Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2011-03-03.xml --- 76 42 Thursday, March 3, 2011 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food Safety and Inspection Service RULES Procedures Relating to Awards Under the Equal Access to Justice Act, 11667-11668 2011-4423 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Environmental Monitoring Form, 11751-11752 2011-4767 Bureau of Ocean Energy Management, Regulation and Enforcement NOTICES Environmental Assessments;

Availability, etc.: Oil and Gas Activities on Alaska Outer Continental Shelf, 11811-11812 2011-4757 Oil, Gas, and Mineral Operations, Gulf of Mexico Outer Continental Shelf Region, 11809-11811 2011-4756 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare, Medicaid, and Children's Health Insurance Programs: Renewal, Expansion, and Renaming of Advisory Panel on Outreach and Education and Request for Nominations, 11782-11783 2011-4754 Civil Rights Civil Rights Commission NOTICES Meetings;

Sunshine Act, 11755-11756 2011-4919 Coast Guard Coast Guard RULES Drawbridge Operation Regulations: Sacramento River, Sacramento, CA, 11679 2011-4733 Shark River (South Channel), Belmar, NJ, 11679-11680 2011-4735 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11803-11805 2011-4654 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Amendments to Commodity Pool Operator and Commodity Trading Advisor Regulations Resulting from Dodd-Frank Act, 11701-11705 2011-4657 Consumer Product Consumer Product Safety Commission NOTICES Meetings;

Sunshine Act, 11764 2011-4991 Copyright Office Copyright Office, Library of Congress NOTICES Section 302 Report, 11816-11821 2011-4717 Defense Department Defense Department See Navy Department Defense Nuclear Defense Nuclear Facilities Safety Board NOTICES Meetings; Sunshine Act, 11764-11765 2011-4899 Department of Transportation See Pipeline and Hazardous Materials Safety Administration Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11765 2011-4806 Education Research and Special Education Research Grant Programs, 11765-11772 2011-4821 Employment and Training Employment and Training Administration NOTICES Funding Opportunity and Solicitation for Grant Applications

(SGA)for the Enhanced Transitional Jobs Demonstration (ETJD), 11815 2011-4788 Request for Certification of Compliance: Rural Industrialization Loan and Grant Program, 11815-11816 2011-4804 Energy Department Energy Department See Federal Energy Regulatory Commission NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Northern New Mexico, 11772-11773 2011-4764 2011-4765 Environmental Management Site-Specific Advisory Board, Savannah River Site, 11772 2011-4763 Environmental Protection Environmental Protection Agency PROPOSED RULES Revisions to the Unregulated Contaminant Monitoring Regulation (UCMR 3) for Public Water Systems, 11713-11737 2011-4641 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: EPA's ENERGY STAR Product Labeling (Renewal), 11777-11779 2011-4776 Regulatory Pilot Projects (Renewal), 11776-11777 2011-4779 Underground Storage Tanks, Technical and Financial Requirements and State Program Approval Procedures (Renewal), 11775-11776 2011-4789 Settlements: Puckett Smelter Superfund Site, Mountainboro, Etowah County, AL, 11779 2011-4771 Executive Office of the President See Presidential Documents Federal Aviation Federal Aviation Administration RULES IFR Altitudes: Miscellaneous Amendments, 11675-11679 2011-4580 NOTICES Aviation Rulemaking Advisory Committee: Transport Airplane and Engine Issue Area—Phase 2 of Low Speed Alerting Task, 11844-11845 2011-4761 Intent to Review Structure of the Aviation Rulemaking Advisory Committee, 11845-11846 2011-4749 Meetings: Executive Committee of Aviation Rulemaking Advisory Committee, 11848 2011-4750 Joint RTCA Special Committee 213; EUROCAE WG-79; Enhanced Flight Vision Systems/Synthetic Vision Systems, 11847 2011-4766 RTCA Program Management Committee, 11847-11848 2011-4774 RTCA Special Committee 147, Minimum Operational Performance Standards for Traffic Alert, etc., 11846 2011-4815 RTCA Special Committee 206, EUROCAE WG 76 Plenary, AIS and MET Data Link Services, 11846-11847 2011-4814 Federal Communications Federal Communications Commission RULES Digital Low Power Television, Television Translator, and Television Booster Stations, 11680-11681 2011-3959 Improving Public Safety Communications in the 800 MHz Band: New 800 MHz Band Plan for Puerto Rico and the US Virgin Islands, 11681-11683 2011-4787 PROPOSED RULES Petition for Reconsideration of Action of Rulemaking Proceeding, 11737 2011-4687 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11779-11780 2011-4699 2011-4700 Meetings: Emergency Access Advisory Committee, 11780-11781 2011-4786 Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory Ruling Asking to Clarify the Scope of Section 332(c)(3)(A), 11781 2011-4790 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 11773-11774 2011-4711 Initial Market-Based Rate Filings Include Request for Blanket Section 204 Authorization: Paulding Wind Farm II LLC, 11774-11775 2011-4712 Initial Market-Based Rate Filings Include Requests for Blanket Section 204 Authorization: Denver Energy, LLC, 11775 2011-4710 Federal Housing Finance Agency Federal Housing Finance Agency RULES Minimum Capital, 11668-11675 2011-4413 Federal Housing Finance Board Federal Housing Finance Board RULES Minimum Capital, 11668-11675 2011-4413 Federal Maritime Federal Maritime Commission RULES Service Contracts and Non-vessel-operating Service Arrangements: Transmission of Approved Log-in ID and Passwords, 11680 2011-4769 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of Bank or Bank Holding Company, 11781-11782 2011-4693 Food and Drug Food and Drug Administration RULES Temperature-Indicating Devices: Thermally Processed Low-Acid Foods Packaged in Hermetically Sealed Containers, 11892-11924 2011-4475 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Expanded Access to Investigational Drugs for Treatment Use, 11789 2011-4739 Food Canning Establishment Registration, Process Filing, and Recordkeeping for Acidified Foods, etc., 11783-11786 2011-4474 Infant Formula Label Statements Experimental Study, 11788-11789 2011-4740 Radioactive Drug Research Committees, 11786-11788 2011-4741 Testing Communications on Medical Devices and Radiation-Emitting Products, 11789 2011-4738 Debarment Order: Albert Poet, 11789-11790 2011-4778 Drugs for Human Use: Drug Efficacy Study Implementation; Oral Prescription Drugs, etc.; Withdrawal of Hearing Requests; Final Resolution of Dockets, 11790-11793 2011-4702 Unapproved and Misbranded Oral Drugs Labeled for Prescription Use, etc.; Enforcement Action Dates, 11794-11798 2011-4703 Food Safety Food Safety and Inspection Service NOTICES Affirmation of Equivalence Decision: Australia's Meat Safety Enhancement Program, 11752-11755 2011-4902 Health and Human Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Committee on Organ Transplantation, 11798 2011-4755 Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services PROPOSED RULES Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to the Numerical Limitations, 11686-11699 2011-4731 Industry Industry and Security Bureau NOTICES Action Affecting Export Privileges: Ali Amirnazmi, 11756-11757 2011-4820 Interior Interior Department See Bureau of Ocean Energy Management, Regulation and Enforcement See National Park Service International Trade Adm International Trade Administration NOTICES Antidumping Duty Orders: Drill Pipe from People's Republic of China, 11757-11758 2011-4792 Countervailing Duty Order: Drill Pipe from the People's Republic of China, 11758-11760 2011-4796 Request for Public Comments Concerning Regulatory Cooperation Activities that Would Help Eliminate or Reduce Unnecessary Regulatory Divergences; etc., 11760-11762 2011-4862 International Trade Com International Trade Commission NOTICES Drill Pipe and Drill Collars from China, 11812-11813 2011-4713 Investigations: Magnesium from China and Russia, 11813 2011-4729 Receipt of Complaint: Solicitation of Comments Relating to the Public Interest, 11813-11814 2011-4732 Justice Department Justice Department PROPOSED RULES Certification Process for State Capital Counsel Systems, 11705-11713 2011-4800 NOTICES Lodging of Consent Decree under CLERCA, 11814 2011-4762 Lodging of Consent Decrees: United States v. SKF USA Inc., Crane Co., and Osram Sylvania, Inc., 11814-11815 2011-4718 Labor Department Labor Department See Employment and Training Administration Library Library of Congress See Copyright Office, Library of Congress National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reports, Forms, and Recordkeeping Requirements, 11848-11853 2011-4785 National Institute National Institutes of Health NOTICES Meetings: Eunice Kennedy Shriver National Institute of Child Health and Human Development, 11800-11801 2011-4783 2011-4784 National Cancer Institute, 11800 2011-4777 National Cancer Institute Special, 11800 2011-4775 National Center for Research Resources, 11798-11799 2011-4825 National Institute of Allergy and Infectious Diseases, 11799 2011-4823 2011-4824 National Institute of General Medical Sciences, 11801 2011-4782 National Institute of Mental Health, 11799-11801 2011-4780 2011-4781 National Institute on Aging, 11798 2011-4826 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries of Northeastern United States: Monkfish; Amendment 5, 11737-11750 2011-4795 Magnuson-Stevens Fishery Conservation and Management Act Provisions: Fisheries of Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 45, 11858-11890 2011-4395 NOTICES Marine Mammals: Application; Correction, 11762 2011-4811 Meetings: Atlantic Shark Identification, and Protected Species Safe Handling, Release, and Identification Workshops, 11762-11764 2011-4798 National Park National Park Service NOTICES Meetings: Gettysburg National Military Park Advisory Commission, 11812 2011-4818 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Survey of Principal Investigators on Earthquake Engineering Research Awards, 11821-11822 2011-4772 Comment Request: National Science Foundation Applicant Survey, 11822 2011-4760 Navy Navy Department NOTICES Availability of Government-Owned Inventions; Available for Licensing, 11764 2011-4834 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Application for a Combined License: Southern Nuclear Operating Co., 11822-11823 2011-4803 Issuance Of Renewed Facility Operating License; Record Of Decision: Kewaunee Power Station; Dominion Energy Kewaunee, Inc., 11823 2011-4805 Personnel Personnel Management Office PROPOSED RULES Presumption of Insurable Interest for Same-Sex Domestic Partners, 11684-11686 2011-4791 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Pipeline Safety: Request for Special Permit, 11853-11855 2011-4708 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 11823-11824 2011-4742 Post Office Closings, 11824-11825 2011-4752 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: American Red Cross Month (Proc. 8628), 11925-11928 2011-5028 Death of Army Corporal Frank W. Buckles, the Last Surviving American Veteran of World War I (Proc. 8632), 11935 2011-5032 Irish-American Heritage Month (Proc. 8629), 11929-11930 2011-5029 Peace Corps; 50th Anniversary (Proc. 8631), 11933-11934 2011-5031 Women's History Month (Proc. 8630), 11931-11932 2011-5030 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11825-11829 2011-4723 2011-4724 2011-4725 2011-4727 2011-4730 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 11829-11832 2011-4720 2011-4721 NASDAQ Stock Market LLC, 11832-11834 2011-4722 Small Business Small Business Administration NOTICES Disaster Declarations: Oregon, 11835 2011-4426 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11835-11837 2011-4797 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Brokering Prior Approval (License), Annual Brokering Report, 11837 2011-4793 Grant Proposal Requests, Bureau of Educational and Cultural Affairs: Youth Leadership and Teacher Professional Development Program with Bosnia and Herzegovina, 11837-11843 2011-4716 Meetings: U.S. National Commission for UNESCO; Closed and Open Session, 11843 2011-4715 Substance Substance Abuse and Mental Health Services Administration NOTICES Laboratories and Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal Agencies, 11802-11803 2011-4620 Transportation Department Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Notice of Retrospective Review of DOT Existing Regulations, 11699-11700 2011-4812 U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11805-11807 2011-4743 2011-4744 2011-4747 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Replacement Naturalization/Citizenship Document, 11807-11808 2011-4745 Registration for Classification as Refuge, 11808-11809 2011-4748 Sworn Statement of Refugee Applying for Admission to United States, 11807 2011-4746 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Advisory Committee on Disability Compensation, 11855 2011-4768 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 11858-11890 2011-4395 Part III Health and Human Services Department, Food and Drug Administration, 11892-11924 2011-4475 Part IV Presidential Documents, 11925-11935 2011-5028 2011-5032 2011-5029 2011-5031 2011-5030 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 76 42 Thursday, March 3, 2011 Rules and Regulations DEPARTMENT OF AGRICULTURE Office of the Secretary 7 CFR Part 1 RIN 0503-AA42 Procedures Relating to Awards Under the Equal Access to Justice Act AGENCY: Office of the Secretary, USDA. ACTION: Final rule. SUMMARY: The U.S. Department of Agriculture

(USDA)is amending its regulations implementing the Equal Access to Justice Act

(EAJA)by raising the maximum hourly attorney fees rate from $125.00 to $150.00 for covered proceedings initiated on and after the effective date of this final rule. DATES: This final rule is effective March 3, 2011. FOR FURTHER INFORMATION CONTACT: Adam J. Hermann, Esq., Attorney Advisor, General Law Division, Office of the General Counsel, South Building Room 3311, USDA, 1400 Independence Ave., SW., Washington, DC 20250; Voice:

(202)720-9425; Email: *adam.hermann@ogc.usda.gov* . SUPPLEMENTARY INFORMATION: On July 30, 2010, USDA published a proposed rule (75 FR 44928, July 30, 2010) to amend its regulations implementing the Equal Access to Justice Act (EAJA), 5 U.S.C. 504, to raise the maximum hourly attorney fees rate set forth in 7 CFR 1.186 from $125.00 to $150.00 for proceedings initiated on and after the effective date of the publication of this final rule. EAJA, 5 U.S.C. 504, provides to certain parties in adversary agency adjudications reimbursement for attorney fees and other expenses under limited circumstances. The proposed rule was issued in response to a Petition for Rulemaking

(PFR)received by USDA on September 29, 2008, filed by Public Citizen Litigation Group, Five Points Road Joint Venture, and Charles Brown, Esq., under the provisions of 7 CFR 1.187 and 1.28. The PFR sought an increase in the maximum attorney fees payable based on the U.S. Department of Labor Consumer Price All-Items Index for All Urban Consumers. In brief, the petitioners sought an automatic escalator clause using 1996 as the base year and $125.00 per hour as the base year maximum fee, with the new amount applying to all pending and future covered proceedings before USDA. In the proposed rule, USDA invited comments, which were due by September 28, 2010. USDA received two comments. *Comment:* One commenter, citing the economy, objected to the increase in the maximum hourly rate from $125.00 to $150.00 and suggested that the maximum hourly rate should be decreased. This commenter also advocated for the enactment of a law requiring attorneys to provide twenty hours per week of “public service.” *Response:* USDA considered this comment but is not making any changes to the proposed rule. In the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, Title II, section 231 (1996), Congress amended EAJA at 5 U.S.C. 504(b)(1)(A) by raising the hourly maximum attorney fees rate from $75.00 to $125.00. Because inflation has eroded the value of the $125 per hour fee set by Congress in 1996, USDA does not believe it would be appropriate to decrease the $125 per hour rate. Rather, USDA has determined that an increase of $25.00—from $125.00 to $150.00—is appropriate. Finally, the enactment of laws is a function of the Congress and is, therefore, outside the purview of this regulation. *Comment:* One commenter objected to any increase in the maximum hourly rate until “a more detailed process of documentation, as well as a comprehensive review of past usage of the EAJA” is undertaken. The commenter argued that attorney fee reimbursements under EAJA “have been recovered and utilized primarily by environmental groups,” and that such groups are “clearly receiving a disproportionate amount of funding from EAJA.” The commenter suggested that attorneys representing industry groups are disadvantaged because of such disproportionate amount of EAJA attorney fees reimbursements that are recovered by environmental groups. In support of its assertions, the commenter referred generally to research conducted by the Budd-Falen Law Offices, L.L.C., but does not state whether such research analyzed the EAJA statute for agency adjudications (5 U.S.C. 504) or the EAJA statute applicable in Federal judiciary proceedings (28 U.S.C. 2412), or both. *Response:* USDA considered this comment but is not making any changes to the proposed rule. Eligibility for reimbursement of attorney fees to prevailing parties in agency adversary adjudications is determined by statute (5 U.S.C. 504). If an entity meets the statutory eligibility requirements and otherwise complies with the EAJA procedures as implemented by USDA in 7 CFR part 1, subpart J, an EAJA award will be made. The mere status of the entity as an environmental group or an industry group has no bearing on agency EAJA determinations. EAJA determinations in judicial proceedings are governed by 28 U.S.C. 2412 and are made by the courts, not the agency. Any perceived inequities in EAJA reimbursements across particular interest groups may be addressed to Congress as part of the legislative process. USDA believes that an increase in the current maximum hourly rate is appropriate for the reasons stated previously. For the reasons stated in the proposed rule, USDA is raising the hourly fee set forth in 7 CFR 1.186 from $125.00 to $150.00, to be applicable to covered proceedings initiated on and after the effective date of this final rule. This action has been reviewed under Executive Order No. 12866 and has been determined not to be a “significant regulatory action.” This final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor will it materially alter the budgetary impact of entitlements, grants, user fees, or loan programs; nor will it have an annual effect on the economy of $100 million or more; nor will it adversely affect the economy, 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. Furthermore, it does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or principles set forth in the Executive Order. USDA certifies that this final rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, Public Law 96-534, as amended (5 U.S.C. 601 *et seq.* ). USDA has determined that the provisions of the Paperwork Reduction Act, as amended, (44 U.S.C. 3501 *et seq.* ), do not apply to any collections of information contained in this final rule because any such collections of information are made during the conduct of administrative action involving an agency against specific individuals or entities. 5 CFR 1320.4(a)(2). List of Subjects in 7 CFR Part 1 Administrative practice and procedure. Accordingly, Title 7 of the Code of Federal Regulations is amended as follows: PART 1—ADMINISTRATIVE REGULATIONS 1. The authority for part 1 continues to read as follows: Authority: 5 U.S.C. 301, unless otherwise noted. Subpart J—Procedures Relating to Awards Under the Equal Access to Justice Act in Proceedings Before the Department 2. Amend § 1.186 by revising paragraph

(b)to read as follows: § 1.186 Allowable fees and expenses.

(b)In proceedings commenced on or after the effective date of this paragraph, no award for the fee of an attorney or agent under the rules in this subpart may exceed $150 per hour. No award to compensate an expert witness may exceed the highest rate at which the Department pays expert witnesses, which is set out at § 1.150 of this part. However, an award also may include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses. 3. Amend § 1.187 by revising paragraph

(a)to read as follows: § 1.187 Rulemaking on maximum rates for attorney fees.

(a)If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Department may adopt regulations providing that attorney fees may be awarded at a rate higher than $150 per hour in some or all of the types of proceedings covered by this part. The Department will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act. Thomas J. Vilsack, Secretary of Agriculture. [FR Doc. 2011-4423 Filed 3-2-11; 8:45 am]

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