        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No.: 191220-012]
        RIN 0648-BH67
        Fisheries of the Northeastern United States; Omnibus Deep-Sea Coral Amendment

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule, request for comments.

          SUMMARY:
          NMFS proposes to approve and implement the measures of the New England Fishery Management Council's Omnibus Deep-Sea Coral Amendment. This action would protect deep-sea corals from the impacts of commercial fishing gear on Georges Bank and in the Gulf of Maine. These proposed management measures are intended to reduce, to the extent practicable, impacts of fishing gear on deep-sea corals in New England while balancing their costs to commercial fisheries.

          DATES:
          Public comments must be received by February 18, 2020.

          ADDRESSES:

          The New England Fishery Management Council has prepared a draft Environmental Assessment (EA) for this action that describes the proposed measures in the Omnibus Deep-Sea Coral Amendment and other considered alternatives and analyzes the impacts of the proposed measures and alternatives. The Council submitted a draft of the amendment to NMFS that includes the draft EA, a description of the Council's preferred alternatives, the Council's rationale for selecting each alternative, and a Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA). Copies of supporting documents used by the New England Fishery Management Council, including the EA and RIR/IRFA, are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950 and accessible via the internet in documents available at: https://www.nefmc.org/library/omnibus-deep-sea-coral-amendment.

          You may submit comments, identified by NOAA-NMFS-2019-0092, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
            www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0092, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on Omnibus Deep-Sea Coral Amendment.”

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Travis Ford, Fishery Policy Analyst, (978) 281-9233.

        SUPPLEMENTARY INFORMATION:

        Background

        The coral protection zones included in this amendment were initially developed during 2010 and 2011 as part of the Council's Omnibus Essential Fish Habitat Amendment 2 (OHA2), finalized April 9, 2018 (83 FR 15240; April 9, 2018). In September 2012, the Council split the coral protection zones and associated management measures out of OHA2 into a separate omnibus amendment. On March 13 and 15, 2017, the Council held workshops in New Bedford, MA, and Portsmouth, NH, to discuss the coral zone boundaries, considering the canyon and slope zones on Georges Bank (broad zone) at the first meeting, and the offshore Gulf of Maine zones at the second. On April 18, 2017, the Council chose preferred alternatives for the coral zones to go out to public hearing. The Council held public hearings throughout New England in May of 2017, and revisited its preferred alternatives at its June 2017 meeting. These meetings were noticed in the Federal Register (82 FR 21809; May 10, 2017) and advertised on the Council's website and at meetings of the Council's Habitat Committee and the full Council. Many small entities were in attendance and commented at each hearing. Based on the attendance sheets, over 150 people attended the hearings, many of which either were or were representing small entities. Testimony was given by approximately 50 individuals, with individuals sometimes providing comments at more than one hearing. On June 22, 2017, the Council took final action on the Gulf of Maine portions of the amendment, but did not select final preferred alternatives for the broad coral protection zone on Georges Bank. Instead, the Council added a new alternative for analysis that was suggested during the public hearings. Finally, on January 30, 2018, the Council selected a final preferred alternative for the broad coral protection zone on Georges Bank and adopted the Omnibus Deep-Sea Coral Amendment.
        The Council submitted the Amendment to NMFS for initial review on December 21, 2018. The Council submitted a revised draft of the Amendment on June 25, 2019, for final review by NMFS, acting on behalf of the Secretary of Commerce.
        The Council developed this action, and the measures described in this proposed rule, under the discretionary provisions for deep-sea coral protection in section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This provision gives the Regional Fishery Management Councils the authority to:
        (A) Designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear; and
        (B) Designate such zones in areas where deep-sea corals are identified under section 408 (this section describes the deep-sea coral research and technology program), to protect deep-sea corals from physical damage from fishing gear or to prevent loss or damage to such fishing gear from interactions with deep-sea corals, after considering long-term sustainable uses of fishery resources in such areas.
        Deep-sea corals can build reef-like structures or occur as thickets, isolated colonies, or solitary individuals, and often are significant components of deep-sea ecosystems, providing habitat (substrate, refuge) for a diversity of other organisms, including many economically important fish and invertebrate species. All corals are vulnerable to fishing gear impacts, but the degrees of susceptibility and the rates of recovery vary, depending both on coral biology and on spatial overlap between corals and fishing grounds, which influences the likelihood of gear interactions. Deep corals can be found from near the surface to 6,000 m depth, but most commonly occur between 50-1,000 m on hard substrate. Deep-sea coral habitats have been noted to have higher associated concentrations of fish than surrounding areas and are believed to serve as nursery grounds and provide habitat for many species of fish and invertebrates at various life stages, including commercially important fish species. Consistent with these provisions, the Council proposed the measures in the Omnibus Deep-Sea Coral Amendment to identify and protect concentrations of corals in select areas and restrict the expansion of fishing effort into areas where corals are likely to be present while taking into account long-term sustainable uses of fishery resources in the areas and the costs to commercial fisheries.
        Proposed Measures
        Georges Bank Deep-Sea Coral Protection Area
        The Omnibus Deep-Sea Coral Amendment would establish deep-sea coral protection areas on the outer continental shelf in New England waters. It would complement the Frank R. Lautenberg Deep-Sea Coral Protection Area established by the Mid-Atlantic Fishery Management Council in Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) (81 FR 90246; December 14, 2016) as described in § 648.372. The area would run along the outer continental shelf in waters no shallower than 600 meters and extend to the outer limit of U.S. Exclusive Economic Zone (EEZ) boundary to the east and north, and south to the intercouncil boundary as described in § 600.105(a).
        The Council proposed this coral protection area to prevent the expansion of fishing effort into deep-water coral areas, while limiting impacts on current fishing operations. This area would be designated with the landward boundary drawn between the 600-m contour as a hard landward boundary and the 650-m contour as a hard seaward boundary. In some areas the boundary crosses the 650-m contour to draw this line as straight as possible; however, the boundary was constrained on its shallow side by the 600-m contour. From the landward boundary, the boundaries would extend along the northern and southern boundaries of the New England Council's management region and to the edge of the EEZ as the eastward boundary.
        Gear Restrictions in the Georges Bank Deep-Sea Coral Protection Area

        This action would prohibit the use of bottom-tending commercial fishing gear within the designated Georges Bank Deep-Sea Coral Protection Area, including: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; bottom-tending seines; bottom longlines; pots and traps; and sink or anchored gillnets. The prohibition on these gears would protect deep-sea corals from interaction with and damage from bottom-tending fishing gear. Red crab pot gear would be exempt from the prohibition.
        Mount Desert Rock Coral Protection Area
        This action would designate a coral protection area in an 8-mi2 (21-km2) area southwest of Mount Desert Rock, a small, rocky island off the eastern Maine coast, about 20 nm (37 km) south of Mount Desert Island, encompassing depths of 100-200 m. Corals have been documented in this area from historic data dating back to the 19th century from both fisheries bycatch and naturalist surveys and from recent deep-sea coral oriented cruises within the New England region in 2000s. Vessels would be prohibited from fishing with bottom-tending mobile gear within the Mount Desert Rock Coral Protection Area. Bottom-tending mobile gear includes but is not limited to: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; and seines (with the exception of a purse seine). This would protect corals in this area from fishing impacts from these gears. Vessels would still be able to fish for lobster in this area using trap gear.
        Outer Schoodic Ridge Coral Protection Area
        This action would designate a coral protection area in a 31-mi2 (79-km2) area on the Outer Schoodic Ridge, roughly 25 nm (46 km) southeast of Mount Desert Island, encompassing depths of 104-248 m. Corals have been documented in both historic and recent data. Vessels would be prohibited from fishing with bottom-tending mobile gear within the Outer Schoodic Ridge Coral Protection Area. Bottom-tending mobile gear includes but is not limited to: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; and seines (with the exception of a purse seine). This would protect corals in this area from fishing impacts from these gears. Vessels would still be able to fish for lobster in this area using trap gear.
        Transiting Provisions

        Vessels would be allowed to transit the Georges Bank, Mount Desert Rock, and Outer Schoodic Ridge Coral Protection Areas provided the vessels bring bottom-tending fishing gear onboard the vessel, and reel bottom-tending trawl gear onto the net reel. These transiting provisions are consistent with those established by the Mid-Atlantic Council in Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish FMP. The Mid-Atlantic Council proposed these slightly less restrictive transiting provisions because the majority of transiting will be through the very narrow canyon heads (i.e., the narrow tips of the canyons that extend landward of the broad coral zone landward boundary). The Mid-Atlantic Council determined that the normal gear stowage requirements and requirements that gear be unavailable for immediate use (at 50 CFR 648.2) would be too burdensome for commercial vessels within the narrow areas of the coral protection areas.
        Jordan Basin Dedicated Habitat Research Area
        This action would designate the area around Jordan Basin in the Gulf of Maine as a dedicated habitat research area, but it would not impose any additional restrictions on fishing in this area. The purpose of this designation is to encourage further exploration of coral habitats at the site, and to encourage research on fishing gear impacts on these habitats.
        Framework Adjustments
        This action would add framework adjustment provisions to facilitate future modifications to the New England Deep-Sea Coral Protection Areas. The new measures that may be changed using a framework adjustment would include adding, revising, or removing coral areas; changing fishing restrictions in coral areas; and developing new, or changing existing, coral area fishery access or exploratory fishing programs.
        Letters of Acknowledgement for Vessels Conducting Scientific Research
        The Council requested that researchers seek a Letter of Acknowledgement (LOA) from NMFS before conducting research in these areas. Scientific research on a scientific research vessel is not considered fishing and is therefore exempt from the requirements of the Magnuson-Stevens Act (Magnuson-Stevens Act, Sec. 3, 50 CFR 600.10 and 600.512). NMFS cannot require that scientific research institutions request an LOA when conducting scientific research at sea on a scientific research vessel, but we will encourage researchers to do so, consistent with regulations implementing the Magnuson-Stevens Act provisions at 50 CFR 600.512.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has preliminarily determined that this Amendment and proposed rule are consistent with the Omnibus Deep-Sea Coral Amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be significant for purposes of Executive Order 12866.

        The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. The IRFA is incorporated into the Final Omnibus Deep Sea Coral Amendment—June 25, 2019, section 11.3. A copy of this analysis is available from the Council (see ADDRESSES) or via online at https://www.nefmc.org/library/omnibus-deep-sea-coral-amendment.

        Description of the Reasons Why Action by the Agency Is Being Considered and Statement of the Objectives of, and Legal Basis for, This Proposed Rule
        This action proposes to implement measures to protect deep-sea corals from fishing gear. The background section of the preamble to this proposed rule includes a complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action.
        Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule
        This action contains no new collection-of-information, reporting, or recordkeeping requirements. There would be economic impacts to small entities associated with this proposed rule. Those impacts are described in detail in the Final Omnibus Deep Sea Coral Amendment, specifically, in the IRFA section 11.3.3.1 and in the analysis of the impacts on human communities in section 7.1.3.
        Federal Rules Which May Duplicate, Overlap or Conflict With This Proposed Rule

        Parts of the proposed action overlap spatially with the Northeast Canyons and Seamounts Marine National Monument, defined by Presidential Proclamation 9496 of September 15, 2016 (81 FR 65159). However, this action is being proposed under the Council's discretionary authority granted in section 303(b)(2)(B) of the Magnuson-Stevens Act which is separate from the authority granted to the President in 320301 of title 54, United States Code, which the Monument was originally designated under. In addition, this action would protect deep-sea corals from the impacts of fishing gear across a much larger area. The proposed action does not duplicate, overlap, or conflict with any other Federal rules.
        Description and Estimate of the Number of Small Entities to Which This Proposed Rule Would Apply

        On July 18, 2019, the Small Business Administration (SBA) issued an interim final rule (84 FR 34261) effective August 19, 2019, that adjusted the monetary-based industry size standards (i.e., receipts- and assets-based) for inflation for many industries. For fisheries for-hire businesses and marinas, the rule changes the small business size standard from $7.5 million in annual gross receipts to $8 million. See 84 Fed Reg at 34273 (adjusting NAICS 487990 (Scenic and Sightseeing Transportation, Other) and 713930 (Marinas)).
        Pursuant to the Regulatory Flexibility Act, and prior to SBA's July 18, 2019 interim final rule, an initial regulatory flexibility analysis was developed for this action using SBA's former size standards. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former, SBA size standards, all entities subject to this action were considered small entities, and they all would continue to be considered small under the new standards.
        Taking this change and public comment into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities. This is because the recreational for-hire sector is not active in the management regions identified in this action.
        Further, the new size standards do not affect the decision to prepare a final regulatory flexibility analysis as opposed to a certification for this action. This is because all for-hire entities in the region are already classified as small businesses.
        For RFA purposes, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates) and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. For-hire businesses are categorized as a small business if combined annual receipts do not exceed $7.5 million. The Omnibus Deep-Sea Coral Amendment regulates all fishermen with Federal permits allowing the holder to fish in the Federal waters off Southern New England, Georges Bank, and the Gulf of Maine. In 2017, this represents 10 large commercial fishing businesses, 3,832 small commercial fishing businesses and 351 recreational for-hire businesses, all of the latter being categorized as small businesses.
        Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statues and Which Minimize Any Significant Economic Impact on Small Entities
        The Council considered an alternative for the Georges Bank Coral Protection Area that would have had less economic impact on small businesses. This alternative would have prohibited the use of bottom-tending commercial fishing gear (with the exception of red crab gear) in waters deeper than 900 m. The impacts on small entities would have been neutral under this alternative because no fishing activity with bottom-tending gears is known to occur at these depths. There would be slight negative impacts on small entities if the proposed measures outlined in the preamble are implemented. Vessel Trip Reports (VTR) analysis indicates that large and small businesses are not facing substantially different impact levels overall, although the most highly exposed small businesses generate a larger fraction of their overall revenue from areas within the preferred alternative when compared to large businesses. This analysis indicates that between $6.5-$8.5 million in gross revenue will be potentially displaced under the preferred alternatives, although VTR data suggests this revenue number is an overestimate. The major caveat to this analysis is the lack of information for the inshore lobster fishery, and the complete lack (and thus uncertainty) of value estimates for the benefits associated with deep-sea coral conservation, although it is known that deep-sea corals can provide habitat (substrate, refuge) for a diversity of other organisms, including many economically important fish and invertebrate species. The largest revenue estimates are attributed to lobster, Jonah and red crab, silver hake, longfin squid, and sea scallop. However, based on discussions at the Council's coral workshops in March 2017, it was determined that the designation of a broad coral protection zone in waters no shallower than 600 m would cause little change in bottom trawl, trap/pot, and gillnet effort, and that the VTR data were overestimating the potential displacement of effort because of the lack of precision in the data. Furthermore, this is an estimate of gross revenue of displaced effort, and fishermen could relocate that displaced effort to an area outside the closure and still generate revenue. The red crab fishery would be exempt from these restrictions in the Georges Bank Deep-Sea Coral Protection Area because it is a small fishery that takes place entirely within the proposed zone, and prohibiting the red crab effort from the area would essentially end the red crab fishery. To better understand these issues, NMFS seeks public comment on the VTR analysis (described in section 7.1.3.1 of the Final Omnibus Deep Sea Coral Amendment), specifically regarding the revenue number generated by the analysis and the lack of information for the inshore lobster fishery. In addition, NMFS seeks comment on value estimates for the benefits associated with deep-sea coral conservation.
        The proposed Georges Bank measures protect more known coral habitat and habitat suitable for corals compared with the 900-m alternative. The proposed action would protect 525 known coral records compared with 422 known records for the 900-m alternative (24-percent increase). In addition, the proposed alternative would protect 3,587 km2 area highly likely to be suitable habitat for soft corals compared with 2,821 km2 for the 900-m alternative (27-percent increase).

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: December 30, 2019.
          Alan D. Risenhoover,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        2. In § 648.14, add paragraphs (b)(13) through (15) to read as follows:

          § 648.14
          Prohibitions.

          (b) * * *
          (13) Fish with bottom-tending gear within the Georges Bank Deep-Sea Coral Protection Area described at § 648.373(a)(2), unless transiting pursuant to § 648.373(d), or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes, but is not limited to, bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gill nets.
          (14) Fish with bottom-tending mobile gear within the Mount Desert Rock Coral Protection Area described at § 648.373(b), unless transiting pursuant to § 648.373(d). Bottom-tending mobile gear includes, but is not limited, to otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).
          (15) Fish with bottom-tending mobile gear within the Outer Schoodic Ridge Coral Protection Area described at § 648.373(c), unless transiting pursuant to § 648.373(d). Bottom-tending mobile gear includes, but is not limited to, otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).

        3. In § 648.371 revise paragraph (d) and add paragraph (f) to read as follows:

          § 648.371
          Dedicated Habitat Research Areas.

          (d) Transiting. Unless otherwise restricted or specified in this paragraph (d), a vessel may transit the Dedicated Habitat Research Areas of this section provided that its prohibited gear is stowed and not available for immediate use as defined in § 648.2.

          (f) Jordan Basin Dedicated Habitat Research Area. (1) The Jordan Basin DHRA is defined by the following coordinates, connected in the order listed by straight lines:

            Table 1 to Paragraph (f)

              Point
              Longitude
              Latitude

              DHRA1
              −67°51.38′
              43°27.47′

              DHRA2
              −67°47.38′
              43°27.46′

              DHRA3
              −67°47.18′
              43°16.92′

              DHRA4
              −67°51.05′
              43°17.05′

              DHRA1
              −67°51.38′
              43°27.47′

          (2) Fishing vessels, regardless of gear type, may fish within the Jordan Basin DHRA.

        4. Add § 648.373 to read as follows:

          § 648.373
          New England Deep-Sea Coral Protection Areas.
          (a) Georges Bank Deep-Sea Coral Protection Area. (1) No vessel may fish with bottom-tending gear within the Georges Bank Deep-Sea Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes, but is not limited to, bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gillnets.
          (2) The Georges Bank Deep-Sea Coral Protection Area is bound on the west by the New England/Mid-Atlantic Inter-council Boundary line (detailed in paragraph (a)(2)(i) of this section); bound on the north by a simplified line (detailed in paragraph (a)(2)(ii) of this section) following the 600m depth contour along the southern flank of Georges Bank; and bound on the east and south by the U.S.-Canada Maritime Boundary and the outer limit of the U.S. Exclusive Economic Zone (detailed in paragraph (a)(2)(iii) of this section).
          (i) The western boundary is defined by the following coordinates, connected in the order listed, south to north, by straight lines:

            Table 1 to Paragraph (a)(2)(i)

              Point
              Longitude
              Latitude
              Note

              1
              −68°47.62′
              38°2.21′
              (1)

              2
              −68°49.99′
              38°4.84′

              3
              −68°57.35′
              38°13.00′

              4
              −69°4.73′
              38°21.15′

              5
              −69°12.13′
              38°29.29′

              6
              −69°19.57′
              38°37.42′

              7
              −69°27.03′
              38°45.54′

              8
              −69°34.53′
              38°53.66′

              9
              −69°42.05′
              39°1.77′

              10
              −69°49.60′
              39°9.86′

              11
              −69°57.18′
              39°17.96′

              12
              −70°4.78′
              39°26.04′

              13
              −70°12.42′
              39°34.11′

              14
              −70°20.09′
              39°42.18′

              15
              −70°27.78′
              39°50.24′

              16
              −70°31.64′
              39°54.26′

              17
              −70°32.09′
              39°54.72′
              (2)

              Notes:

            (1) POINT 1 represents the outer limit of the US EEZ.
            (2) POINT 17 represents where the western and northern boundaries meet.

          (ii) The northern (nearshore) boundary is defined by the following coordinates, connected in the order listed, west to east, by straight lines.

            Table 1 to Paragraph (a)(2)(ii)

              Point
              Longitude
              Latitude
              Note

              17
              −70°32.09′
              39°54.72′
              (3)

              18
              −70°29.83′
              39°59.78′

              19
              −70°28.72′
              39°54.41′

              20
              −70°27.52′
              39°53.44′

              21
              −70°26.05′
              39°53.13′

              22
              −70°23.81′
              39°53.13′

              23
              −70°22.44′
              39°53.72′

              24
              −70°21.97′
              39°54.94′

              25
              −70°20.12′
              39°53.97′

              26
              −70°16.98′
              39°53.60′

              27
              −70°17.35′
              39°54.55′

              28
              −70°16.99′
              39°54.77′

              29
              −70°17.55′
              39°57.01′

              30
              −70°16.69′
              39°57.06′

              31
              −70°14.54′
              39°57.75′

              32
              −70°13.64′
              39°58.44′

              33
              −70°12.58′
              39°58.82′

              34
              −70°12.16′
              39°58.32′

              35
              −70°13.85′
              39°56.68′

              36
              −70°14.29′
              39°56.56′

              37
              −70°12.51′
              39°55.18′

              38
              −70°11.17′
              39°55.2′

              39
              −70°11.19′
              39°54.34′

              40
              −70°10.33′
              39°53.64′

              41
              −70°7.98′
              39°54.17′

              42
              −70°6.99′
              39°54.94′

              43
              −70°6.56′
              39°53.85′

              44
              −70°4.99′
              39°53.24′

              45
              −70°02.97′
              39°52.62′

              46
              −70°02.70′
              39°53.66′

              47
              −70°01.24′
              39°54.69′

              48
              −70°00.34′
              39°53.26′

              49
              −69°59.41′
              39°52.49′

              50
              −69°57.88′
              39°52.61′

              51
              −69°57.05′
              39°53.05′

              52
              −69°56.35′
              39°53.59′

              53
              −69°56.11′
              39°54.94′

              54
              −69°55.76′
              39°55.08′

              55
              −69°54.62′
              39°53.23′

              56
              −69°53.02′
              39°54.29′

              57
              −69°52.21′
              39°54.39′

              58
              −69°52.34′
              39°53.64′

              59
              −69°50.97′
              39°53.36′

              60
              −69°50.65′
              39°53.73′

              61
              −69°49.45′
              39°52.85′

              62
              −69°49.63′
              39°52.32′

              63
              −69°48.88′
              39°52.96′

              64
              −69°47.91′
              39°52.54′

              65
              −69°48.06′
              39°51.85′

              66
              −69°42.35′
              39°52.03′

              67
              −69°42.19′
              39°52.68′

              68
              −69°41.32′
              39°52.27′

              69
              −69°39.66′
              39°52.33′

              70
              −69°40.03′
              39°53.03′

              71
              −69°39.34′
              39°53.81′

              72
              −69°38.51′
              39°53.04′

              73
              −69°38.11′
              39°53.27′

              74
              −69°37.59′
              39°52.38′

              75
              −69°36.93′
              39°51.89′

              76
              −69°36.99′
              39°53.42′

              77
              −69°37.44′
              39°53.85′

              78
              −69°37.02′
              39°54.34′

              79
              −69°37.52′
              39°55.59′

              80
              −69°37.01′
              39°57.70′

              81
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              436
              −66°34.76′
              40°51.34′

              437
              −66°33.57′
              40°51.38′

              438
              −66°34.29′
              40°52.10′

              439
              −66°33.55′
              40°52.16′

              440
              −66°33.32′
              40°52.70′

              441
              −66°32.88′
              40°52.69′

              442
              −66°32.62′
              40°51.96′

              443
              −66°32.01′
              40°51.53′

              444
              −66°30.28′
              40°53.07′

              445
              −66°30.69′
              40°53.61′

              446
              −66°30.15′
              40°53.84′

              447
              −66°30.14′
              40°54.17′

              448
              −66°30.67′
              40°54.62′

              449
              −66°28.81′
              40°54.47′

              450
              −66°28.84′
              40°55.04′

              451
              −66°28.16′
              40°55.03′

              452
              −66°27.30′
              40°55.99′

              453
              −66°25.16′
              40°58.14′

              454
              −66°24.11′
              40°59.64′

              455
              −66°24.37′
              41°00.32′

              456
              −66°23.57′
              41°00.33′

              457
              −66°22.61′
              41°01.68′

              458
              −66°23.05′
              41°02.64′

              459
              −66°24.77′
              41°03.86′

              460
              −66°24.03′
              41°04.11′

              461
              −66°24.60′
              41°04.95′

              462
              −66°22.60′
              41°04.23′

              463
              −66°21.17′
              41°04.35′

              464
              −66°21.11′
              41°05.02′

              465
              −66°19.77′
              41°04.45′

              466
              −66°18.07′
              41°06.00′

              467
              −66°18.24′
              41°07.82′

              468
              −66°17.07′
              41°08.68′

              469
              −66°16.90′
              41°08.93′

              470
              −66°16.86′
              41°08.98′
              (4)

              Notes:

            (3) POINT 17 represents where the western and northern boundaries meet.
            (4) POINT 470 represents the U.S.-Canada Maritime Boundary.

          (iii) The eastern and southern boundary (from Point 470) follows the U.S.-Canada Maritime Boundary southeasterly to its intersection with the outer limit of the U.S. Exclusive Economic Zone. The boundary then follows the outer limit of the U.S. Exclusive Economic Zone southwesterly back to its origin at POINT 01.
          (b) Mount Desert Rock Coral Protection Area. (1) No vessel may fish with bottom-tending mobile gear, as defined in § 648.2, within the Mount Desert Rock Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section. Bottom-tending mobile gear includes, but is not limited to, otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).
          (2) The Mount Desert Rock Coral Protection Area is defined by the following coordinates, connected in the order listed by straight lines:

            Table 1 to Paragraph (b)

              Point
              Longitude
              Latitude

              MDR1
              −68°13.16′
              43°56.99′

              MDR2
              −68°12.00′
              43°57.00′

              MDR3
              −68°11.45′
              43°56.17′

              MDR4
              −68°12.21′
              43°52.62′

              MDR5
              −68°14.32′
              43°52.11′

              MDR1
              −68°13.16′
              43°56.99′

          (c) Outer Schoodic Ridge Coral Protection Area. (1) No vessel may fish with bottom-tending mobile gear, as defined in § 648.2, within the Outer Schoodic Ridge Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section. Bottom-tending mobile gear includes, but is not limited to, otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).
          (2) The Outer Schoodic Ridge Coral Protection Area is defined by the following coordinates, connected in the order listed by straight lines:

            Table 1 to Paragraph (c)(2)

              Point
              Longitude
              Latitude

              OSR1
              −67°35.60′
              44°13.49′

              OSR2
              −67°33.10′
              44°12.56′

              OSR3
              −67°39.70′
              44°02.48′

              OSR4
              −67°42.29′
              44°03.48′

              OSR1
              −67°35.60′
              44°13.49′

          (d) Transiting. Vessels may transit the New England Deep-Sea Coral Management Areas defined in this section, provided bottom-tending trawl nets are out of the water and stowed on the reel and any other fishing gear that is prohibited in these areas is onboard, out of the water, and not deployed. Fishing gear is not required to meet the definition of “not available for immediate use” in § 648.2, when a vessel transits the New England Deep-Sea Coral Management Areas.
          (e) Framework adjustments. The Council may at any time initiate a framework adjustment to add or adjust management measures within the New England Deep-Sea Coral Management Areas if it finds that action is necessary to meet or be consistent with the goals and objectives of those areas. The Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses, and opportunity to comment on them prior to and at the second Council meeting. Measures that may be changed or implemented through framework action include:
          (1) Adding, revising, or removing coral areas;
          (2) Changing fishing restrictions in coral areas; and
          (3) Developing new, or changing existing, coral area fishery access or exploratory fishing programs.

      [FR Doc. 2019-28424 Filed 1-2-20; 8:45 am]
       BILLING CODE 3510-22-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 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: 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.

            1 See 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).

        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.

            2 E.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).

            3 Compare 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).

        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 demurrage-related 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

            4 Pittsburgh, Cincinnati, Chicago & St. Louis Ry. v. Fink, 250 U.S. 577, 581 (1919); Groves, 586 F.3d at 1278.

            5 See, e.g.,
            Smokeless Fuel Co. v. Norfolk & W. Ry., 85 I.C.C. 395, 401 (1923).

            6 A 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.

            7 Historically, 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.

            8 Eastern 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.”

        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 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.

            9 Relying 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.

            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.

        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.

            11 See West Point Relocation, Inc. & Eli Cohen-Petition for Declaratory Order, FD 35290 (STB served Oct. 29, 2010).

        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.

            12 Blanchette 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).

        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 principal-agent 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 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 non-agents, 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