73976 Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 

(b) General rules. (1) Upper payment 

limit refers to a reasonable estimate of 

the amount that would be paid for the 

services furnished by the group of 

facilities under Medicare payment 

principles in subchapter B of this 

chapter. 

(2) Except as provided in paragraph 

(c) of this section, aggregate Medicaid 

payments to a group of facilities within 

one of the categories described in 

paragraph (a) of this section may not 

exceed the upper payment limit 

described in paragraph (b)(1) of this 

section. 

(c) Exceptions. Indian Health Services 

and tribal facilities. The limitation in 

paragraph (b) of this section does not 

apply to Indian Health Services 

facilities and tribal facilities that are 

funded through the Indian SelfDetermination and Education 

Assistance Act (Pub. L. 93–638). 

(d) * * * 

(1) For non-State government-owned 

or operated hospitals—March 19, 2002. 

* * * * * 

PART 457—ALLOTMENTS AND 

GRANTS TO STATES 

■ 10. The authority for part 457 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

Subpart B—General Administration— 

Reviews and Audits; Withholding for 

Failure To Comply; Deferral and 

Disallowance of Claims; Reduction of 

Federal Medical Payments 

■ 11. Section 457.220 is revised to read 

as follows: 

§ 457.220 Funds from units of government 

as the State share of financial participation. 

(a) Public funds may be considered as 

the State’s share in claiming FFP if they 

meet the conditions specified in 

paragraphs (b) and (c) of this section. 

(b) The public funds are appropriated 

directly to the State or local SCHIP 

agency, or are transferred from other 

public agencies (including Indian tribes) 

to the State or local agency and are 

under its administrative control, or are 

certified by the contributing public 

agency as representing expenditures 

eligible for FFP under this section. 

(c) The public funds are not Federal 

funds, or are Federal funds authorized 

by Federal law to be used to match other 

Federal funds. 

Subpart F—Payments to States 

■ 12. Section 457.628 is amended by 

revising the introductory text and 

paragraph (a) to read as follows: 

§ 457.628 Other applicable Federal 

regulations. 

Other regulations applicable to SCHIP 

programs include the following: 

(a) HHS regulations in 42 Subpart B— 

433.51–433.74 sources of non-Federal 

share and Health Care-Related Taxes 

and Provider-Related Donations; apply 

to States’ SCHIP programs in the same 

manner as they apply to States’ 

Medicaid programs. 

* * * * * 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: July 28, 2010. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: August 20, 2010. 

Kathleen Sebelius 

Secretary. 

[FR Doc. 2010–30066 Filed 11–29–10; 8:45 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 09–52; FCC 10–24] 

Policies To Promote Rural Radio 

Service and To Streamline Allotment 

and Assignment Procedures 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; announcement of 

compliance date. 

SUMMARY: In this document, the 

Commission announces that the Office 

of Management and Budget (OMB) has 

approved, for a period of three years, the 

information collection requirements 

associated with the Commission’s rules 

and FCC Forms 301, 314, 315, 316 and 

340. These rules and form changes were 

approved on May 27, 2010 and June 4, 

2010 and the compliance date will be 

November 30, 2010. 

DATES: The compliance date for 

§§ 73.3571(k), 73.7000, 73.7002(b), and 

73.7002(c) and FCC Forms 301, 314, 

315, 316 and 340 published at 75 FR 

9797, March 4, 2010 is November 30, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Cathy Williams on (202) 418–2918 or 

send an e-mail to: 

Cathy.Williams@fcc.gov. 

SUPPLEMENTARY INFORMATION: As 

required by the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3507), the 

Commission is notifying the public that 

it received OMB approval on May 27, 

2010, and June 4, 2010, for a period of 

three years, for the information 

collection requirements contained in 

Sections 73.3571(k), 73.7000, 

73.7002(b), and 73.7002(c) of the 

Commission’s rules and FCC Forms 301, 

314, 315, 316 and 340 and that the 

compliance date for these rules and 

forms published at 75 FR 9797, March 

4, 2010, is November 30, 2010. If you 

have any comments on the burden 

estimates, or how the Commission can 

improve the collections and reduce any 

burdens caused thereby, please contact 

Cathy Williams, Federal 

Communications Commission, Room 1– 

C823, 445 12th Street, SW., Washington, 

DC 20554. Please include OMB Control 

Numbers 3060–0029, 3060–0027, 3060– 

0996, 3060–0031 and/or 3060–0009 in 

your correspondence. The Commission 

also will accept your comments via the 

Internet if you send them to 

PRA@fcc.gov. To request materials in 

accessible formats for people with 

disabilities (Braille, large print, 

electronic files, audio format), send an 

e-mail to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at (202)418–0530 (voice), (202) 

418–0432 (TTY). 

Under 5 CFR 1320, an agency may not 

conduct or sponsor a collection of 

information unless it displays a current, 

valid OMB Control Number. 

No person shall be subject to any 

penalty for failing to comply with a 

collection of information subject to the 

Paperwork Reduction Act that does not 

display a valid OMB Control Number. 

The OMB Control Numbers are 3060– 

0027, 3060–0029, 3060–0996, 3060– 

0031 and 3060–0009 and the total 

annual reporting burdens and costs for 

respondents are as follows: 

OMB Control Number: 3060–0029. 

OMB Approval Date: June 4, 2010. 

Expiration Date: June 30, 2013. 

Title: Application for Construction 

Permit for Reserved Channel 

Noncommercial Educational Broadcast 

Station. 

Form Number: FCC Form 340. 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions; State, local or tribal 

government. 

Number of Respondents and 

Responses: 2,710 respondents and 2,710 

responses. 

Estimated Time per Response: 2 to 5 

hours. 

Frequency of Response: On occasion 

reporting requirement; Third party 

disclosure requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this collection of 

information is contained in Sections 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 73977 

154(i), 303 and 308 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 6,700 hours. 

Total Annual Costs: $27,894,950.00. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality and 

respondents are not being asked to 

submit confidential information to the 

Commission. 

Needs and Uses: On April 7, 2009, the 

Commission adopted a Notice of 

Proposed Rule Making in the Matter of 

Policies to Promote Rural Radio Service 

and to Streamline Allotment and 

Assignment Procedures, MB Docket No. 

09–52, FCC 09–30, 24 FCC Rcd 5239 

(2009). On January 28, 2010, the 

Commission adopted a First Report and 

Order in the Matter of Policies to 

Promote Rural Radio Service and to 

Streamline Allotment and Assignment 

Procedures (the ‘‘Order’’), MB Docket 

No. 09–52, FCC 10–24, 25 FCC Rcd 1583 

(2010). In the Order, the Commission 

adopted the Tribal Priority proposed in 

the Notice of Proposed Rule Making, 

with some modifications. Under the 

Tribal Priority, a Section 307(b) priority 

will apply to an applicant meeting all of 

the following criteria: (1) The applicant 

is either a federally recognized Tribe or 

tribal consortium, or an entity 51 

percent or more of which is owned or 

controlled by a Tribe or Tribes (with the 

Tribes or entities occupying tribal lands 

that are covered by at least 50 percent 

of the daytime principal community 

contour of the proposed facility); (2) at 

least 50 percent of the daytime principal 

community contour of the proposed 

facilities covers tribal lands, in addition 

to meeting all other Commission 

technical standards; (3) the specified 

community of license is located on 

tribal lands; and (4) the applicant 

proposes the first local tribal-owned 

noncommercial educational 

transmission service at the proposed 

community of license. The proposed 

Tribal Priority would apply, if 

applicable, before the fair distribution 

analysis currently used by 

noncommercial educational applicants. 

The Tribal Priority does not prevail over 

an applicant proposing first overall 

reception service to a significant 

population. 

FCC Form 340 and its instructions are 

being revised to accommodate those 

applicants qualifying for the new Tribal 

Priority. Specifically, we are adding 

new Questions 1 and 2, which seek 

information as to the applicant’s 

eligibility for the Tribal Priority and 

direct applicants claiming the priority to 

prepare and attach an exhibit, to Section 

III. The instructions for Section III have 

been revised to assist applicants with 

completing the new questions and 

preparing the exhibit. Also, the 

Commission removed FCC Form 302– 

DTV, Application for Digital Television 

Broadcast Station License, and FCC 

Form 349, Application for Authority to 

Construct or Make Changes in an FM 

Translator or FM Booster Station, from 

this information collection to allow the 

Commission to more effectively manage 

the information collections. 

OMB Control Number: 3060–0027. 

OMB Approval Date: June 4, 2010. 

Expiration Date: June 30, 2013. 

Title: Application for Construction 

Permit for Commercial Broadcast 

Station. 

Form Number: FCC Form 301. 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions; State, local or tribal 

government. 

Number of Respondents and 

Responses: 4,453 respondents and 7,889 

responses. 

Estimated Time per Response: 3 to 

6.25 hours. 

Frequency of Response: On occasion 

reporting requirement; Third party 

disclosure requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this collection of 

information is contained in Sections 

154(i), 303 and 308 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 19,561 hours. 

Total Annual Costs: $85,096,314.00. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality and 

respondents are not being asked to 

submit confidential information to the 

Commission. 

Needs and Uses: On January 28, 2010, 

the Commission adopted a First Report 

and Order and Further Notice of 

Proposed Rulemaking (the ‘‘Order’’) in 

MB Docket No. 09–52, FCC 10–24, 25 

FCC Rcd 1583 (2010). The Order adopts 

changes to certain procedures associated 

with the award of broadcast radio 

construction permits by competitive 

bidding, including modifications to the 

manner in which it awards preferences 

to applicants under the provisions of 

Section 307(b) of the Communications 

Act of 1934, as amended (the ‘‘Act’’). 

With regard to AM application 

processing, the Commission adopted a 

proposal to explicitly prohibit the 

downgrading of proposed AM facilities 

that receive a dispositive preference 

under Section 307(b) of the Act and thus 

are not awarded through competitive 

bidding. Specifically, an AM applicant 

that receives a dispositive preference 

under Section 307(b) will not be 

allowed to later modify that proposal to 

serve a smaller population or otherwise 

negate the factors that led to the award 

of the preference. The Commission 

imposed these restrictions for a period 

of four years of on-air operations. These 

procedural safeguards are necessary to 

protect the integrity of our Section 

307(b) analyses. Consistent with actions 

taken by the Commission in the Order, 

FCC Form 301 has been revised to add 

questions, specifically asking the 

applicant to certify that the construction 

permit application complies with the 

four year service requirements. The 

instructions for FCC Form 301 have 

been revised to assist applicants with 

completing the new questions. 

OMB Control Number: 3060–0996. 

OMB Approval Date: May 27, 2010. 

Expiration Date: May 31, 2013. 

Title: AM Auction Section 307(b) 

Submissions. 

Form Number: N/A. 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions; State, local or tribal 

government. 

Number of Respondents and 

Responses: 160 respondents and 160 

responses. 

Estimated Time per Response: 0.5 to 

3 hours. 

Frequency of Response: On occasion 

reporting requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this collection of 

information is contained in Sections 

154(i), 307(b) and 309 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 375 hours. 

Total Annual Costs: $71,200.00. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality and 

respondents are not being asked to 

submit confidential information to the 

Commission. 

Needs and Uses: On January 28, 2010, 

the Commission adopted a First Report 

and Order and Further Notice of 

Proposed Rulemaking (the ‘‘Order’’) in 

MB Docket No. 09–52, FCC 10–24, 25 

FCC Rcd 1583 (2010). The Order adopts 

changes to certain procedures associated 

with the award of broadcast radio 

construction permits by competitive 

bidding, including modifications to the 

manner in which it awards preferences 

to applicants under the provisions of 

Section 307(b). In the Order, the 

Commission added a new Section 

307(b) priority that would apply only to 

Native American and Alaska Native 

Tribes, tribal consortia, and majority 

tribal-owned entities proposing to serve 

tribal lands. The priority is only 


jdjones on DSK8KYBLC1PROD with RULES
73978 Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 

available when all of the following 

conditions are met: (1) The applicant is 

either a federally recognized Tribe or 

tribal consortium, or an entity that is 51 

percent or more owned or controlled by 

a Tribe or Tribes; (2) at least 50 percent 

of the daytime principal community 

contour of the proposed facilities will 

cover tribal lands, in addition to 

meeting all other Commission technical 

standards; (3) the specified community 

of license is located on tribal lands; and 

(4) in the commercial AM service, the 

applicant must propose first or second 

aural reception service or first local 

commercial tribal-owned transmission 

service to the proposed community of 

license, which must be located on tribal 

lands. Applicants claiming Section 

307(b) preferences using these factors 

will submit information to substantiate 

their claims. The Commission will 

dismiss, without further processing, the 

previously filed AM auction filing 

window application and technical 

proposal of any applicant that fails to 

file an amendment addressing the 

Section 307(b) criteria, where required. 

Mutually exclusive AM applicants may 

not use this as an opportunity to change 

the technical proposal specified in the 

AM auction filing window application. 

The Section 307(b) showing must be 

based on the technical proposal as 

specified in the AM auction filing 

window application. 

OMB Control Number: 3060–0031. 

OMB Approval Date: May 27, 2010. 

Expiration Date: May 31, 2013. 

Title: Application for Consent to 

Assignment of Broadcast Station 

Construction Permit or License, FCC 

Form 314; Application for Consent to 

Transfer Control of Entity Holding 

Broadcast Station Construction Permit 

or License, FCC Form 315; Section 

73.3580, Local Public Notice of Filing of 

Broadcast Applications. 

Form Number: FCC Forms 314 and 

315. 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions; State, local or tribal 

government. 

Number of Respondents and 

Responses: 4,820 respondents and 

12,520 responses. 

Estimated Time per Response: 2 to 6 

hours. 

Frequency of Response: On occasion 

reporting requirement; Third party 

disclosure requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this collection of 

information is contained in Sections 

154(i), 303(b) and 308 of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 18,443 hours. 

Total Annual Costs: $36,168,450.00. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality and 

respondents are not being asked to 

submit confidential information to the 

Commission. 

Needs and Uses: On January 28, 2010, 

the Commission adopted a First Report 

and Order and Further Notice of 

Proposed Rulemaking (the ‘‘Order’’) in 

MB Docket No. 09–52; FCC 10–24, 25 

FCC Rcd 1583 (2010). The Order adopts 

rule changes designed to streamline and 

clarify certain procedures associated 

with the award of broadcast radio 

construction permits by competitive 

bidding. In the Order, the Commission 

also adopted a priority under Section 

307(b) of the Communications Act of 

1934, as amended, to assist federally 

recognized Native American Tribes and 

Alaska Native Villages (‘‘Tribes’’), 

enrolled members of Tribes, and entities 

primarily owned or controlled by Tribes 

or enrolled members of Tribes, in 

obtaining broadcast radio construction 

permits designed primarily to serve 

tribal lands (the ‘‘Tribal Priority’’). 

Applicants affiliated with Tribes who 

meet certain conditions regarding tribal 

membership and signal coverage qualify 

for the Tribal Priority, which in most 

cases will enable the qualifying 

applicants to obtain construction 

permits without proceeding to 

competitive bidding, in the case of 

commercial stations, or to point system 

evaluation, in the case of 

noncommercial educational (‘‘NCE’’) 

stations. Once a permit is obtained, it 

cannot be assigned or transferred to 

another person or entity for a period 

beginning with issuance of the 

construction permit until the station has 

completed four years of on-air 

operations, unless the assignee or 

transferee also qualifies for the Tribal 

Priority. 

Consistent with actions taken by the 

Commission in the Order, the following 

changes are made to Forms 314 and 315: 

Section I of each form includes a new 

question asking applicants to indicate 

whether any of the authorizations 

involved in the transaction were 

obtained (or, in the case of non-reserved 

band commercial FM stations the 

allotment for the station was obtained) 

through the Tribal Priority. The 

instructions for Section I of Forms 314 

and 315 have been revised to assist 

applicants with completing the new 

questions. 

OMB Control Number: 3060–0009. 

OMB Approval Date: May 27, 2010. 

Expiration Date: May 31, 2013. 

Title: Application for Consent to 

Assignment of Broadcast Station 

Construction Permit or License or 

Transfer of Control of Corporation 

Holding Broadcast Station Construction 

Permit or License. 

Form Number: FCC Form 316. 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions; State, local or tribal 

government. 

Number of Respondents and 

Responses: 750 respondents and 750 

responses. 

Estimated Time per Response: 1.5 to 

4.5 hours. 

Frequency of Response: On occasion 

reporting requirement. 

Obligation to Respond: Required to 

obtain or retain benefits. Statutory 

authority for this collection of 

information is contained in Sections 

154(i) and 310(d) of the 

Communications Act of 1934, as 

amended. 

Total Annual Burden: 1,231 hours. 

Total Annual Costs: $711,150.00. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality and 

respondents are not being asked to 

submit confidential information to the 

Commission. 

Needs and Uses: On January 28, 2010, 

the Commission adopted a First Report 

and Order and Further Notice of 

Proposed Rulemaking (the ‘‘Order’’) in 

MB Docket No. 09–52, FCC 10–24, 25 

FCC Rcd 1583 (2010). The Order adopts 

rule changes designed to streamline and 

clarify certain procedures associated 

with the award of broadcast radio 

construction permits by competitive 

bidding. To prevent unjust enrichment 

by parties that acquire broadcast 

construction permits through the use of 

a bidding credit in an auction, Section 

73.5007(c) of the Rules requires 

reimbursement to the Commission of all 

or part of the bidding credit upon a 

subsequent assignment or transfer of 

control, if the proposed assignee or 

transferee is not eligible for the same 

percentage of bidding credit. The rule is 

routinely applied to ‘‘long form’’ 

assignment or transfer applications filed 

on FCC Forms 314 and 315. In the 

Order, the Commission also sought to 

clarify that the unjust enrichment 

payments to the government must be 

made even when an assignment or 

transfer is pro forma in nature and 

therefore filed on FCC Form 316. This 

ensures that applicants do not use the 

summary pro forma assignment and 

transfer procedures to circumvent the 

unjust enrichment requirements. 

Consistent with actions taken by the 

Commission in the Order, FCC Form 

316 has been revised to add the 

broadcast auction-based questions 

presently included on FCC Forms 314 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 73979 

and 315, specifically asking the 

applicants to certify that the proposed 

assignment or transfer complies with 

the unjust enrichment provisions of the 

Commission’s competitive bidding 

rules. The instructions for FCC Form 

316 have been revised to assist 

applicants with completing the new 

questions. 

Federal Communications Commission. 

Gloria Miles, 

Federal Register Liaison. 

[FR Doc. 2010–29671 Filed 11–29–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 100813358–0560–02] 

RIN 0648–BA16 

Fisheries of the Northeastern United 

States; Discard Provision for Herring 

Midwater Trawl Vessels Fishing in 

Groundfish Closed Area I 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: Through this action, NMFS 

removes a regulatory exemption for 

midwater trawl herring vessels, which 

was originally implemented by a 

November 2, 2009, final rule. The 

exemption allowed midwater trawl 

vessels with an All Areas and/or Areas 

2 and 3 Atlantic herring limited access 

permit fishing in Northeast (NE) 

multispecies Closed Area I (CA I) to 

release fish that cannot be pumped from 

the net at the end of pumping 

operations, without those fish being 

sampled by a NMFS at-sea observer. As 

a result of this rule, vessels will be 

required to bring the fish on board the 

vessel and make them available to the 

at-sea observer for sampling. The 

publication of this action is part of a 

Court-approved joint motion to stay 

pending litigation. 

DATES: Effective January 31, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Potts, Fishery Policy Analyst, 

(978) 281–9341, fax (978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 4, 2009, NMFS 

published a proposed rule (74 FR 

45798) to implement changes to access 

requirements for midwater trawl vessels 

fishing in CA I, at the request of the New 

England Fishery Management Council 

(Council), with the intended goal of 

collecting better information on bycatch 

in the midwater trawl fishery. A final 

rule was published on November 2, 

2009 (74 FR 56562), that implemented 

regulations requiring 100-percent 

observer coverage of trips by vessels 

with limited access Atlantic herring All 

Areas and/or Areas 2 and 3 category 

permits fishing for herring in CA I with 

midwater trawl gear. The rule also 

prohibited these vessels from releasing 

fish from the codend of the net, 

transferring fish to another vessel that is 

not carrying an observer, or otherwise 

discarding fish at sea, unless the fish 

has first been brought on board the 

vessel and made available for sampling 

and inspection by the observer. The 

regulations implemented by the 

November 2, 2009, rule (74 FR 56562) 

provided the following exemptions to 

this prohibition: 

• The vessel operator has determined 

there is a compelling safety reason; or 

• A mechanical failure precludes 

bringing the fish aboard the vessel for 

inspection; or, 

• After pumping of fish onto the 

vessel has begun, the vessel operator 

determines that pumping becomes 

impossible as a result of spiny dogfish 

clogging the pump intake. Under this 

scenario, the vessel operator must take 

reasonable measures (such as strapping 

and splitting the net) to remove all fish 

that can be pumped from the net prior 

to release; or 

• When there are small amounts of 

fish that cannot be pumped and remain 

in the net at the completion of pumping 

operations. 

Additionally, under these regulations, 

if a codend is released in accordance 

with one of the first three exemptions, 

the vessel operator must complete and 

sign an affidavit to NOAA’s Office of 

Law Enforcement (OLE) stating the 

vessel name and permit number; the 

vessel trip report (VTR) serial number; 

where, when, and for what reason the 

catch was released; the total weight of 

fish caught on that tow; and the weight 

of fish released (if less than the full 

tow). Completed affidavits are to be 

submitted to OLE at the conclusion of 

the trip. Following a released codend 

under one of the first three exemptions, 

the vessel may not fish in CA I for the 

remainder of the trip. 

The exception allowing small 

amounts of fish that cannot be pumped 

from the net (sometimes called 

operational discards) to be released 

unobserved from the net while still in 

the water was not specifically 

mentioned in the proposed rule. NMFS 

considered this exemption to be a 

logical outgrowth of the proposed rule 

that needed no further public comment 

because it addressed a foreseeable 

practical problem that a small amount of 

fish may be left in a net after pumping 

operations were completed. 

However, following publication of the 

final rule three fishermen filed a lawsuit 

challenging the exemption allowing the 

release of small amounts of fish that 

remain after pumping (Taylor et al. v. 

Locke, 09–CV–02289–HHK). Plaintiffs 

alleged that this additional exemption 

violated the Administrative Procedure 

Act because it was not a ‘‘logical 

outgrowth’’ of the proposed rule and 

should have been subjected to public 

comment, and that it violated 

conservation requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by allowing 

fish to be released from herring nets 

unobserved. Plaintiffs also claimed that 

the terms ‘‘small amounts of fish’’ and 

‘‘at the completion of pumping 

operations’’ were not adequately 

defined. 

Without admitting any violation of 

applicable law in publishing the 

original final rule, NMFS and the 

plaintiffs agreed to stay the litigation 

while NMFS repromulgated the 

challenged provision, to solicit public 

comment. On September 7, 2010, NMFS 

published a proposed rule (75 FR 

54292), that repromulgated the 

challenged provision 

(§ 648.80(d)(7)(ii)(D)) and solicited 

public comment on whether to retain, 

delete, or amend the additional 

exemption in question. The proposed 

rule sought comment on: Retaining the 

exemption as it currently exists (status 

quo); eliminating the exemption 

(Alternative 1); modifying the 

exemption by specifying a maximum of 

200 lb (90.7 kg) of fish that could be 

released (Alternative 2); or modifying 

the exemption by requiring that the 

codend either be brought on board or 

lifted out of the water, at the captain’s 

discretion, so the observer could better 

estimate the amount and type of fish 

being released (Alternative 3). Public 

comments were accepted through 

October 7, 2010. Comments received are 

summarized and responded to below. 

Based on public comment received, 

NMFS is implementing ‘‘Alternative 1,’’ 

and is removing the exemption for 

operational discards at 

§ 648.80(d)(7)(ii)(D). Therefore, if fish 

remain in the net at the conclusion of 

pumping operations, those fish will 

have to be brought on board the vessel 

and made available for sampling and 


jdjones on DSK8KYBLC1PROD with RULES