Federal Register 2012-01-26: Vol 77 Iss 17

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FEDERAL REGISTER
Vol. 77 Thursday
No. 17 January 26, 2012
OFFICE OF THE FEDERAL REGISTER
UNITED STATES GOVERNMENT PRINTING OFFICE
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FEDERAL REGISTER
Vol. 77 Thursday,
No. 17 January 26, 2012
Pages 3919-4202
OFFICE OF THE FEDERAL REGISTER
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Federal Register/Vol. 77, No. 17/Thursday, January 26, 2012
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• III
Contents
Federal Register
Vol. 77, No. 17
Thursday, January 26, 2012
Administration on Aging Commodity Futures Trading Commission
See Aging Administration NOTICES
Meetings; Sunshine Act, 4022-4023
Agency for Healthcare Research and Quality
Consumer Product Safety Commission
NOTICES
Agency Information Collection Activities: Proposals, NOTICES
Submissions, and Approvals, 4036-4043 Meetings; Sunshine Act, 4023
Scientific Information Requests: Provisional Acceptance of Settlement Agreements and •
Use of Natriuretic Peptide Measurement in the Orders:
Management of Heart Failure, 4043-4044 Hewlett-Packard Co., 4023-4025
Defense Department
Aging Administration
See Army Department
NOTICES
NOTICES
Agency Information Collection Activities; Proposals,
Privacy Act; Systems of Records, 4025
Submissions, and Approvals:
Annual Reporting Requirements for the Older American Energy Department
Act Title VI Grant Program, 4044 See Energy Efficiency and Renewable Energy Office
See Federal Energy Regulatory Commission
Agriculture Department PROPOSED RULES
See Food and Nutrition Service ' Coordination of Federal Authorizations for Electric
See Rural Housing Service Transmission Facilities, 3958
NOTICES NOTICES
Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 3998 Submissions, and Approvals, 4026—4027
Meetings:
Army Department Biological and Environmental Research Advisory
NOTICES Committee, 4028
Availability for Exclusive, Non-Exclusive, or Partially- DOE/NSF High Energy Physics Advisory Panel, 4027
Exclusive Licensing of Inventions: Environmental Management Site-Specific Advisory
Use of Magnetism to Inactivate, Kill and/or Remove Board, Nevada, 4027—4028
Malaria Parasites from Transfused Blood, etc., 4025 Orders Granting, Amending and Vacating Authority to
Intent to Grant an Exclusive License of U.S. Government- Import and Export Natural Gas and Liquefied Natural
Owned Inventions, 4026 Gas, 4028-4029
Meetings: i
Army Education Advisory Subcommittee, 4026 Energy Efficiency and Renewable,j^prgy Oiffice
NOTICES Mlibv I
Nationwide Categorical Waivers under the American
Bureau of Ocean Energy Management
Recovery and Reinvestment Act, 4029—4030
NOTICES
Nationwide Limited Public Interest Waiver under the
Meetings:
American Recovery and Reinvestment Act, 4030-4031
Outer Continental Shelf Scientific Committee, 4056
Environmental Protection Agency
Centers for Disease Control and Prevention
RULES
NOTICES Approval and Promulgation of Air Quality Implementation
Agency Information Collection Activities; Proposals, Plans:
Submissions, and Approvals, 4044-4047 Oklahoma; Infrastructure Requirements for 1997 8-Hour
Meetings: Ozone and 1997 and 2006 PM2.5 NAAQS, 3933-
Disease, Disability, and Injury Prevention and Control 3935,
Special Emphasis Panel, 4047-4048 Virginia; Consumer and Commercial Products, 3928-3933
Safety and Occupational Health Study Section, National
PROPOSED RULES
Institute for Occupational Safety and Health, 4048 Approval and Promulgation of Air Quality Implementation
Plans:
Commerce Department Illinois; Regional Haze, 3966-3975
See Foreign-Trade Zones Board Indiana; Regional Haze, 3975-3984
See International Trade Administration Pennsylvania: Regional Haze State Implementation Plan,
See National Oceanic and Atmospheric Administration 3984-3997
NOTICES
Agency Information Collection Activities: Proposals, Federal Communications Commission
Submissions, and Approvals, 3999—4000 RULES
Estimates of the Voting Age Population for 2011, 4000 Effects of Communications Towers on Migratory Birds:
Privacy Act of 1974; Altered System of Records, 4000-4002 National Environmental Policy Act Compliance for
Privacy Act; Systems of Records, 4002-4006 Proposed Tower Registrations, 3935-3955
IV federal Register/Vol. 77, No. 17/Thursday, January 26, 2012/Contents
Federal Energy Regulatory Commission international Trade Commission
I
NOTICES RULES
Combined Filings, 4031—4034 Investigations Relating to Global and Bilateral Safeguards
Actions, Market Disruption, etc., 3922-3927
Federal Housing Finance Agency NOTICES
Complaints:
PROPOSED RULES
Mortgage Assets Affected by PACE Programs, 3958-3964 Certain Electronic Devices for Capturing and
Transmitting Images, and Components Thereof,
4059-4060
Federal Reserve System
NOTICES
Justice Department
Formations of. Acquisitions by, and Mergers of Bank
Holding Companies, 4034 NOTICES
Lodging of Second Agreement and Order Regarding
Modification of the Consent Decree Under the Clean
Food and Drug Administration
Water Act, 4060
RULES
Oral Dosage Form New Animal Drugs: Land Management Bureau
Deracoxib, 3927-3928
NOTICES
Alaska Native Claims Selection, 4057—4058
Food and Nutrition Service Intent to Collect Fees on Public Lands:
RULES Mesa County, CO, 4058—4059
Nutrition Standards in the National School Lunch and Meetings:
School Breakfast Programs, 4088—4167 California Desert District Advisory Council, 4059
Foreign>Trade Zones Board National Institutes of Heaith
NOTICES NOTICES
Expansion of Manufacturing Authority: Meetings:
Epson Portland, Inc., Foreign-Trade Zone 45, Portland, Center For Scientific Review, 4049—4050
OR, 4006-4007 Center for Scientific Review, 4050—4052
Grants of Authority for Sub2:one Status: National Cancer Institute, 4052-4053 '
Delta Faucet Co., Jackson, TN, 4007 National Center for Complementmy and Alternative
Medicine, 4052
Geological Survey National Institute of Allergy and Infectious Diseases,
4051
NOTICES
Agency Information Collection Activities; Proposals, National Institute of Arthritis and Musculoskeletal and
Submissions, and Approvals, 4056-4057 Skin Diseases, 4048-4049, 4051-4052
National Oceanic and Atmospheric Administration
Health and Human Services Department
See Agency for Healthcare Research and Quality RULES
Endangered and Threatened Species:
See Aging Administration
Critical Habitat Designation for Endangered Leatherback
See Centers for Disease Control and Prevention
Sea Turtle, 4170-4201
See Food and Drug Administration •
Fisheries of the Exclusive Economic Zone Off Alaska:
See National Institutes of Health
Pacific Cod by Non-American Fisheries Act Crab Vessels
NOTICES
Annual Update of the HHS Poverty Guidelines, 4034—4035 Operating as. Catcher/Propessors using Pot Gear, etc.,
3956-3957
Overflight Regulations:
Homeland Security Department *
Channel Islands, Monterey Bay, Gulf of the Farallones,
See Transportation Security Administration
and Olympic Coast National Marine Sanctuaries,
NOTICES
Agency Information Collection Activities; Proposals, 3919-3922
Submissions, and Approvals: NOTICES
Meetings:
Post-Award Contract Information, 4053—4054
Mid-Atlantic Fishery Management Council, 4013
Permits:
Interior Department
Marine Mammals; File No. 15126, 4013—4014
See Bureau of Ocean Energy Management
Takes of Marine Mammals Incidental to Specified
See Geological Survey
Activities:
See Land Management Bureau
Physical Oceanographic Studies in Southwest Indian
Ocean, January through February, 2012, 4014-4022
Internal Revenue Service
PROPOSED RULES National Science Foundation
Information Reporting by Passport Applicants, 3964-3966
NOTICES
Antarctic Conservation Act Permit Applications, 4060—4061
International Trade Administration
NOTICES Personnel Management Office
Initiation of Antidumping Duty Investigations: NOTICES
Large Residential Washers from the Republic of Korea Agency Information Collection Activities; Proposals,
and Mexico, 4007—4013 Submissions, and Approvals, 4061
Federal Register/Vol. 77, No. 17/Thursday, January 26, 2012/Contents V
Postal Service Customer Comment dlard, 4054—4055
NOTICES
Meetings; Sunshine Act, 4061
Treasury Department
Product Changes:
See Internal Revenue Service
Priority Mail Negotiated Service Agreement, 4062
See United States Mint
Rural Housing Service NOTICES
Agency Information Collection Activities'; Proposals,
NOTICES
Meetings: Submissions, and Approvals, 4083
USDA Multi-Family Housing Program 2012 Industry
. Forums; Open Teleconference and/or Web United States Mint
Conference, 3998-3999
NCnCES
Prices for 2012 Infantry Soldier Silver Dollar and 2012 Star-
Securities and Exchange Commission
Spemgled Banner Commemorative Coin Program .
NOTICES Products, 4084-4085
Agency Information Collection Activities; Proposals,
Submissions; and Approvals, 4062-4065
Self-Regulatory Organizations; Proposed Rule Changes:
C2 Options Exchange, Inc., 407(1-4073 Separate Parts In This Issue
Chicago Board Options Exchange, Inc., 4073—4077
Financial Industry Regulatory Authority, Inc., 4065-4068 •
NASDAQ OMX PHLX LLC, 4068-4070, 4077-4079 Part II
NYSE Area, Inc., 4079-4082 Agriculture Department, Food and Nutrition Service, 4088-
4167
State Department
NOTICES Part III
Designations as Foreign Terrorist Organizations:
Commerce Department, National Oceanic and Atmospheric
al-Qa’ida in Iraq, aka Jam’at al Tawhid wa’al-Jihad, etc.,
Administration, 4170-4201
4082
Designations as Global Terrorists:
al^a’ida in Iraq, aka Jam’at al Tawhid wa’al-Jihad, etc.,
4083 Reader Aids
Consult the Reader Aids section at the end of this page for
Transportation Department
phone numbers, online resources, finding aids, reminders,
See Transportation Security Administration
apd notice of recently enacted public laws.
Transportation Security Administration To subscribe to the Federal Register Table of Contents
NOTICES LISTSERV electronic mailing list, go to http://
Agency Information Collection Activities; Proposals, listserv.access.gpo.gov and select Online mailing list
Submissions, and Approvals: archives, FEDREGTOC-L, Join or leave the list (or change
Aircraft Operator Security, 4055-4056 settings); then follow the instructions.;
VI Federal Register/Vol. 77, No. 17/Thursday, January 26, 2012/Contents
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the
Reader Aids section at the end of this issue.
7 CFR
210.... .4088
220. ..4088
10 CFR
Proposed Rules:
900. .3958
12 CFR
Proposed Rules;
1254. .3958
15 CFR
922. .3919
19 CFR
206. .3922
21 CFR
r..3927
26 CFR
Proposed Rules:
301.. 3964
40 CFR
52 (2 documents). ...3928, 3933
Proposed Rules:
52 (3 documents). .3966, 3975,
3984
47 CFR
1......3935
17. 3935
22. 3935
24 .3935
25 .3935
27. 3935
80. 3935
87.3935
90. 3935
50 CFR
226. .4170
679. .3956
3919
Rules and Regulations
Federal Register
Vol. 77, No. 17
Thursday, January 26, 2012
This section of the FEDERAL REGISTER I. Background marine mammals or seabirds were
contains regulatory documents having general The National Marine Sanctuaries Act present in the area at the time of the low
applicability and legal effect, most of which (NMSA) authorizes NOAA to prohibit or overflight). Adding a rebuttable
are keyed to and codified in the Code of otherwise regulate activities to prevent presumption to these regulations is
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510. or minimize the destruction of, loss of, justified by ample evidence in the
or injury to a resource of a national administrative records that were
The Code of Federal Regulations is sold by marine sanctuary (16 U.S.C. 1436(1)). developed for the designations of these
the Superintendent of Documents. Prices of Regulations for the Monterey Bay, sanctuaries. These administrative
new books are listed in the first FEDERAL Channel Islands, Gulf of the Feurallones records describe the need to protect
REGISTER issue of each week. and Olympic Coast National Marine nearshore and offshore resources from
Sanctuaries all restrict low altitude unnecessary disturbance, and.explain
overflights witKin specified zones in how low altitude overflights cgn disrupt
DEPARTMENT OF COMMERCE each sanctuary (subject to certain various marine mammal and seabird
exceptions) in order to protect marine behavior patterns, including breeding
National Oceanic and Atmospheric
mammals and seabirds from disturbance and nesting.
Administration
by aircraft. At Monterey Bay, Channel Low overflights in these sites clearly
Islands, and Gulf of the Farallones, pose a risk of harmful disturbance to
15 CFR Part 922
flights below 1000 feet are prohibited marine mammals and seabirds,
within the designated zones. At including movement and evacuation in
[Docket No. 0908041219-1413-02] Olympic Coast, flights below 2000 feet response to low overflights where the
are prohibited within one nautical mile young (pups, chicks, eggs) are crushed
RIN 0648-AX79 of Flattery Rocks, Quillayute Needles, or during an evacuation or exposed to
Copalis National Wildlife Refuge, or predation as a consequence of loss of
Overflight Regulations for the Channel within one nautical mile seaward from parental protection. Indeed, given the
Islands, Monterey Bay, Gulf of the the coastal boundary of the sanctuary. connection between low overflights and
Farallones, and Olympic Coast These regulations vary slightly with disturbance, the Southwest Region of
Nationai Marine Sanctuaries each sanctuary. The regulations for the the National Marine Fisheries Service
Monterey Bay and Olympic Coast developed meu-ine mammal viewing
AGENCY: Office of National Marine sanctuaries prohibit overflights below a guidelines for its region (which includes
Sanctuaries (ONMS), National Oceanic
certain level within designated zones— the three California sanctuaries),
and Atmospheric Administration
1000 feet in Monterey Bay and 2000 feet recommending that aircraft avoid flying
(NOAA), Department of Commerce
in Olympic Coast, as noted above— below 1000 feet over marine mammals.
(DOC).
without requiring a specific showing Similarly, the State of California
ACTION: Final rule. that marine mammals or seabirds have prohibits overflights less than 1000 feet
been disturbed. The regulations for the above designated wildlife habitat areas
SUMMARY: NOAA is amending the Channel Islands and the Gulf of the within the sfate waters of each
regulations for the Channel Islands, Farallones prohibit disturbing marine sanctuary off of California. In the
Monterey Bay, Gulf of the Farallones, ■ mammals or seabirds by flying below Olympic Coast National Marine
andJDlympic Coast National Marine 1000 feet within specified zones of the Sanctuary, offshore islands of the
Sanctuaries by requiring that motorized sanctuaries. Flattery Rocks, Quillayute Needles, and
aircraft maintain certain minimum With this final rule, NOAA has Copalis National Wildlife Refuges have
altitudes above specified locations standardized these regulations by high pinnacles that provide important
within the boundaries of the listed adopting a single, consistent and clear habitats for 14 species of seabirds,
sanctuaries and stating that failure to regulatory approach regarding warranting the prohibition on flights
comply with these altitude limits is overflights in these sanctuaries. The below 2000 feet in this sanctuary to
presumed to disturb marine mammals regulations for each sanctuary now better protect these sanctuary resources.
and seabirds and is a violation of the establish a rebuttable presumption that This prohibition is further consistent
sanctuary regulations. flying motorized aircraft below the With an advisory published by the
DATES: These regulations are effective existing minimum altitudes within any Federal Aviation Administration (FAA)
on February 27, 2012. of the existing zones results in the that applies to these same areas (FAA
disturbance of marine mammals or Advisory Circular AC 91-36D).
FOR FURTHER INFORMATION CONTACT: ’seabirds. This means that if a pilot were The existing NOAA overflight
Office of National Marine Sanctuaries,
observed flying below the established regulations are not indicated on current
1305 East-West Highway, Silver Spring,
altitude within a designated zone, it FAA aeronautical charts. The FAA has
MD 20910. Phone: [phone].
would be presumed that marine advised NOAA that with the
SUPPLEMENTARY INFORMATION: mammals or seabirds had been promulgation of this final rule, it will
disturbed and that a violation of revise the notation on current
Electronic Access
sanctuary regulations had been aeronautical charts to indicate the
This Federal Register document is committed. This presumption of sanctuaries’ overflight regulations. The
also accessible via the Internet at disturbance could be overcome by notation on FAA aeronautical charts in
http://www.gpoaccess.gov/fr/ contrary evidence that disturbance did no way imposes additional FAA
index.html. not, in fact, occur (e.g., evidence that no obligations on aircraft operators. Rather,
3920 Federal Register/Vol. 77, No. 17/Thursday, January 26, 2012/Rules and Regulations
NOAA expects that the revised notation along with the publication of these Response: NOAA is sensitive to the
will likely result in improved altitude limitations on FAA’s concern that some disturbance effects
compliance and thereby help to ensure aeronautical charts, will improve notice on marine mammals or seabirds, such as
the protection of resources under to pilots and increase compliance. hormonal responses' may be difficult to
NOAA’s stewardship. 3. Comment: The proposed assess where this regulation is violated.
amendments to the existing regulations However, basing a violation strictly on
II. Summary of Rulemaking
for low overflights in designated areas of the presence or absence of marine
NOAA is amending ONMS the four national marine sanctuaries mammals and seabirds creates a
regulations (15 CFR part 922) for these should be adopted but without the potential violation where marine
four sanctuaries. The amendments inclusion of a rebuttable presumption. mammals or seabirds are present but not
harmonize NOAA’s long-standing Response: The addition of the disturbed by low overflight. The
regulatory provisions prohibiting low rebuttable presumption to the overflight regulations as written make clear that it
overflights over certain areas within regulations was made to link failure to is not NOAA’s intent to consider a
these sanctuaries and more clearly comply with the altitude limits within violation when marine mammals or
connect the adverse impacts upon any of the designated zones to seabirds are present during a low
marine mammals or seabirds caused by disturbance of marine naammals or overflight, but not disturbed.
low overflights as the regulatory basis seabirds and is thus a violation of 6. Comment: NOAA should define
for NOAA’s overflight regulations. sanctuary wildlife protection minimum altitude as measured from the
regulations, rather than FAA flight highest terrain within 2000 feet laterally
III. Response to Comments
regulations. This change is important of the designated zones in the Gulf of
The comments received on the because (1) it avoids the appearance that Farallones and the Monterey Bay"
proposed rule that was published on NOAA is infringing on the FAA’s national marine sanctuaries. This is
December 7, 2010 (75 FR 76319) are authority, since the regulations are tied needed because seabirds nest along
summarized below, together with to a resource disturbance, not merely shoreline cliffs as high as 600 feet.
responses from NOAA. There were 169 altitude limits; and (2) it is respoiisive Consequently, a minimum height of
submissions from individuals, to industry’s concern with an absolute 1000 feet above water could only be 400
oiganizations, state representatives, prohibition on flying at certain feet from nesting seabirds and thus fail
state agencies, and Federal agencies. altitudes. Iiicluding a rebuttable to protect.
Because many of the submissions presumption will also facilitate Response: The minimum altitude
contained the same or similar compliance efforts with the regulation. prohibitions of the four west coast
comments, those comments have been 4. Comment: The rebuttable national marine sanctuaries included in
grouped together by subject and presumption puts an unreasonable this amended rule were determined at
responded to as one comment. burden on pilots to prove their the time of each sanctuary’s designation,
1. Comment: FAA is the sole authority innocence. and this accounts for the terrain in
for restricting airspace. Response: A rebuttable presumption setting the minimum altitude. When the
Response: NOAA recognizes FAA’s does not impose an unreasonable sanctuaries were created, NOAA
authority to regulate airspace and has burden on pilots. The rebuttable followed NEPA and APA procedures
worked closely with the FAA to craft presumption provides pilots with the and developed environmental impact
the rule in a way that is explicitly opportunity to show that there is no statements that underwent public
linked to NOAA’s statutory authority. violation if no marine mammals or review. Changes to the current
NOAA and the FAA share the view that seabirds are disturbed. Rebuttable minimum altitudes are beyond the
the final rule does not alter or change presumptions have commonly been scope of this regulatory action.
either agency’s existingcautffority.^ used in analogous legal authorities. For 7. Comment: NOAA does not have
2. Comment: The proposed example, the Endangered Species Act any proof that the regulations are
^amendments to the existing regulations imposes a rebuttable presumption with necessary.
for low overflights in designated areas of regard to species held in captivity (16 Response: The administrative recwds
the four national marine sanctuaries U.S.C. a538(b)(l)), and NOAA establishing overflight restrictions in all
should be implemented for several regulations apply a rebuttable four sanctuciries describe the need to
reasons, including: to reduce the risk of presumption in certain commercial protect nearshore and offshore resources
disturbance from low flying aircraft on fisheries (e.g., 50 CFR 635.4(f)(1); from unnecessary disturbance, and
normal wildlife behavior; to improve 697.20(c)) as well as in some national explain how low altitude overflights can
pilot compliance with minimum marine sanctuaries (e.g., 15 CFR disrupt various marine mammal and
altitude restrictions; to standardize the 922.92(a)(5)(ii); 922.112(a)(2). Combined seabird behavior patterns including
application of these regulations with a with notification of NOAA’s overflight breeding and nesting.
single, consistent and clear regulatory * regulations on FAA aeronautical charts, Additional documentation supporting
approach; and to apply the presumption pilots will better understand the the need for overflight regulations in
of disturbance for any flight below the potential legal consequences of ignoring order to reduce the risk of harmful
minimum altitude level. sanctuary overflight prohibitions, and it disturbance to marine mammals and
Response: NOAA agrees the is expected that the vast majority of seabirds was submitted during the
amendments to the existing overflight pilots will comply with the regulations. public comment period and can be
regulations will reduce the risk of 5. Comment: If a rebuttable found at ReguIations.gov, Docket No.
harmful disturbance to marine presumption is added to the regulations, NOAA-NOS-2009-0237.
mammals and seabirds. NOAA believes the presumption of a violation should 8. Comment: The use of the term
the amended, standardized language. focus on the presence or absence of “restrict” in the NPRM appears to
marine mammals or seabirds rather than contradict FAA’s definition of the term.
' The FAA. in a letter concerning this rulemaking whether there has been a disturbance of The phrase “restricted area” has a very
to the Aircraft Operators and Pilots Association marine mammals or seabirds, since specific and well-defined me'aning
(AOPA), stated that it does not view NOAA’s
some disturbances, such as spikes in within Federal Aviation Regulations
rulemaking action as an airspace regulation nor as
an infringement on the FAA’s stated authority. hormones, cannot be observed. (FARs) airspace designated under part