76946 Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Proposed Rules 

significant rule and would not create an 

environmental risk to health or risk to 

safety that might disproportionately 

affect children. 

Indian Tribal Governments 

This proposed rule does not have 

Tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

a substantial direct effect on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

Energy Effects 

We have analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. A preliminary 

environmental analysis checklist 

supporting this determination is 

available in the docket where indicated 

under ADDRESSES. This proposed rule 

involves establishing a Regulated 

Navigation Area restricting tugs with 

less than 3,000 total horsepower from 

transiting the Hudson River when ice 

thickness is on average eight inches or 

greater. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

2. Add § 165.165 to read as follows: 

§ 165.165 Regulated Navigation Area; 

Hudson River south of the Troy Locks, New 

York. 

(a) Regulated navigation area. All 

navigable waters of the Hudson River 

south of the Troy Locks. 

(b) Definitions. The following 

definitions apply to this section: 

(1) Designated representative means 

any Coast Guard commissioned, 

warrant, or petty officer, or a Federal, 

State, or local law enforcement officer 

designated by or assisting the Captain of 

the Port (COTP) New York. 

(2) Horsepower (HP) means the total 

maximum continuous shaft horsepower 

of all the vessel’s main propulsion 

machinery. 

(c) Applicability. This section applies 

to tugs with less than 3,000 horsepower 

when engaged in towing operations. 

(d) Regulations. (1) Except as 

provided in paragraph (c)(3) of this 

section, vessels less than 3,000 

horsepower while engaged in towing 

operations are not authorized to transit 

that portion of the Hudson River south 

of the Troy Locks when ice thickness on 

average is eight inches or greater. 

(2) All Coast Guard assets enforcing 

this Regulated Navigation Area can be 

contacted on VHF marine band radio, 

channel 13 or 16. The COTP can be 

contacted at (718) 354–4356, and the 

public may contact the COTP to suggest 

changes or improvements in the terms 

of this Regulated Navigation Area. 

(3) All persons desiring to transit 

through a portion of the regulated area 

that has operating restrictions in effect 

must contact the COTP at telephone 

number (718) 354–4356 or on VHF 

channel 13 or 16 to seek permission 

prior to transiting the affected regulated 

area. 

(4) The COTP will notify the public of 

any changes in the status of this 

Regulated Navigation Area by Marine 

Safety Information Broadcast on VHF– 

FM marine band radio, channel 22A 

(157.1 MHZ). 

Dated: November 29, 2010. 

Daniel A. Neptun, 

Rear Admiral, U.S. Coast Guard, Commander, 

First Coast Guard District. 

[FR Doc. 2010–31118 Filed 12–9–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Parts 1030–1039 

[Docket No. EP 707] 

Demurrage Liability 

AGENCY: Surface Transportation Board 

(Board or STB). 

ACTION: Advance Notice of Proposed 

Rulemaking. 

SUMMARY: Through this Advance Notice 

of Proposed Rulemaking (ANPR), the 

Board is instituting a proceeding 

regarding demurrage, i.e., charges for 

holding rail cars. The agency’s intent is 

to adopt a rule or policy statement 

addressing when parties should be 

responsible for demurrage in light of 

current commercial practices followed 

by rail carriers, shippers, and receivers. 

DATES: Comments are due by January 

24, 2011. Reply comments are due by 

February 23, 2011. 

ADDRESSES: Comments and replies may 

be submitted either via the Board’s efiling 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 


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1See Responsibility for Payment of Detention 

Charges, Eastern Cent. States, 335 I.C.C. 537, 541 

(1969) (Eastern Central) (involving liability of 

intermediaries for detention, the motor carrier 

equivalent of demurrage), aff’d, Middle Atl. 

Conference v. United States, 353 F.Supp. 1109, 

1114–15 (D.D.C. 1972) (3-judge court sitting under 

the then-effective provisions of 28 U.S.C. 2321 et 

seq.) (Middle Atlantic). 

2E.g., Eastern Central; Springfield Terminal Ry.– 

Petition for Declaratory Order, NOR 42108 (STB 

served June 16, 2010); Capitol Materials Inc.– 

Petition for Declaratory Order–Certain Rates and 

Practices of Norfolk S. Ry., NOR 42068 (STB served 

Apr. 12, 2004); R. Franklin Unger, Trustee of the 

Indiana Hi-Rail Corp., Debtor–Petition for 

Declaratory Order–Assessment and Collection of 

Demurrage and Switching Charges, NOR 42030 

(STB served June 14, 2000); South-Tec Dev. 

Warehouse, Inc., and R.R. Donnelley & Sons 

Company–Petition for Declaratory Order–Illinois 

Cent. R.R., NOR 42050 (STB served Nov. 15, 2000); 

Ametek, Inc.–Petition for Declaratory Order, NOR 

40663, et al. (ICC served Jan. 29, 1993), aff’d, Union 

Pac. R.R. v. Ametek, Inc., 104 F.3d 558 (3d Cir. 

1997). 

3Compare Norfolk S. Ry. v. Groves, 586 F.3d 1273 

(11th Cir. 2009) (Groves), pet. for cert. pending, No. 

08–15418 (filed Apr. 6, 2010), with CSX Transp. Co. 

v. Novolog Bucks Cnty., 502 F.3d 247 (3d Cir. 2007) 

(Novolog). 

4Pittsburgh, Cincinnati, Chicago & St. Louis Ry. 

v. Fink, 250 U.S. 577, 581 (1919); Groves, 586 F.3d 

at 1278. 

5See, e.g., Smokeless Fuel Co. v. Norfolk & W. 

Ry., 85 I.C.C. 395, 401 (1923). 

6A bill of lading is the basic transportation 

contract between the shipper and the carrier; its 

terms and conditions bind the shipper, the 

originating carrier, and all connecting carriers. 

7Historically, carriers gave public notice of their 

rates and general service terms in tariffs that were 

publicly filed with the ICC and that had the force 

of law under the so-called ‘‘filed rate doctrine.’’ See 

Maislin Indus., Inc. v. Primary Steel, Inc., 497 U.S. 

116, 127 (1990). The requirement that rail carriers 

file rate tariffs at the agency was repealed in ICCTA. 

8Eastern Central, 335 I.C.C. at 541. The ‘‘in care 

of’’ designation refers to the principle of agency law 

under which a consignee—although presumed to be 

an owner generally liable for freight charges upon 

acceptance of goods—could be relieved of such 

liability if the carrier were made aware that the 

receiver of the goods was accepting the goods only 

as an agent for the actual owner. The Novolog court, 

502 F.3d at 255, found that agency principles such 

as these became incorporated into the IC Act in the 

1920s in what is now 49 U.S.C. 10743(a). See 

Novolog, 502 F.3d at 255. That statutory provision 

states that a consignee that informs the railroad in 

writing that it is only an agent is not liable for 

‘‘additional rates that may be found due after 

delivery.’’ 

9Relying in part on Illinois Cent. R.R. v. South 

Tec Dev. Warehouse, Inc., 337 F.3d 813 (7th Cir. 

2003) (South Tec), which did not directly decide 

the issue but that indicated a predilection toward 

such a result, Groves found the warehouseman not 

to be a consignee and thus not liable for demurrage 

even though the warehouse accepted the freight 

cars as part of its business and held them beyond 

the period of free time. 

Board, Attn: STB Ex Parte No. 707, 395 

E Street, SW., Washington, DC 20423– 

0001. Copies of written comments and 

replies will be available for viewing and 

self-copying at the Board’s Public 

Docket Room, Room 131, and will be 

posted to the Board’s Web site. 

FOR FURTHER INFORMATION CONTACT: 

Craig Keats at 202–245–0260. 

(Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339.) 

SUPPLEMENTARY INFORMATION: 

Demurrage—the assessment of charges 

for holding railroad-owned rail freight 

cars for loading or unloading beyond a 

specified amount of time—has 

compensatory and penalty functions. It 

compensates car owners for the use of 

their equipment, and by penalizing 

those who hold cars too long, it 

encourages prompt return of rail cars 

into the transportation network. Because 

of these dual roles, demurrage is 

statutorily recognized as an important 

tool in ensuring the smooth functioning 

of the rail system. 

Since the earliest days of railroad 

regulation, there have been disputes 

about who should be responsible for 

paying demurrage. Certain principles for 

allocating liability for holding carrier 

equipment became well established over 

time and were reflected in agency and 

court decisions.1 Regulatory and 

technological changes over the years, 

however—such as the elimination of 

required tariff-filing and the advances in 

electronic commerce—suggest a need to 

revisit the matter to consider whether 

the Board’s policies should be revised to 

account for current statutory provisions 

and commercial practices. 

The Board has long been involved in 

resolving demurrage disputes, both as 

an original matter and on referral from 

courts hearing railroad complaints 

seeking recovery of charges.2 Our 

attention became focused on the 

possible need to examine our policies, 

however, when some tension developed 

in the Federal courts of appeals 

regarding the liability of warehousemen 

and similar third-party car receivers for 

railroad demurrage.3 As we reviewed 

the two lines of analysis, we began to 

consider the possibility that neither 

court’s approach produces an optimal 

outcome given the current statutory and 

commercial environment. We therefore 

are instituting this proceeding in an 

effort to update our policies regarding 

responsibility for demurrage liability 

and to promote uniformity in the area. 

The Interstate Commerce Act (IC Act), 

as amended by the ICC Termination Act 

of 1995 (ICCTA), provides that 

demurrage is subject to Board regulation 

under 49 U.S.C. 10702, which requires 

railroads to establish reasonable rates 

and transportation-related rules and 

practices, and under 49 U.S.C. 10746, 

which requires railroads to compute 

demurrage and to establish demurragerelated rules ‘‘in a way that fulfills the 

national needs related to’’ freight car use 

and distribution and that will promote 

an adequate car supply. In the simplest 

case, demurrage is assessed on the 

‘‘consignor’’ (the shipper of the goods) 

for delays at origin and on the 

‘‘consignee’’ (the receiver of the goods) 

for delays at destination. 

An important issue has always been 

who is liable for demurrage when goods 

are shipped to warehousemen, 

transloaders, or other ‘‘intermediate’’ 

stops in the transportation chain before 

reaching their ultimate destination. 

Notwithstanding the usual common-law 

liability (for both freight charges and 

demurrage) of a consignee that accepted 

delivery,4 the issue was more 

complicated for warehousemen, who 

typically are not ‘‘owners’’ of the 

property being shipped. The law 

became well accepted that, for a 

warehouseman to be subject to 

demurrage or detention charges, there 

had to be some other basis for liability 

outside the mere fact of handling the 

goods shipped.5 And what became the 

most important ‘‘other basis’’ was 

whether the warehouseman was shown 

as the consignee on the bill of lading.6

Thus, our predecessor, the Interstate 

Commerce Commission (ICC), held that 

a tariff 7 may not lawfully assess such 

charges on a warehouseman who is not 

the beneficial owner of the freight, who 

is not named as a consignor or 

consignee in the bill of lading, and who 

is not otherwise party to the contract of 

transportation, ‘‘e.g., a warehouseman 

who receives the freight pursuant to an 

‘in care of’ designation.’’ 8

The absence of any litigation over the 

matter suggests that the accepted rule 

described above provided some degree 

of certainty for several decades. In 

recent years, however, a new issue has 

arisen: what is the law when a 

warehouseman who accepts rail cars 

and holds them too long is named as 

consignee in the bill of lading, but 

asserts either that it did not know of its 

consignee status or that it affirmatively 

asked the shipper not to name it 

consignee? On that issue, the Eleventh 

Circuit in Groves looked to contract 

principles and found that a party shown 

as a consignee in the bill of lading is not 

in fact a consignee unless it expressly 

agreed to the terms of the bill describing 

it as a consignee.9 On virtually identical 

facts, the Third Circuit in Novolog held 

that ‘‘recipients of freight who are 

named as consignees on bills of lading 

are subject to liability for demurrage 

charges arising after they accept 

delivery unless they act as agents of 

another [party] and comply with the 


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76948 Federal Register / Vol. 75, No. 237 / Friday, December 10, 2010 / Proposed Rules 

10 502 F.3d at 254. Novolog cited Middle Atlantic, 

the Uniform Commercial Code, and the Federal 

Bills of Lading Act to find (502 F.3d at 258) that 

a warehouseman (or, in that case, a transloader) 

could be a ‘‘legal consignee’’ even if it was not the 

‘‘ultimate consignee.’’ The court found that a 

contrary result, such as the one suggested in South 

Tec, would frustrate what it viewed as the plain 

intent of § 10743: ‘‘to facilitate the effective 

assessment of charges by establishing clear rules for 

liability’’ by permitting railroads to rely on bills of 

lading and ‘‘avoid wasteful attempts to recover 

[charges] from the wrong parties.’’ 502 F.3d at 258– 

59. The court found warehouseman liability 

equitable because the warehouseman—which 

otherwise has no incentive to agree to liability—can 

avoid liability under § 10743(a) simply by 

identifying itself as an agent, whereas the rail 

carrier has no option but to deliver to the named 

consignee. Id. at 259. 

11See West Point Relocation, Inc. & Eli Cohen– 

Petition for Declaratory Order, FD 35290 (STB 

served Oct. 29, 2010). 12Blanchette v. Hub City Terminals, Inc., 683 

F.2d 1008 (7th Cir. 1981); Union Pac. R.R. v. Hall 

Lumber Sales, Inc., 419 F.2d 1009 (7th Cir. 1969). 

notification procedures in [the] 

consignee-agent liability provision [of] 

49 U.S.C. 10743(a)(1).’’ 10 That provision 

relieves certain receivers of property 

from liability for certain rates if it 

notifies the carrier in writing that it is 

not the owner of the property, but rather 

is only an agent for the owner. 

Discussion 

We believe that broad public input 

would assist us in addressing the 

liability of a warehouseman who 

accepts rail cars and holds them too 

long, but who asserts either that it did 

not know that it had been designated 

the consignee on the bill of lading or 

that it affirmatively asked the shipper 

not to name it consignee. Indeed, even 

with the extensive discussions in 

Novolog and Groves, the best answer in 

this matter is not readily apparent. 

Novolog relies on a broad reading of 

section 10743(a)(1) (one that the ICC 

appeared to share), along with policy 

reasons why a rule requiring that a 

warehouseman explicitly accept 

potential demurrage liability would not 

be a good idea. Groves relies on contract 

law principles to support its view that 

a receiver of goods must explicitly agree 

before it can be a consignee subject to 

liability. But neither approach seems 

clearly superior, and indeed there are 

shortcomings with each. 

Novolog, for example, cites valid 

transportation reasons for putting 

liability on the party best able to release 

the rail cars (the warehouseman) or to 

decline the cars if it knows that its 

facility is already overcrowded. Yet 

Novolog places dispositive weight on 

the designation given to the 

warehouseman in the bill of lading, 

which historically was a paper 

document that was consciously agreed 

upon by the carrier and the shipper 

(although it did not require any action 

by the consignee). Today, however, 

transactional paperwork such as the bill 

of lading is largely handled 

electronically, and the role of the 

railroad, the shipper, and the listed 

consignee in making the designation is 

evolving. In Groves, for example, it is 

unexplained why some of the bills 

named the warehouseman as the 

consignee while others did not. 

Groves, for its part, is unsatisfying in 

various ways. First, it overlooks the fact 

that, because the warehouseman is in 

the best position to deal with returning 

the equipment or rejecting cars if its 

facility is overcrowded, finding the 

warehouseman to be responsible for 

demurrage would best advance the 

intent of 49 U.S.C. 10746 (efficient use 

of freight cars). Moreover, although we 

share the concern that a party might be 

made liable for charges without its 

knowledge,11 as the decision in Novolog 

points out, it is also true that the 

warehouseman is the one who has the 

relationship with the shipper, and it 

should not be the carrier’s responsibility 

to investigate whether the relationship 

described in the bill of lading accurately 

reflects the de facto status of the parties. 

Finally, notwithstanding the ICC’s 

finding in Eastern Central in 1969, we 

are not certain that the provisions of 49 

U.S.C. 10743 should be interpreted to 

apply to demurrage. The language of 

section 10743 (‘‘[l]iability for rates for 

transportation’’) can be read to focus on 

the shipping charges themselves, and 

not on accessorial charges such as 

demurrage. As explained in Hub City 

and Hall,12 the statutory provision, 

which was first enacted in the 

Transportation Act of 1920 as an 

antidiscrimination provision, was 

modified in 1927 to address the liability 

of a sales agent for freight charges that 

turned out to be higher than those 

originally paid. It was further modified 

in 1940 to address the liability of an 

agent vis a vis a beneficial owner for 

additional freight charges resulting 

when shipments were reconsigned and 

refused at destination. Neither event 

speaks to application of the provision to 

demurrage. Moreover, because section 

10743(b) does not apply to a shipment 

that is prepaid, applying section 10743 

to demurrage as well as line-haul 

charges could have the curious effect of 

making the consignee liable for 

demurrage if the shipment is not 

prepaid, but not liable for the same 

conduct—holding the cars too long—if 

it is prepaid. That would be in some 

tension with the historic (and statutory, 

see 49 U.S.C. 10746) purposes of 

demurrage: to compensate the 

equipment owner and to facilitate 

prompt return of cars. 

For all of these reasons, we are 

instituting this proceeding to explore 

whether we should look to a new way 

of determining the liability of 

warehousemen for demurrage. 

One possible rule would place 

liability for demurrage on the receiver of 

the rail cars, regardless of the 

designations in the bill of lading, if the 

carrier has provided the receiver with 

adequate notice of liability. (If the 

receiver were an agent of another party, 

we assume that the usual principalagent rules would govern, although we 

request comments on this point.) What 

constitutes ‘‘adequate notice’’ could be 

decided on a case-by-case basis either 

by the Board or the Federal courts in 

collection actions, or it could be 

established by rule. Given the potential 

industry-wide implications of such 

rules, broad public input is warranted. 

Accordingly, we seek comment on 

these matters. In their comments, parties 

may address any relevant matters, but 

we specifically seek comment on the 

following, which we believe will assist 

us in developing an appropriate way of 

allocating liability that advances the 

purposes of demurrage and also is 

consistent with the IC Act, contract law, 

agency law, and principles of notice/ 

fairness: 

• Describe the circumstances under 

which intermediaries ought to be found 

liable for demurrage in light of the dual 

purposes of demurrage. 

Notwithstanding the ICC’s decision in 

Eastern Central, is there a reason why 

we should not presume that a party that 

accepts freight cars ought to be the one 

that is liable regardless of its 

designation on the bill of lading, so long 

as it has notice of its liability before it 

accepts cars? 

• Explain how the paperwork 

attending a shipment of property by rail 

is processed and how it gives (or does 

not give) all affected parties (rail 

carriers, shippers, consignee-owners, 

warehousemen etc.) notice of the status 

they are assigned in the bill of lading. 

For purposes of assessing demurrage, 

should it be a requirement that 

electronic bills of lading accurately 

reflect the de facto status of each party 

in relation to other parties involved 

with the transaction? If so, and if 

electronic bills of lading do not 

accurately reflect the de facto status of 

each party in relation to other parties 

involved with the transaction, please 

suggest changes that will ensure that 

they do. 

• With the repeal of the requirement 

that carriers file publicly available 

tariffs, how can a warehouseman or 


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similar non-owner receiver best be made 

aware of its status vis a vis demurrage 

liability? Does actual placement of a 

freight car on the track of the shipper or 

receiver constitute adequate notification 

to a shipper, consignee or agent that a 

demurrage liability is being incurred? 

What about constructive placement 

(placement at an alternative point when 

the designated placement point is not 

available)? 

• Describe how agency principles 

ought to apply to demurrage. Are 

warehousemen generally agents or nonagents, or are their circumstances too 

varied to permit generalizations? How 

can a rail carrier know whether a 

warehouseman or similar non-owner 

receiver of freight is acting as an agent 

or in some other capacity? 

• Given the discussions in Hub City 

and Hall, should section 10743 be read 

as applicable to demurrage charges at 

all? The ICC said it was in Eastern 

Central, but it did so with little 

discussion. Would general agency 

principles apply to demurrage liability 

even if section 10743 were found 

inapplicable? 

• If section 10743 is applicable, 

would the Groves analysis (finding that 

liability does not attach unless the 

receiver agrees to accept liability) apply 

to the underlying shipping rate as well 

as demurrage charges? If it did, how 

would such a ruling affect industry 

practice? 

• Because the warehouseman or other 

receiver can reap financial gain by 

taking on as many cars as possible (and 

sometimes holding them too long), or by 

serving as a storage facility when the 

ultimate receiver is not ready to accept 

a car, should liability be based on an 

unjust enrichment theory? The court 

rejected such an approach in Middle 

Atlantic, 353 F. Supp. at 1124, 

principally because it found no benefit 

to the warehouseman from holding rail 

cars. Is that finding valid? 

The requirements of section 603 of the 

Regulatory Flexibility Act of 1980, 5 

U.S.C. 601, et seq., (RFA) do not apply 

to this action because, at this stage, it is 

an ANPR and not a ‘‘rule’’ as defined in 

section 601 of the RFA. Under the RFA, 

however, the Board must consider 

whether a proposed rule would have a 

significant economic impact on a 

substantial number of small entities. 

‘‘Small entities’’ include small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations under 50,000. If 

adoption of any rule likely to result 

from this ANPR could have a significant 

economic impact on a small entity 

within the meaning of the RFA, 

commenters should submit as part of 

their comments an explanation of how 

the business or organization falls within 

the definition of a small entity, and how 

and to what extent the commenter’s 

business or organization could be 

affected. Following review of the 

comments received in response to this 

ANPR, if the Board promulgates a notice 

of proposed rulemaking regarding this 

matter, it will conduct the requisite 

analysis under the RFA. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

It is ordered: 

1. Initial comments are due on 

January 24, 2011. 

2. Reply comments are due on 

February 23, 2011. 

3. This decision is effective on its date 

of service. 

By the Board, Chairman Elliott, Vice 

Chairman Mulvey, and Commissioner 

Nottingham. 

Andrea Pope-Matheson, 

Clearance Clerk. 

[FR Doc. 2010–30967 Filed 12–9–10; 8:45 am] 

BILLING CODE 4915–01–P 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1