30704 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

4. How do we evaluate your word recognition 

ability if you are not fluent in English? 

If you are not fluent in English, you should 

have word recognition testing using an 

appropriate word list for the language in 

which you are most fluent. The person 

conducting the test should be fluent in the 

language used for the test. If there is no 

appropriate word list or no person who is 

fluent in the language and qualified to 

perform the test, it may not be possible to 

measure your word recognition ability. If 

your word recognition ability cannot be 

measured, your hearing loss cannot meet 

102.10B2 or 102.11B. Instead, we will 

consider the facts of your case to determine 

whether you have difficulty understanding 

words in the language in which you are most 

fluent, and if so, whether that degree of 

difficulty medically equals 102.10B2 or 

102.11B. For example, we will consider how 

you interact with family members, 

interpreters, and other persons who speak the 

language in which you are most fluent. 

5. What do we mean by a marked limitation 

in speech or language as used in 102.10B3? 

a. We will consider you to have a marked 

limitation in speech if: 

(i) Entire phrases or sentences in your 

conversation are intelligible to unfamiliar 

listeners at least 50 percent (half) of the time 

but no more than 67 percent (two-thirds) of 

the time on your first attempt; and 

(ii) Your sound production or phonological 

patterns (the ways in which you combine 

speech sounds) are atypical for your age. 

b. We will consider you to have a marked 

limitation in language when your current and 

valid test score on an appropriate 

comprehensive, standardized test of overall 

language functioning is at least two standard 

deviations below the mean. In addition, the 

evidence of your daily communication 

functioning must be consistent with your test 

score. If you are not fluent in English, it may 

not be possible to test your language 

performance. If we cannot test your language 

performance, your hearing loss cannot meet 

102.10B3. Instead, we will consider the facts 

of your case to determine whether your 

hearing loss medically equals 102.10B3. 

* * * * * 

102.01 Category of Impairments, Special 

Senses and Speech 

* * * * * 

102.10 Hearing Loss Not Treated With 

Cochlear Implantation 

A. For children from birth to the 

attainment of age 5, an average air 

conduction hearing threshold of 50 decibels 

or greater in the better ear (see 102.00B2). 

OR 

B. For children from age 5 to the 

attainment of age 18: 

1. An average air conduction hearing 

threshold of 70 decibels or greater in the 

better ear and an average bone conduction 

hearing threshold of 40 decibels or greater in 

the better ear (see 102.00B2f); or 

2. A word recognition score of 40 percent 

or less in the better ear determined using a 

standardized list of phonetically balanced 

monosyllabic words (see 102.00B2f); or 

3. An average air conduction hearing 

threshold of 50 decibels or greater in the 

better ear and a marked limitation in speech 

or language (see 102.00B2f and 102.00B5). 

102.11 Hearing Loss Treated With Cochlear 

Implantation 

A. Consider under a disability until the 

attainment of age 5 or for 1 year after initial 

implantation, whichever is later. 

OR 

B. Upon the attainment of age 5 or 1 year 

after initial implantation, whichever is later, 

a word recognition score of 60 percent or less 

determined using the HINT or the HINT–C 

(see 102.00B3b). 

* * * * * 

[FR Doc. 2010–13094 Filed 6–1–10; 8:45 am] 

BILLING CODE 4191–02–P 

FEDERAL MEDIATION AND 

CONCILIATION SERVICE 

29 CFR Part 1404 

RIN 3076–AA12 

Arbitration Services 

AGENCY: Federal Mediation and 

Conciliation Service. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Federal Mediation and Conciliation 

Service (FMCS) rules pertaining to 

arbitration services. It revises rules 

addressing the removal of arbitrators 

from the FMCS roster, the process 

relating to complaints about arbitrators, 

procedures for requesting lists and 

panels, arbitrators’ inactive status, the 

selection by parties and appointment of 

arbitrators, and arbitrators’ obligation to 

provide FMCS with certain case 

information. The final rule also provides 

that FMCS may decline to service any 

request by a party for an arbitration list 

or panel based on the party’s nonpayment of arbitrator fees. In addition, 

the final rule raises the annual listing 

fee for all arbitrators on the FMCS 

roster. The changes will promote more 

efficient and effective procedures 

involving arbitrator retention and 

arbitration services. The increased 

annual listing fee more accurately 

reflects FMCS’s costs of maintaining 

and responding to requests for 

arbitrators’ biographical data. The final 

rule withdraws the proposed revisions 

to § 1404.9(b). 

DATES: This final rule is effective July 2, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Vella M. Traynham, Director, Office of 

Arbitration Services, FMCS, 2100 K 

Street, NW., Washington, DC 20427. 

Telephone: (202) 606–5111. 

SUPPLEMENTARY INFORMATION: Pursuant 

to 29 U.S.C. 171(b) and 29 CFR part 

1404, FMCS maintains a roster of 

qualified labor arbitrators to hear 

disputes arising under collective 

bargaining agreements and provide fact 

finding and interest arbitration. FMCS 

amends its rules pertaining to such 

arbitration services as follows: The 

revised rule relating to the removal of 

arbitrators from the roster provides that 

FMCS will give written notice of 

removal to the affected arbitrator. The 

revised rule relating to complaints 

against arbitrators provides that 

complaints should be in writing and 

directed to the director of the office of 

arbitration services, and should cite 

specific sections of the professional 

code or FMCS rules allegedly violated 

by the arbitrator. The revised rule on 

arbitrators’ inactive status clarifies the 

applicable annual listing fee and 

suggests that arbitrators use inactive 

status to assist them in certain 

scheduling circumstances. The revised 

rule on procedures for requesting panels 

and lists provides that FMCS may 

decline to service any request from a 

party for arbitration lists or panels based 

on the party’s non-payment of arbitrator 

fees. The revised rule on the selection 

by parties and appointment of 

arbitrators provides that arbitrators must 

provide FMCS with certain information 

upon being selected by a party. The 

revised rules describe the methods of 

arbitrator selection that FMCS will 

accept, where the parties’ collective 

agreement is silent on the manner of 

selection. These changes are intended to 

make FMCS’s arbitration procedures 

more efficient and effective. 

FMCS also amends Appendix to Part 

1404 to increase the annual listing fee 

from $100 to $150 for all arbitrators on 

the FMCS roster. With increasing 

frequency, parties have been requesting 

that FMCS furnish arbitration panels 

that are individualized to the dispute at 

issue. This requires detailed research 

and review of arbitrators’ biographies. 

The increased listing fee reflects the cost 

in staff time necessary to be responsive 

to these requests as well as the costs 

associated with updating arbitrator 

biographies. 

This rule is not a significant 

regulatory action for the purposes of 

Executive Order 12866 and has not been 

reviewed by the Office of Management 

and Budget. As required by the 

Regulatory Flexibility Act, I certify that 

this rule will not have a significant 

impact on a substantial number of small 

entities. This regulation does not have 

any federalism or tribal implications. 

Background: On August 6, 2008, 

FMCS published a Notice of Proposed 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30705 

Rulemaking (NPRM) proposing changes 

to its rules relating to the removal of 

arbitrators from the FMCS roster, the 

process relating to complaints about 

arbitrators, procedures for requesting 

arbitrator lists and panels, arbitrators’ 

inactive status, the selection by parties 

and appointment of arbitrators, and 

arbitrators’ obligation to provide FMCS 

with certain case information. The 

proposed rules also addressed FMCS’s 

response to requests for arbitration lists 

or panels made by one party, where the 

collective bargaining agreement requires 

that the request be jointly submitted. In 

addition, the proposed rules addressed 

FMCS’s option to decline to service any 

request from a party, based on the 

party’s non-payment of arbitrator fees, 

and raised the annual listing fee for 

arbitrators on the FMCS roster. 

FMCS is adopting the final rule with 

one change from that which was 

proposed. The final rule withdraws the 

proposed revisions to § 1404.9(b), which 

had modified FMCS’s response to 

requests for arbitration lists or panels 

made by one party, where the collective 

bargaining agreement requires that the 

request be jointly submitted. 

Discussion of Comments: FMCS 

received comments from two sources in 

response to the NPRM. One 

commentator suggested that the 

proposed changes to § 1404.9(b) insert 

FMCS into the arena of administering 

and interpreting collective bargaining 

agreements, and do not take into 

account the parties’ past practices. 

FMCS has given careful review and 

consideration to the comment and the 

language in the proposed revision to 

§ 1404.9(b) and has determined it will 

withdraw the revision to § 1404.9(b). 

FMCS received comments from two 

sources regarding the proposed changes 

to § 1404.9(d). One commentator 

opposed the revision to the extent that 

it could allow a single failure to pay an 

arbitrator’s fees to disqualify a party 

from obtaining a panel. Another 

commentator objected to the revision 

because the proposed rule does not 

differentiate between a genuine fee 

dispute and simple nonpayment. FMCS 

has given careful review and 

consideration to the comments. FMCS 

has determined, however, that the 

proposed rule, by stating only that 

FMCS’s office of arbitration services 

may decline to service any request from 

a party based on the party’s nonpayment of fees, will ensure that 

decisions whether to decline services 

will be considered. Accordingly, no 

changes are made to the final rule. 

List of Subjects in 29 CFR Part 1404 

Administrative practice and 

procedure, Labor management relations. 

■ For the reasons stated in the preamble, 

FMCS amends 29 CFR Part 1404 as 

follows: 

PART 1404—ARBITRATION SERVICES 

■ 1. The authority citation for part 1404 

continues to read as follows: 

Authority: 29 U.S.C. 172 and 29 U.S.C. 173 

et seq. 

■ 2. Amend § 1404.5 by revising 

paragraph (d) introductory text to read 

as follows: 

§ 1404.5 Listing on the roster; criteria for 

listing and retention. 

* * * * * 

(d) Listing on roster, removal. Listing 

on the Roster shall be by decision of the 

Director of FMCS based upon the 

recommendations of the Board or upon 

the Director’s own initiative. The Board 

may recommend for removal, and the 

Director may remove, any person listed 

on the Roster for violation of this Part 

or of the Code of Professional 

Responsibility. FMCS will provide to 

the affected arbitrator written notice of 

removal from the Roster. Complaints 

about arbitrators should be in writing 

and sent to the Director of OAS. The 

complaint should cite the specific 

section of the Code or the FMCS rule the 

arbitrator has allegedly violated. The 

following criteria shall be a basis for the 

Board to recommend and/or the Director 

to initiate a member’s removal from the 

Roster: 

* * * * * 

■ 3. Revise § 1404.6 to read as follows: 

§ 1404.6 Inactive status. 

(a) A member of the Roster who 

continues to meet the criteria for listing 

on the Roster may request that he or she 

be put in an inactive status on a 

temporary basis because of ill heath, 

vacation, schedule or other reasons. 

(b) Arbitrators whose schedules do 

not permit cases to be heard within six 

months of assignment are encouraged to 

make themselves inactive temporarily 

until their caseload permits the earlier 

scheduling of cases. 

(c) An arbitrator can remain on 

inactive status without paying any 

annual listing fee for a period of two (2) 

years. If an arbitrator is on inactive 

status for longer than two (2) years, the 

arbitrator will be removed from the 

Roster unless he or she pays the annual 

listing fee. 

■ 4. Amend § 1404.9 by revising 

paragraph (d) to read as follows: 

§ 1404.9 Procedures for requesting 

arbitration lists and panels. 

* * * * * 

(d) The OAS reserves the right to 

decline to submit a panel or to make an 

appointment of an arbitrator if the 

request submitted is overly burdensome 

or otherwise impracticable. The OAS, in 

such circumstances, may refer the 

parties to an FMCS mediator to help in 

the design of an alternative solution. 

The OAS may also decline to service 

any request from a party based on the 

party’s non-payment of arbitrator fees or 

other behavior that constrains the spirit 

or operation of the arbitration process. 

* * * * * 

■ 5. Revise § 1404.12 to read as follows: 

§ 1404.12 Selection by parties and 

appointment of arbitrators. 

(a) After receiving a panel of names, 

the parties must notify the OAS of their 

selection of an arbitrator or of the 

decision not to proceed with arbitration. 

Upon notification of the selection of an 

arbitrator, the OAS will make a formal 

appointment of the arbitrator. The 

arbitrator, upon notification of 

appointment, shall communicate with 

the parties within 14 days to arrange for 

preliminary matters, such as the date 

and place of hearing. Should an 

arbitrator be notified directly by the 

parties that he or she has been selected, 

the arbitrator must promptly notify the 

OAS of the selection and of his or her 

willingness to serve. The arbitrator must 

provide the OAS with the FMCS case 

number and other pertinent information 

for the OAS to make an appointment. A 

pattern of failure by an arbitrator to 

notify FMCS of a selection in an FMCS 

case may result in suspension or 

removal from the Roster. If the parties 

settle a case prior to the hearing, the 

parties must inform the arbitrator as 

well as the OAS. Consistent failure to 

follow these procedures may lead to a 

denial of future OAS services. 

(b) If the parties request a list of 

names and biographical sketches rather 

than a panel, the parties may choose to 

contact and select an arbitrator directly 

from that list. In this situation, neither 

the parties nor the arbitrator is required 

to furnish any additional information to 

FMCS and no case number will be 

assigned. 

(c) Where the parties’ collective 

bargaining agreement is silent on the 

manner of selecting arbitrators, FMCS 

will accept one of the following 

methods for selection from a panel: 

(1) A selection by mutual agreement; 

(2) A selection in which each party 

alternately strikes a name from the 

submitted panel until one remains; 

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30706 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

(3) A selection in which each party 

advises OAS of its order of preference 

by numbering each name on the panel 

and submitting the numbered list in 

writing to OAS. If the parties separately 

notify OAS of their preferred selections, 

OAS, upon receiving the preferred 

selection of the first party, will notify 

the other party that it has fourteen (14) 

days in which to submit its selections. 

Where both parties respond, the name 

that has the lowest combined number 

will be appointed. If the other party fails 

to respond, the first party’s choice will 

be honored. 

(d) Where the parties’ collective 

bargaining agreement permits each party 

to separately notify OAS of its preferred 

selection, OAS will proceed with the 

selection process as follows. When the 

OAS receives the preferred selection 

from one party, it will notify the other 

party that it has fourteen (14) days in 

which to submit its selections. If that 

party fails to respond within the 

deadline, the first party’s choice will be 

honored unless prohibited by the 

collective bargaining agreement. Where 

both parties respond, the name that has 

the lowest combined number will be 

appointed. If, within fourteen (14) days, 

a second panel is requested, and is 

permitted by the collective bargaining 

agreement, the requesting party must 

pay a fee for the second panel. 

(e) The OAS will make a direct 

appointment of an arbitrator only upon 

joint request or as provided by 

paragraphs (c) (3) or (d) of this section. 

(f) A direct appointment in no way 

signifies a determination of arbitrability 

or a ruling that an agreement to arbitrate 

exists. The resolution of disputes over 

these issues rests solely with the parties. 

■ 6. Amend the Appendix to 29 CFR 

Part 1404 by removing ‘‘$100’’ and 

adding ‘‘$150’’ in its place. 

Dated: May 26, 2010. 

Jeannette Walters-Marquez, 

Attorney Advisor. 

[FR Doc. 2010–13120 Filed 6–1–10; 8:45 am] 

BILLING CODE 6732–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2010–0158] 

RIN 1625–AA00 

Safety Zone; Wilson Bay, Jacksonville, 

NC 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the waters of Wilson Bay at Jacksonville, 

North Carolina for training purposes. 

The safety zone is necessary to provide 

for the safety of the general public and 

exercise participants from potential 

hazards associated with low flying 

helicopters and vessels participating in 

this multi agency exercise. 

DATES: This rule is effective from 6 a.m. 

until 5 p.m. on June 9, 2010. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2010–0158 and are 

available online by going to http:// 

www.regulations.gov, inserting USCG– 

2010–0158 in the ‘‘Keyword’’ box, and 

then clicking ‘‘Search.’’ This material is 

also available for inspection or copying 

at the Docket Management Facility (M– 

30), U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call or e-mail CWO4 Stephen 

Lyons, Waterways Management 

Division Chief, Coast Guard Sector 

North Carolina; telephone (252) 247– 

4525, e-mail 

Stephen.W.Lyons2@uscg.mil. If you 

have questions on viewing the docket, 

call Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On April 2, 2010, we published a 

notice of proposed rulemaking (NPRM) 

entitled Safety Zone: Wilson Bay, 

Jacksonville, NC in the Federal Register 

(75 FR 16703). We received no 

comments on the proposed rule. No 

public meeting was requested, and none 

was held. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Due to the need for immediate 

action, the restriction of vessel traffic is 

necessary to protect life, property and 

the environment; therefore, a 30-day 

notice is impracticable. Delaying the 

effective date would be contrary to the 

safety zone’s intended objectives of 

protecting persons and vessels involved 

in the event, and enhancing public and 

maritime safety. 

Basis and Purpose 

The Onslow County North Carolina 

Emergency Services will be conducting 

a multi agency exercise to test response 

capabilities of water rescue services in 

a mass casualty scenario on the waters 

of Wilson Bay, Onslow County, North 

Carolina from 6 a.m. to 5 p.m. June 9, 

2010. The exercise is designed to train 

and test air and surface personnel in the 

judgmental decisionmaking process 

necessary to safely and effectively 

respond to a mass casualty incident. 

The exercise will involve helicopters, 

vessels, safety craft, divers, and rescue 

swimmers. This zone is necessary to 

establish a temporary restricted area in 

Wilson Bay to ensure the safety of 

participants within the exercise site. 

Discussion of Comments and Changes 

We received no comments on the 

proposed rule. No public meeting was 

requested, and none was held. The 

Coast Guard is implementing the rule as 

proposed, without change. 

Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. 

Although this regulation will restrict 

access to the area, the effect of this rule 

will not be significant because: (i) The 

safety zone will only be in effect from 

6 a.m. to 5 p.m. on June 9, 2010, (ii) the 

Coast Guard will give advance 

notification via maritime advisories so 

mariners can adjust their plans 

accordingly, and (iii) although the safety 

zone will apply to a section of Wilson 

Bay, it will not restrict vessel traffic in 

the federally marked channel. 

Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

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