011. The states are requesting a new 5-year MMPA section 120 predatory California sea lion removal authorization identical to the permit NMFS issued to the states on May 12, 2011. Under the authorization the States propose to remove no more than 1% of the potential biological removal (PBR) limit (defined below) for the California sea lion population annually. The states define an individually identifiable predatory California sea lions as having natural or applied features that allow them to be individually distinguished from other California sea lions and have been observed eating salmonids at Bonneville Dam, in the “observation area” below the dam, in the fish ladders, or above the dam, between January 1 and May 31 of any year; have been observed at Bonneville Dam on a total of five days (consecutive days, days within a single season, or days over multiple years) between January 1 and May 31 of any year; and are sighted at Bonneville Dam after they have been subjected to active non-lethal deterrence. The states propose to review the lethal removal program on an annual basis and evaluate its effectiveness at reducing sea lion predation on salmonids at Bonneville Dam. The evaluations will determine whether the states will continue the removal program in each subsequent year, and if an extension of the authority is needed at the end of the five year period. The expected benefit from implementing the authorization would be to reduce the recent, unmanageable (using only non-lethal techniques), and growing source of ESA listed salmonid mortality. No lethal removal activities will be conducted until such time as NMFS makes a final decision on the states' pending application.

The application contains information on (1) pinniped population trends, feeding habits, location and timing of the interaction and the number of individual animals involved; (2) efforts to non-lethally deter the pinnipeds and the relative success of those efforts; (3) the extent of the injury or impact caused by pinnipeds on the fishery resource; and (4) the extent that pinniped behavior presents a threat to public safety, as outlined in section 120(d) of the MMPA.

The application presents data from the most recent U.S. Pacific Marine Mammal Stock Assessment Report indicating that the U.S. stock of California sea lions is not listed as “threatened” or “endangered” under the Endangered Species Act, nor as “depleted” or “strategic” under the MMPA. The population has been growing at 5.6% per year and is estimated to number a minimum of 238,000 animals. The PBR level ( i.e., the number of animals that could safely be lost to human caused mortality annually without impacting the status of the population) is 8,511 animals. The states propose to remove no more than 1% of PBR (85) of California sea lions annually. The application also summarizes data from observations conducted at the dam since 2002 showing that California sea lion annual presence at the dam increased from 59 days in 2002 to 145 days in 2010 reflecting that over time they have tended to arrive earlier and stay later in the year and that attendance by one or more sea lions has become more consistent throughout the season. As of fall 2010, a total of 264 California sea lions have been uniquely identified by the U.S. Army Corps of Engineers observers using records of applied brands and natural markings. The application reports that data from observations conducted in 2011 have yet to become available but early indications are that 2011 was an unusual year because winter/spring river flow conditions appeared to delay salmonid run timing and thus affected sea lion attendance and predation at the dam.

The application reports the results of sea lion food habits research (scat and gastrointestinal analysis) conducted at the dam from 2006 through 2010 confirming that salmonids are the dominant prey of California sea lions feeding near the dam. Adult salmonid remains were found in over 92% of sea lion scat collected from haul out sites at and near the dam. Sixteen gastrointestinal tracts were collected from California sea lions sea lions that were taken at the dam under the 2008 authorization. Except for one tract that was empty, all tracts collected contained identifiable salmonid remains.

As reported in the application, the analysis of observations conducted by the U.S. Army Corps of Engineers from 2002 through 2010 showed that the minimum expanded estimate of salmonids consumed by California sea lions within the observation zone below the dam increased from 1,010 to 5,095 fish annually. In spite of fluctuating run sizes, and apparently independent of annual run strength, salmonid consumption by sea lions has increased steadily. The application points out that the observed increase in consumption is masked when the estimated consumption in the observation zone is expressed as a percentage of run size because when fish passage is high the relative percent consumed is smaller even though the number of fish eaten by sea lions continues to rise. The application further explains that estimated losses of salmonids to sea lions at the dam are minimum estimates because they only apply to daylight predation within 1/4 mile of the Bonneville Dam tailrace and forebay structures. Many more predation events are known to occur beyond the small area where observers on the dam can see and record events accurately. In addition to salmonids killed immediately by predation, many fish are also injured by predation attempts which may contribute to delayed mortality that has not been quantified. Both wild and marked hatchery origin salmonids are taken by sea lions.

Of the 13 threatened and endangered salmonid populations in the Columbia River the application identifies eight that are potentially impacted by California sea lions in the river and five that are particularly vulnerable at Bonneville Dam. Of the species present at the dam concurrent with sea lions, one population, upper Columbia River spring Chinook, is listed as endangered under the ESA and four populations are listed as threatened—Snake River spring/summer Chinook, lower Columbia River steelhead, mid-Columbia River steelhead, and Snake River steelhead. Marine mammal predation is only one of many threats facing these fish populations and the states seek authorization to manage predation as part of a larger comprehensive fish recovery strategy that is attempting to reduce the impacts across all threats. Beyond marine mammal predation the recovery actions include habitat improvement, hydroelectric system mitigation, harvest reductions, hatchery reforms and bird and fish predation management that are beyond the scope of, but referenced in, the application.

Lastly, the application reports that numbers of California sea lions in the Columbia River have been growing since the 1990s and some animals have become aggressive and caused injuries to fishers along the main stem of the river and its tributaries.

NMFS solicits public comments on the states' application and any additional information that should be considered by the Task Force in making its recommendation, or by NMFS in making its determination whether to approve or deny the application.

The Assistant Administrator has considered the states' application and determined that it provides sufficient evidence to warrant establishing a Task Force. The application describes the means of identifying individual pinnipeds, includes a detailed description of the problem interactions between pinnipeds and listed salmonids at and below Bonneville Dam, and describes the expected benefits of potential taking of pinnipeds. The application also documents past nonlethal efforts to prevent problem interactions. See http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm.

NMFS is seeking comments on a number of issues related to the pinniped-salmonid conflict at Bonneville Dam. These matters include, but are not limited to, the following:

(1) Any new information on pinnipeds in the action area (e.g., population, presence, predation) since 2008;

(2) Any new information concerning salmonids (e.g., status and trends, recovery planning, passage counts, predation versus run size, hatchery versus wild components) since 2008;

(3) Any new information concerning non-lethal deterrence measures since 2008;

(4) The effect of permanent pinniped removals carried out under the 2008 LOA (i.e., impacts to California sea lion populations or salmonid populations);

(5) Any new information concerning predation on salmonids by other species since 2008; and,

(6) Recommendations made by the Task Force at its October/November 2010 meeting concerning the effectiveness of the 2008 LOA.

We are also including, for the public's consideration and comment, our proposed interpretation of the MMPA standard “significant negative impact”; a list of the factors we propose to consider in deciding whether that standard is met; and our proposed interpretation of what is meant by “individually identifiable pinnipeds” that are having a significant negative impact.

Pursuant to section 120(b)(1) of the MMPA, NMFS is required to make a determination whether individually identifiable pinnipeds are having a significant negative impact on the decline or recovery of at-risk salmonid fishery stocks. As we explained in 2008, Congress did not define the phrase “individually identifiable pinnipeds which are having a significant negative impact.” Thus, NMFS applied a two-part test in which the agency would first determine whether pinnipeds collectively are having a significant negative impact on listed salmonids and next determine which pinnipeds are significant contributors to that impact and therefore, may be authorized for removal. We continue to find this two-step test to be reasonable in light of the facts and circumstances at Bonneville Dam. We also propose, given the lack of guidance from Congress, that the plain meaning of the term “significant negative impact” as used in section 120 should be employed. Our view is that in order for California sea lions to be having a significant negative impact on the decline or recovery of at-risk salmonids, the impact has to be “meaningful” and not “insignificant” or “meaningless.”

In determining whether to approve the states' application, we will be guided primarily by the factors supplied by Congress in section 120(d). Congress directed NMFS to consider four categories of information to determine whether to approve or deny a states' request: (1) Populations trends and feeding habits of the pinnipeds; location, timing and manner of the interaction; and number of individual pinnipeds involved; (2) past non-lethal deterrence efforts and whether the applicant has demonstrated that no feasible and prudent alternatives exist and that the applicant has taken all reasonable nonlethal steps without success; (3) extent to which the pinnipeds are causing undue injury or impact, or imbalance with, other species in the ecosystem, including fish populations; and (4) extent to which the pinnipeds are exhibiting behavior that presents an ongoing threat to public safety (see 16 U.S.C. 1389(d)).

We interpret this specific, detailed, and narrow inquiry mandated by Congress as supplying the factors we should consider when determining whether pinniped predation is having a “significant negative impact” on at-risk salmonids. Moreover, as these factors are detailed and specific, and are the only factors Congress mandated, we propose to give them great weight. This approach is further supported by the structure of section 120 and the context in which Congress adopted it. MMPA section 120 applies to a specific and narrow set of circumstances—namely, addressing an interspecies conflict where, as in this case, one species is healthy, robust, and increasing in size and the other is listed as threatened or endangered or is in a state of decline. Pinniped predation on at-risk salmonids has been an emerging and unchecked source of mortality, a problem that Congress specifically addressed when it amended the MMPA in 1994.

Consistent with our interpretation and view of MMPA section 120, and guided by the inquiry Congress required in section 120, we propose that the determination of whether pinnipeds are having a “significant negative impact” on salmonids should also be informed by the following factors, a number of which we relied upon in 2008. They include:

(1) The predation is measurable, growing, and could continue to increase if not addressed;

(2) The level of adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of listed adult salmonids contributing to the viability of the affected ESUs/DPSs;

(3) The mortality rate for listed salmonids is comparable to mortality rates from other sources that have led to corrective action under the ESA;

(4) Non-lethal deterrence efforts have been unsuccessful at reducing the numbers of sea lions or amount of predation;

(5) The predation rate from California sea lions increases when salmonid run sizes decrease;

(6) The combined effect of California sea lion and Steller sea lion predation on at-risk salmonids at Bonneville Dam; and,

(7) The fact that California sea lion numbers reached their highest since 2004, thereby demonstrating that their numbers are as yet unpredictable and can easily grow.

With respect to determining which animals are “individually identifiable pinnipeds,” NMFS proposes, as it did in 2008, to extend any future authorization only to predatory animals with physical features distinguishing them from other pinnipeds (e.g., natural features, brands, or other applied marks) thus meeting the requirement that they be “individually identifiable.” To be considered predatory, an animal must:

(1) Have been observed eating salmonids at Bonneville Dam in the “observation area” ( i.e., either below or above the dam or in the fish ladders) between January 1 and May 31 of any year;

(2) Have been observed at Bonneville Dam in the observation area on a total of any 5 days (consecutive days, days within a single season, or days over multiple years) between January 1 and May 31 of any year; and

(3) Be sighted at Bonneville Dam in the observation area after having been subjected to active non-lethal deterrence.

Our view is that an animal meeting all of these criteria has learned that the area contains a preferred prey item and is successful in pursuing it in that area, is persistent in pursuing that prey item, and is not likely to be deterred from pursuing that prey item by non-lethal means. Given its success at obtaining prey in the area and its resistance to non-lethal deterrence efforts, such an animal has shown itself to be making a significant contribution to the pinniped predation problem at Bonneville Dam and is not a naïve animal that can be driven away from the area through non-lethal means.

Finally, we do not propose to adopt the suggestion, made by some commenters during our prior process, that we equate determinations under NEPA or ESA with determinations under section 120 of the MMPA. The ESA and NEPA contain their own standards, definitions, and purposes, which results in a different inquiry. NEPA and the ESA have broad mandates and require agencies to evaluate the effects of the proposed action in combination with other activities that may affect the broader environment (NEPA) or threatened and endangered species (ESA), respectively. In contrast, section 120 focuses solely on pinniped predation on at-risk salmonids. NEPA's inquiry focuses on the effects of a proposed action on the quality of the “human environment”, which is defined broadly by the Council on Environmental Quality's regulation (see 40 CFR 1508.14). In addition, the term “significantly” has a specific meaning under the NEPA regulations and a determination whether an action results in a significant impact on the quality of the human environment is informed by a multitude of factors (see 40 CFR 1508.27). In contrast, section 120 focuses on a very narrow and specific conflict and asks only whether pinniped predation is having a significant negative impact on the decline or recovery of at-risk salmonids.

Under the ESA, NMFS must determine whether a proposed action is “likely to jeopardize the continued existence” of a threatened or endangered species or “result in the destruction or adverse modification” of designated critical habitat (16 U.S.C. 1536(a)(2)). Under these standards, NMFS has adopted regulations that focus the inquiry on the impacts of a proposed action on the species as a whole or its designated critical habitat (see 50 CFR 402.02 and 402.14). Moreover, as part of its section 7 analysis, NMFS considers the “effects of the action,” which includes the proposed action combined with the effects of other activities that are interrelated or interdependent with the proposed action, which will be added to the environmental baseline. An action may not jeopardize the continued existence of a species or result in the destruction or adverse modification of critical habitat, even though it has significant adverse effects to a listed individual or group of individuals. In sum, the ESA's analytical process, like that of NEPA, is well-defined by regulation and there is substantial agency guidance on both ESA and NEPA implementation, unlike that of MMPA, section 120.

NMFS intends to schedule a Task Force meeting in October 2011 to consider the states' application. NMFS will invite member organizations from the 2008 Task Force to participate on the 2011 Task Force in order to take advantage of their expertise and familiarity with the subject matter. NMFS will provide the public with prior notice of the Task Force meeting as soon as a date is scheduled.

The purpose of the meeting is to discuss potential headboat pilot programs in the Gulf of Mexico. Issues to be discussed include the design, implementation, monitoring, review, and, evaluation of headboat pilot programs.

Copies of the agenda and other related materials can be obtained by calling (813) 348-1630 or can be downloaded from the Council's ftp site, ftp.gulfcouncil.org.

Although other non-emergency issues not on the agenda may come before the Ad Hoc Headboat Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Ad Hoc Headboat Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see ADDRESSES ) at least 5 working days prior to the meeting.

Members of the Snapper Grouper AP will meet from 9 a.m. on October 5, 2011 until 5:30 p.m. on October 6, 2011.

Issues to be addressed at the meeting include updates on the following amendments: the Comprehensive Annual Catch Limit (ACL) Amendment; Amendments 18A and 18B addressing management of black sea bass and golden tilefish, respectively; Amendment 24 regarding the rebuilding of red grouper stocks; and Amendment 20A, addressing changes to the wreckfish Individual Transferable Quota (ITQ) Program. An update will also be given on the removal of the 240-foot (40-fathom) closure (Regulatory Amendment 11) and the new Marine Recreational Information Program (MRIP) methodology to estimate recreational catches. Issues to include in Comprehensive Ecosystem-Based Amendment 3 will also be discussed, including approaches to minimize bycatch mortality of speckled hind and warsaw grouper and possible ways to evaluate impacts from the commercial wreckfish fishery and recreational deep-dropping on bottom habitat. The AP will give input on red porgy and vermilion snapper stocks and provide recommendations to the Council.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see ADDRESSES ) 3 days prior to the meeting.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is published in the Federal Register to provide public notice and initiate a 30-day comment period.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined `negligible impact' in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by Level B harassment as defined below. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. If authorized, the IHA would be effective for one year from date of issuance.

Except with respect to certain activities not pertinent here, the MMPA defines ‘harassment’ as:

Invitation to Comment: We invite you to submit comments regarding this notice. To ensure that your comments have maximum effect in developing the notice of final requirements, we urge you to identify clearly the specific proposed requirement that each comment addresses.

We invite you also to assist us in complying with the specific requirements of Executive Order 12866 and Executive Order 13563 and their overall direction to Federal agencies to reduce regulatory burden where possible. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of this program.

During and after the comment period, you may inspect all public comments about this notice by accessing Regulations.gov. You may also inspect the public comments in person in room 7E208, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The Race to the Top program, the largest competitive education grant program in U.S. history, is designed to provide incentives to States to implement system-changing reforms that result in improved student achievement, narrowed achievement gaps, and increased high school graduation and college enrollment rates.

Program Authority: American Recovery and Reinvestment Act of 2009 (ARRA), Division A, Section 14006, Public Law 111-5, as amended by section 310 of Division D, Title III of Public Law 111-117, the Consolidated Appropriations Act, 2010, and section 1832(a)(2) of Public Law 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011. ( Note: In the ARRA, the Race to the Top program is referred to as State Incentive Grants.)

Proposed Requirements:

On February 17, 2009, President Obama signed into law the ARRA, historic legislation designed to stimulate the economy, support job creation, and invest in critical sectors, including education. The ARRA laid the foundation for education reform by supporting investments in innovative strategies that are most likely to lead to improved results for students, long-term gains in school and school system capacity, and increased productivity and effectiveness. In particular, the ARRA authorized and provided $4.35 billion for the Race to the Top Fund, a competitive grant program designed to encourage and reward States creating the conditions for education innovation and reform by implementing ambitious plans in four core areas: Enhancing standards and assessments, improving the collection and use of data, increasing teacher effectiveness and achieving equity in teacher distribution, and turning around struggling schools.

In 2010, the Department awarded approximately $4 billion in Race to the Top State grant funds in two phases. On March 29, 2010, the Department announced the award of approximately $600 million to Delaware and Tennessee under the Race to the Top Phase 1 competition. On August 24, 2010, the Department announced the award of approximately $3.4 billion in Race to the Top funding to the winners of the Phase 2 competition: the District of Columbia, Florida, Georgia, Hawaii, Maryland, Massachusetts, New York, North Carolina, Ohio, and Rhode Island. In addition to these awards to States to implement comprehensive reform plans, the Department awarded approximately $330 million on September 2, 2010, under a separate Race to the Top Assessment competition, to two groups of States to develop a new generation of assessments aligned with a common set of college- and career-ready standards.

In announcing the winners of the Phase 2 competition, the Secretary noted that “[we] had many more competitive applications than money to fund them in this round” and expressed the hope that any Race to the Top funding included in the Department's FY 2011 appropriations would be available for Phase 3 Race to the Top awards. In particular, there were nine finalists in the Phase 2 competition held in the summer of 2010 that did not receive funding despite submitting bold and ambitious plans for comprehensive reforms and innovations in their systems of elementary and secondary education. These nine finalists were Arizona, California, Colorado, Illinois, Kentucky, Louisiana, New Jersey, Pennsylvania, and South Carolina.

On April 15, 2011, President Obama signed into law Public Law 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (FY 2011 Appropriations Act), which made $698.6 million available for the Race to the Top Fund, authorized the Secretary to make awards on “the basis of previously submitted applications,” and amended the ARRA to permit the Secretary to make grants for improving early childhood care and learning under the program. On May 25, 2011, the Department announced that approximately $500 million of these funds would support the new Race to the Top—Early Learning Challenge program and that approximately $200 million would be made available to some or all of the nine unfunded finalists from the 2010 Race to the Top Phase 2 competition. While $200 million is not sufficient to support full implementation of the plans submitted during the Phase 2 competition, the Department believes that making these funds available to the remaining nine finalists is the best way to create incentives for these States to carry out the bold reforms proposed in their applications. The Department may use any unused funds from Race to the Top Phase 3 to make awards in the Race to the Top—Early Learning Challenge program. Conversely, the Department may use any unused funds from the Race to the Top—Early Learning Challenge program to make awards for Race to the Top Phase 3.

In this notice, we propose specific requirements that would apply to Race to the Top Phase 3 awards. To receive a share of the approximately $200 million in Race to the Top Phase 3 funds, eligible applicants would need to meet these requirements.

As with Race to the Top Phase 1 and Phase 2, it is the Department's intent to encourage and reward States that are creating and maintaining conditions for education innovation and reform; achieving significant improvement in student outcomes, including making substantial gains in student achievement, closing achievement gaps, improving high school graduation rates, ensuring student preparation for success in college and careers; and implementing ambitious plans in the following four core education reform areas:

(a) Adopting internationally benchmarked standards and assessments that prepare students for success in college and the workplace;

(b) Building data systems that measure student success and inform teachers and principals about how they can improve their practices;

(c) Increasing teacher and principal effectiveness and achieving equity in the distribution of effective teachers and principals; and

(d) Turning around our lowest achieving schools.

Under the Race to the Top Phase 3 award process proposed in this notice, eligible applicants would be limited to Race to the Top Phase 2 finalists that did not receive a Phase 2 award, and those eligible applicants could apply for a proportional share of these funds. Race to the Top Phase 3 funding is not at the level of funding that was available for the Race to the Top Phase 1 and Phase 2 competitions. Accordingly, we are proposing that eligible applicants (1) select from among the activities they proposed to implement in their Phase 2 applications those activities that will have the greatest impact on advancing their overall statewide reform plans, (2) use Race to the Top Phase 3 funding to support those specific activities, and (3) ensure that such activities are consistent with the ARRA requirement to allocate 50 percent of Race to the Top funds to local educational agencies (LEAs).

We are further proposing to require that an eligible applicant provide a set of assurances reaffirming its commitment to maintain, at a minimum, the conditions for reform that it established in its Phase 2 application in each of the four core education reform areas. These assurances reflect the importance of the State's dedication to successfully implementing the comprehensive statewide reforms envisioned under the Race to the Top program.

These proposed requirements also include a requirement that an applicant provide an assurance that the State is in compliance with the Education Jobs Fund maintenance-of-effort (MOE) requirement in section 101(10)(A) of Public Law 111-226. The MOE requirement under the Education Jobs Fund program is more stringent in some respects than the MOE requirement under the State Fiscal Stabilization Fund (SFSF) program. Unlike the SFSF MOE requirement, which in some cases may allow a State to maintain overall levels of support for education while actually reducing funding for either elementary and secondary education or for public institutions of higher education (IHEs), a State can meet the Education Jobs Fund MOE requirement only by maintaining support for both elementary and secondary education and public IHEs. For this reason, we believe that the Education Jobs Fund MOE requirement is a better measure of whether a State is demonstrating the commitment to funding education needed to create the conditions for education innovation and reform consistent with the Race to the Top program.

The Secretary proposes the following requirements for Race to the Top awards. Except where otherwise indicated in this notice of proposed requirements, the applicable final requirements and definitions of key terms from the notice of final priorities, requirements, definitions, and selection criteria, published in the Federal Register on November 18, 2009 (74 FR 59688) apply to the Race to the Top Phase 3 application process.

The Department proposes to make awards through a two-part process. Under the first part of this process, States that meet the eligibility requirements would submit an application that (1) meets the application requirements and (2) provides the application assurances.

Under the second part of the Race to the Top Phase 3 application process, the Department would notify all eligible applicants that met the application requirements and provided the assurances required by the first part of the process, and would provide an estimate of the Race to the Top Phase 3 funds available to them based on the number of qualified applicants. Qualified applicants would then be required to submit, for review and approval by the Secretary, a detailed plan and budget describing the activities selected from the State's Phase 2 application that would be implemented with Race to the Top Phase 3 funding in accordance with the Budget Requirements in this notice.

States that were finalists, but did not receive grant awards, in the 2010 Race to the Top Phase 2 competition are eligible to receive Race to the Top Phase 3 awards. Therefore, only the States of Arizona, California, Colorado, Illinois, Kentucky, Louisiana, New Jersey, Pennsylvania, and South Carolina are eligible to apply for Race to the Top Phase 3 awards.

A State must submit an application that includes the signatures of the Governor, the State's chief school officer, and the president of the State board of education, or their authorized representatives (if applicable).

The Governor or authorized representative of the Governor of a State must provide the following assurances in the State's Race to the Top Phase 3 application:

(a) The State is in compliance with the Education Jobs Fund maintenance-of-effort (MOE) requirements in section 101(10)(A) of Public Law 111-226.

(b) The State is in compliance with the State Fiscal Stabilization Fund Phase 2 requirements with respect to Indicator (b)(1) regarding the State's statewide longitudinal data system. ( See notice of final requirements, definitions, and approval criteria for the State Fiscal Stabilization Fund Program published in the Federal Register on November 12, 2009 (74 FR 58436).)

(c) At the time the State submits its application, there are no legal, statutory, or regulatory barriers at the State level to linking data on student achievement or student growth to teachers and principals for the purpose of teacher and principal evaluation.

(d) The State will maintain its commitment to improving the quality of its assessments, evidenced by the State's participation in a consortium of States that—

(i) Is working toward jointly developing and implementing common, high-quality assessments aligned with the consortium's common set of K-12 standards; and

(ii) Includes a significant number of States.

(e) The State will maintain, at a minimum, the conditions for reform described in its Race to the Top Phase 2 application, including—

(i) The State's adoption and implementation of a common set of college- and career-ready standards, as specified in section (B)(1)(ii) of the State's Race to the Top Phase 2 application;

(ii) The State's statutory and regulatory framework related to improving teacher and school leader effectiveness and ensuring an equitable distribution of effective teachers and leaders, as described in section D of the State's Race to the Top Phase 2 application;

(iii) The State's statutory and regulatory framework for implementing effective school and LEA turnaround measures, as described in section E of the State's Race to the Top Phase 2 application; and

(iv) The State's statutory and regulatory framework for supporting the creation and expansion of high-performing charter schools and other innovative schools, as described in section (F)(2) of its Race to the Top Phase 2 application.

(f) The State will maintain its commitment to comprehensive reforms and innovation designed to increase student achievement and to continued progress in the four reform areas specified in the ARRA, including the adoption and implementation of internationally benchmarked standards and assessments, improving the collection and use of data, increasing teacher effectiveness and equity in the distribution of effective teachers, and turning around the State's lowest achieving schools.

(g) The State will select activities for funding that are consistent with the commitment to comprehensive reform and innovation that the State demonstrated in its Race to the Top Phase 2 application.

(h) The State will comply with all of the accountability, transparency, and reporting requirements that apply to the Race to the Top program ( See the notice of final priorities, requirements, definitions, and selection criteria for the Race to the Top Fund published in the Federal Register on November 18, 2009 (74 FR 59688)), with the exception of reporting requirements applicable solely to funds provided under the ARRA. ( Note: The ARRA section 1512 reporting requirements do not apply to the funds we will award under the Race to the Top Phase 3 award process).

(i) A grantee must comply with the requirements of any evaluation of the program, or of specific activities pursued as part of the program, conducted and supported by the Department.

An eligible applicant must apply for a proportional share of the approximately $200 million available for Race to the Top Phase 3 awards based primarily on its share of the population of children ages 5 through 17 across the nine States. The proposed estimated amounts for which each eligible State could apply are shown in the following table. The amounts proposed in this table are based on the assumption that all eligible States would apply for a share of available funding; the amounts would increase if one or more eligible States do not apply or do not meet the application requirements.

Once the Department notifies a qualified applicant of the final amount of funds it is eligible to receive for a Race to the Top Phase 3 award, the applicant must submit a detailed plan and budget describing the activities it has selected from its Race to the Top Phase 2 application that it proposes to implement with Race to the Top Phase 3 funding. This detailed plan must include an explanation of why the applicant has selected these activities and why the applicant believes such activities will have the greatest impact on advancing its overall statewide reform plan. The plan also must include a description of the State's process for allocating at least 50 percent of Race to the Top Phase 3 funds to participating LEAs, as required by section 14006(c) of the ARRA. Subgrants to LEAs must be based on their relative shares of funding under Title I, Part A of the ESEA, and LEAs must use these funds in a manner that is consistent with the State's updated plan and the MOU or other binding agreement between the LEA and the State. A State may establish more specific requirements for LEA use of funds provided they are consistent with the ARRA and Race to the Top requirements. ( See the notice of final priorities, requirements, definitions, and selection criteria for the Race to the Top Fund published in the Federal Register on November 18, 2009 (74 FR 59688))

We will announce the final requirements for the Race to the Top Phase 3 award process in a notice in the Federal Register . We will determine the final requirements after considering any comments submitted in response to this notice and other information available to the Department. This notice does not preclude the Department from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, the Secretary must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or local programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.

It has been determined that this regulatory action will have an annual effect on the economy of more than $100 million because the amount of government transfers through the Race to the Top Phase 3 award process exceeds that amount. Therefore, this action is economically significant and subject to OMB review under section 3(f)(1) of Executive Order 12866. Notwithstanding this determination, we have assessed the potential costs and benefits—both quantitative and qualitative—of this proposed regulatory action and have determined that the benefits justify the costs.

The Department has also reviewed these proposed requirements pursuant to Executive Order 13563, published on January 21, 2011 (76 FR 3821). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor their regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

We emphasize as well that Executive Order 13563 requires agencies “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” In its February 2, 2011, memorandum (M-11-10) on Executive Order 13563, improving regulation and regulatory review, the Office of Information and Regulatory Affairs has emphasized that such techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these proposed requirements only upon a reasoned determination that their benefits justify their costs and we selected, in choosing among alternative regulatory approaches, those approaches that maximize net benefits. Based on the analysis below, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

In this section we discuss the need for regulatory action, the costs and benefits, as well as regulatory alternatives we considered.

These proposed requirements are needed to implement the Race to the Top Phase 3 award process in the manner that the Secretary believes will best enable the program to achieve its objectives of creating the conditions for effective reform and meaningful innovation in education while helping States that were finalists, but did not receive funding under the Race to the Top Phase 2 competition, to implement selected elements of their comprehensive reform proposals submitted as part of their Race to the Top Phase 2 applications.

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action and have determined that these proposed requirements would not impose significant additional costs to State applicants or the Federal Government. Most of the proposed requirements involve re-affirming the commitments and plans already completed as part of the 2010 Race to the Top Phase 2 competition or other Federal education programs. As an example of a requirement that would result in minimal additional burden and cost, we have proposed that States applying for Race to the Top Phase 3 funding provide an assurance that they are meeting the MOE requirements of the Education Jobs Fund program. Similarly, other proposed requirements, in particular those related to maintaining conditions for reform required under the Race to the Top Phase 2 competition, would require continuation of existing commitments and investments rather than the imposition of additional burdens and costs. For example, States would be required to continue implementation of common K-12 academic content standards. The Department believes States would incur minimal costs in developing plans and budgets for implementing selected activities from their Race to the Top Phase 2 proposals, because in most cases such planning will entail revisions to existing plans and budgets already developed as part of the Race to the Top Phase 2 application process, and not the development and implementation of entirely new plans and budgets. In all such cases, the Department believes that the benefits resulting from the proposed requirements would exceed their costs.

An alternative to promulgation of the types of requirements proposed in this notice would be for the Secretary to use FY 2011 Race to the Top funds to make awards to the one or two highest scoring unfunded applications from the 2010 Race to the Top Phase 2 competition. However, the Department believes that the scores of the unfunded finalists from the Race to the Top Phase 2 competition are too closely grouped to support awarding all FY 2011 Race to the Top funds to the one or two States with the highest scores. Furthermore, the Department believes that the approximately $200 million available from the FY 2011 Appropriations Act for the Race to the Top program would not support full implementation of the comprehensive reform plans submitted by unfunded finalists from the 2010 Race to the Top Phase 2 competition. The Department also believes that making available meaningful amounts of FY 2011 Race to the Top funding to all of the unfunded finalists from the 2010 Race to the Top Phase 2 competition offers the greatest promise for sustaining the nationwide reform momentum created by the Race to the Top Phase 1 and Phase 2 competitions.

Finally, the Department believes that simply funding the one or two highest scoring applicants that did not win an award in the 2010 Race to the Top Phase 2 competition would result in a missed opportunity to reward the efforts of all nine unfunded finalists from that competition and to enable them to make meaningful progress on key elements of their comprehensive statewide reform plans.

To assist the Department in complying with the requirements of Executive Order 12866, the Secretary invites comments on whether there may be further opportunities to reduce any potential costs or increase potential benefits resulting from these proposed requirements without impeding the effective and efficient administration of the Race to the Top program.

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf ), in the following table, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of this proposed regulatory action. This table provides our best estimate of the Federal payments to be made to States under this program as a result of this proposed regulatory action. Expenditures are classified as transfers to States.

The Race to the Top Phase 3 award process would provide approximately $200 million in competitive grants to eligible States.

These proposed regulations contain information collection requirements. However, because the eligible applicants for Race to the Top Phase 3 awards are fewer than 10, these collections are not subject to approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3502(3)(A)(i)).

The Secretary certifies that this proposed regulatory action will not have a significant economic impact on a substantial number of small entities. The small entities that this proposed regulatory action will affect are small LEAs receiving funds under this program.

This proposed regulatory action will not have a significant economic impact on small LEAs because they will be able to meet the costs of compliance with this regulatory action using the funds provided under this program.

The Secretary invites comments from small LEAs as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, requests evidence to support that belief.

We have also determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Department invites comment on whether these requirements do not require transmission of information that any other agency or authority of the United States gathers or makes available.

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or computer diskette) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register is available via the Federal Digital System at http://www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

You may also access documents of the Department published in the Federal Register by using the article search feature at http://www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

On January 14, 2008, the Secretary published in the Federal Register final regulations for 34 CFR part 462, Measuring Educational Gain in the National Reporting System for Adult Education (NRS regulations) (73 FR 2306). The NRS regulations established the process the Secretary uses to determine the suitability of tests for use in the NRS.

On April 16, 2008, the Secretary published a notice in the Federal Register providing test publishers an opportunity to submit tests for review under the NRS regulations. (73 FR 20616).

On February 2, 2010, the Secretary published a notice in the Federal Register listing the tests and test forms he determined were suitable for use in the NRS (75 FR 5303).

Tests and test forms were determined to be suitable for a period of either seven or three years. A seven-year approval requires no additional action on the part of the publisher, unless the information the publisher submitted as a basis for the Secretary's review was inaccurate or unless the test is substantially revised. A three-year approval is issued with a set of conditions that must be met by the completion of the three-year time period. If these conditions are met, the test is approved for continued use in the NRS.

The Secretary publishes here an update to the list published on February 2, 2010, that includes delivery formats. This update clarifies that some, but not all, tests using computer-adaptive or computer-based delivery formats are suitable for use in the NRS. The staffs of adult education programs are cautioned to ensure that only approved computer delivery formats are used. If a particular computer delivery format is not explicitly specified for a test in this notice, it is not approved for use in the NRS.

(a) The following test is determined to be suitable for use at all Adult Basic Education (ABE) and Adult Secondary Education (ASE) levels and at all English-as-a-Second-Language (ESL) levels of the NRS for a period of seven years from February 2, 2010 (75 FR 5303):

Comprehensive Adult Student Assessment Systems (CASAS) Reading Assessments (Life and Work, Life Skills, Reading for Citizenship, Reading for Language Arts—Secondary Level). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 27, 28, 81, 82, 81X, 82X, 83, 84, 85, 86, 185, 186, 187, 188, 310, 311, 513, 514, 951, 952, 951X, and 952X.

Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

(b) The following tests are determined to be suitable for use at all ABE and ASE levels of the NRS for a period of seven years from February 2, 2010 (75 FR 5303):

(1) Comprehensive Adult Student Assessment Systems (CASAS) Life Skills Math Assessments—Application of Mathematics (Secondary Level). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 31, 32, 33, 34, 35, 36, 37, 38, 505, and 506. Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

(2) Massachusetts Adult Proficiency Test (MAPT) for Math. We are clarifying that the computer-adaptive test (CAT) is an approved delivery format. Publisher: Massachusetts Department of Elementary and Secondary Education and University of Massachusetts Amherst, School of Education, 156 Hills South, University of Massachusetts, Amherst, MA 01003. Telephone: (413) 545-0564. Internet: http://www.sabes.org/assessment/mapt.htm.

(3) Massachusetts Adult Proficiency Test (MAPT) for Reading. We are clarifying that the computer-adaptive test (CAT) is an approved delivery format. Publisher: Massachusetts Department of Elementary and Secondary Education and University of Massachusetts Amherst, School of Education, 156 Hills South, University of Massachusetts, Amherst, MA 01003. Telephone: (413) 545-0564. Internet: http://www.sabes.org/assessment/mapt.htm.

(4) Tests of Adult Basic Education (TABE 9/10). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 9 and 10. Publisher: CTB/McGraw Hill, 20 Ryan Ranch Road, Monterey, CA 93940. Telephone: (800) 538-9547. Internet: http://www.ctb.com.

(5) Tests of Adult Basic Education Survey (TABE Survey). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 9 and 10. Publisher: CTB/McGraw Hill, 20 Ryan Ranch Road, Monterey, CA 93940. Telephone: (800) 538-9547. Internet: http://www.ctb.com.

(c) The following tests are determined to be suitable for use at all ESL levels of the NRS for a period of seven years from February 2, 2010 (75 FR 5303):

(1) BEST (Basic English Skills Test) Literacy. Forms B, C, and D. Publisher: Center for Applied Linguistics, 4646 40th Street, NW., Washington, DC 20016-1859. Telephone: (202) 362-0700. Internet: http://www.cal.org.

(2) Tests of Adult Basic Education Complete Language Assessment System—English (TABE/CLAS-E). Forms A and B. Publisher: CTB/McGraw Hill, 20 Ryan Ranch Road, Monterey, CA 93940. Telephone: (800) 538-9547. Internet: http://www.ctb.com.

(a) The following tests are determined to be suitable for use at all ABE and ASE levels and at all ESL levels of the NRS for a period of three years from February 2, 2010 (75 FR 5303):

(1) Comprehensive Adult Student Assessment Systems (CASAS) Employability Competency System (ECS) Reading Assessments—Workforce Learning Systems (WLS). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 11, 12, 13, 14, 15, 16, 17, 18, 114, 116, 213, 214, 215, and 216. Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

(2) Comprehensive Adult Student Assessment Systems (CASAS) Functional Writing Assessments. Forms 460, 461, 462, 463, 464, 465, and 466. Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

(b) The following tests are determined to be suitable for use at all ABE and ASE levels of the NRS for a period of three years from February 2, 2010 (75 FR 5303):

(1) Comprehensive Adult Student Assessment Systems (CASAS) Employability Competency System (ECS) Math Assessments—Workforce Learning Systems (WLS). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 11, 12, 13, 14, 15, 16, 17, 18, 213, 214, 215, and 216. Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

(2) General Assessment of Instructional Needs (GAIN)—Test of English Skills. We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms A and B. Publisher: Wonderlic Inc., 1795 N. Butterfield Road, Suite 200, Libertyville, IL 60048-1212. Telephone: (888) 397-8519. Internet: http://www.wonderlic.com.

(3) General Assessment of Instructional Needs (GAIN)—Test of Math Skills. We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms A and B. Publisher: Wonderlic Inc., 1795 N. Butterfield Road, Suite 200, Libertyville, IL 60048-1212. Telephone: (888) 397-8519. Internet: http://www.wonderlic.com.

(c) The following tests are determined to be suitable for use at the High Intermediate, Low Adult Secondary, and High Adult Secondary levels of the NRS for a period of three years from February 2, 2010 (75 FR 5303):

(1) WorkKeys: Applied Mathematics. Forms 210 and 220. Publisher: ACT, 500 ACT Drive, P.O. Box 168, Iowa City, Iowa 52243-0168. Telephone: (800) 967-5539. Internet: http://www.act.org.

(2) WorkKeys: Reading for Information. Forms 110 and 120. Publisher: ACT, 500 ACT Drive, P.O. Box 168, Iowa City, Iowa 52243-0168. Telephone: (800) 967-5539. Internet: http://www.act.org.

(d) The following tests are determined to be suitable for use at all ESL levels of the NRS for a period of three years from February 2, 2010 (75 FR 5303):

(1) Basic English Skills Test (BEST) Plus. We are clarifying that the computer-adaptive test (CAT) is an approved delivery format in addition to forms A, B, and C. Publisher: Center for Applied Linguistics, 4646 40th Street, NW., Washington, DC 20016-1859. Telephone: (202) 362-0700. Internet: http://www.cal.org.

(2) Comprehensive Adult Student Assessment Systems (CASAS) Employability Competency System (ECS) Listening Assessments—Life Skills (LS). We are clarifying that the computer-based test (CBT) is an approved delivery format in addition to forms 51, 52, 53, 54, 55, 56, 63, 64, 65, and 66. Publisher: CASAS, 5151 Murphy Canyon Road, Suite 220, San Diego, CA 92123-4339. Telephone: (800) 255-1036. Internet: http://www.casas.org.

The Secretary's determination regarding the suitability of a test may be revoked under certain circumstances (see 34 CFR 462.12(e)). If the Secretary revokes the determination regarding the suitability of a test, the Secretary publishes in the Federal Register and posts on the Internet at http://www.nrsweb.org a notice of that revocation along with the date by which States and local eligible providers must stop using the revoked test.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) by contacting the contact person listed under FOR FURTHER INFORMATION CONTACT in this notice.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: http://www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: http://www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

This proposed settlement agreement would potentially resolve a petition for judicial review filed by Petitioners for review of a rule promulgating standards for the control of emissions from new ocean-going marine vessels (“Control of Emissions from New Marine Compression-Ignition Engines At or Above 30 Liters Per Cylinder,” 75 FR 22896, April 30, 2010.) One of the actions taken in that rule forbade the production of diesel fuel that contains up to 500 ppm sulfur for use in older technology locomotive and marine engines, beginning June 1, 2014, because a new stream of diesel, that contained up to 1000 ppm sulfur, for use in ocean-going vessels, was being introduced at that time.

Petitioners filed petitions for review and administrative reconsideration regarding this action. Discussions with Petitioners indicates that the stream of diesel fuel available to ocean-going vessels is subject to different distribution than locomotive fuel and that it is not therefore a substitute for the stream of 500 ppm locomotive and marine fuel that was eliminated.

Under the terms of the proposed settlement agreement, EPA states that it anticipates that, by December 31, 2011, it will sign a notice of proposed rulemaking that includes a proposal to revise these provisions to allow the continued production of diesel fuel that contains up to 500 ppm sulfur from transmix for use in older technology locomotive and marine engines during and after 2014. EPA would propose to limit the use of such 500 ppm fuel to outside of the Northeast Mid-Atlantic area and would propose provisions to ensure it is segregated from the point of production to the end-user. EPA states that it further anticipates taking final action, which may include signature of a final rule by the Administrator of EPA, on the proposal by September 30, 2012. Under the proposed settlement agreement, if EPA fails to sign the proposal by March 15, 2012, or to take final action on the proposal by December 15, 2012, Petitioners may move the Court to lift the order holding the matter in abeyance and issue a briefing schedule. EPA will not oppose such a motion in such circumstances. In addition, EPA will not oppose any motion by Petitioners to expedite proceedings. Petitioners shall have no further remedy under the agreement.

Under the proposed settlement agreement, if the relevant provisions of the final rule are in substantial conformance with the revisions in the proposed agreement, then Petitioners agree to the dismissal of the petition for review.

For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment submitted, that consent to this settlement agreement should be withdrawn, the terms of the agreement will be affirmed.

The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2011-0756) contains a copy of the proposed settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.

An electronic version of the public docket is available through http://www.regulations.gov. You may use the http://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search”.

It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at http://www.regulations.gov without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. Information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket or in the electronic public docket. EPA's policy is that copyrighted material, including copyrighted material contained in a public comment, will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the EPA Docket Center.

You may submit comments as provided in the ADDRESSES section. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Use of the http://www.regulations.gov Web site to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment. In contrast to EPA's electronic public docket, EPA's electronic mail (e-mail) system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through http://www.regulations.gov, your e-mail address is automatically captured and included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

Proposed Information Collection Activities

Under the PRA, 44 U.S.C. 3501-3521, Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3), 5 CFR 1320.3(c). Because the number of entities affected by the Commission's requests will exceed ten, the Commission plans to seek OMB clearance under the PRA. As required by § 3506(c)(2)(A) of the PRA, the Commission is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the information collection requirements pertaining to the Commission's administrative activities (OMB Control Number 3084-0047).

The Commission's Administrative Activities clearance consists of: (a) Applications to the Commission, including applications and notices contained in the Commission's Rules of Practice (primarily Parts I, II, and IV); (b) the FTC's consumer complaint systems; (c) FTC program evaluation activities; and (d) the FTC's Applicant Background Form. The FTC is not seeking clearance renewal relating to the Applicant Background Form. After the current clearance expires on December 31, 2011, the FTC plans to use a different form that the Equal Employment Opportunity Commission (EEOC) is separately seeking PRA approval for from the OMB on behalf of several agencies including the FTC.

The FTC invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before November 14, 2011.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 14, 2011. Write “Administrative Activities: FTC File No. P911409” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment doesn't include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment doesn't include any sensitive health information, like medical records or other individually identifiable health information. In addition, don't include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don't include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). 1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/adminactivitiespra , by following the instructions on the Web-based form. If this Notice appears at http://www.regulations.gov, you also may file a comment through that Web site.

If you file your comment on paper, write “Administrative Activities: FTC File No. P911409” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex J), 600 Pennsylvania Avenue, NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before November 14, 2011. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Estimated annual hours burden: 187,114 hours (150 + 186,884 + 65 + 15).

(a) Applications to the Commission, including applications and notices contained in the Commission's Rules of Practice: 150 hours.

Most applications to the Commission generally fall within the “law enforcement” exception to the PRA and are mostly found in Part III (Rules of Practice for Adjudicative Proceedings) of the Commission's Rules of Practice. See 16 CFR 3.1-3.83. Nonetheless, there are various applications and notices to the Commission contained in other rules (generally in Parts I, II, and IV of the Commission's Rule of Practice). For example, staff estimates that the FTC annually receives approximately 10 requests for clearance submitted by former FTC employees in order to participate in certain matters and 5 screening affidavits submitted by partners or legal or business associates of former employees pursuant to Rule 4.1, 16 CFR 4.1. There are also procedures set out in Rule 4.11(e) for agency review of outside requests for Commission employee testimony, through compulsory process or otherwise, in cases or matters to which the agency is not a party. Rule 4.11(e) requires that a person who seeks such testimony submit a statement in support of the request. Staff estimates that agency personnel receive approximately 1 request per month or 12 per year. Other types of applications and notices are either infrequent or difficult to quantify. Nonetheless, in order to cover any potential “collection of information” for which separate clearance has not been sought, staff conservatively projects the FTC will receive 75 applications or notices per year. Staff estimates each respondent will incur, on average, approximately 2 hours of burden to submit an application or notice, resulting in a cumulative annual total of 150 burden hours (75 applications or notices x 2 burden hours).

Annual cost burden:

Using the burden hours estimated above, staff estimates that the total annual labor cost, based on a conservative estimated average of $460/hour for executives' and attorneys' wages, would be approximately $46,000 (100 hours × $460). There are no capital, start-up, operation, maintenance, or other similar costs to respondents.

(b) Complaint Systems: 186,884 annual hours.

Consumers can submit complaints about fraud and other practices to the FTC's Consumer Response Center by telephone or through the FTC's Web site. Telephone complaints and inquiries to the FTC are answered both by FTC staff and contractors. These telephone counselors ask for the same information that consumers would enter on the applicable forms available on the FTC's Web site. For telephone inquiries and complaints, the FTC staff estimates that it takes 6.1 minutes per call to gather information, and an estimated 5.0 minutes for consumers to enter a complaint online. The burden estimate conservatively assumes that all of the phone call is devoted to collecting information from consumers, although frequently telephone counselors devote a small portion of the call to providing requested information to consumers.

To receive complaints from consumers of possible violations of the rules governing the National Do Not Call Registry, 16 CFR 310.4(b), the FTC maintains both an online form and a toll free hotline with automated voice response system. Consumer complainants must provide the phone number that was called, whether the call was prerecorded, and the date and time of the call. They may also provide either the name or telephone number of the company about which they are complaining, their name and address so they can be contacted for additional information, as well as for a brief comment regarding their complaint. In addition, complainants have the option of answering three yes-or-no questions to help law enforcement investigating complaints. The FTC staff estimates that the time required of consumer complainants is 3.0 minutes for phone complaints and 2.5 minutes for online complaints.

To handle complaints about identity theft, the FTC must obtain more detailed information than is required of other complainants. Identity theft complaints generally require more information (such as a description of actions complainants have taken with credit bureaus, companies, and law enforcement, and the identification of multiple suspects) than general consumer complaints and fraud complaints. In addition, the FTC has expanded the information required on its online complaint form (such as collecting additional information about the fraudulent activity at affected companies and creating an attachment summarizing all of the fraudulent account activity as well as all fraudulent information on the consumer's credit report). Consumers can print out a copy of the revised form and use it to assist them in completing a police report, if appropriate, and, as also may be necessary, an identity theft report. See 16 CFR 603.3 (defining the term “identity theft report”). FTC staff estimates that the revised online form takes consumers up to 15 minutes to complete.

The FTC also made some revisions in the information it collects from consumers who call the Consumer Response Center (“CRC”) with identity theft complaints. Staff estimates that it will take 6.2 minutes per call to obtain identity theft-related information. A substantial portion of identity theft-related calls typically consists of counseling consumers on other steps they should consider taking to obtain relief (which may include directing consumers to a revised online complaint form). The time needed for counseling is excluded from the estimate.

Consumer customer satisfaction surveys give the agency information about the overall effectiveness and timeliness of the CRC. Subsets of consumers contacted throughout the year are questioned about specific aspects of CRC customer service. Each consumer surveyed is asked several questions chosen from a list prepared by staff. The questions are designed to elicit information from consumers about the overall effectiveness of the call center and online complaint intake. Half of the questions ask consumers to rate CRC performance on a scale or require a yes-or-no response. The second half of the survey asks more open-ended questions seeking a short written or verbal answer. In addition, the CRC may survey a sample of consumers immediately after they file their complaints regarding the services they received. Staff estimates that each respondent will require 4.3 minutes to answer the questions during the phone survey and about 2.7 minutes for the online survey (approximately 20-30 seconds per question).

What follows are staff's estimates of burden for these various collections of information, including the surveys. The figures for the online forms and consumer hotlines are an average of annualized volume for the respective programs including both current and projected volumes over the 3-year clearance period sought and the number of respondents for each activity has been rounded to the nearest thousand.