Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 9527 

Agency’s determination in the proposed 

rule, dietary supplements containing the 

free form of phytosterols would have to 

be relabeled or reformulated by 

February 21, 2011. The comments that 

the Agency received from industry 

stated that 75 days is not enough time 

to reformulate or relabel dietary 

supplements containing free 

phytosterols and requested that FDA 

consider extending its enforcement 

discretion for the use of the health claim 

in a consistent manner with the 2003 

letter. 

The Agency also understands that 

there are many conventional foods 

currently available in the marketplace 

that contain phytosterols at a level of 

0.4 g free phytosterol equivalents per 

RACC. These foods contain phytosterol 

ingredients that have not been the 

subject of a generally recognized as safe 

(GRAS) notification letter to which the 

Agency had no further questions at a 

level greater than 0.4 g free sterol 

equivalents per RACC. A level of 0.4 g 

free sterol equivalents per RACC is less 

than the new proposed requirement of 

0.5 g of phytosterols per RACC, based 

on the nonesterified weight of 

phytosterols. Products with 0.4 g free 

sterol equivalents per RACC would also 

have to be reformulated or relabeled 

beginning on February 21, 2011. 

Based on these concerns about 

reformulation and relabeling during a 

75-day period, FDA considers it 

appropriate to extend the period of time 

that it intends to exercise enforcement 

discretion based on the 2003 letter. FDA 

intends to exercise enforcement 

discretion until February 21, 2012, with 

regard to the use of a claim about 

reduced risk of CHD in the labeling of 

a phytosterol-containing food, including 

foods other than those specified in 

§ 101.83(c)(2)(iii)(A), based on the 

factors set forth in the 2003 letter for the 

use of such claim in the labeling of food. 

Information submitted by industry and 

trade associations about the amount of 

time necessary to reformulate, relabel, 

and to submit a GRAS notification in 

addition to the Agency’s experience 

with the economic impact of labeling 

and reformulation changes on industry 

have served as the basis for the Agency’s 

extension of the period during which it 

intends to exercise enforcement 

discretion to February 21, 2012, based 

on the 2003 letter. This document does 

not change how FDA intends to 

consider exercising its enforcement 

discretion when claims are made 

consistent with the proposed 

requirements in the proposed rule. 

Rather, this document only relates to 

FDA’s enforcement discretion based on 

the 2003 letter, and FDA will determine 

what, if any, further action is necessary, 

pending its review of the Cargill and 

Pharmachem petitions. Food bearing the 

health claim would be required to 

comply with any revised requirements 

established in the final rule when the 

final rule becomes effective. 

References 

1. Center for Food Safety and Applied 

Nutrition, Food and Drug 

Administration. Letter of Enforcement 

Discretion from FDA to Cargill Health & 

Food Technologies. Docket No. FDA– 

2000–P–0102, document ID DRAFT– 

0059 (formerly 2000P–1275/LET3) and 

Docket No. FDA–2000–P–0133, 

document ID DRAFT–0127 (formerly 

2000P–1276/LET4). February 14, 2003. 

Dated: February 14, 2011. 

Leslie Kux, 

Acting Assistant Commissioner for Policy. 

[FR Doc. 2011–3678 Filed 2–17–11; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211, 212, and 252 

Defense Federal Acquisition 

Regulation Supplement; Reporting of 

Government-Furnished Property 

(DFARS Case 2009–D043) 

AGENCY: Defense Acquisition 

Regulations System; Department of 

Defense (DoD). 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

revise and expand reporting 

requirements for Government-furnished 

property to include items uniquely and 

non-uniquely identified, and to clarify 

policy for contractor access to 

Government supply sources. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before April 

8, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D043, 

using any of the following methods: 

Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting 

‘‘DFARS Case 2009–D043’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2009–D043.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2009–D043’’ on your 

attached document. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D043 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Ms. Clare Zebrowski, 

OUSD (AT&L) DPAP/DARS, 3060 

Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check http://www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Clare Zebrowski, Telephone 703–602– 

0289; facsimile 703–602–0350. Please 

cite DFARS Case 2009–D043. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD published a proposed rule in the 

Federal Register on December 22, 2010 

(75 FR 80426), with a request for 

comment by February 22, 2011. DoD is 

extending the comment period for 45 

days to provide additional time for 

interested parties to review the 

proposed DFARS changes. DoD is 

planning a public meeting and detailed 

information on the meeting will be 

published in the Federal Register at a 

later date. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

[FR Doc. 2011–3727 Filed 2–17–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Part 1002 

[EP 542 (Sub-No. 18)] 

Regulations Governing Fees for 

Services 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Board proposes to amend 

the regulations governing user fees for 

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9528 Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 

1The fees established by the Board for specific 

services offset the Board’s appropriated funding, 

and do not directly add to it. 

2The Interstate Commerce Commission (ICC) 

previously defined a ‘‘chilling effect’’ as the level at 

which the filing fee represents a significant factor 

in determining whether to bring a complaint. See 

Regulations Governing Fees for Servs. Performed in 

Connection with Licensing and Related Servs., 1 

I.C.C. 2d 196, 198 (1984). 

3Public Law 104–88, 109 Stat. 803 (1995). 

services. The proposed amendment 

would set the fee for certain formal 

complaints at $350. 

DATES: Comments on this proposal are 

due by April 19, 2011; and replies are 

due by May 19, 2011. 

ADDRESSES: Comments may be 

submitted either via the Board’s e-filing 

format or in the traditional paper 

format. Any person using e-filing should 

attach a document and otherwise 

comply with the instructions at the 

E-Filing link on the Board’s Web site, at 

http://www.stb.dot.gov. Any person 

submitting a filing in the traditional 

paper format should send an original 

and 10 copies to: Surface Transportation 

Board, Attn: Docket No. EP 542 (SubNo. 18), 395 E Street, SW., Washington, 

DC 20423–0001. 

Copies of paper comments will be 

available for viewing and self-copying at 

the Board’s Public Docket Room, Room 

131; paper and electronic copies will be 

posted to the Board’s Web site. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Quinn at 202–245–0382. 

Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 

1–800–877–8339. 

SUPPLEMENTARY INFORMATION: The Board 

sets user fees in accordance with the 

Independent Offices Appropriation Act 

of 1952 (IOAA). The IOAA directs 

agencies such as the Board to establish 

fees for specific services that it provides 

to identifiable recipients, so that the 

service provided may be ‘‘self-sustaining 

to the extent possible.’’ 31 U.S.C. 

9701(a). The fees must be ‘‘fair’’ and be 

based on a variety of factors, including 

(but not limited to) the costs to the 

agency of each covered service, public 

policy or interest served, and the value 

of the service to the entity receiving it. 

31 U.S.C. 9701(b). The Board’s fees 

transfer some of the cost of funding the 

agency from the general taxpayer to the 

entity receiving the benefit of a 

particular Board action.1

Historically, certain fees have been set 

at levels below the full cost. For 

example, fee sub-item 58(i), a petition 

for declaratory order involving a dispute 

over an existing rate or practice, and fee 

sub-item 58(ii), all other petitions for 

declaratory order, were held at $1,000 

and $1,400, respectively, well below full 

cost to agency, to avoid any possible 

‘‘chilling effect’’ 2 that higher fees would 

have on access by shippers and 

consumers to the Board’s adjudicatory 

process. See Regulations Governing Fees 

for Servs. Performed in Connection With 

Licensing and Related Servs., 1 S.T.B. 

179, 199–200 (1996). Filing fees for 

formal complaints generally have been 

set based on a percentage of the full 

cost. Id. at 195–99. Since 2008, pursuant 

to Congressional directive, we have held 

the fees for all rate complaints at or 

below $350, the level of filing fees for 

complaints in district court. Fees for 

competitive access complaints and 

complaints seeking establishment of a 

common carrier rate are also below 

$350. 

Thus, in our current fee structure, we 

have a large gap between the relatively 

low fees for most complaints and for 

petitions for declaratory orders and the 

$20,600 fee for all other formal 

complaints, a gap that is not good public 

policy. Therefore, the Board proposes to 

lower the fee for sub-item 56(iv) [all 

other formal complaints except 

competitive access] from $20,600 to 

$350. Under this proposal, the fee for 

sub-items 56(i) [full Stand-Alone Cost 

rate complaints] and 56(ii) [SimplifiedSAC rate complaints] would be set at 

$350, and the fee for sub-item 56(iii) 

[Three Benchmark rate complaints], the 

most likely path to rate relief for small 

shippers, would remain at $150. 

We believe three sound public policy 

considerations call for the Board to set 

relatively low fees for filing a complaint. 

Under the ICC Termination Act of 

1995,3 Congress eliminated authority 

previously held by the ICC to initiate 

investigations of alleged illegal or 

unreasonable rates or practices. As a 

result, the filing of a complaint by 

shippers or other entities is the Board’s 

only mechanism for investigating and 

addressing potential rate violations or 

other unlawful practices. 

Second, it is possible that the 

relatively high fees for filing formal 

complaints under item 56(iv)—currently 

$20,600—may be having a chilling effect 

on shippers and other entities seeking to 

bring a complaint to the Board. For 

example, over the past 10 years, our Rail 

Consumer and Public Assistance unit 

has assessed hundreds of informal 

complaints related to service and 

demurrage, and although many have 

been successfully resolved, several that 

were unresolved did not become the 

subjects of formal complaints. While we 

presume that some of these cases were 

not brought before the Board for reasons 

unrelated to fees, the proposed fee 

amendment would minimize any 

chilling effect of high fees, and 

encourage outside parties to bring 

potential regulatory violations before 

the Board for adjudication. 

Finally, the proposed amendment 

should result in better management of 

the Board’s docket and use of Board 

resources. Maintaining comparatively 

low filing fees for petitions for 

declaratory orders, coupled with the 

high fee for complaints (other than rate 

or competitive access complaints) under 

fee item 56(iv), appears to have led 

parties to seek broad declarations by the 

Board rather than asking the Board to 

resolve individual complaints. In some 

cases, an individual complaint may 

have been preferable and the Board’s fee 

structure should not be the deciding 

factor in a party’s decision of what type 

of case to bring. 

While not part of the changes 

proposed here, we intend, in a future 

proceeding, to consider revising the fees 

for declaratory order proceedings to 

better reflect the cost of these 

proceedings to the agency. However, to 

encourage courts to continue to seek our 

advice, when appropriate, under the 

doctrine of primary jurisdiction, and so 

as not to unduly burden parties, we also 

intend to establish a new, comparatively 

low fee item for petitions for declaratory 

order that result from court referrals. 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, generally 

requires a description and analysis of 

final rules that will have significant 

economic impact on a substantial 

number of small entities. In drafting a 

rule an agency is required to: (1) Assess 

the effect that its regulation will have on 

small entities; (2) analyze effective 

alternatives that may minimize a 

regulation’s impact; and (3) make the 

analysis available for public comment. 

5 U.S.C. 601–604. In its notice of 

proposed rulemaking, the agency must 

either include an initial regulatory 

flexibility analysis, 5 U.S.C. 603(a), or 

certify that the proposed rule will not 

have a ‘‘significant impact on a 

substantial number of small entities,’’ 

5 U.S.C. 605(b). The impact must be a 

direct impact on small entities ‘‘whose 

conduct is circumscribed or mandated’’ 

by the proposed rule. White Eagle Coop. 

Ass’n v. Conner, 553 F.3d 467, 480 (7th 

Cir. 2009). 

Though these rules may impact some 

small entities because they may be 

subject to a filing fee, the fees proposed 

above would change only the fee for ‘‘all 

other formal complaints except 

competitive access complaints,’’ by 

reducing that fee from $20,600 to $350. 

Accordingly, pursuant to 5 U.S.C. 

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Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 9529 

605(b), the Board certifies that the 

regulations proposed herein would not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. A copy of this decision 

will be served upon the Chief Counsel 

for Advocacy, Office of Advocacy, U.S. 

Small Business Administration, 

Washington, DC 20416. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. This rulemaking will 

affect the following subjects: 

List of Subjects in 49 CFR Part 1002 

Administrative practice and 

procedure, Common carriers, Freedom 

of information. 

Decided: February 14, 2011. 

By the Board, Chairman Elliott, Vice 

Chairman Nottingham, and Commissioner 

Mulvey. 

Jeffrey Herzig, 

Clearance Clerk. 

Code of Federal Regulations 

For reasons set forth in the preamble, 

the Surface Transportation Board 

proposes to amend part 1002 of title 49, 

chapter X of the Code of Federal 

Regulations as follows: 

PART 1002—FEES 

1. The authority citation for part 1002 

continues to read as follows: 

Authority: 5 U.S.C. 552(a)(4)(A) and § 553; 

31 U.S.C. 9701 and 49 U.S.C. 721(a). Section 

1002.1(g)(11) also issued under 5 U.S.C. 5514 

and 31 U.S.C. 3717. 

2. In § 1002.2, revise paragraph 

(f)(56)(iv) to read as follows: 

§ 1002.2 Filing fees. 

* * * * * 

(f) * * * 

Type of proceeding Fee 

*******

PART V: Formal Proceedings 

*******

(56) * * * 

(iv) All other formal complaints (except competitive access complaints) ........................................................................................ $350 

*******

* * * * * 

[FR Doc. 2011–3716 Filed 2–17–11; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 22 

[FWS–R9–MB–2011–N018; 91200–1231– 

9BPP] 

RIN 1018–AX53 

Migratory Birds; Draft Eagle 

Conservation Plan Guidance 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of availability. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability for public comment of draft 

Eagle Conservation Plan Guidance. The 

Guidance provides recommendations 

for agency staff and developers to use an 

iterative process to avoid and minimize 

negative effects on eagles and their 

habitats resulting from the construction, 

operation and maintenance of landbased, wind energy facilities in the 

United States. 

DATES: We must receive any comments 

or suggestions by the end of the day on 

May 19, 2011. 

ADDRESSES: We have posted our draft 

Eagle Conservation Plan Guidance at 

http://www.fws.gov/windenergy. You 

may submit e-mail comments to 

windenergy@fws.gov. Please include 

‘‘Eagle Conservation Plan Guidance 

Comments’’ in the subject line of the 

message, and your full name and return 

address in the body of your message. 

Please note that the e-mail address will 

be closed when the public comment 

period closes. Alternatively, you may 

submit comments or recommendations 

by mail to: Attention: Eagle 

Conservation Plan Guidance; Division of 

Migratory Bird Management; U.S. Fish 

and Wildlife Service; 4401 North Fairfax 

Drive, Mail Stop 4107; Arlington, VA 

22203–1610. 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, 703–358–2583. 

SUPPLEMENTARY INFORMATION: The 

Service is charged with implementing 

statutes including the Bald and Golden 

Eagle Protection Act (BGEPA), the 

Migratory Bird Treaty Act, and the 

Endangered Species Act. BGEPA 

prohibits all take of eagles unless 

otherwise authorized by the Service. A 

goal of BGEPA is to achieve and 

maintain stable or increasing 

populations of bald and golden eagles. 

The draft Eagle Conservation Plan 

Guidance (draft Guidance) interprets 

and clarifies the permit requirements in 

the regulations at 50 Code of Federal 

Regulations (CFR) 22.26 and 22.27, and 

does not impose any binding 

requirements beyond those specified in 

the regulations. The draft Guidance 

provides a means of compliance with 

BGEPA by providing recommendations 

for: 

(1) Conducting early pre-construction 

assessments to identify important eagle 

use areas; 

(2) Avoiding, minimizing, and/or 

compensating for potential adverse 

effects to eagles; and, 

(3) Monitoring for impacts to eagles 

during construction and operation. 

The draft Guidance calls for 

scientifically rigorous surveys, 

monitoring, risk assessment, and 

research designs proportionate to the 

risk to eagles. The draft Guidance 

describes a process by which wind 

energy developers can collect and 

analyze information that could lead to a 

programmatic permit to authorize 

unintentional take of eagles at wind 

energy facilities. The process described 

here is not required, but project 

proponents should coordinate closely 

with the Service concerning alternatives 

to insure that eagle conservation plans 

conform with requirements of BGEPA. 

The Service will initiate a peer review 

of the draft Guidance during the public 

comment period. 

The development of facilities to 

generate electricity from wind turbines 

has increased dramatically in the range 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS