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Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
During routine inspection procedures on the wing assembly line it was identified the possibility of cracks and deformation developing during assembly on the internal wing spars and rib flanges, causing a safe[ty] margin reduction.
This AD becomes effective March 30, 2010.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 30, 2010.
You may examine the AD docket on the Internet at
Kenny Kaulia, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–2848; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
During routine inspection procedures on the wing assembly line it was identified the possibility of cracks and deformation developing during assembly on the internal wing spars and rib flanges, causing a safe[ty] margin reduction.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Embraer requests that we remove Model ERJ 190–100 ECJ airplanes from the applicability of the NPRM, because that model is not included in the effectivity statement of Embraer Service Bulletin 190–57–0023, dated June 9, 2008, and is not subject to the unsafe condition addressed by the NPRM.
We agree, for the reasons provided by the commenter. We have revised the applicability statement of the AD accordingly.
Embraer requests that we change paragraph (f)(2) of the NPRM to require that any repair of detected cracking or deformation be approved by either the FAA or the ANAC, and that Embraer may be contacted for repair support. Embraer states that the appropriate corrective action would be applying an authority-approved repair to the damaged wing rib and spar flanges.
We disagree with the commenter's request to change paragraph (f)(2) of this AD. As specified in paragraph (g)(2) of this AD, corrective actions obtained from a manufacturer cannot be used unless they are FAA-approved. Paragraph (g)(2) of this AD also states that corrective actions are considered FAA-approved if they are approved by the State of Design Authority, in this case ANAC (or its delegated agent). We have not changed the AD in this regard.
Embraer requests that we add a paragraph (f)(3) to the NPRM stating “If no cracking or deformation is detected during the inspection required by paragraph (f)(1) of this AD, no further action is required.” Embraer did not provide justification for this request.
We agree with Embraer's request to add the statement as clarification. We have therefore added paragraph (f)(3) to the AD.
Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect 27 products of U.S. registry. We also estimate that it will take about 10 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $22,950, or $850 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 190–100 LR, –100 IGW, –100 STD, –200 STD, –200 LR, and –200 IGW airplanes, certificated in any category, serial numbers 19000002, 19000004, and 19000006 through 19000062 inclusive.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
During routine inspection procedures on the wing assembly line it was identified the possibility of cracks and deformation developing during assembly on the internal wing spars and rib flanges, causing a safe[ty] margin reduction.
(f) Unless already done, do the following actions.
(1) Before the accumulation of 5,000 total flight cycles on the airplane, or within 1,000 flight cycles after the effective date of this AD, whichever occurs later: Perform a detailed inspection of the left and right wing rib and spars I, II, and III flanges to detect cracking or deformation, in accordance with the Accomplishment Instructions of Embraer Service Bulletin 190–57–0023, dated June 9, 2008.
(2) If any cracking or deformation is detected during the inspection required by paragraph (f)(1) of this AD, before further flight, send the inspection results and request for repair instructions to ANAC (or its delegated agent) and Embraer Technical Support; e-mail:
(3) If no cracking or deformation is detected during the inspection required by paragraph (f)(1) of this AD, no further action is required by this AD.
This AD differs from the MCAI and/or service information as follows: Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (f)(2) of this AD requires that you repair the crack(s) before further flight.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Brazilian Airworthiness Directive 2008–10–03, effective October 21, 2008; and Embraer Service Bulletin 190–57–0023, dated June 9, 2008; for related information.
(i) You must use Embraer Service Bulletin 190–57–0023, dated June 9, 2008, as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227–901 São Jose dos Campos—SP—BRASIL;
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is superseding an existing airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
During the flight test campaign of the A380–861 model (Engine Alliance powered), some cracks were found on the Movable Flap Track Fairing number 6 (MFTF#6).
These cracks were located at the pivot attachment support-ring and at the U-frame in the attachment area to aft-kinematic. In addition, delamination has been observed within the monolithic Carbon Fibre Reinforced Plastic (CFRP) structure around the pivot support-ring.
This condition, if not corrected, could lead to in-flight loss of the MFTF#6, potentially resulting in injuries to persons on the ground.
This AD becomes effective March 10, 2010.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of March 10, 2010.
On May 28, 2009 (74 FR 22422, May 13, 2009), the Director of the Federal Register approved the incorporation by reference of a certain other publication listed in the AD.
We must receive comments on this AD by April 9, 2010.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–1175; fax (425) 227–1149.
On May 1, 2009, the FAA issued AD 2009–10–07, Amendment 39–15902 (74 FR 22422, May 13, 2009). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued that AD, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009–0152, dated July 14, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During the flight test campaign of the A380–861 model (Engine Alliance powered), some cracks were found on the Movable Flap Track Fairing number 6 (MFTF#6).
These cracks were located at the pivot attachment support-ring and at the U-frame in the attachment area to aft-kinematic. In addition, delamination has been observed within the monolithic Carbon Fibre Reinforced Plastic (CFRP) structure around the pivot support-ring.
This condition, if not corrected, could lead to in-flight loss of the MFTF#6, potentially resulting in injuries to persons on the ground.
To prevent the risk of a MFTF#6 detachment, EASA AD 2008–0216 (which corresponds to FAA AD 2009–10–07) required an inspection programme in order to
This AD, which supersedes EASA AD 2008–0216:
• Cancels the MFTF#6 General Visual Inspection requirement,
• Refers to Airbus Service Bulletin A380–57–8014 Revision 1 * * *
• Introduces an optional terminating action [installing reinforced part].
AD 2009–10–07 applies to all Airbus Model A380–841, –842, and –861 airplanes. This AD retains the requirements of AD 2009–10–07. Airplanes were removed from the applicability of AD 2009–10–07 by excluding airplanes on which Airbus modification 68729 is done in production. This AD also revises the compliance time for the inspections of replaced parts. The compliance time is reduced for certain parts and extended for certain other parts, depending on the flight cycles since first installation of the part. The replacement parts must be inspected within the thresholds specified in paragraph (f)(1) of this AD.
Since we issued AD 2009–10–07, Airbus has issued Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009; and Service Bulletin A380–57–8017, dated June 5, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.
Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 10, 2010.
(b) This AD supersedes AD 2009–10–07, Amendment 39–15902.
(c) This AD applies to Airbus Model A380–841, –842, and –861 airplanes, certificated in any category, all serial numbers, except airplanes on which Airbus modification 68729 has been done in production.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continued airworthiness information (MCAI) states:
During the flight test campaign of the A380–861 model (Engine Alliance powered), some cracks were found on the Movable Flap Track Fairing number 6 (MFTF#6).
These cracks were located at the pivot attachment support-ring and at the U-frame in the attachment area to aft-kinematic. In addition, delamination has been observed within the monolithic Carbon Fibre Reinforced Plastic (CFRP) structure around the pivot support-ring.
This condition, if not corrected, could lead to in-flight loss of the MFTF#6, potentially resulting in injuries to persons on the ground.
To prevent the risk of a MFTF#6 detachment, EASA AD 2008–0216 required an inspection programme in order to detect cracks before they become critical and in case of findings to replace the MFTF#6.
This AD, which supersedes EASA AD 2008–0216:
• Cancels the MFTF#6 General Visual Inspection requirement,
• Refers to Airbus Service Bulletin A380–57–8014 Revision 1, * * *
• Introduces an optional terminating action.
(f) Unless already done, do the following actions.
(1) At the applicable time specified in paragraph (f)(1)(i) or (f)(1)(ii) of this AD for the left- and right-hand MFTF#6, do a special detailed (ultrasonic and high-frequency eddy current) inspection of the filet radii of pivot supports, monolithic carbon fibre reinforced plastic structures, and radii of the U-frame, for cracking and delamination in accordance with the Accomplishment Instructions of Airbus Service Bulletin A380–57–8014, dated November 21, 2008; or Airbus Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009. After the effective date of this AD, use only Revision 01.
(i) For Airbus Model A380–841 and –842 airplanes: Before the MFTF#6 has accumulated 500 total flight cycles since its first installation on an airplane, or within 30 flight hours after May 28, 2009 (the effective date of AD 2009–10–07), whichever occurs later.
(ii) For Model A380–861 airplanes: Before the MFTF#6 has accumulated 100 total flight cycles since its first installation on an airplane, or within 30 flight hours after May 28, 2009, whichever occurs later.
(2) If no cracking and no delamination are found during any inspection required by paragraph (f)(1) of this AD, repeat the inspections required by paragraph (f)(1) of this AD thereafter at intervals not to exceed the applicable time specified in paragraph (f)(2)(i) or (f)(2)(ii) of this AD.
(i) For Model A380–841 and –842 airplanes: 50 flight cycles.
(ii) For Model A380–861 airplanes: 10 flight cycles.
(3) If any cracking or delamination is found during any inspection required by paragraph (f)(1) or (f)(2) of this AD, before further flight, replace the MFTF#6 with a new or serviceable part, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A380–57–8014, dated November 21, 2008; or Airbus Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009. For parts replaced before the effective date of this AD, repeat the inspections specified in paragraph (f)(1) of this AD at the later of the times specified in paragraphs (f)(3)(i) and (f)(3)(ii) of this AD. For parts replaced on or after the effective date of this AD, repeat the inspections specified in paragraph (f)(1) of this AD at the applicable time defined in paragraph (f)(1) of this AD. After the effective date of this AD, use only Revision 01 for the replacement.
(i) At the applicable time defined in paragraph (f)(2) of this AD.
(ii) At the applicable time defined in paragraph (f)(1) of this AD.
(g) Unless already done, do the following actions.
(1) In case of MFTF#6 replacement, submit a report using Appendix 01 of Airbus Service Bulletin A380–57–8014, dated November 21, 2008, to Airbus Central Entity, Dept SEES5, 1, Rond Point Maurice Bellonte, 31707 Blagnac, France; e-mail
(i) If the MFTF#6 replacement was done on or after the effective date of this AD: Submit the report within 30 days after the MFTF#6 removal.
(ii) If the MFTF#6 replacement was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
(2) Replacement of the MFTF#6 with a reinforced MFTF#6, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A380–57–8017, dated June 5, 2009, terminates the requirements of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(h) The following provisions also apply to this AD:
(1)
(2)
(3)
(i) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2009–0152, dated July 14, 2009; Airbus Service Bulletin A380–57–8014, dated November 21, 2008; Airbus Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009; and Airbus Service Bulletin A380–57–8017, dated June 5, 2009; for related information.
(j) You must use Airbus Service Bulletin A380–57–8014, including Appendix 01, dated November 21, 2008; Airbus Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009; and Airbus Service Bulletin A380–57–8017, dated June 5, 2009; as applicable; to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of Airbus Mandatory Service Bulletin A380–57–8014, Revision 01, dated June 5, 2009; and Airbus Service Bulletin A380–57–8017, dated June 5, 2009; under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) The Director of the Federal Register previously approved the incorporation by reference of Airbus Service Bulletin A380–57–8014, including Appendix 01, dated November 21, 2008, on May 28, 2009 (74 FR 22422, May 13, 2009).
(3) For service information identified in this AD, contact Airbus SAS—EANA (Airworthiness Office); 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 562 110 253; Fax +33 562 110 307; e-mail
(4) You may review copies of the service information at the FAA, Transport Airplane
(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is superseding an existing airworthiness directive (AD) for McCauley Propeller Systems 1A103/TCM series propellers. That AD requires, for certain serial numbers (S/Ns) of McCauley Propeller Systems 1A103/TCM series propellers, initial and repetitive visual and dye penetrant inspections for cracks in the propeller hub, replacement of propellers with cracks that do not meet acceptable limits, and rework of propellers with cracks that meet acceptable limits. This AD requires, for all McCauley Propeller Systems 1A103/TCM series propellers, the same actions but at reduced compliance times. This AD also requires inspections of the bolt holes, reaming holes if necessary, and inspections of steel reinforcement plates and gaskets. This AD results from 16 reports received of propeller hubs found cracked since AD 2003–12–05 was issued. We are issuing this AD to prevent propeller separation due to hub fatigue cracking, which can result in loss of control of the airplane.
Effective March 10, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of March 10, 2010.
We must receive any comments on this AD by April 26, 2010.
Use one of the following addresses to comment on this AD.
•
•
•
•
Thomas Teplik, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Room 100, Wichita, KS 67209; e-mail:
The FAA amends 14 CFR part 39 by superseding AD 2003–12–05, Amendment 39–13190 (68 FR 35155, June 12, 2003). That AD requires, for certain S/Ns of McCauley Propeller Systems 1A103/TCM series propellers, initial and repetitive visual and dye penetrant inspections for cracks in the propeller hub, replacement of propellers with cracks that do not meet acceptable limits, and rework of propellers with cracks that meet acceptable limits. That AD was the result of reports of hub cracking on the camber (forward) side of the propeller hub near the attachment bolt holes on certain propellers. That condition, if not corrected, could result in propeller separation due to hub fatigue cracking, which can result in loss of control of the airplane.
Since AD 2003–12–05 was issued, we received 16 reports of propeller hubs found cracked. Two of the cracks were on propellers outside the propeller range of serial numbers affected by AD 2003–12–05. These cracks began at a bolt hole and extended through to the hub outer surface. These propellers had fewer than 3,000 operating hours time-in-service (TIS). AD 2003–12–05 required inspections starting at 3,000 operating hours TIS. We have not yet been able to determine the cause of the propeller hub cracking.
We have reviewed and approved the technical contents of McCauley Propeller Systems Alert Service Bulletin (ASB) No. ASB221E, dated January 28, 2010. That ASB describes, for all McCauley Propeller Systems 1A103/TCM series propellers, procedures for initial and repetitive visual and dye penetrant inspections for cracks in the propeller hub, removal from service of propellers with cracks that do not meet acceptable limits, and rework of propellers with cracks that meet acceptable limits.
The unsafe condition described previously is likely to exist or develop on other McCauley Propeller Systems 1A103/TCM series propellers of the same type design. We are issuing this AD to prevent propeller separation due to hub fatigue cracking, which can result in loss of control of the airplane. This AD requires, for all McCauley Propeller Systems 1A103/TCM series propellers, initial and repetitive visual and dye penetrant inspections for cracks in the propeller hub, including bolt holes, reaming holes if necessary, inspections of steel reinforcement plates and gaskets, removal from service of propellers with cracks that do not meet acceptable limits, and rework of propellers with cracks that meet acceptable limits. You must use the service information described previously to perform the actions required by this AD.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
These actions are interim actions and we may take further rulemaking actions in the future.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 10, 2010.
(b) This AD supersedes AD 2003–12–05, Amendment 39–13190.
(c) This AD applies to McCauley Propeller Systems 1A103/TCM series propellers, all serial numbers. These propellers are installed on, but not limited to Cessna 152, Cessna A152, Reims F152, and Reims FA152 series airplanes, and on airplanes with Lycoming 0–235–L2C reciprocating engines modified by Supplemental Type Certificates SA1763SO, SA5695NM, SA1000NW, and SA432NE.
(d) This AD results from 16 reports received of propeller hubs found cracked since AD 2003–12–05 was issued. We are issuing this AD to prevent propeller separation due to hub fatigue cracking, which can result in loss of control of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) For propellers not previously inspected using McCauley Service Bulletin (Alert) No. 221C, dated September 7, 1999, or McCauley Alert Service Bulletin (ASB) No. ASB221D, dated January 28, 2008, do the following:
(1) For propellers with more than 1,500 operating hours time-since-new (TSN) or unknown operating hours TSN on the effective date of this AD, within the next 50 operating hours time-in-service (TIS), do the actions specified in paragraphs (h) through (m) of this AD.
(2) For propellers with 1,500 or fewer operating hours TSN on the effective date of this AD, upon reaching 1,500 operating hours TSN or within the next 50 operating hours TIS, whichever is later, do the actions specified in paragraphs (h) through (m) of this AD.
(g) For propellers previously inspected using McCauley Service Bulletin (Alert) No. 221C, dated September 7, 1999, or McCauley ASB No. ASB221D, dated January 28, 2008, do the following:
(1) For propellers with more than 1,500 operating hours TSN on the effective date of this AD, and with 750 or more operating hours time-since-last-inspection (TSLI), within the next 50 operating hours TIS, do the actions specified in paragraphs (h) through (m) of this AD.
(2) For propellers with more than 1,500 operating hours TSN on the effective date of this AD, and with fewer than 750 operating hours TSLI, before reaching 750 operating hours TSLI or within the next 50 operating hours TIS, whichever occurs later, do the actions specified in paragraphs (h) through (m) of this AD.
(h) Visual- and dye-penetrant-inspect for cracks in the propeller hub.
(i) Inspect the bolt holes and ream the holes if necessary.
(j) Inspect the steel reinforcement plates and gaskets.
(k) Remove propellers that are not within the bolt hole inspection limits or have cracks that are not within the rework limits.
(l) Rework propellers that have cracks that meet acceptable rework limits.
(m) Use the Accomplishment Instructions of McCauley ASB No. ASB221E, dated January 28, 2010, to do the inspections, rework, and removals from service.
(n) Thereafter, for all propellers, within every additional 750 operating hours TIS, perform the actions in paragraphs (h) through (m) of this AD.
(o) The Manager, Wichita Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(p) Under 39.23, we are limiting the availability of special flight permits for this AD. Special flight permits are available only if:
(1) The operator has not observed abnormal propeller vibration or abnormal engine vibration.
(2) The operator has not made earlier reports of abnormal propeller vibration, abnormal engine vibration, or other abnormal propeller operations that have not been addressed.
(q) Contact Thomas Teplik, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Room 100, Wichita, KS 67209; e-mail:
(r) You must use McCauley Propeller Systems Alert Service Bulletin No. ASB221E, dated January 28, 2010, to perform the inspections, rework, and removals from service required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact McCauley Propeller Systems, 5800 E. Pawnee, Wichita, KS 67218, telephone: (800) 621–7767; e-mail:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The aileron hinges and the stabilizer are fastened with steel tube rivets and brass tube rivets.
During a complete overhaul, broken brass tube rivets have been detected. It has been determined that, due to production quality issue, the upset heads of the brass tube rivets could break under normal load conditions.
This condition, if not corrected, could possibly lead to loss of control of the powered sailplane.
This AD becomes effective March 15, 2010.
On March 15, 2010, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
We must receive comments on this AD by April 9, 2010.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4130; fax: (816) 329–4090; e-mail:
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2010–0011–E, dated January 25, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The aileron hinges and the stabilizer are fastened with steel tube rivets and brass tube rivets.
During a complete overhaul, broken brass tube rivets have been detected. It has been determined that, due to production quality issue, the upset heads of the brass tube rivets could break under normal load conditions.
This condition, if not corrected, could possibly lead to loss of control of the powered sailplane.
For the reason described above, this AD requires an inspection of the affected tube rivets and, if necessary, their replacement.
SCHEIBE-Flugzeugbau GmbH has issued SCHEIBE AIRCRAFT GMBH Service Bulletin 653–64, dated November 10, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the brass tube rivets that are used to fasten the aileron hinges and the stabilizer are breaking. Investigation revealed that the brass tube rivets could break under normal load conditions, which could result in loss of control of the glider. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 15, 2010.
(b) None.
(c) This AD applies to Model SF 25C gliders, serial numbers 44365 through 44370, 44372, 44374, 44375, and 44377 through 44450, certificated in any category.
(d) Air Transport Association of America (ATA) Code 55: Stabilizers.
(e) The mandatory continuing airworthiness information (MCAI) states:
The aileron hinges and the stabilizer are fastened with steel tube rivets and brass tube rivets.
During a complete overhaul, broken brass tube rivets have been detected. It has been determined that, due to production quality issue, the upset heads of the brass tube rivets could break under normal load conditions.
This condition, if not corrected, could possibly lead to loss of control of the powered sailplane.
For the reason described above, this AD requires an inspection of the affected tube rivets and, if necessary, their replacement.
(f) Unless already done, do the following actions in accordance with SCHEIBE AIRCRAFT GMBH Service Bulletin 653–64, dated November 10, 2009.
(1) Within the next 2 days after March 15, 2010 (the effective date of this AD), remove the paint of the tube rivet heads at the aileron-hinges at wing rib No. 16 (in the area located at the lower side of the wing), disconnect the aileron from the wings, disconnect the elevator from the stabilizer, and inspect the tube rivet heads at the stabilizer to fuselage fittings to determine if the tube rivet heads are steel or brass.
(2) If the aileron hinges and the stabilizer to fuselage fittings are connected to the ribs and the spar with steel tube rivets, no further action is required.
(3) If the aileron hinges or the stabilizer to fuselage fittings are connected to the ribs and the spar with brass tube rivets 8x0, 75 mm, before further flight after the inspection required in paragraph (f)(1) of this AD, replace the brass tube rivets with screws.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency (EASA) Emergency AD No. 2010–0011–E, dated January 25, 2010, and SCHEIBE AIRCRAFT GMBH Service Bulletin 653–64, dated November 10, 2009, for related information.
(i) You must use SCHEIBE AIRCRAFT GMBH Service Bulletin 653–64, dated November 10, 2009, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Scheibe Aircraft GmbH, Am Flugplatz 5, 73540 Heubach, Germany; telephone: +49(0)7173 184286; fax: 4(0)7173 185587.
(3) You may review copies of the service information incorporated by reference for this AD at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the Central Region, call (816) 329–3768.
(4) You may also review copies of the service information incorporated by reference for this AD at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
There have been several in-service cases reported of impact damage to the blowout (decompression) panel protective cage assemblies installed in the aft baggage cargo compartment. When damaged, these cages could prevent proper operation of the blowout panels, with potential degradation of smoke detection and fire extinguishing capabilities in the event of a fire.
This AD becomes effective March 30, 2010.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 30, 2010.
You may examine the AD docket on the Internet at
Craig Yates, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7355; fax (516) 794–5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
There have been several in-service cases reported of impact damage to the blowout (decompression) panel protective cage assemblies installed in the aft baggage cargo compartment. When damaged, these cages could prevent proper operation of the blowout panels, with potential degradation of smoke detection and fire extinguishing capabilities in the event of a fire.
This directive mandates replacement of the existing cages with new cages that have greater damage resistance.
You may obtain further information by examining the MCAI in the AD docket.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We have revised this AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.
Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We reviewed the available data, and determined that air safety and the public interest require adopting the AD
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.
We estimate that this AD will affect 361 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $1,263 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $517,313, or $1,433 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD; certificated in any category.
(1) Bombardier, Inc. Model CL–600–2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10003 through 10268, inclusive.
(2) Bombardier, Inc. Model CL–600–2D15 (Regional Jet Series 705) airplanes; and Bombardier, Inc. Model CL–600–2D24 (Regional Jet Series 900) airplanes; serial numbers 15001 through 15205, inclusive.
(d) Air Transport Association (ATA) of America Code 25: Equipment/Furnishings.
(e) The mandatory continuing airworthiness information (MCAI) states:
There have been several in-service cases reported of impact damage to the blowout (decompression) panel protective cage assemblies installed in the aft baggage cargo compartment. When damaged, these cages could prevent proper operation of the blowout panels, with potential degradation of smoke detection and fire extinguishing capabilities in the event of a fire.
This directive mandates replacement of the existing cages with new cages that have greater damage resistance.
(f) Unless already done, within 5,000 flight hours after the effective date of this AD, replace the existing cage assemblies in the aft baggage cargo compartment, in accordance with Bombardier Service Bulletin 670BA–25–071, dated May 15, 2009.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Canadian Airworthiness Directive CF–2009–30, dated July 6, 2009; and Bombardier Service Bulletin 670BA–25–071, dated May 15, 2009; for related information.
(i) You must use Bombardier Service Bulletin 670BA–25–071, dated May 15, 2009, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone: 514–855–5000; fax: 514–855–7401; e-mail:
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
[European Aviation Safety Agency (EASA)] AD 2006–0191 [which corresponds to FAA AD 2006–21–08] required the installation of new heat shield panels with drainage over the air conditioning packs in order to avoid an undetected fire in this zone following a fuel leak from the centre tank.
These new heat shield panels have holes. In case of fuel leaking through these holes from the centre tank, any fuel vapour may develop into a potential source of ignition, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane.***
This AD becomes effective March 30, 2010.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 30, 2010.
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–1138; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
* * * EASA AD 2006–0191 [which corresponds to FAA AD 2006–21–08] required the installation of new heat shield panels with drainage over the air conditioning packs in order to avoid an undetected fire in this zone following a fuel leak from the centre tank.
These new heat shield panels have holes. In case of fuel leaking through these holes from the centre tank, any fuel vapour may develop into a potential source of ignition, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane. Airbus has developed a repair solution for these holes to prevent a fuel vapour ignition source in this area and improve the protection of the hot air equipment.
[T]his AD requires the installation of plugs on the heat shield panels of the Left Hand (LH) and Right Hand (RH) Air Conditioning packs.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.
Based on the service information, we estimate that this AD will affect about 12 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,060, or $255 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category; on which Airbus Modification 49520 has been embodied in production, or on which Airbus Service Bulletin A330–21–3096, Revision 01, or Airbus Service Bulletin A340–21–4107, Revision 01, has been embodied in service; except those airplanes on which Airbus Modification 58551 has been embodied in production.
(1) Airbus Model A330–201, –202, –203, –223, and –
(2) Airbus Model A340–211, –212, and –213 airplanes; and Model A340–311, –312, and –313 airplanes; all manufacturer serial numbers.
(d) Air Transport Association (ATA) of America Code 21: Air conditioning.
(e) The mandatory continuing airworthiness information (MCAI) states:
* * * EASA [European Aviation Safety Agency] AD 2006–0191 [which corresponds to FAA AD 2006–21–08] required the installation of new heat shield panels with drainage over the air conditioning packs in order to avoid an undetected fire in this zone following a fuel leak from the centre tank.
These new heat shield panels have holes. In case of fuel leaking through these holes from the centre tank, any fuel vapour may develop into a potential source of ignition, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane. Airbus has developed a repair solution for these holes to prevent a fuel vapour ignition source in this area and improve the protection of the hot air equipment.
[T]his AD requires the installation of plugs on the heat shield panels of the Left Hand (LH) and Right Hand (RH) Air Conditioning packs.
(f) Unless already done, within 24 months after the effective date of this AD: Plug the six receptacle holes on the heat shield of the left-hand air conditioning pack and plug the four receptacle holes on the heat shield of the right-hand air conditioning pack, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–21–3148, dated January 30, 2009 (for Model A330–201, –202, –203, –223, and –243 airplanes); or Airbus Mandatory Service Bulletin A340–21–4147, dated January 30, 2009 (for Model A340–211, –212, and –213 airplanes; and Model A340–311, –312, and –313 airplanes); as applicable.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI EASA Airworthiness Directive 2009–0150, dated July 9, 2009; Airbus Mandatory Service Bulletin A330–21–3148, dated January 30, 2009; and Airbus Mandatory Service Bulletin A340–21–4147, dated January 30, 2009; for related information.
(i) You must use Airbus Mandatory Service Bulletin A330–21–3148, including Appendix 1, dated January 30, 2009; or Airbus Mandatory Service Bulletin A340–21–4147, including Appendix 1, dated January 30, 2009; as applicable; to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80, e-mail
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
An A300–600 operator reported two events of IPECO pilot seat moved in the aft position, one during take-off roll and one during climb out. The investigation of these events showed that a broken/missing spring contributed to the seat not being correctly locked.
An unwanted movement of pilot or co-pilot seat in the aft direction is considered as potentially dangerous, especially during the take-off phase when the speed of the aeroplane is greater than 100 knots and until landing gear retraction.
This AD becomes effective March 30, 2010.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 30, 2010.
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
An A300–600 operator reported two events of IPECO pilot seat moved in the aft position, one during take-off roll and one during climb out. The investigation of these events showed that a broken/missing spring contributed to the seat not being correctly locked.
An unwanted movement of pilot or co-pilot seat in the aft direction is considered as potentially dangerous, especially during the take-off phase when the speed of the aeroplane is greater than 100 knots and until landing gear retraction.
To prevent further incidents of inadvertent flight crew seat aft movement, this AD requires repetitive inspections of the affected seat springs and replacement of missing or broken parts. In addition, this AD requires replacement of the affected seats with modified P/N 3A218–000X–01–2 seats. Installation of both pilot and co-pilot seats P/N 3A218–000X–01–2 on an aeroplane constitutes terminating action for the repetitive inspection requirements of this AD for that aeroplane.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
The Air Line Pilots Association, International (ALPA), supports the NPRM.
FedEx and UPS request that we extend the compliance time for the modification specified in paragraph (f)(4) of the NPRM from 6 months to 30 months. The commenters explain that 6 months does not provide enough time for large operators with many aircraft to receive the parts kits. UPS explains further that their proposed compliance time will enable adequate industry support of the modification and at the same time enable operators to utilize regularly scheduled maintenance opportunities.
We disagree with extending the proposed compliance time for the modification. While we recognize that
FedEx requests that we revise the NPRM to allow for replacing the existing locking springs with new springs of the same design as an interim action to delay installation of the modification. FedEx explains that all of its broken locking springs were found on seats that had been in service at least 4 years since there was a record of the springs being changed. FedEx states that the springs that were returned appeared to be corroded, which indicates that the failure of the springs was due to corrosion instead of fatigue.
We do not agree with the request to revise this AD to allow for replacing the existing locking springs with new springs of the same design as an interim action to delay installation of the modification. While we recognize FedEx's assertion that failure of the springs was due to corrosion instead of fatigue, Airbus did not identify which failure mode was actually involved, as fatigue cracks could induce spring protection alteration and then corrosion. Further, it is possible that corrosion could actually lead to the weakening of the spring, where the fatigue effort would deteriorate the spring. Regardless of the findings by FedEx, parts kits are now available for the replacement of the locking springs, so there is no need to delay installation of the modification. However, if operators experience a delay in receiving kits, they may request approval of an AMOC in accordance with the procedures in paragraph (g)(1) of this AD. We have made no change to the AD in this regard.
FedEx requests that the NPRM be revised to allow operators to use other methods to perform the detailed inspection required in paragraph (f)(1) of this AD. FedEx explains that removing the seat bottom cushion and trying to view the springs through lightening holes in the seat bottom is difficult. FedEx explains further that maintenance personnel have used a mirror to perform the inspection or inspected the seat springs by looking up directly from underneath the seat. FedEx indicates that the springs are exposed on the bottom side of the seats and can be more easily viewed for defects by using this method.
We agree that other methods of performing the detailed inspection required in paragraph (f)(1) of this AD might exist for the reasons stated in the previous paragraph. But, we do not agree to change this AD in this regard because insufficient data have been submitted to substantiate that the alternative inspection method would provide an acceptable level of safety. However, under the provisions of paragraph (g)(1) of this AD, we will consider requests for approval of an alternative inspection method if sufficient data are submitted to substantiate that the alternative inspection method would provide an acceptable level of safety.
UPS requests that we change the word “modified” in paragraph (f)(3) of the NPRM to clarify that there is no modification required by that paragraph. UPS explains that the service information listed in paragraph (f)(3) of the NPRM requires inspection and replacement, but not modification.
We agree to clarify paragraph (f)(3) of this final rule for the reason stated by UPS. We have changed “modified” to “replaced” in paragraph (f)(3) of this AD.
We have specified the issue numbers of each Airbus operations engineering bulletin throughout this final rule to adhere to requirements of the Office of the Federal Register's (OFR), for material incorporated by reference (IBR).
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.
Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We estimate that this AD will affect 132 products of U.S. registry. We also estimate that it will take about 11 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $1,214 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $283,668, or $2,149 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of the AD, certificated in any category, having IPECO part number (P/N) 3A218–000X–01–1 pilot or co-pilot mechanical seats installed.
(1) Airbus Model A310–203, A310–221, and A310–222 airplanes, all serial numbers.
(2) Airbus Model A300 F4–605R and A300 F4–622R airplanes, all serial numbers.
(d) Air Transport Association (ATA) of America Code 25: Equipment/Furnishings.
(e) The mandatory continuing airworthiness information (MCAI) states:
An A300–600 operator reported two events of IPECO pilot seat moved in the aft position, one during take-off roll and one during climb out. The investigation of these events showed that a broken/missing spring contributed to the seat not being correctly locked.
An unwanted movement of pilot or co-pilot seat in the aft direction is considered as potentially dangerous, especially during the take-off phase when the speed of the aeroplane is greater than 100 knots and until landing gear retraction.
To prevent further incidents of inadvertent flight crew seat aft movement, this AD requires repetitive inspections of the affected seat springs and replacement of missing or broken parts. In addition, this AD requires replacement of the affected seats with modified P/N 3A218–000X–01–2 seats. Installation of both pilot and co-pilot seats P/N 3A218–000X–01–2 on an aeroplane constitutes terminating action for the repetitive inspection requirements of this AD for that aeroplane.
(f) Unless already done, do the following actions.
(1) Within 90 days after the effective date of this AD, and thereafter at intervals not to exceed 30 days, do a detailed visual inspection of the two springs of the pilot seat and co-pilot seat locking device, in accordance with Airbus Mandatory Service Bulletin A310–25A2199 or A300–25A6210, both dated July 9, 2008, as applicable.
(i) If only one spring is missing or found damaged during any inspection required by paragraph (f)(1) of this AD, within 10 days after the inspection or before further flight, whichever occurs later, replace the spring with a serviceable part, in accordance with Airbus Mandatory Service Bulletin A310–25A2199 or A300–25A6210, both dated July 9, 2008, as applicable. Before an airplane may be dispatched with one spring missing or damaged, the instructions contained in Airbus A310 Operations Engineering Bulletin 160, Issue 2, dated October 2008; or Airbus A300–600 Operations Engineering Bulletin 121, Issue 1, dated May 2008; as applicable; must be accomplished by the flightcrew.
(ii) If two springs are missing or found damaged during any inspection required by paragraph (f)(1) of this AD, before further flight, replace the springs in accordance with Airbus Mandatory Service Bulletin A310–25A2199 or A300–25A6210, both dated July 9, 2008, as applicable.
(2) Replacing parts in accordance with Airbus Mandatory Service Bulletin A310–25A2199 or A300–25A6210, both dated July 9, 2008, as applicable, is not a terminating action for the repetitive inspections required in paragraph (f)(1) of this AD.
(3) As of the effective date of this AD, do not install an IPECO pilot or co-pilot mechanical seat P/N 3A218–000X–01–1 on any airplane, unless the seat has been inspected and replaced as applicable, in accordance with Airbus Mandatory Service Bulletin A310–25A2199 or A300–25A6210, both dated July 9, 2008, as applicable.
(4) Within 6 months after the effective date of this AD, modify the airplane by replacing the pilot and co-pilot mechanical seats P/N 3A218–000X–01–1 with P/N 3A218–000X–01–2 seats, in accordance with Airbus Mandatory Service Bulletin A310–25–2202 or A300–25–6214, both dated February 3, 2009, as applicable.
(5) Installing both pilot and co-pilot seats P/N 3A218–000X–01–2 in accordance with Airbus Mandatory Service Bulletin A310–25–2202 or A300–25–6214, both dated February 3, 2009, as applicable, on any airplane is a terminating action for the repetitive inspections required by paragraph (f)(1) of this AD for that airplane.
(6) As of 6 months after the effective date of this AD, do not install an IPECO pilot or co-pilot mechanical seat P/N 3A218–000X–01–1 on any airplane.
(7) Although Airbus Mandatory Service Bulletins A310–25A2199 and A300–25A6210, both dated July 9, 2008, specify to submit certain information to the manufacturer, this AD does not include that requirement.
This AD differs from the MCAI and/or service information as follows: Although the MCAI or service information tells you to submit information to Airbus, paragraph (f)(7) of this AD specifies that such submittal is not required.
(g) The following provisions also apply to this AD:
(1)
(2)
(h) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2009–0045, dated February 27, 2009, and the service information listed in Table 1 of this AD, for related information.
(i) You must use the service information contained in Table 2 of this AD to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Airbus SAS–EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail:
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Augustair, Inc. Models 2150, 2150A, and 2180 airplanes. This AD requires you to inspect the vertical stabilizer front spar for cracks and loose fasteners, repair any cracks and loose fasteners found, and reinforce the vertical stabilizer spar regardless if cracks are found. This AD results from six reports of airplanes with a cracked vertical stabilizer front spar. We are issuing this AD to detect and correct cracks in the vertical stabilizer front spar, which could result in separation of the vertical stabilizer from the airplane. This failure could lead to loss of control.
This AD becomes effective on March 24, 2010.
On March 24, 2010, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
We must receive any comments on this AD by April 9, 2010.
Use one of the following addresses to comment on this AD.
•
•
•
•
To get the service information identified in this AD, contact Augustair, Inc., 1809 Hephzibah McBean Rd., Hephzibah, Georgia 30815; telephone:
To view the comments to this AD, go to
Hal Horsburgh, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; telephone: (404) 474–5553; fax: (404) 474–5606; e-mail:
We received a maintenance problem report on an Augustair, Inc. Model 2180 indicating the vertical stabilizer front spar was cracked completely across the Web. In addition, the fasteners attaching the splice plates spanning the spar flange cuts were loose. We have also received five additional reports of Augustair, Inc. Models 2150A and 2180 airplanes with cracks in the vertical stabilizer front spar.
This condition, if not corrected, could result in separation of the vertical stabilizer from the airplane. This failure could lead to loss of control.
We reviewed Augustair Service Bulletin SB2009–1, Revision B, dated February 2, 2010. The service information describes procedures for doing a detailed inspection of the vertical stabilizer front spar for cracks or loose fasteners, repairing any damage found, and installing a doubler to the vertical stabilizer front spar.
We are issuing this AD because we evaluated all the information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This AD requires you to inspect the vertical stabilizer front spar for cracks and loose fasteners, repair any cracks found, replace loose or damaged fasteners, and reinforce the vertical stabilizer spar regardless if cracks are found.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracks in the vertical stabilizer front spar could lead to separation of the vertical stabilizer from the airplane and consequent loss of control. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and an opportunity for public comment. We invite you to send any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket that contains the AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on March 24, 2010.
(b) None.
(c) This AD applies to the following airplane models and serial numbers that are certificated in any category:
(d) Air Transport Association of America (ATA) Code 55: Stabilizers.
(e) This AD is the result of six reports of Augustair, Inc. Models 2150A and 2180 airplanes with a cracked vertical stabilizer front spar. We are issuing this AD to detect and correct cracks in the vertical stabilizer front spar, which could result in separation of the vertical stabilizer from the airplane. This failure could lead to loss of control.
(f) To address this problem, you must do the following, unless already done:
(1) Before further flight after March 24, 2010 (the effective date of this AD), visually inspect the vertical stabilizer front spar for cracks and other damage (loose fasteners, corrosion, scratches) following section 2, paragraph A, of Augustair Service Bulletin SB2009–1, Revision B, dated February 2, 2010.
(2) At the applicable compliance time specified in paragraph (f)(2)(i) and (f)(2)(ii) of this AD, do a detailed inspection of the vertical stabilizer front spar for cracks and other damage, repair any damage found, and install a doubler to the vertical stabilizer front spar following section 2, paragraph B, of Augustair Service Bulletin SB2009–1, Revision B, dated February 2, 2010.
(i) Before further flight after the inspection required in paragraph (f)(1) of this AD where cracks or other damage is found; or
(ii) Within 10 hours time-in-service (TIS) after the inspection required in paragraph (f)(1) of this AD where no cracks or other damage was found.
(3) Report the inspection results from paragraph (f)(2) of this AD within 30 days after the inspection or within 30 days after March 24, 2010 (the effective date of this AD), whichever occurs later. Send your report to ATTN: Hal Horsburgh, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; fax: (404) 474–5606; e-mail:
(1) Aircraft model and serial number;
(2) Aircraft hours TIS;
(3) Answer whether any crack was found and, if so, the crack location and size;
(4) Description of any previous modifications or repairs in the vertical stabilizer spar attachment area or if the airplane was modified with a different engine model or propeller model than originally installed on the airplane and hours TIS when the modification was done;
(5) Corrective action taken;
(6) Answer yes or no whether other damage was found; and if so, describe it;
(7) Point of contact name and phone number; and
(8) Clearly identify the AD No., Docket No., and Directorate Identifier of the AD action requiring the report.
(g) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Hal Horsburgh, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; telephone: (404) 474–5553; fax: (404) 474–5606; e-mail:
(h) You must use Augustair Service Bulletin SB2009–1, Revision B, dated February 2, 2010, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Augustair, Inc., 1809 Hephzibah McBean Rd., Hephzibah, Georgia 30815; telephone: (706) 836–8610; fax: (706) 925–2847; Internet:
(3) You may review copies of the service information incorporated by reference for this AD at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the Central Region, call (816) 329–3768.
(4) You may also review copies of the service information incorporated by reference for this AD at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
An in-flight engine shutdown incident was reported on an aircraft equipped with a TAE 125–01 engine. This was found to be mainly the result of a blockage of the scavenge oil gear pump due to a broken axial bearing of the turbocharger. The broken parts were sucked into the oil pump and caused seizure. With the pump inoperative, the separator overfilled, causing the engine oil to escape via the breather vent line. This caused a loss of oil that resulted in the engine overheating and subsequent shutdown.
We are issuing this AD to prevent engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
This AD becomes effective March 30, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 30, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.
Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
An in-flight engine shutdown incident was reported on an aircraft equipped with a TAE 125–01 engine. This was found to be mainly the result of a blockage of the scavenge oil gear pump due to a broken axial bearing of the turbocharger. The broken parts were sucked into the oil pump and caused seizure. With the pump inoperative, the separator overfilled, causing the engine oil to escape via the breather vent line. This caused a loss of oil that resulted in the engine overheating and subsequent shutdown.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We have reviewed the MCAI and, in general, agree with its substance. But we have found it necessary to change the compliance from “within the next 50 flight hours after the effective date of this directive, but not later than 31 October 2007, whichever occurs first”, to “within the next 50 flight hours after the effective date of this AD.”
Based on the service information, we estimate that this AD will affect about 250 products of U.S. registry. We also estimate that it will take about one work-hour per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $80 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $40,000.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to Thielert Aircraft Engines GmbH (TAE) model TAE 125–01 reciprocating engines, all serial numbers (S/N) up to- and- including S/N 02–01–1018. These engines are installed in, but not limited to, Diamond Aircraft Industries Model DA42, Piper PA–28–161 (Supplemental Type Certificate (STC) No. SA03303AT), Cessna 172F, 172G, 172H, 172I, 172K, 172L, 172M, 172N, 172P, 172R, 172S, F172F, F172G, F172H, F172K, F172L, F172M, F172N, and F172P (STC No. SA01303WI) airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
An in-flight engine shutdown incident was reported on an aircraft equipped with a TAE 125–01 engine. This was found to be mainly the result of a blockage of the scavenge oil gear pump due to a broken axial bearing of the turbocharger. The broken parts were sucked into the oil pump and caused seizure. With the pump inoperative, the separator overfilled, causing the engine oil to escape via the breather vent line. This caused a loss of oil that resulted in the engine overheating and subsequent shutdown.
We are issuing this AD to prevent engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
(e) Unless already done, do the following actions within the next 50 flight hours after the effective date of this AD:
(1) Modify the engine oil system by installing a filter adaptor to the catch tank.
(2) Use the installation instructions in Thielert Service Bulletin No. TM TAE 125–0016, Revision 1, dated June 15, 2007, to install the filter adaptor.
(f) This AD differs from the Mandatory Continuing Airworthiness Information (MCAI) as follows:
(1) The MCAI compliance time states “within the next 50 flight hours after the effective date of this directive, but not later than 31 October 2007, whichever occurs first”.
(2) This AD compliance time states “within the next 50 flight hours after the effective date of this AD.”
(g) Refer to European Aviation Safety Agency AD 2007–0232, dated August 23, 2007, for related information.
(h) Contact Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
(i) You must use Thielert Service Bulletin No. TM TAE 125–0016, Revision 1, dated June 15, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Thielert Aircraft Engines GmbH, Platanenstrasse 14 D–09350, Lichtenstein, Germany, telephone: +49–37204–696–0; fax: +49–37204–696–55; e-mail:
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The manufacturer has advised that the combination of a redesigned tail spring support with a stiffer tail spring and rough field operations has led to cracks in the tail spring support mounting base. Cracks have also been reported on aeroplanes already compliant with Part II of Extra Service Bulletin No. SB–300–2–97 issue A, as mandated by the LBA AD D–1998–001, dated 15 January 1998.
We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective March 30, 2010.
On March 30, 2010, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD.
You may examine the AD docket on the Internet at
Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4130; fax: (816) 329–4090.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
The manufacturer has advised that the combination of a redesigned tail spring support with a stiffer tail spring and rough field operations has led to cracks in the tail spring support mounting base. Cracks have also been reported on aeroplanes already compliant with Part II of Extra Service Bulletin No. SB–300–2–97 issue A, as mandated by the LBA AD D–1998–001, dated 15 January 1998.
For the reasons stated above, this new AD mandates instructions for recurring inspections and modification in the area of the tail spring support in order to prevent separation of the tail landing gear which could result in serious damage to the airplane during landing.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the AD.
We estimate that this AD will affect 184 products of U.S. registry. We also estimate that it will take about 2 work-
Based on these figures, we estimate the cost of this AD to the U.S. operators to be $31,280 or $170 per product.
In addition, we estimate that any necessary follow-on actions would take about 20 work-hours and require parts costing $460, for a cost of $2,160 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective March 30, 2010.
(b) None.
(c) This AD applies to the following model and serial number airplanes, certificated in any category:
(1) Model EA–300/200 airplanes, serial numbers (S/N) 01 through 31, and 1032 through 1043; and
(2) Model EA–300/L airplanes, S/N 01 through 170, 172, 173, 1171, and 1174 through 1299.
(d) Air Transport Association of America (ATA) Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
The manufacturer has advised that the combination of a redesigned tail spring support with a stiffer tail spring and rough field operations has led to cracks in the tail spring support mounting base. Cracks have also been reported on aeroplanes already compliant with Part II of Extra Service Bulletin No. SB–300–2–97 issue A, as mandated by the LBA AD D–1998–001, dated 15 January 1998.
For the reasons stated above, this new AD mandates instructions for recurring inspections and modification in the area of the tail spring support in order to prevent separation of the tail landing gear which could result in serious damage to the airplane during landing.
(f) Unless already done, do the following actions:
(1) Before further flight after March 30, 2010 (the effective date of this AD) and repetitively thereafter at intervals not to exceed 50 hours time-in-service, inspect the tail spring support for cracks in accordance with PART I of Extra Flugzeugproduktions- und Vertriebs- GmbH EXTRA Service Bulletin No. SB–300–2–97, Issue: C, dated September 24, 2009.
(2) If any crack is found as a result of the inspections required by paragraph (f)(1) of this AD, before further flight, modify the tail spring support structure as instructed in PART II of Extra Flugzeugproduktions- und Vertriebs- GmbH EXTRA Service Bulletin No. SB–300–2–97, Issue: C, dated September 24, 2009. Modification of the tail spring support structure terminates the repetitive inspections required in paragraph (f)(1) of this AD.
(3) You may at any time modify the tail spring support structure as instructed in PART II of Extra Flugzeugproduktions- und Vertriebs- GmbH EXTRA Service Bulletin No. SB–300–2–97, Issue: C, dated September 24, 2009, to terminate the repetitive inspections required in paragraph (f)(1) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency AD No.: 2009–0160, July 21, 2009 (corrected on July 28, 2009); and Extra Flugzeugproduktions- und Vertriebs- GmbH EXTRA Service Bulletin No. SB–300–2–97, Issue: C, dated September 24, 2009, for related information.
(i) You must use Extra Flugzeugproduktions- und Vertriebs- GmbH EXTRA Service Bulletin No. SB–300–2–97, Issue: C, dated September 24, 2009, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Extra Flugzeugproduktions- und Vertriebs- GmbH, Engineering Department/Office of Airworthiness/Quality Assurance, Schwarze Heide 21, 46569 Hünxe, Germany; Fax: +49 (0) 2858–9137–30; E-Mail:
(3) You may review copies of the service information incorporated by reference for this AD at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the Central Region, call (816) 329–3768.
(4) You may also review copies of the service information incorporated by reference for this AD at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Postal Regulatory Commission.
Final rule.
The Commission is adding Express Mail Contract 8 to the Competitive Product List. This action is consistent with a postal reform law. Republication of the Product Lists is also consistent with a statutory provision.
Effective February 23, 2010 and is applicable beginning January 4, 2010.
Stephen L. Sharfman, General Counsel, 202–789–6824 or
The Postal Service seeks to add a new product identified as Express Mail Contract 8 to the Competitive Product List. For the reasons discussed below, the Commission approves the Request.
Pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The contract has been assigned Docket No. CP2010–16.
In support of its Request, the Postal Service filed the following materials: (1) A redacted version of the Governors' Decision, originally filed in Docket Nos. MC2010–5 and CP2010–5, authorizing certain Express Mail contracts, and Certification of Governors' Vote;
In the Statement of Supporting Justification, Susan M. Plonkey, Vice President, Sales, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
Express Mail Contract 8 is included with the Request. The contract was entered into on May 28, 2009, and will become effective as a Negotiated Service Agreement January 4, 2010. The contract provides that the Postal Service may not increase rates until after May 27, 2010. The Postal Service represents that the contract is consistent with 39 U.S.C. 3633(a).
In its Request, the Postal Service maintains that the supporting financial information, including the analyses that provide prices, terms, conditions, cost data, and financial projections should remain under seal.
In Order No. 359, the Commission gave notice of the two dockets, requested supplemental information, appointed a public representative, and provided the public with an opportunity to comment.
Comments were filed by the Public Representatives.
The Commission has reviewed the Request, the contract, the financial analysis provided under seal that accompanies it, responses to CHIR No. 1, and the comments filed by the Public Representative.
the Postal Service exercises sufficient market power that it can effectively set the price of such product substantially above costs, raise prices significantly, decrease quality, or decrease output, without risk of losing a significant level of business to other firms offering similar products.
The Commission is further required to consider the availability and nature of enterprises in the private sector engaged in the delivery of the product, the views of those who use the product, and the likely impact on small business concerns. 39 U.S.C. 3642(b)(3).
The Postal Service asserts that its bargaining position is constrained by the existence of other shippers who can provide similar services, thus precluding it from taking unilateral action to increase prices without the risk of losing volume to private companies. Request, Attachment D, para. (d). The Postal Service also contends that it may not decrease quality or output without risking the loss of business to competitors that offer similar expedited delivery services.
No commenter opposes the proposed classification of Express Mail Contract 8 as competitive. Having considered the statutory requirements and the support offered by the Postal Service, the Commission finds that Express Mail Contract 8 is appropriately classified as a competitive product and should be added to the Competitive Product List.
Based on the data submitted, the Commission finds that Express Mail Contract 8 should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, an initial review of proposed Express Mail Contract 8 indicates that it comports with the provisions applicable to rates for competitive products.
In conclusion, the Commission approves Express Mail Contract 8 as a new product. The revision to the Competitive Product List is shown below the signature of this order and is effective upon issuance of this order.
1. Express Mail Contract 8 (MC2010–16 and CP2010–16) is added to the Competitive Product List as a new product under Negotiated Service Agreements, Domestic.
2. The Commission directs the Postal Service to file, by January 15, 2010, any outstanding Express Mail contract that may be categorized as having competitive rates not of general applicability because its prices are not subject to change with the general competitive rate increase scheduled to take effect January 4, 2010.
3. The Postal Service shall notify the Commission if termination occurs prior to the scheduled termination date.
4. The Secretary shall arrange for the publication of this order in the
Administrative practice and procedure; Postal Service.
By the Commission.
Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682.
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Assistant Administrator for Mitigation reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Kevin C. Long, Acting Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2820.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Assistant Administrator for Mitigation reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Kevin C. Long, Acting Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2820.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Coast Guard, DHS.
Final rule.
The Coast Guard is increasing the rates for pilotage service on the Great Lakes by an average of 5.07% to generate sufficient revenue to cover allowable expenses, target pilot compensation, and return on investment. This increase reflects an August 1, 2010, increase in benchmark contractual wages and benefits and an adjustment for inflation. This rulemaking promotes the Coast Guard strategic goal of maritime safety.
This final rule is effective August 1, 2010.
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–2009–0883 and are 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. You may also find this docket on the Internet by going to
For questions on this final rule, please call Mr. Paul Wasserman, Chief, Great Lakes Pilotage Branch, Commandant (CG–54122), U.S. Coast Guard, at 202–372–1535, by fax 202–372–1909, or e-mail
On October 30, 2009, we published a notice of proposed rulemaking entitled Great Lakes Pilotage Rates—2010 Annual Review and Adjustment in the
We published a notice of proposed rulemaking on October 30, 2009 (NPRM, 74 FR 56153). The NPRM proposed an average 5.07% rate increase.
This rulemaking increases Great Lakes pilotage rates in accord with the methodology contained in Coast Guard regulations in 46 CFR parts 401–404. Our regulations implement the Great
The U.S. waters of the Great Lakes and the St. Lawrence Seaway are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Coast Guard Director of Great Lakes Pilotage to operate a pilotage pool. It is important to note that, while we set rates, we do not control the actual number of pilots an association maintains, so long as the association is able to provide safe, efficient, and reliable pilotage service, nor do we control the actual compensation that pilots receive. This is determined by each of the three District associations, which use different compensation practices.
District One, consisting of Areas 1 and 2, includes all U.S. waters of the St. Lawrence River and Lake Ontario. District Two, consisting of Areas 4 and 5, includes all U.S. waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River. District Three, consisting of Areas 6, 7, and 8, includes all U.S. waters of the St. Mary's River, Sault Ste. Marie Locks, and Lakes Michigan, Huron, and Superior. Area 3 is the Welland Canal, which is serviced exclusively by the Canadian Great Lakes Pilotage Authority and, accordingly, is not included in the U.S. rate structure. Areas 1, 5, and 7 have been designated by Presidential Proclamation, pursuant to the Great Lakes Pilotage Act of 1960, to be waters in which pilots must at all times be fully engaged in the navigation of vessels in their charge. Areas 2, 4, 6, and 8 have not been so designated because they are open bodies of water. Under the Act, pilots assigned to vessels in these areas are only required to “be on board and available to direct the navigation of the vessel at the discretion of and subject to the customary authority of the master.” 46 U.S.C. 9302(a)(1)(B).
Our pilotage regulations implement the Act's requirement for annual reviews of pilotage rates and a full ratemaking at least once every five years. 46 CFR 404.1. To assist in calculating pilotage rates, the regulations require pilotage associations to submit annual financial statements prepared by certified public accounting firms. In addition, every fifth year, in connection with the full ratemaking, we contract with an independent accounting firm to conduct a full audit of the accounts and records of the pilotage associations and prepare and submit financial reports relevant to the ratemaking process. In those years when a full ratemaking is conducted, we generate the pilotage rates using Appendix A to 46 CFR part 404. The last Appendix A review was concluded in 2006 (71 FR 16501, Apr. 3, 2006). Between the five-year full ratemaking intervals, we annually review the pilotage rates using Appendix C to part 404, and adjust rates when deemed appropriate. We conducted Appendix C reviews in 2007, 2008 and 2009 and increased rates in each year. The 2009 final rule was published on July 21, 2009 (74 FR 138), and took effect on August 1, 2009. We define the terms and formulas used in Appendix A and Appendix C in Appendix B to part 404.
This final rule concludes the annual Appendix C rate review for 2010, and increases rates by an average of 5.07% over the rates that took effect August 1, 2009.
Five comments were submitted during the NPRM public comment period.
Another commenter reiterated comments the commenter made during the 2007 and 2009 rate reviews. In 2007, we explained our reasons for disagreeing with this commenter's analysis of the “150% factor” for designated waters; 2007 interim rule, 72 FR 8115 at 8117 (Feb. 23, 2007) and 2007 Final Rule, 72 FR 53158 at 53159 (July 18, 2007). In the 2009 final rule, we explained our reasons for disagreeing with this Commenter on the “Riker Report” on bridge hour calculations; 74 FR 35812 at 35814. As no new substantive information has been added, we will not repeat those earlier explanations. The commenter's suggestion that we amend the vessel weighting factor table in 46 CFR 401.400 is beyond the scope of this ratemaking.
Two commenters reiterated past comments about our use of rounding in bridge hour calculations, without adding new information. We fully discussed our use of rounding in the 2009 final rule, specifically with reference to Area 4, which is of particular concern to one of these commenters, and we will not repeat that discussion; 74 FR 35812 at 35813. The Area 4 calculations have not changed since the 2009 final rule.
A commenter said that our ratemaking is arbitrary and capricious because we count delay and detention in calculating bridge hours for Areas 6, 7, and 8, but not in Areas 4 and 5. No information was provided to substantiate this claim, which runs counter to our discussion of bridge hour calculations in ratemaking documents over many years, and which repeats an allegation made in 2007 and refuted in that year's interim rule: “The Coast Guard has never considered delay, detention, or travel time to be included in the definition of bridge hours and has never knowingly included these items in its bridge hour computations”; 72 FR 8115 at 8117, Feb. 23, 2007. Coast Guard did not consider delay, detention, or travel time in its bridge hour computations in this final rule.
This same commenter also said that projected bridge hours for 2010 should be based on actual bridge hours for 2009 to date, along with results of consultations with stakeholders, including the shipping industry. Another commenter asked why we did not use 2009 actual hours. As stated in the NPRM, 74 FR 56153 at 56158, our 2010 projections are based on historical data (by which we mean actual figures for complete past shipping seasons) and information provided both by pilots and industry. To meet the Act's March 1 deadline for completion of each year's rate review, with a final rule that meets all applicable requirements of the Federal regulatory process, Coast Guard data collection for the following year's review typically begins in the early spring of the preceding year. Given that reality, it is impracticable for the Coast Guard to base NPRM projections for the next year on actual results from the preceding year. The commenter's estimate of a 25% drop in shipping traffic between 2008 and 2009 does not provide us with sufficiently detailed data on which to base a revision of our 2010 projections in this final rule. We do expect verified and complete 2009 actual data to inform our 2011 ratemaking.
We are increasing pilotage rates in accordance with the methodology outlined in Appendix C to 46 CFR part 404, by increasing rates an average 5.07% over the 2009 final rule, effective August 1, 2010. The new rates are unchanged from what we proposed in the NPRM. Table 1 shows the new rates for each Area.
Rates for cancellation, delay, or interruption in rendering services (46 CFR 401.420), and basic rates and charges for carrying a U.S. pilot beyond the normal change point, or for boarding at other than the normal boarding point (46 CFR 401.428), have been increased by 5.07% in all Areas.
The Appendix C ratemaking calculation involves eight steps:
Step 1: Calculate the total economic costs for the base period (
Step 2: Calculate the “expense multiplier,” the ratio of other expenses and the return element to pilot compensation for the base period;
Step 3: Calculate an annual “projection of target pilot compensation” using the same procedures found in Step 2 of Appendix A;
Step 4: Increase the projected pilot compensation in Step 3 by the expense multiplier in Step 2;
Step 5: Adjust the result in Step 4, as required, for inflation or deflation;
Step 6: Divide the result in Step 5 by projected bridge hours to determine total unit costs;
Step 7: Divide prospective unit costs in Step 6 by the base period unit costs in Step 1; and
Step 8: Adjust the base period rates by the percentage changes in unit cost in Step 7.
The base data used to calculate each of the eight steps comes from the 2009 Appendix C review. The Coast Guard also used the most recent union contracts between the American Maritime Officers Union (AMOU) and vessel owners and operators on the Great Lakes to determine target pilot compensation. Bridge hour projections for the 2010 season have been obtained from historical data, pilots, and industry. All documents and records used in this rate calculation have been placed in the public docket for this rulemaking and are available for review at the addresses listed under
Some values may not total exactly due to format rounding for presentation in charts and explanations in this section. The rounding does not affect the integrity or truncate the real value of all calculations in the ratemaking methodology described below. Also, please note that in previous rulemakings we calculated an expense multiplier for each District. This was unnecessary because Appendix C calculations are based on area figures, not district figures. District figures, where they are shown in the following tables, now reflect only the arithmetical totals for each of the district's areas.
As of May 2009, there are two current AMOU contracts, which we designate Agreement A and Agreement B. Agreement A applies to vessels operated by Key Lakes, Inc., and Agreement B applies to all vessels operated by American Steamship Co. and Mittal Steel USA, Inc.
Both Agreement A and Agreement B provide for a 3% wage increase effective August 1, 2010. Under Agreement A, the daily wage rate will be increased from $262.73 to $270.61. Under Agreement B, the daily wage rate will be increased from $323.86 to $333.57.
To calculate monthly wages, we apply Agreement A and Agreement B monthly multipliers of 54.5 and 49.5, respectively, to the daily rate. Agreement A's 54.5 multiplier represents 30.5 average working days, 15.5 vacation days, 4 days for four weekends, 3 bonus days, and 1.5 holidays. Agreement B's 49.5 multiplier represents 30.5 average working days, 16 vacation days, and 3 bonus days.
To calculate average annual compensation, we multiply monthly figures by 9 months, the length of the Great Lakes shipping season.
Table 8 shows new wage calculations based on Agreements A and B effective August 1, 2010.
Both Agreements A and B include a health benefits contribution rate of $88.76 effective August 1, 2010. Agreement A includes a pension plan contribution rate of $33.35 per man-day. Agreement B includes a pension plan contribution rate of $43.55 per man-day. Both Agreements A and B provide a 401K employer matching rate, 5% of the wage rate. Neither Agreement A nor Agreement B includes a clerical contribution that appeared in earlier contracts. Per the AMOU, the multiplier used to calculate monthly benefits is 45.5 days.
Table 9 shows new benefit calculations based on Agreements A and B, effective August 1, 2010, and Table 10 totals the figures in Tables 8 and 9.
Table 11 shows that approximately one third of U.S. Great Lakes shipping deadweight tonnage operates under Agreement A, with the remaining two thirds operating under Agreement B.
Table 12 applies the percentage of tonnage represented by each agreement to the wages and benefits provided by each agreement, to determine the projected target rate of compensation on a tonnage-weighted basis.
Bridge hours are the number of hours a pilot is aboard a vessel providing pilotage service. Projected bridge hours are based on the vessel traffic that pilots are expected to serve. Based on historical data and information provided by pilots and industry, we project that vessel traffic in the 2010 navigation season, in all areas, will remain unchanged from the 2009 projections noted in Table 13 of the 2009 final rule.
Table 13, below, shows the projected bridge hours needed for each area, and the total number of pilots needed for ratemaking purposes after dividing those figures either by 1,000 or 1,800. As in 2008 and 2009, and for the same reasons, we rounded up to the next whole pilot except in Area 2 where we rounded up from 3.14 to 5, and in Area 4 where we rounded down from 4.07 to 4.
We developed this final 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.
Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735, October 4, 1993, requires a determination whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and subject to the requirements of the Executive Order. This rulemaking is not significant under Executive Order 12866 and has not been reviewed by OMB.
Public comments on the NPRM are summarized in Part IV of this publication. We received no public comments that would alter our assessment of the impacts discussed in the NPRM. We have adopted the
This final rule would implement a 5.07 percent overall rate adjustment for the Great Lakes system over the current rate as adjusted in the 2009 final rule. These adjustments to Great Lakes pilotage rates meet the requirements set forth in 46 CFR part 404 for similar compensation levels between Great Lakes pilots and industry. They also include adjustments for inflation and changes in association expenses to maintain these compensation levels.
In general, we expect an increase in pilotage rates for a certain area to result in additional costs for shippers using pilotage services in that area, while a decrease would result in a cost reduction or savings for shippers in that area.
The shippers affected by these rate adjustments are those owners and operators of domestic vessels operating on register (employed in the foreign trade) and owners and operators of foreign vessels on a route within the Great Lakes system. These owners and operators must have pilots or pilotage service as required by 46 U.S.C. 9302. There is no minimum tonnage limit or exemption for these vessels. However, the Coast Guard issued a policy position several years ago stating that the statute applies only to commercial vessels and not to recreational vessels.
Owners and operators of other vessels that are not affected by this final rule, such as recreational boats and vessels only operating within the Great Lakes system, may elect to purchase pilotage services. However, this election is voluntary and does not affect the Coast Guard's calculation of the rate increase and is not a part of our estimated national cost to shippers.
We used 2006–2008 vessel arrival data from the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) system to estimate the average annual number of vessels affected by the rate adjustment to be 208 vessels that journey into the Great Lakes system. These vessels entered the Great Lakes by transiting through or in part of at least one of the three pilotage districts before leaving the Great Lakes system. These vessels often make more than one distinct stop, docking, loading, and unloading at facilities in Great Lakes ports. Of the total trips for the 208 vessels, there were approximately 923 annual U.S. port arrivals before the vessels left the Great Lakes system.
The impact of the rate adjustment to shippers is estimated from the district pilotage revenues. These revenues represent the direct and indirect costs (“economic costs”) that shippers must pay for pilotage services. The Coast Guard sets rates so that revenues equal the estimated cost of pilotage.
We estimate the additional impact of the rate adjustment in this final rule to be the difference between the total projected revenue needed to cover costs based on the 2009 rate adjustment and the total projected revenue needed to cover costs in this final rule for 2010. Table 20 details additional costs by area and district.
After applying the rate change in this final rule, the resulting difference between the projected revenue in 2009 and the projected revenue in 2010 is the annual impact to shippers from this final rule. This figure will be equivalent to the total additional payments that shippers will incur for pilotage services from this rule.
The impact of the rate adjustment in this final rule to shippers varies by area and district. The annual non-discounted costs of the rate adjustments in Districts 1, 2 and 3 would be approximately $183,000 and $193,000, and $303,000. To calculate an exact cost per vessel is difficult because of the variation in vessel types, routes, port arrivals, commodity carriage, time of season, conditions during navigation, and preferences for the extent of pilotage services on designated and undesignated portions of the Great Lakes system. Some owners and operators would pay more and some would pay less depending on the distance and port arrivals of their vessels' trips. However, the annual cost reported above does capture all of the additional cost the shippers face as a result of the rate adjustment in this rule.
As Table 20 indicates, all areas will experience an increased annual cost due to this final rule. The overall impact of the final rule would be an additional cost to shippers of just over $679,000 across all three districts, due primarily to an increase in benchmark contractual wages and benefits and an inflation adjustment.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this final 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 governmental jurisdictions with populations of less than 50,000 people.
In the NPRM, we certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities. We received no public comments that would alter our certification in the NPRM. We have found no additional data or information that would change our findings in the NPRM. We have adopted the certification in the NPRM for this final rule. See the “Small Entity” section of the NPRM for additional details. A summary of the NPRM analysis follows.
We found entities affected by the rule to be classified under the North American Industry Classification System (NAICS) code subsector 483–Water Transportation, which includes one or all of the following 6-digit NAICS codes for freight transportation: 483111–Deep Sea Freight Transportation, 483113–Coastal and Great Lakes Freight Transportation, and 483211–Inland Water Freight Transportation. According to the Small Business Administration's definition, a U.S. company with these NAICS codes and employing less than 500 employees is considered a small entity.
We reviewed company size and ownership data from 2006–2008 Coast Guard MISLE data and business revenue and size data provided by Reference USA and Dun and Bradstreet. We were able to gather revenue and size data or link the entities to large shipping conglomerates for 22 of the 24 affected entities in the United States. We found that large, mostly foreign-owned, shipping conglomerates or their subsidiaries owned or operated all vessels engaged in foreign trade on the Great Lakes. We assume that new industry entrants will be comparable in ownership and size to these shippers.
There are three U.S. entities affected by the rule that receive revenue from pilotage services. These are the three pilot associations that provide and manage pilotage services within the Great Lakes districts. Two of the associations operate as partnerships and one operates as a corporation. These associations are classified with the same NAICS industry classification and small entity size standards described above, but they have far fewer than 500 employees: Approximately 65 total employees combined. We expect no adverse impact to these entities from this final rule since all associations receive enough revenue to balance the projected expenses associated with the projected number of bridge hours and pilots.
Therefore, the Coast Guard has determined that this final rule would not have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b).
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the final rule so that they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247).
This final rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). This rule does not change the burden in the collection currently approved by the Office of Management and Budget (OMB) under OMB Control Number 1625–0086, Great Lakes Pilotage Methodology.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism because there are no similar State regulations, and the States do not have the authority to regulate and adjust rates for pilotage services in the Great Lakes system.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
We have analyzed this 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
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 (
We have analyzed this 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 concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2–1, paragraph (34)(a) of the Instruction. Paragraph 34(a) pertains to minor regulatory changes that are editorial or procedural in nature. This rule adjusts rates in accordance with applicable statutory and regulatory mandates. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Administrative practice and procedure, Great Lakes, Navigation (water), Penalties, Reporting and recordkeeping requirements, Seamen.
46 U.S.C. 2104(a), 6101, 7701, 8105, 9303, 9304; Department of Homeland Security Delegation No. 0170.1; 46 CFR 401.105 also issued under the authority of 44 U.S.C. 3507.
(a) Area 1 (Designated Waters):
(b) Area 2 (Undesignated Waters):
(a) Area 4 (Undesignated Waters):
(b) Area 5 (Designated Waters):
(a) Area 6 (Undesignated Waters):
(b) Area 7 (Designated Waters):
(c) Area 8 (Undesignated Waters):
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC) adopts the proposal in the Notice of Proposed Rulemaking in this proceeding, to eliminate that portion of the Commission's rules governing International Fixed Public Radiocommunication Services (IFPRS). The elimination of these rules is to facilitate coordination of facilities and services in the C-band (3700–4200 MHz and 5926–6425 MHz).
Effective March 25, 2010.
Steven Spaeth (202) 418–1539, International Bureau, Federal Communications Commission, Washington, DC 20554.
This is a summary of the Commission's
The Regulatory Flexibility Act of 1980, as amended, 5 USC 601
In the
In the
Accordingly,
Organization and functions (Government agencies).
Telecommunications.
Communications common carriers, Equal employment opportunity, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone.
Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.
(a) * * *
(3) To act upon applications for international telecommunications and services pursuant to relevant portions of part 63 of this chapter, and coordinate with the Wireline Competition Bureau as appropriate;
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
Federal Communications Commission.
Final Rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements associated with Sections 25.221(b)(1)(i) through (iii), 25.222(b)(1)(i) through (iii), 25.221(b)(1)(iv)(A), (B), 25.222(b)(1)(iv)(A), (B), 25.221(b)(2)(i) through (v), 25.222(b)(2)(i) through (v), 25.221(b)(4) and 25.222(b)(4) of the Commission's rules, and that these rules will take effect as of the date of this notice. On September 15, 2009, the Commission published the summary document of the Order on Reconsideration, In the Matter of Procedures to Govern the Use of Satellite Earth Stations on Board Vessels in the 5925–6425 MHz/3700–4200 MHz Bands and 14.0–14.5 GHz/11.7–12.2 GHz, IB Docket No. 02–10, FCC 09–63, at 74 FR 47100. This published item stated that the Commission will publish a notice in the Federal Register announcing when OMB approval for the rule sections which contain information collection requirements has been received and when the revised rules will take effect. This notice is consistent with the statement in the published summary document of the Order on Reconsideration.
Section 25.221(b)(1)(i) through (iii), 25.222(b)(1)(i) through (iii), 25.221(b)(1)(iv)(A), (B), 25.222(b)(1)(iv)(A), (B), 25.221(b)(2)(i) through (v), 25.222(b)(2)(i) through (v), 25.221(b)(4) and 25.222(b)(4) published at 74 FR 47100 on September 15, 2009 are effective on February 23, 2010.
Jennifer Balatan or Howard Griboff, Policy Division, International Bureau, FCC, (202) 418–1460 or via the Internet at: Jennifer.Balatan@fcc.gov or Howard.Griboff@fcc.gov.
This document announces that, on December 1, 2009, OMB approved, for a period of three years, the information collection requirements contained in Sections 25.221(b)(1)(i) through (iii), 25.222(b)(1)(i) through (iii), 25.221(b)(1)(iv)(A), (B), 25.222(b)(1)(iv)(A), (B), 25.221(b)(2)(i) through (v), 25.222(b)(2)(i) through (v), 25.221(b)(4) and 25.222(b)(4) of the Commission's rules. The Commission publishes this notice to announce the effective date of these rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1–C823, 445 12th Street, SW., Washington, DC 20554. Please include OMB Control Number 3060–1061 in your correspondence. The Commission also will accept your comments via the Internet if you send them to PRA@fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e–mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202)418–0530 (voice), (202) 418–0432 (TTY).
Synopsis
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on December 1, 2009, for the information collection requirements contained in the Commission's rules at 47 CFR Sections 25.221(b)(1)(i) through (iii), 25.222(b)(1)(i) through (iii), 25.221(b)(1)(iv)(A), (B), 25.222(b)(1)(iv)(A), (B), 25.221(b)(2)(i) through (v), 25.222(b)(2)(i) through (v), 25.221(b)(4) and 25.222(b)(4).
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number. The OMB Control Number is 3060–1061 and the total annual reporting burdens and costs for respondents are as follows:
OMB Control No.: 3060–1061.
OMB Approval Date: December 1, 2009.
Expiration Date: December 31, 2012.
Title: Earth Stations on Board Vessels (ESV).
Form No.: Not applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for–profit entities.
Number of Respondents and Responses: 15 respondents; 15 responses.
Estimated Time per Response: Estimated time is different for each response – the response with the shortest duration takes an estimated 0.25 hours to complete and the response with the longest duration takes an estimated 24 hours to complete.
Frequency of Response: Recordkeeping requirement; On occasion reporting requirement; Third party disclosure requirement.
Obligation to Respond: Required to obtain or retain benefits. The Commission has statutory approval for the information collection requirements under Sections 4(i), 7(a), 303(c), 303(f), 303(g) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g) and 303(r).
Total Annual Burden: 264 hours.
Total Annual Cost: $149,925.
Privacy Act Impact Assessment: No impact(s).
Nature and Extent of Confidentiality: There is no need for confidentiality pertaining to the information collection requirements in this collection.
Needs and Uses: On July 31, 2009, the Federal Communications Commission (“Commission”) released an Order on Reconsideration titled, “In the Matter of the Procedures to Govern the Use of Satellite Earth Stations on Board Vessels in the 5925–6425 MHz/ 3700–4200 MHz Bands and 14.0–14.5 GHz/11.7–12.2 GHz Bands” (FCC 09–63, IB Docket No. 02–10 (“ESV Reconsideration Order”). In the ESV Reconsideration Order, the Commission resolved various concerns raised regarding the operational restrictions placed on ESVs that are designed to protect the fixed–satellite service (FSS), operating in the C–band and Ku–band, and the terrestrially–based fixed service (FS), operating in the C–band, from harmful interference. The Commission adopted rule changes that should provide ESV operators with greater operational flexibility while continuing to ensure that the other services in these bands are protected from harmful interference.
The information collection requirements accounted for in this collection are necessary to determine the technical and legal qualifications of applicants or licensees to operate a station, transfer or assign a license, and to determine whether the authorization is in the public interest, convenience and necessity. Without such information, the Commission could not determine whether to permit respondents to provide telecommunication services in the U.S.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allocation of the 2010 total allowable catch (TAC) of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), February 19, 2010, through 1200 hrs, A.l.t., September 1, 2010.
Josh Keaton, 907–586–7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allocation of the 2010 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA is 11,213 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish of the GOA (74 FR 7333, February 17, 2010) and inseason adjustment (74 FR 68713, December 29, 2010).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allocation of the 2010 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 11,013 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 17, 2010.
The AA also finds good cause to waive the 30–day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher-processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the A season allowance of the 2010 Pacific cod total allowable catch (TAC) specified for AFA trawl catcher-processors in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), February 18, 2010, through 1200 hrs, A.l.t., April 1, 2010.
Josh Keaton, 907–586–7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by
The A season allowance of the 2010 Pacific cod TAC allocated to AFA trawl catcher-processors in the BSAI is 2,600 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish in the BSAI (74 FR 7359, February 17, 2009) and inseason adjustment (74 FR 68717, December 29, 2009).
In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season allowance of the 2010 Pacific cod TAC allocated to AFA trawl catcher-processors in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher-processors in the BSAI.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by AFA trawl catcher-processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 17, 2010.
The AA also finds good cause to waive the 30–day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Privacy Office, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the Department of Homeland Security Transportation Security Administration–023 Workplace Violence Prevention Program System of Records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before March 25, 2010.
You may submit comments, identified by docket number DHS–2009–0137, by one of the following methods:
•
•
•
For general questions please contact: Peter Pietra (
The Department of Homeland Security (DHS) Transportation Security Administration (TSA) is establishing a new system of records under the Privacy Act (5 U.S.C. 552a) titled, DHS/TSA–023 Workplace Violence Prevention Program System of Records. The system will cover records regarding current and former employees and contractors of TSA and members of the public who have been involved in workplace violence at TSA facilities, or while on or because of their official duty, or who are being or have been assisted or counseled by the TSA Workplace Violence Prevention Program. Records include acts, remarks, or gestures that communicate a threat of harm or otherwise cause concern for the safety of any individual at TSA facilities or while on or because of their official duty. These records may include identifying information, information documenting workplace violence, and actions taken by the Workplace Violence Prevention Program or TSA. The program provides oversight and management of potential or actual incidents of violence in the workplace. It provides assistance to affected individuals, guidance on prevention and response to workplace violence, analyzes data as needed, and provides training.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the
The Privacy Act allows Government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/TSA–023 Workplace Violence Prevention Program System of Records. Some information in DHS/TSA–023 Workplace Violence Prevention Program System of Records relates to official DHS law enforcement. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and national
A notice of system of records titled, DHS/TSA–023 Workplace Violence Prevention Program System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for Part 5 continues to read as follows:
6 U.S.C. 101
2. Add at the end of Appendix C to Part 5, the following new paragraph “48”:
48. The DHS/TSA–023 Workplace Violence Prevention Program System of Records consists of electronic and paper records and will be used by the Transportation Security Administration. The DHS/TSA–023 Workplace Violence Prevention Program System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to: The enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under. The DHS/TSA–023 Workplace Violence Prevention Program System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies. The Secretary of Homeland Security has exempted portions of this system from the following provisions of the Privacy Act, subject to the limitations set forth in (c)(3); (d); (e)(1), (e)(4)(G); (e)(4)(H); (e)(4)(I); and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation, and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation, and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements), and (f) (Agency Rules) because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
Privacy Office, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the Department of Homeland Security/ALL–027 The History of the Department of Homeland Security System of Records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before March 25, 2010.
You may submit comments, identified by docket number [DHS–2009–0096], by one of the following methods:
•
•
•
For general questions please contact: Historian (202–282–8682), History Office, Office of Policy, Department of Homeland Security, Washington, DC 20528. For privacy issues please contact: Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
As part of its efforts to maintain its Privacy Act records systems, DHS is updating and reissuing a Department-wide system of records under the Privacy Act (5 U.S.C. 552a) for DHS history records. This will ensure that all components of DHS follow the same privacy rules for collecting and handling history records. The collection and maintenance of this information will assist DHS in managing the Department's history records.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the
The Privacy Act allows Government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for the DHS/ALL–027 The History of the Department of Homeland Security System of Records. Some information in this system of records relates to official DHS national security, law enforcement, immigration, intelligence activities, and protective services to the President of the United States or other individuals pursuant to Section 3056 and 3056A of Title 18, investigatory records related to suitability and federal service exams and test materials. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; to safeguard classified information; and to safeguard records in connection with providing protective services to the President of the United States or other individuals pursuant to Section 3056 and 3056A of Title 18. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
It is necessary for these records to be exempt because, if public, could disclose training and protection methods used to protect the President of the United States or other individuals pursuant to Section 3056 and 3056A of Title 18. While these records are maintained for historical purposes, they must remain exempt from the Privacy Act.
The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.
A notice of system of records for DHS/ALL–027 The History of the Department of Homeland Security System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for Part 5 continues to read as follows:
6 U.S.C. 101
2. Add at the end of Appendix C to Part 5, the following new paragraph “47”:
47. The DHS/ALL–027 The History of the Department of Homeland Security System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/ALL–027 The History of the Department of Homeland Security System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; national security and intelligence activities; and protection of the President of the United States or other individuals pursuant to Section 3056 and 3056A of Title 18. The DHS/ALL–027 The History of the Department of Homeland Security System of Records contain information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies. The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to limitations set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (I) and (f) (Agency Requirements) because portions of this system are exempt from the individual access provisions of subsection (d) and thus would not require DHS to apply rules for records or portions of records which are exempted from access or amendment upon request. Access to, and amendment of, system records that are not exempt or for which exemption is waived may be obtained under procedures described in the related system of records notice (SORN) or Subpart B of this Part.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(i) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
Agricultural Marketing Service, USDA.
Proposed rule and referendum order.
This decision proposes amendments to Marketing Order No. 920 (order), which regulates the handling of kiwifruit grown in California, and provides growers with the opportunity to vote in a referendum to determine if they favor the changes. The amendments are based on proposals by the Kiwifruit Administrative Committee (committee), which is responsible for local administration of the order. These proposed amendments would redefine the districts into which the production area is divided and reallocate committee membership among the districts, revise committee nomination and selection procedures, authorize the committee to conduct research and promotion programs, and revise committee meeting and voting procedures. The proposals are intended to improve the operation and administration of the order and provide the industry with additional tools for the marketing of kiwifruit.
The referendum will be conducted from March 12 through March 26, 2010. The representative period for the purpose of the referendum is August 1, 2008, through July 31, 2009.
Laurel May or Kathleen Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, or E-mail:
Small businesses may request information on this proceeding by contacting Antoinette Carter, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, E-mail:
Prior documents in this proceeding: Notice of Hearing issued on January 24, 2008, and published in the November 19, 2008, issue of the
This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.
The proposed amendments are based on the record of a public hearing held December 9, 2008, in Modesto, California, to consider such amendments to the order. Notice of this hearing was published in the
The amendments included in this decision would:
1. Redefine the districts into which the production area is divided and reallocate committee membership positions among the districts;
2. Revise committee nomination and selection procedures;
3. Add authority for research and promotion programs; and
4. Revise the committee's meeting and voting procedures.
The Agricultural Marketing Service (AMS) also proposed to make any such changes to the order as may be necessary, if any of the proposed changes are adopted, so that all of the order's provisions conform to the
Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on November 5, 2009, filed with the Hearing Clerk, U.S. Department of Agriculture (USDA), a Recommended Decision and Opportunity to File Written Exceptions thereto by December 14, 2009. None were filed.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601–612) (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.
Small agricultural service firms, which include handlers regulated under the order, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000. Small agricultural growers have been defined as those with annual receipts of less than $750,000.
There are approximately 30 handlers of kiwifruit subject to regulation under the order and approximately 220 growers of kiwifruit in the regulated area. Information provided at the hearing indicates that the majority of the handlers would be considered small agricultural service firms. Hearing testimony also suggests that the majority of growers would be considered small entities according to the SBA's definition.
The order regulates the handling of kiwifruit grown in the State of California. Total bearing kiwifruit acreage has declined from a peak of approximately 7,300 acres in 1992–93 to about 4,000 acres in 2007–08. Approximately 24,500 tons of kiwifruit were produced in California during the 2007–08 season—a decline of approximately 27,800 tons compared to the 1992–93 season. According to evidence provided at the hearing, approximately 30 percent of the 2007–08 California kiwifruit crop was shipped to export markets, including Canada, Mexico, Central American, and Asian destinations.
Under the order, outgoing grade, size, pack, and container regulations are established for kiwifruit shipments, and shipping and inventory information is collected. Program activities administered by the committee are designed to support large and small kiwifruit growers and handlers. The 12-member committee is comprised of eleven grower representatives from the production area, as well as a public member. Committee meetings in which regulatory recommendations and other decisions are made are open to the public. All members are able to participate in committee deliberations, and each committee member has an equal vote. Others in attendance at meetings are also allowed to express their views.
Following several discussions within the kiwifruit industry, the committee considered adding authority to conduct research and promotion programs to provide maximum flexibility to the order. An amendment subcommittee was appointed to develop recommendations for this and other possible order revisions. The subcommittee developed a list of proposed amendments to the order, which was then presented to the committee.
The committee met to review and discuss the subcommittee's proposals at its meetings on January 30, 2008, April 22, 2008, and July 9, 2008. At those meetings, the committee voted unanimously to support the four proposed amendments that were forwarded to AMS and subsequently considered at the hearing.
The proposed amendments are intended to provide the committee and the industry with additional flexibility in administering the order and producing and marketing California kiwifruit. Record evidence indicates that the proposals are intended to benefit all growers and handlers under the order, regardless of size.
All grower and handler witnesses supported the proposed amendments at the hearing. Several witnesses commented on the implications of implementing research and promotion programs under the order. In that context, witnesses stated that they expected the benefits to growers and handlers to outweigh any potential costs.
A description of the proposed amendments and their anticipated economic impact on small and large entities is discussed below.
Proposal 1 would amend the order by redefining the districts into which the production area is divided and providing for the allocation of committee membership positions between the districts. Such allocation would be based upon five-year production averages, or upon another basis approved by the Secretary. This proposal would also provide for concurrent terms of office for all committee members, who would be selected biannually.
At the time the order was promulgated, kiwifruit acreage was more widespread throughout California and there were many more growers involved in kiwifruit production. The order originally provided for eight grower districts within the production area, with one membership seat apportioned to each district, and an additional seat reallocated annually to each of the three districts with the highest production in the preceding year. The structure was designed to afford equitable representation for all districts on the committee.
The concentration of planted acreage into two main regions and the decline in the number of growers over time has prompted the committee to evaluate the appropriateness of the current committee structure. The committee believes that consolidating the districts and providing for reallocation of grower seats as proposed would better reflect the current composition of the industry. The revisions would ensure that the interests of all large and small entities are represented appropriately during committee deliberations. Synchronizing all the terms of office to begin and end at the same time would simplify administration of the order and reduce disruptions to committee business. Adoption of the proposed amendment would have no economic impact on growers or handlers of any size.
Proposal 2 would amend the order by specifying that grower nomination meetings be held by June 1 of each nomination year and that mid-term vacancies may be filled by selections made by the Secretary after consideration of recommendations that may be submitted by the committee, unless such selection is deemed unnecessary by the Secretary.
Currently, the order requires that nomination meetings be held by July 15 of each year, but that deadline does not allow for timely processing of the
Any vacancies that occur under the current order provisions must be filled by repeating the nomination and selection process outlined for new members. Allowing the Secretary to fill vacancies as proposed would streamline the process of filling vacancies and reduce disruption to committee business.
Adoption of this proposal would have no economic impact upon growers or handlers of any size.
Proposal 3 would amend the order by adding authority for the committee to conduct research and promotion projects and to accept voluntary contributions to assist with funding those projects. This proposal would also amend the order by requiring the concurring vote of eight members for any action with respect to research and promotion. Currently, the committee is not authorized to conduct research or promotion programs, and it is not authorized to accept voluntary contributions for any purpose.
Historically, kiwifruit research has been conducted by other industry organizations and funded through private as well as public revenues. Currently, the California Kiwifruit Commission, a State marketing program, is authorized to conduct research and promotion projects for the industry. According to the hearing record, the committee has not identified any specific projects that it wants to conduct at this time, nor does it intend to duplicate the efforts of the State program. However, it would like to add authority to conduct such projects in the event that a need for new projects arises.
Further, the committee proposed adding authority to accept voluntary funds to conduct research and promotion projects to augment the assessment revenues they might budget for such purposes. The order specifies a cap on the rate handlers may be assessed to support the committee's programs and activities. According to witnesses, the current assessment rate is well below the established cap, but supporting research and promotion projects in the future could require more money than what the shrinking industry is likely to collect through assessments. Voluntary contributions could also augment matching funds required from the committee for participation in USDA-sponsored market development programs.
Finally, the committee recommended adding a provision that all actions with respect to research and promotion would require eight concurring committee votes. Witnesses explained that this supermajority approval would ensure that research and promotion projects undertaken by the committee would benefit the industry as a whole.
Adding authority to conduct research and promotion projects would not, of itself, have any economic impact on growers or handlers of any size. If research and promotion projects were implemented under this authority in the future, the assessment rate for handlers would likely increase to cover the cost of those expenditures. The value of any proposed projects, as well as recommendations for increased assessment rates, would be evaluated by the committee and approval would require the concurring vote of eight members. Any increases in cost would be borne proportionately by handlers according to the volume of kiwifruit they ship. Those costs could be offset by voluntary contributions. Witnesses testified that any increases in cost due to implementation of this proposal would be offset by benefits expected to accrue to growers and handlers as improved production and post-harvest handling methods and new market opportunities are developed. Any increased costs would be proportional to a handler's size and would not unduly or disproportionately impact small entities.
Proposal 4 would amend the order by allowing the committee to designate substitute alternates to represent absent members from the same district at meetings if necessary to secure a quorum. Currently, under most circumstances, only a member's respective alternate may represent the member if the member is unable to attend a meeting. For districts with only one member, there is no provision for when both the member and his or her alternate are unavailable for a meeting. In the past, meetings have been cancelled at the last minute because attendance was insufficient to meet quorum requirements.
If implemented, the proposed amendment would allow alternates not otherwise representing absent members to represent other members at committee meetings in order to secure a quorum. This would help ensure that quorum requirements could be met and that committee business could be addressed in a timely manner.
This proposal would further authorize the committee to meet by telephone or other means of communication. Video conference meetings would be considered assembled meetings and votes taken at such meetings would be considered in-person. Votes by telephone or other types of non-assembled meetings would be by roll call.
Witnesses testified that this amendment would provide the committee with greater flexibility in scheduling meetings and would be consistent with current practices in other kiwi industry settings. The use of telephone and other means of communication would allow greater access to committee meetings for members as well as other interested persons. Additionally, administration of the order would be improved as urgent committee business could be addressed in a timely manner.
This amendment is expected to benefit growers and handlers of all sizes by improving committee efficiencies and encouraging greater participation in industry deliberations. The amendment is not expected to result in any significant increased costs to producers or handlers.
Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small entities. The record evidence indicates that the proposed amendments are intended to benefit all producers and handlers under the order, regardless of size. Furthermore, the record shows that the costs associated with implementing regulations would be outweighed by the benefits expected to accrue to the California kiwifruit industry.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the order and to assist in the production and marketing of California kiwifruit.
Current information collection requirements for part 920 are approved by the Office of Management and Budget (OMB), under OMB Number 0581–0189—“Generic OMB Fruit Crops.” No changes in these requirements are anticipated as a result of this proceeding. Should any such changes become necessary, they would be submitted to OMB for approval.
As with all Federal marketing order programs, reports and forms are
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
The amendments to Marketing Order No. 920 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
The findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the November 12, 2009, issue of the
Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Kiwifruit Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.
It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400–407) to determine whether the annexed order amending the order regulating the handling of kiwifruit grown in California is approved or favored by growers, as defined under the terms of the order, who during the representative period were engaged in the production of kiwifruit in the production area.
The representative period for the conduct of such referendum is hereby determined to be August 1, 2008, through July 31, 2009.
The agents of the Secretary to conduct such referendum are hereby designated to be Kurt Kimmel and Debbie Wray, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (559) 487–5901, Fax: (559) 487–5906, or E-mail:
Kiwifruit, Marketing agreements, Reporting and recordkeeping requirements.
The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–612), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon the proposed amendments to Marketing Order No. 920 (7 CFR part 920), regulating the handling of kiwifruit grown in California. Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;
(2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of kiwifruit grown in the production area (California) in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held;
(3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;
(4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of kiwifruit grown in the production area; and
(5) All handling of kiwifruit grown in the production area as defined in the marketing order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.
For the reasons set forth in the preamble, 7 CFR part 920 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 920 continues to read as follows:
7 U.S.C. 601–674.
2. Revise § 920.12 to read as follows:
(a)
(b)
(c)
3. Revise § 920.20 to read as follows:
There is hereby established a Kiwifruit Administrative Committee
4. Revise § 920.21 to read as follows:
The term of office of each member and alternate member of the committee shall be for two years from the date of their selection and until their successors are selected. The terms of office shall begin on August 1 and end on the last day of July, or such other dates as the committee may recommend and the Secretary approve.
5. In § 920.22, revise the first sentence of paragraph (a) to read as follows:
(a) Except as provided in paragraph (b) of this section, the committee shall hold, or cause to be held, not later than June 1 of each year in which nominations are made, or such other date as may be specified by the Secretary, a meeting or meetings of growers in each district for the purpose of designating nominees to serve as grower members and alternates on the committee. * * *
6. Revise § 920.26 to read as follows:
To fill any vacancy occasioned by the failure of any person selected as a member or as an alternate member of the committee to qualify, or in the event of the death, removal, resignation, or disqualification of any member or alternate member of the committee, a successor for the unexpired term of such member or alternate member of the committee shall be selected by the Secretary after consideration of recommendations which may be submitted by the committee, unless such selection is deemed unnecessary by the Secretary. The selection shall be made on the basis of representation provided for in § 920.20.
7. Revise § 920.27 to read as follows:
An alternate member of the committee, during the absence of the member for whom that individual is an alternate, shall act in the place and stead of such member and perform such other duties as assigned. In the event both a member and his or her alternate are unable to attend a committee meeting, the committee may designate any other alternate member from the same district to serve in such member's place and stead if necessary to secure a quorum. In the event of the death, removal, resignation, or disqualification of a member, the alternate of such member shall act for him or her until a successor for such member is selected and has qualified.
8. Revise § 920.32 to read as follows:
(a) Eight members of the committee, or alternates acting for members, shall constitute a quorum, and any action of the committee shall require the concurring vote of the majority of those present:
(b) Committee meetings may be assembled or held by telephone, video conference, or other means of communication. The committee may vote by telephone, facsimile, or other means of communication. Votes by members or alternates present at assembled meetings shall be cast in person. Votes by members or alternates participating by telephone or other means of communication shall be by roll call;
9. Add a new § 920.45 to read as follows:
The committee may accept voluntary contributions, but these shall only be used to pay expenses incurred pursuant to § 920.47. Furthermore, such contributions shall be free from any encumbrances by the donor, and the committee shall retain complete control of their use.
10. Add a new § 920.47 to read as follows:
The committee, with the approval of the Secretary, may establish or provide for the establishment of production and post-harvest research, and marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of kiwifruit. The expense of such projects shall be paid from funds collected pursuant to §§ 920.41 and 920.45.
Agricultural Marketing Service, USDA.
Withdrawal of proposed rule.
This action withdraws a proposed rule published in the
The proposed rule published on July 27, 2009 (74 FR 36955) is withdrawn as of February 23, 2010.
Sonia Jimenez, Chief, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, U.S. Department of Agriculture, Stop 0244, 1400 Independence Avenue, SW., Room 0632–S, Washington, DC 20250–0244; telephone: (888) 720–9917; facsimile: (202) 205–2800; or electronic mail:
This rule is issued under the Blueberry Promotion, Research, and Information Order [7 CFR part 1218]. The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 [7 U.S.C. 7411–7425].
This action withdraws a proposed rule published in the
During the comment period, July 27 through September 25, 2009, the Department of Agriculture received 45 timely comments. These comments may be viewed on the Internet at
In summary, the opposing commenters expressed concern with doubling the assessment rate in light of current, poor economic conditions. Several commenters also argued that there is no need to increase the assessment rate because revenue should increase with the anticipated increase in production. Others raised concerns about growers being able to cover their production costs if the assessment rate doubled. Given the comments received, AMS agrees that the proposed rule increasing the assessment rate from $12 to $24 per ton should not be finalized. Therefore, the proposed rule is being withdrawn so as to allow further consideration by the Council. The Council should reconsider whether an increase in the assessment rate is appropriate, and if so, at what rate it should recommend any increase.
The proposed rule to amend the Order by increasing the assessment rate on producers and importers who produce or import more than 2,000 pounds of highbush blueberries annually from $12 to $24 per ton published in the
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Blueberry promotion, Reporting and recordkeeping requirements.
7 U.S.C. 7411–7425; 7 U.S.C. 7401.
Agricultural Marketing Service, USDA.
Notice of reviews and request for comments.
This document announces the Agricultural Marketing Service's (AMS) plans to review the Blueberry and Hass Avocado Promotion, Research, and Information Orders (Orders). Both reviews will be conducted under criteria contained in Section 610 of the Regulatory Flexibility Act (RFA).
Written comments must be received by April 26, 2010.
Interested persons are invited to submit written comments on the Internet at:
Jeanette Palmer, Marketing Specialist, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, Stop 0244, 1400 Independence Avenue, SW., Room 0632–S, Washington, DC 20250–0244; telephone: (888) 720–9917; facsimile: (202) 205–2800; or electronic mail:
The Blueberry Promotion, Research and Information Order (Blueberry Order) (7 CFR part 1218) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411–7425). The Hass Avocado Promotion, Research and Information Order (Avocado Order) (7 CFR part 1219) is authorized under the Hass Avocado Promotion, Research and Information Act of 2000 (Avocado Act) (7 U.S.C. 7801–7813).
The Blueberry Order became effective on August 16, 2000. The Order is administered by the U.S. Highbush Blueberry Council (Council) with oversight by the Department of Agriculture (USDA). The program is funded by assessments on highbush (cultivated) blueberries grown in and imported into the United States. Producers and importers pay the assessment. The producer assessment is remitted by first handlers, and the importer assessment is remitted by the U.S. Customs and Border Protection (Customs). Producers and importers who produce or import less than 2,000 pounds of highbush blueberries annually are exempt from the program. The purpose of the Order is to finance a coordinated program of promotion, research, and information to maintain and expand the market for fresh and processed cultivated blueberries in the United States and abroad.
The Council is composed of 14 members as follows: 10 producers (one from each of four regions and one from each of the top six producing States); 1 importer; 1 exporter from a foreign production area; 1 handler; and 1 public member. Each member has an alternate. The members and alternates are appointed to the Council by the Secretary of Agriculture and serve a term of 3 years.
The Avocado Order became effective on September 9, 2002. The Order is administered by the Hass Avocado Board (Board) with oversight by USDA. The program is funded by assessments on fresh domestic and imported Hass avocados. Producers and importers pay the assessment. The producer assessment is remitted by first handlers, and the importer assessment is remitted by Customs. Exports of domestic Hass avocados are exempt from assessments. The purpose of the program is to increase consumption of Hass avocados in the United States.
Under the Order, a state association of avocado producers receives 85 percent of the assessments paid by domestic producers, and certified importer associations receive 85 percent of the assessments paid by their members. The State and importer associations use these funds to conduct State-of-origin and country-of-origin promotions, respectively.
The Board is composed of 12 members, 7 who are producers and 5 who are importers. Each member has an alternate. The members and alternates are appointed to the Board by the Secretary of Agriculture and serve a term of 3 years.
AMS published in the
The purpose of the review is to determine whether the Orders should be continued without change, amended, or rescinded (consistent with the objectives of the 1996 Act and Avocado Act, respectively) to minimize the impacts on small entities. AMS will consider the following factors: (1) The continued need for the Orders; (2) the nature of complaints or comments received from the public concerning the Orders; (3) the complexity of the Orders; (4) the extent to which the Orders overlap, duplicate, or conflict with other Federal rules, and, to the extent feasible, with State and local regulations; and (5) the length of time since the Orders have been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the Orders.
Written comments, views, opinions, and other information regarding the Order's impact on small businesses are invited.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting and availability of preliminary technical support document.
The U. S. Department of Energy (DOE) will hold a public meeting to discuss and receive comments on the product classes that DOE plans to analyze for purposes of amending energy conservation standards for residential clothes dryers and room air conditioners; the analytical framework, models, and tools that DOE is using to evaluate standards for these products; the results of preliminary analyses performed by DOE for these products; and potential energy conservation standard levels derived from these analyses that DOE could consider for these products. DOE also encourages written comments on these subjects. To inform stakeholders and facilitate this process, DOE has prepared an agenda, a preliminary Technical Support Document (TSD), and briefing materials, which are available at:
The Department will hold a public meeting on Tuesday, March 16, 2010, from 9 a.m. to 5 p.m. in Washington, DC. Any person requesting to speak at the public meeting should submit such request, along with an electronic copy of the statement to be given at the public meeting, before 4 p.m., Tuesday, March 2, 2010. Written comments are welcome, especially following the public meeting, and should be submitted by April 26, 2010.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–098, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards at (202) 586–2945 so that the necessary procedures can be completed.
Interested persons may submit comments, identified by docket number EERE–2007–BT–STD–0010, by any of the following methods:
•
•
•
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Stephen Witkowski, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE–2J, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Phone: (202) 586–7463. e-mail:
Francine Pinto or Betsy Kohl, U.S. Department of Energy, Office of General Counsel, GC–71, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Phone: (202) 586–7432. e-mail:
Part A of Title III of the Energy Policy and Conservation Act of 1975 (EPCA), 42 U.S.C. 6291
DOE must design each new or amended standard for these products to (1) achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified, and (2) result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A)) To determine whether a proposed standard is economically justified, DOE must, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, weighing the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products which are likely to result from the imposition of the standard;
3. The total projected amount of energy savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;
6. The need for national energy conservation; and
7. Other factors the Secretary considers relevant.
Prior to proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE will use to evaluate standards for the product at issue; the results of preliminary analyses performed by DOE for the product; and potential energy conservation standard levels derived from these analyses that DOE could consider.
The amendments to EPCA in the National Appliance Energy Conservation Act of 1987 (NAECA), Public Law 100–12, established prescriptive energy conservation standards for residential clothes dryers and performance energy conservation standards for room air conditioners, as well as requirements for determining whether these standards should be amended. (42 U.S.C. 6295(c) and (g).)
EPCA, as amended by NAECA, requires gas clothes dryers not to be equipped with constant burning pilots and requires that DOE conduct two cycles of rulemakings to determine if more stringent standards are justified. (42 U.S.C. 6295 (g)(3) and (4)) DOE defines “electric clothes dryer” under EPCA as “a cabinet-like appliance designed to dry fabrics in a tumble-type drum with forced air circulation. The heat source is electricity and the drum and blower(s) are driven by an electric motor(s).” (Title 10 of the Code of Federal Regulations (CFR) 430.2) Gas clothes dryers have a similar definition, except the heat source is gas. On May 14, 1991, DOE published a final rule in the
NAECA established performance standards for room air conditioners that became effective on January 1, 1990, and directed DOE to conduct two cycles of rulemakings to determine if more stringent standards are justified. (42 U.S.C. 6295 (c)(1) and (2)) DOE defines “room air conditioner” under EPCA as a “consumer product, other than a `packaged terminal air conditioner,' which is powered by a single phase electric current and which is an encased assembly designed as a unit for mounting in a window or through the wall for the purpose of providing delivery of conditioned air to an enclosed space. It includes a prime source of refrigeration and may include a means for ventilating and heating.” (10 CFR 430.2) On March 4, 1994, DOE published in the
Under the consolidated Consent Decree in
To initiate the current rulemaking to consider energy conservation standards, the Department published on its Web site the Energy Conservation Standards Rulemaking Framework Document for Residential Clothes Dryers and Room Air Conditioners (the framework document) to explain the issues, analyses, and process that it anticipated using for the development of energy efficiency standards for these products. This document is available at
The focus of the public meeting, which was held on October 24, 2007, was to discuss the analyses and issues identified in various sections of the framework document. At the meeting, DOE described the different analyses it would conduct, the methods proposed for conducting them, and the relationships among the various analyses. Manufacturers, trade associations, environmental advocates, regulators, and other interested parties attended the meeting. Comments received since publication of the framework document have helped identify issues DOE needs to address in developing a proposed standard and provided information contributing to DOE's proposed resolution of these issues.
For each of the residential clothes dryer and room air conditioner products currently under consideration, DOE conducted in-depth technical analyses in the following areas: (1) Engineering, (2) markups to determine product price, (3) energy-use characterization, (4) life-cycle cost (LCC) and payback period (PBP) analyses, and (5) national impact analysis (NIA). These analyses resulted in a preliminary TSD that presents the methodology and results of each of these analyses. The preliminary TSD is available at the Web address given in the
DOE also conducted several other analyses that either support the five major analyses or are preliminary analyses that will be expanded upon for the NOPR. These analyses include the market and technology assessment, the screening analysis, which contributes to the engineering analysis, and the shipments analysis, which contributes to the NIA. In addition to these analyses, DOE has completed preliminary work on the manufacturer impact analysis (MIA) and identified the methods to be used for the LCC subgroup analysis, the environmental assessment, the employment analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR.
The engineering analysis establishes the relationship between the cost and efficiency of a product DOE is evaluating for amended energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the nation. The engineering analysis identifies representative baseline products, which is the starting point for analyzing technologies that provide energy efficiency improvements. Baseline product refers to a model or models having features and technologies typically found in products currently offered for sale. The baseline model in each product class represents the characteristics of products in that class and, for products already subject to energy conservation standards, usually is a model that just meets the current standard. Chapter 5 of the preliminary TSD discusses the engineering analysis.
DOE derives consumer prices for products based on manufacturer costs, manufacturer markups, retailer markups, distributor markups, contractor markups, builder markups, and sales taxes. In deriving these markups, DOE has determined (1) The distribution channels for product sales; (2) the markup associated with each party in the distribution channels; and (3) the existence and magnitude of differences between markups for baseline products (baseline markups) and for more efficient products (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the product markups at each step in the distribution channel. The overall incremental markup relates the change in the manufacturer sales price of higher efficiency models (the incremental cost increase) to the change in the retailer or distributor sales price. Chapter 6 of the preliminary TSD discusses the estimation of markups.
The energy use characterization provides estimates of annual energy consumption for the residential clothes dryers and room air conditioners, which DOE uses in the LCC and PBP analyses and the NIA. DOE developed energy consumption estimates for all of the product classes analyzed in the engineering analysis, as the basis for its energy use estimates. Chapter 7 of the preliminary TSD discusses the energy use characterization.
The LCC and PBP analyses determine the economic impact of potential standards on individual consumers. The LCC is the total consumer expense for a product over the life of the product. The LCC analysis compares the LCCs of products designed to meet possible energy conservation standards with the LCCs of the products likely to be installed in the absence of standards. DOE determines LCCs by considering (1) Total installed cost to the purchaser (which consists of manufacturer selling price, sales taxes, distribution chain markups, and installation cost); (2) the operating expenses of the products (energy use and maintenance); (3) product lifetime; and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of more efficient products through savings in the operating cost of the product. It is the change in total installed cost due to increased efficiency divided by the change in annual operating cost from increased efficiency. Chapter 8 of the preliminary TSD discusses the LCC and PBP analyses.
The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from new standards at specific efficiency levels. DOE calculated NES and NPV for each efficiency level as the difference between a base-case forecast (without new standards) and the standards case forecast (with standards). DOE determined national annual energy consumption by multiplying the number of units in use (by vintage) by the average unit energy consumption (also by vintage). Cumulative energy savings are the sum of the annual NES determined over a specified time period. The national NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and increases in total installed costs. Critical inputs to this analysis include shipments projections, retirement rates (based on estimated product lifetimes), and estimates of changes in shipments and retirement rates in response to changes in product costs due to standards. Chapter 10 of the preliminary TSD discusses the NIA.
DOE consulted with interested parties as part of its process for conducting all of the analyses and invites further input from the public on these topics. The preliminary analytical results are subject to revision following review and input from the public. The final rule will contain the final analysis results.
The Department encourages those who wish to participate in the public meeting to obtain the preliminary TSD and to be prepared to discuss its contents. A copy of the preliminary TSD is available at the Web address given in the
Furthermore, the Department welcomes all interested parties, regardless of whether they participate in the public meeting, to submit in writing by April 26, 2010, comments and information on matters addressed in the preliminary TSD and on other matters relevant to consideration of standards for residential clothes dryers and room air conditioners.
The public meeting will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by United States antitrust laws.
After the public meeting and the expiration of the period for submitting written statements, the Department will consider all comments and additional information that is obtained from interested parties or through further analyses, and it will prepare a NOPR. The NOPR will include proposed energy conservation standards for the products covered by this rulemaking, and members of the public will be given an opportunity to submit written and oral comments on the proposed standards.
Federal Housing Finance Agency; Federal Housing Finance Board.
Notice of proposed rulemaking; request for comments.
Section 1211 of the Housing and Economic Recovery Act of 2008 (HERA) amended the Federal Home Loan Bank Act (Bank Act) to expand the types of eligible collateral that community financial institution (CFI) members may pledge to secure Federal Home Loan Bank (Bank) advances to include secured loans for community development activities and to allow Banks to make long-term advances to CFI members for purposes of financing community development activities. Section 1211 further provides that the Federal Housing Finance Agency (FHFA) shall define the term “community development activities” by regulation. Consequently, FHFA is proposing to amend the advances regulations to allow CFI members to pledge secured loans for community development activities as eligible collateral for advances, to provide that CFI members may use long term advances to fund community development activities and to define “community development,” “community development loan,” and other related terms necessary to implement these provisions. The proposal would also transfer the advances and new business activities regulations from the Federal Housing Finance Board (FHFB) regulations to the FHFA regulations, and make other conforming amendments. Finally, the proposed rule would also make a change to the advances regulation which would incorporate a long-standing policy previously established by the FHFB that any form of secured lending by a Bank to a member of the Federal Home Loan Bank System (Bank System) is deemed to be an advance. The proposed rule would extend that policy to cover secured lending transactions by a Bank to affiliates of members.
Written comments must be received on or before April 26, 2010. For additional information, see
You may submit your comments, identified by regulatory information number (RIN) 2590–AA24, by one of the following methods:
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Thomas E. Joseph, Senior Attorney Advisor, Office of General Counsel,
FHFA invites comments on this proposed rule, and will consider all comments before adopting final amendments to its regulations. Copies of all comments will be posted on the FHFA Internet Web site at
Effective July 30, 2008, Division A of HERA, Public Law No. 110–289, 122 Stat. 2654 (2008), created FHFA as an independent agency of the Federal government. HERA transferred the supervisory and oversight responsibilities over the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, Enterprises), the Banks, and the Bank System's Office of Finance, from the Office of Federal Housing Enterprise Oversight (OFHEO) and the FHFB to FHFA. HERA provided for the abolishment of OFHEO and FHFB one year after the date of enactment. FHFA is responsible for ensuring that the Enterprises and the Banks operate in a safe and sound manner, including being capitalized adequately, and that they carry out their public policy missions, including fostering liquid, efficient, competitive, and resilient national housing finance markets. The Enterprises and the Banks continue to operate under regulations promulgated by OFHEO and FHFB until FHFA issues its own regulations.
Each Bank is a cooperative institution that is owned by its members. Any eligible institution (generally a federally insured depository institution or state-regulated insurance company) may become a member of a Bank if it satisfies certain criteria and purchases a specified amount of the Bank's capital stock.
Prior to HERA, CFIs were defined under the Bank Act as depository institutions insured under the Federal Deposit Insurance Act (12 U.S.C. 1811
By Notice published in the
Under the Bank Act, any member, including a CFI, that wishes to borrow from its Bank must pledge certain types of collateral to secure its repayment obligation on advances, and must otherwise demonstrate to the Bank that it is creditworthy.
In addition, prior to HERA, section 10(a)(2) of the Bank Act provided that a Bank could make a long-term advance to a member only for the purposes of providing funds to the member for residential housing finance; it also allowed long term advances to CFI members for purposes of funding small business, small farm, and small agri-business lending.
Section 1211 of HERA also amended section 10(a)(6) of the Bank Act to provide that the term “community development activities” shall have the meaning given such term by regulation by the Director of FHFA.
Section 1201 of HERA requires the Director, when promulgating regulations relating to the Banks, to consider the following differences between the Banks and the Enterprises: Cooperative ownership structure; mission of providing liquidity to members; affordable housing and community
The FHFA is proposing definitions for community development, community development loans, and other terms as needed, to implement the new CFI collateral provisions adopted by HERA. The FHFA also proposes to amend the regulations addressing the purposes for which a Bank may make long term advances to include community development loans made by CFI members. The proposed rule also would make a change to the advances regulation which would incorporate a long standing policy previously established by the FHFB that any form of secured lending by a Bank to a member of the Bank System is deemed to be an advance and extend that policy to cover secured lending transactions by a Bank to affiliates of members. Finally, the FHFA is proposing to transfer the existing advances regulations from part 950 and the existing new business activity regulation from part 980 of the FHFB's regulations (12 CFR parts 950 and 980) to new parts 1266 and 1272 of the FHFA's regulations, incorporate certain definitions that had been in part 900 of the FHFB rules into new proposed parts 1266 and 1272, and make additional conforming changes to these rules.
Under the proposed transfer of the current part 950 advances regulation, the definition section of that regulation would be redesignated as § 1266.1. FHFA is proposing to amend redesignated § 1266.1 to make changes necessary to implement the CFI collateral amendments adopted by HERA, as described above, and to make other conforming changes.
First, FHFA is proposing to define “community development” with reference to the definition for this term adopted by CFI members' primary federal regulators under Community Reinvestment Act (CRA) regulations.
In turn, FHFA is proposing to define “community development loan” as a loan that has community development as its primary purpose. FHFA recognizes, however, that many loans that are extended to support community development, as that term is defined in the referenced CRA regulations, would already be acceptable collateral for advances under existing FHFA regulations. For example, all loans for affordable housing likely would qualify as eligible security for advances as mortgages or other real estate-related collateral. Because FHFA does not intend the proposed definition to call into question the validity of any security pledged (or to be pledged) under the categories of eligible collateral already identified in the advances regulation for all members, the proposed definition of “community development loan” would exclude categories of eligible collateral now identified in § 950.7(a) of the advances rule
The proposed definition of “community development loan” also specifically excludes consumer loans or credit extended to one or more individuals for household, family, or other personal expenditures. This exclusion is intended to make clear that FHFA is not proposing that consumer loans, such as auto loans, even if made to low- or moderate-income individuals or households, would be considered eligible collateral for advances as a “community development loan.” This proposed provision, however, would not change the status of any loan that qualifies as eligible collateral for advances under existing categories of collateral in the current regulations. For example, the proposed language would not affect the status of home equity loans as other real estate-related collateral eligible to secure advances.
Although many community development loans would be eligible collateral for CFI members under pre-HERA statutory and regulatory provisions, FHFA believes that the proposed definitions of “community development” and “community development loan” would allow for at least marginal expansion in the types of loans that CFI members can pledge as security for advances. For example, the proposed definition could allow CFI members to accept certain types of loans that are meant to revitalize or stabilize certain designated, distressed, or underserved non-metropolitan middle income geographies that would qualify as community development loans under the referenced definitions adopted by federal banking regulators but would not necessarily qualify as collateral under existing advances regulations. FHFA specifically requests comments on whether, and how, these proposed definitions might be altered to better help CFI members fund community development activities while continuing to assure that advances be secured only by high quality collateral.
FHFA is also proposing a new definition of “residential housing finance assets” that would incorporate community development loans and thereby implement the HERA amendment that allows CFIs to rely on long-term advances to fund this type of loan. To avoid confusion with the term “community development loan”, FHFA is also proposing to remove the reference to “community lending” from the current definition and incorporate each element of “community lending”, as defined in § 900.2,
FHFA is also proposing to add to newly designated § 1266.1 definitions for “Bank Act”, “advances”, “Bank”, and “targeted beneficiaries”. These definitions are contained in § 900.1 or § 900.2 of the FHFB rules, and FHFA is proposing to carry them over to newly designated part 1266 without substantive change.
Current § 950.3 implements section 10(a)(2) of the Bank Act by providing that a Bank shall make long-term advances only for the purpose of enabling a member to purchase or fund new or existing residential housing finance assets, which include, for CFI members, small business loans, small farm loans, and small agri-business loans. This provision would be redesignated as § 1266.3 by the proposed rule. Because, as already noted, FHFA is proposing to add specific references to small business loans, small farm loans, small agri-business loans, and community development loans in the definition of “residential housing finance as sets”, FHFA also is proposing to remove references to such CFI-specific collateral from the redesignated § 1266.3(a) as redundant. No other changes are being proposed for this section.
Current § 950.7(b) implements section 10(a)(3)(E) of the Bank Act, which sets forth additional eligible collateral that can be pledged by CFI members only to secure advances from a Bank. Section 950.7 would be redesignated as § 1266.7 under this proposed rule. The FHFA is proposing to implement the HERA provision allowing CFI members to pledge loans for community development activities as collateral for advances by adding “community development loans” to the list of CFI-specific collateral set forth in the redesignated § 1266.7(b)(1). No other changes are being proposed to this provision.
A Bank's acceptance of “community development loans” would need to meet the same requirements as its acceptance of other types of CFI collateral. Thus, community development loans pledged by CFI members to secure advances would need to be fully secured by collateral other than real estate. In addition, any eligible community development loan would have to have a readily ascertainable value, be able to be reliably discounted to account for liquidation or other risk, and be able to be liquidated in due course, and the Bank would have to be able to perfect a security interest in such loan. A Bank's acceptance of specific types of “community development loans” to secure an advance would also be subject to its first meeting the requirements of the new business activities rule, currently set forth in 12 CFR part 980.
FHFA is also proposing to amend newly designated § 1266.2 of the advances regulation to incorporate a long-standing position that any secured lending by a Bank to members is deemed an advance subject to all requirements related to advances. This position was first taken by the FHFB in 1995 by resolution; this resolution has not been rescinded and is still in effect.
This remains a concern, even if, because of amendments to the Bank Act, the specific issue which motivated the original resolution is no longer relevant. FHFA is proposing to codify the position taken in the old FHFB resolution as new § 1266.2(e) to make clear that it intends this restriction to continue to apply and that it does not believe that members, or the Banks, should be able to avoid requirements applied to advances, including stock purchase requirements, by allowing members to borrow from the Banks using other forms of secured transactions. Further, to assure that the proposed provision cannot be circumvented by a Bank extending secured credit to an affiliate of a member, the proposed provision also would be applied to any affiliate of a member.
FHFA is proposing to transfer the new business activities rule from part 980 of the FHFB regulations to part 1272 of FHFA regulations. FHFA is also proposing to make conforming changes
The information collection contained in the Data Reporting Manual, entitled “Advances to Housing Associates,” has been assigned control number 2590–0001 by the Office of Management and Budget (OMB). The proposed amendments to the advances regulations do not substantively or materially modify the approved information collection. The proposed changes to the new business activity regulation do not contain any collections of information pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The proposed amendments apply only to the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA).
Community development, Credit, Federal home loan banks, Housing, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Housing Finance Agency proposes to amend chapters IX and XII of title 12 of the Code of Federal Regulations as follows:
1. Transfer 12 CFR part 950 from chapter IX, subchapter G, to chapter XII, subchapter D, and redesignate as 12 CFR part 1266.
2. Transfer 12 CFR part 980 from chapter IX, subchapter J, to chapter XII, subchapter D, and redesignate as 12 CFR part 1272.
3. The authority citation for newly redesignated part 1266 is revised to read as follows:
12 U.S.C. 1426, 1429, 1430, 1430b, 1431, 4511(b), 4513, 4526(a).
4. Revise the heading in the newly redesignated part 1266 to read as set forth above.
5. Amend the newly redesignated part 1266 as indicated in the table below:
6. In newly redesignated part 1266, revise all references to “Finance Board” to read “FHFA” and revise all references to “Act” to read “Bank Act”.
7. In newly redesignated § 1266.1, add in correct alphabetical order definitions for “Advance”, “Bank”, “Bank Act”, “Community development”, “Community development loan”, “FHFA”, and “Targeted beneficiaries”, and revise the definition of “Residential housing finance assets” to read as follows:
(1) Provided pursuant to a written agreement;
(2) Supported by a note or other written evidence of the borrower's obligation; and
(3) Fully secured by collateral in accordance with the Bank Act and this part.
(1) Any loan or instrument that qualifies as eligible security for an
(2) Consumer loans or credit extended to one or more individuals for household, family or other personal expenditures.
(1) Loans secured by residential real property;
(2) Mortgage-backed securities;
(3) Participations in loans secured by residential real property;
(4) Loans or investments providing financing for economic development projects for targeted beneficiaries;
(5) Loans secured by manufactured housing, regardless of whether such housing qualifies as residential real property;
(6) Any loans or investments which the FHFA, in its discretion, otherwise determines to be residential housing finance assets; and
(7) For CFI members, and to the extent not already included in categories (1) through (6), small business loans, small farm loans, small agri-business loans, or community development loans.
8. Revise newly designated § 1226.2 by adding new paragraph (e) to read as follows:
(e)
9. Revise newly redesignated § 1266.3 to read as follows:
(a) A Bank shall make long-term advances only for the purpose of enabling any member to purchase or fund new or existing residential housing finance assets.
(b)(1) Prior to approving an application for a long-term advance, a Bank shall determine that the principal amount of all long-term advances currently held by the member does not exceed the total book value of residential housing finance assets held by such member. The Bank shall determine the total book value of such residential housing finance assets, using the most recent Thrift Financial Report, Report of Condition and Income, financial statement or other reliable documentation made available by the member.
(2) Applications for CICA advances are exempt from the requirements of paragraph (b)(1) of this section.
10. Amend newly redesignated § 1266.7 by revising paragraph (b)(1) to read as follows:
(b) * * *
(1)
(i) Such collateral has a readily ascertainable value, can be reliably discounted to account for liquidation and other risks, and can be liquidated in due course; and
(ii) The Bank can perfect a security interest in such collateral.
11. The authority citation for newly redesignated part 1272 is revised to read as follows:
12 U.S.C. 1431(a), 1432(a), 4511(b), 4513, 4526(a).
12. Revise the heading in the newly redesignated part 1272 to read as set forth above.
13. Amend the references in the newly redesignated part 1272 as indicated in the table below:
14. Amend newly redesignated part 1272 by revising all references to “Finance Board” to read “FHFA”.
15. Amend newly redesignated § 1272.1 by adding in correct alphabetical order definitions for “Bank” and “FHFA” to read as follows:
Federal Aviation Administration (FAA), DOT.
Supplemental Notice of proposed rulemaking (NPRM); reopening of comment period.
This supplemental NPRM revises an earlier proposed airworthiness directive (AD) for the products listed above. This proposed AD results from additional mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Engine in-flight shutdown incidents have been reported on Diamond Aircraft Industries DA 42 airplanes equipped with TAE 125 engines. The investigations showed that it was mainly the result of failure of the Proportional Pressure Reducing Valve (PPRV) (also known as Propeller Control Valve) due to high vibrations. This condition, if not corrected, could lead to further cases of engine in-flight shutdown, possibly resulting in reduced control of the aircraft. Since the release of European Aviation Safety Agency (EASA) AD 2008–0145, the engine gearbox has been identified as the primary source of vibrations for the PPRV, and it has also been determined that failure of the electrical connection to the PPRV could have contributed to some power loss events or in-flight shutdowns. We are proposing this AD to prevent engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
We must receive comments on this proposed AD by March 25, 2010.
You may send comments by any of the following methods:
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You may examine the AD docket on the Internet at
Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
EASA, which is the Technical Agent for the Member States of the European Community, has issued AD 2009–0224, dated October 20, 2009, AD 2009–0193, dated August 27, 2009, and AD 2009–0193R1, dated December 1, 2009 (referred to after this as “the MCAIs”), to correct an unsafe condition for the specified products. These MCAIs state:
Engine in-flight shutdown incidents have been reported on Diamond Aircraft Industries DA 42 airplanes equipped with TAE 125 engines. The investigations showed that it was mainly the result of failure of the PPRV due to high vibrations. This condition, if not corrected, could lead to further cases of engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
Since the release of EASA AD 2008–0145, the engine gearbox has been identified as the primary source of vibrations for the PPRV, and it has also been determined that failure of the electrical connection to the PPRV could have contributed to some power loss events or in-flight shutdowns.
• TAE has identified the gearbox as the primary source of vibrations causing the failures of the propeller control valves.
• EASA revised AD 2008–0145 with AD 2008–0145R1, which reduced the applicability to cover only TAE 125–01 engines, superseded AD 2008–0145R1 with AD 2009–0193, and revised that AD with AD 2009–0193R1. AD 2009–0193R1 requires, for TAE 125–01 engines, initial and repetitive replacements of the PPRV, inspection of the electrical connectors of the PPRV and replacement of the connectors if damaged, installation of a vibration isolator between the engine gearbox and the propeller's constant speed unit, replacement of the aluminum pipe that connects the PPRV to the constant speed unit with a flexible hose, and replacement of the de-icing nozzle bracket with a redesigned bracket.
• EASA also issued AD 2009–0151 and superseded it with AD 2009–0224, which requires for TAE 125–02–99 engines, initial and repetitive replacements of the PPRV, and installation of a vibration isolator between the engine gearbox and the propeller's constant speed unit.
Thielert Aircraft Engines GmbH has issued Service Bulletin (SB) No. TM TAE 125–1007 P1, Revision 2, dated April 29, 2009, SB No. TM TAE 125–1009 P1, Revision 3, dated October 14,
We have reviewed the MCAIs and, in general, agree with their substance. But we have found it necessary to not reference the second paragraph of the unsafe condition from EASA AD 2009–0224. That sentence stated that the problem has only manifested itself on those Thielert engines installed on Diamond Aircraft Industries DA 42 aircraft. The affected engines which require a PPRV could be used on other make and model airplanes in the future.
We also did not incorporate the February 28, 2010 compliance date which is in EASA AD 2009–0193R1, or the January 31, 2010 compliance date which is in EASA AD 2009–0224.
This product has been approved by the aviation authority of Germany and is approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA has notified us of the unsafe condition described in the MCAI. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require initial and repetitive replacements of the PPRV and installation of a vibration isolator to the gearbox assembly.
Based on the service information, we estimate that this proposed AD would affect about 300 TAE 125–01 and TAE 125–02–99 reciprocating engines installed in Diamond Aircraft Industries Model DA 42 airplanes of U.S. registry. We also estimate that it would take about 0.25 work-hour per engine to replace a PPRV and install a vibration isolator to the gearbox assembly. The average labor rate is $85 per work-hour. Required parts would cost about $275 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $88,875.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by March 25, 2010.
(b) None.
(c) This AD applies to Thielert Aircraft Engines GmbH (TAE) models TAE 125–01 and TAE 125–02–99 reciprocating engines designated with part number (P/N) 05–7200–K000301 or 02–7200–1401R1. The engines are installed on, but not limited to, Diamond Aircraft Industries Model DA 42 airplanes.
(d) Engine in-flight shutdown incidents have been reported on Diamond Aircraft Industries DA 42 airplanes equipped with TAE 125 engines. The investigations showed that it was mainly the result of failure of the Proportional Pressure Reducing Valve (PPRV) (also known as Propeller Control Valve) due to high vibrations. This condition, if not corrected, could lead to further cases of engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
Since the release of European Aviation Safety Agency (EASA) AD 2008–0145, the engine gearbox has been identified as the primary source of vibrations for the PPRV, and it has also been determined that failure of the electrical connection to the PPRV could have contributed to some power loss events or in-flight shutdowns.
We are issuing this AD to prevent engine in-flight shutdown, possibly resulting in reduced control of the aircraft.
(e) Unless already done, do the following actions:
(1) For TAE 125–02–99 reciprocating engines with engine P/N 05–7200–K000301, within 55 flight hours after the effective date of this AD:
(i) Replace the existing PPRV with PPRV, P/N 05–7212–E002801. Use paragraphs A. through B. of Thielert Service Bulletin (SB) No. TM TAE 125–1007 P1, Revision 2, dated April 29, 2009, to do the replacement.
(ii) Install a vibration isolator, P/N 05–7212–K022302, to the gearbox assembly. Use paragraphs 1 through 20 of Thielert SB No. TM TAE 125–1009 P1, Revision 3, dated October 14, 2009, to do the installation.
(2) Thereafter, within every 300 flight hours, replace the PPRV, P/N 05–7212–E002801, with the same P/N PPRV.
(3) For TAE 125–01 reciprocating engines with engine P/N 02–7200–1401R1, within 55 flight hours after the effective date of this AD:
(i) Replace the existing PPRV with a PPRV, P/N NM–0000–0124501 or P/N 05–7212–K021401. Use paragraph 1 of Thielert SB No. TM TAE 125–0018, Revision 1, dated November 12, 2008, to do the replacement.
(ii) Inspect the electrical connectors of the PPRV and replace the connectors if damaged, and install a vibration isolator, P/N 05–7212–K023801, to the gearbox assembly. Use paragraphs 1 through 27 of Thielert SB No. TM TAE 125–0020, Revision 1, dated November 25, 2009, to do the inspection and installation.
(4) Thereafter, within every 300 flight hours, replace the PPRV with a PPRV, P/N NM–0000–0124501 or P/N 05–7212–K021401.
(f) We have found it necessary to not reference the second paragraph of the unsafe condition from the MCAI EASA AD 2009–0224. That sentence stated that the problem has only manifested itself on those Thielert engines installed on Diamond Aircraft Industries DA 42 aircraft. The affected engines which require a PPRV could be used on other make and model airplanes in the future.
(g) We also did not reference the February 28, 2010 compliance date, which is in EASA AD 2009–0193R1, or the January 31, 2010 compliance date which is in EASA AD 2009–0224.
(h) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(i) Refer to EASA AD 2009–0224, dated October 20, 2009 (TAE 125–02–99), and EASA AD 2009–0193R1, dated December 1, 2009 (TAE 125–01), for related information.
(j) Refer to Thielert SB No. TM TAE 125–1007 P1, Revision 2, dated April 29, 2009, and Thielert SB No. TM TAE 125–1009 P1, Revision 3, dated October 14, 2009 (TAE 125–02–99), for related information.
(k) Refer to Thielert SB No. TM TAE 125–0018, Revision 1, dated November 12, 2008, and Thielert SB No. TM TAE 125–0020, Revision 1, dated November 25, 2009 (TAE 125–01), for related information.
(l) Contact Thielert Aircraft Engines GmbH, Platanenstrasse 14 D–09350, Lichtenstein, Germany, telephone: +49–37204–696–0; fax: +49–37204–696–2912; e-mail:
(m) Contact Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier NPRM for the products listed above. This action revises the earlier NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
It was reported that after commanding the landing gear lever to down the three green landing gear positioning indication was displayed followed by the LG/LEVER DISAGREE EICAS [engine indicating and crew alerting system] message. The crew decided to continue the approach and landing procedure. As soon as the crew identified that the landing gear was not extended properly, a go-around procedure was successfully performed. During maneuver, the airplane settled momentarily onto the flaps and belly.
The unsafe condition is the landing gear remaining in the up and locked position during approach and landing. This condition could be accompanied by an invalid EICAS landing gear position indication, which could result in landing with gear in the up position and eliminate controllability of the airplane on the ground. This may consequently result in structural damage to the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by March 22, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227–901 São Jose dos Campos—SP—BRASIL; telephone: +55 12 3927–5852 or +55 12 3309–0732; fax: +55 12 3927–7546; e-mail:
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANN–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–1175; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the
Paragraph (c) of the original NPRM specifies that the AD applies to certain airplanes modified by certain Brazilian supplemental type certificates (STCs) and that are equipped with the affected part. Brazilian STCs do not apply to U.S. airplanes. The applicability of this supplemental NPRM would therefore not depend on accomplishment of the Brazilian STC. We have removed the reference to the Brazilian STCs from the applicability of this supplemental NPRM. We have coordinated this issue with Agência Nacional de Aviação Civil (ANAC), which is the airworthiness authority for Brazil.
We have reviewed EMBRAER Service Bulletin 145–32–0120, Revision 02, dated February 17, 2009. The original NPRM cited EMBRAER Service Bulletin 145–32–0120, Revision 01, dated November 4, 2008, as the appropriate source of service information for replacing the landing gear electronic unit (LGEU) with a new one having a new part number. EMBRAER Service Bulletin 145–32–0120, Revision 02, dated February 17, 2009, revises the effectivity but adds no new actions. We have revised paragraphs (g)(1) and (g)(3) (paragraphs (f)(1) and (f)(3) of the original NPRM) and Note 1 of this supplemental NPRM to refer to Revision 02. We have also added EMBRAER Service Bulletin 145–32–0120, Revision 01, dated November 4, 2008, to Table 1 of this supplemental NPRM to provide credit for actions done in accordance with EMBRAER Service Bulletin 145–32–0120, Revision 01, dated November 4, 2008.
We have considered the following comments received on the original NPRM.
American Eagle Airlines requests that we revise the original NPRM to also allow replacing the LGEU, in accordance with Section 32–32–01 Part II of the EMBRAER Aircraft Maintenance Manual (AMM), as an acceptable method of compliance with the requirements of paragraph (g) of the original NPRM. Paragraph (g) of the original NPRM would have required replacing LGEU having P/N 355–022–002 with P/N 355–002–003, in accordance with EMBRAER Service Bulletin 145–32–0120, Revision 01, dated November 4, 2008; or 145LEG–32–0032, Revision 02, dated February 17, 2009; as applicable.
We disagree with the request. Section 32–32–01 of the EMBRAER AMM does not include all the actions specified in the Accomplishment Instructions of EMBRAER Service Bulletin 145–32–0120, Revision 01, dated November 4, 2008; or 145LEG–32–0032, Revision 02, dated February 17, 2009. Neither the FAA nor the Brazilian authorities approve the AMM. However, operators may apply for an alternative method of compliance in accordance with the provisions specified in paragraph (h)(1) of this supplemental NPRM. No change has been made to this supplemental NPRM in this regard.
The Airline Pilots Association requests that we revise the compliance times to 12 months for replacing all LGEUs. The original NPRM specifies replacing LGEUs having P/N 355–022–002 having serial numbers (S/Ns) 1000 through 1999 with new LGEUs having P/N 355–022–003 within 12 months after the effective date of the AD. It also specifies replacing LGEUs having P/N 355–022–002 having other serial numbers with new LGEUs having P/N 355–022–003 within 30 months after the effective date of this AD. The commenter provides no justification for this request.
We disagree with the request to revise the compliance times. All LGEUs identified in this AD have the potential to fail. However, according to the manufacturer's data, LGEUs having P/N 1000 through 1999 have certain internal components that could fail sooner than the internal components of the other LGEUs. For this reason LGEUs having P/N 1000 through 1999 should be removed and replaced sooner than the other LGEUs. By replacing LGEUs having P/N 1000 through 1999 sooner as a result of a shorter compliance time, the same level of safety for all operators of the affected airplane is maintained. No change has been made to this supplemental NPRM in this regard.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Since issuance of the original NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
Based on the service information, we estimate that this proposed AD would affect about 711 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by March 22, 2010.
(b) None.
(c) This AD applies to Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB–135BJ, –135ER, –135KE, –135KL, –135LR, –145, –145ER, –145MR, –145LR, –145XR, –145MP, and –145EP airplanes; certificated in any category; equipped with landing gear electronic unit (LGEU) having part number (P/N) 355–022–002.
(d) Air Transport Association (ATA) of America Code 32: Landing gear.
(e) The mandatory continuing airworthiness information (MCAI) states:
It was reported that after commanding the landing gear lever to down the three green landing gear positioning indication was displayed followed by the LG/LEVER DISAGREE EICAS [engine indicating and crew alerting system] message. The crew decided to continue the approach and landing procedure. As soon as the crew identified that the landing gear was not extended properly, a go-around procedure was successfully performed. During maneuver, the airplane settled momentarily onto the flaps and belly.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Unless already done, do the following actions:
(1) Within 12 months after the effective date of this AD, replace any LGEU having P/N 355–022–002 having a serial number (S/N) 1000 through 1999 inclusive with a new LGEU having P/N 355–022–003, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 145–32–0120, Revision 02, dated February 17, 2009; or 145LEG–32–0032, Revision 02, dated February 17, 2009; as applicable.
(2) As of 12 months after the effective date of this AD, no person may install on any airplane an LGEU having a P/N 355–022–002 having a S/N 1000 through 1999 inclusive.
(3) Within 30 months after the effective date of this AD, replace any LGEU having P/N 355–022–002 having a serial number not identified in paragraph (g)(1) of this AD, with a new LGEU having P/N 355–022–003, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 145–32–0120, Revision 02, dated February 17, 2009; or 145LEG–32–0032, Revision 02, dated February 17, 2009; as applicable.
(4) As of 30 months after the effective date of this AD, no person may install on any airplane an LGEU having a P/N 355–022–002 and a serial number not identified in paragraph (g)(1) of this AD.
(5) Replacing the LGEU is also acceptable for compliance with the requirements of paragraph (g) of this AD if done before the effective date of this AD in accordance with one of the service bulletins identified in Table 1 of this AD:
This AD differs from the MCAI and/or service information as follows:
Although EMBRAER Service Bulletins 145LEG–32–0032, Revision 02, dated February 17, 2009; and 145–32–0120, Revision 02, dated February 17, 2009; specify that no person may install on any airplane an LGEU having P/N 355–022–002 as of 30 months after the effective date of this AD, we have determined that no LGEU having P/N 355–022–002 with a S/N 1000 through 1999 inclusive may be installed as of 12 months after the effective date of this AD. Allowing installation of those serial numbers beyond 12 months would not address the identified unsafe condition and ensure an adequate level of safety. This difference has been coordinated with the Agência Nacional de Aviação Civil (ANAC).
(h) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–1175; fax (425) 227–1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(i) Refer to MCAI ANAC Airworthiness Directive 2009–01–01, effective January 8, 2009, as corrected by Brazilian Airworthiness Directive Errata, effective January 20, 2009; and Embraer Service Bulletins 145–32–0120, Revision 02, dated February 17, 2009; and 145LEG–32–0032, Revision 02, dated February 17, 2009; for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Hawker Beechcraft Corporation Model 390 airplanes. This proposed AD would require you to inspect the essential bus lightning strike protection for proper installation of metal oxide varistor (MOV) and spark gap wiring. This proposed AD would also require you to rework the wiring as necessary to achieve the required lightning strike/surge protection. This proposed AD results from a report that the wires to the MOV and spark gap were swapped. We are proposing this AD to detect and correct improper installation of the MOV and spark gap wiring, which could result in overload of the MOV in a lightning strike and allow electrical energy to continue to the essential bus and disable equipment that receives power from the essential bus. The disabled equipment could include the autopilot, anti-skid system, hydraulic indicator, spoiler system, pilot primary flight display, audio panel, or the #1 air data computer. This failure could lead to a significant increase in pilot workload during adverse operating conditions.
We must receive comments on this proposed AD by April 9, 2010.
Use one of the following addresses to comment on this proposed AD:
•
•
•
•
For service information identified in this proposed AD, contact Hawker Beechcraft Corporation, 9709 East Central, Wichita, Kansas 67201; telephone: (316) 676–5034; fax: (316) 676–6614; Internet:
Kevin Schwemmer, Aerospace Engineer, FAA, Wichita Aircraft Certification Office (ACO), 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946–4174; fax: (316) 946–4107; e-mail:
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report that on a Hawker Beechcraft Corporation Model 390 airplane the wires to the MOV and spark gap were swapped. The swapped wires were discovered during an inspection following a lightning strike. The spark gap has a higher current carrying capability than the MOV and is designed to carry direct currents caused by a lightning strike. In the event of a lightning strike, the potential exists to overload the MOV and allow an electrical spike to pass through to the essential bus.
This condition, if not corrected, could allow electrical energy to continue to the essential bus and disable equipment that receives power from the essential bus. The disabled equipment could include the autopilot, anti-skid system, hydraulic indicator, spoiler system, pilot primary flight display, audio panel, or the #1 air data computer. This failure could lead to a significant increase in pilot workload during adverse operating conditions.
We have reviewed Hawker Beechcraft Mandatory Service Bulletin SB 24–3995, issued September 2009. The service information describes procedures for inspecting the essential bus lightning strike protection for proper installation of MOV and spark gap wiring. The service information also describes procedures for rework as necessary to achieve the required lightning strike/surge protection.
We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to inspect the essential bus lightning strike protection for proper installation of MOV and spark gap wiring. This proposed AD would also require you to rework the wiring as necessary to achieve the required lightning strike/surge protection.
We estimate that this proposed AD would affect 170 airplanes in the U.S. registry.
We estimate the following costs to do the proposed inspection (includes any necessary follow-on action):
Warranty credit may be given to the extent specified in Hawker Beechcraft Mandatory Service Bulletin SB 24–3995, issued September 2009.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments on this airworthiness directive (AD) action by April 9, 2010.
(b) None.
(c) This AD applies to Model 390 airplanes, serial numbers RB–4 through RB–248, that are certificated in any category.
(d) Air Transport Association of America (ATA) Code 24: Electric Power.
(e) This AD results from a report that the metal oxide varistor (MOV) and spark gap wiring of the essential bus lightning strike protection were swapped. We are issuing this AD to detect and correct improper installation of the MOV and spark gap wiring, which could result in overload of the MOV in a lightning strike and allow electrical energy to continue to the essential bus and disable equipment that receives power from the essential bus. The disabled equipment could include the autopilot, anti-skid system, hydraulic indicator, spoiler system, pilot primary flight display, audio panel, or the #1 air data computer. This failure could lead to a significant increase in pilot workload during adverse operating conditions.
(f) To address this problem, you must do the following, unless already done:
(g) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Kevin Schwemmer, Aerospace Engineer, FAA, Wichita Aircraft Certification Office (ACO), 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946–4174; fax: (316) 946–4107; e-mail:
(h) To get copies of the service information referenced in this AD, contact Hawker Beechcraft Corporation, 9709 East Central, Wichita, Kansas 67201; telephone: (316) 676–5034; fax: (316) 676–6614; Internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Several occurrences of loss of the AC [alternating current] BUS 1 have been reported which led in some instances to the loss of the AC ESS [essential] BUS and DC [direct current] ESS BUS and connected systems. The affected systems include multiple flight deck Display Units (Primary Flight Display, Navigation Display and Upper Electronic Centralised Aircraft Monitoring display). The loss of multiple display units, if not corrected expediently during a high workload period, potentially affects the capability of the flight crew and could contribute to a loss of situational awareness and consequent control of the aeroplane, which would constitute an unsafe condition.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by April 9, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail:
You may examine the AD docket on the Internet at
Tim Dulin, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–2141; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009–0235, dated October 29, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Several occurrences of loss of the AC [alternating current] BUS 1 have been reported which led in some instances to the loss of the AC ESS [essential] BUS and DC [direct current] ESS BUS and connected systems. The affected systems include multiple flight deck Display Units (Primary Flight Display, Navigation Display and Upper Electronic Centralised Aircraft Monitoring display).
The reasons for these events have been investigated but have not been fully established for all cases.
Due to the range of system losses some crews reported difficulty in establishing the failure cause during the events and, consequently, the appropriate actions to be taken may not be completed in a timely manner.
The loss of multiple display units, if not corrected expediently during a high workload period, potentially affects the capability of the flight crew and could contribute to a loss of situational awareness and consequent control of the aeroplane, which would constitute an unsafe condition.
This AD therefore mandates the modification of the electrical network configuration management logic consisting in adding an automatic switching of the AC and DC ESS BUS power supply such that upon the loss of the AC BUS 1, the AC BUS 2 will automatically take over the power supply. On pre-MOD aeroplanes, this power supply switching can only be accomplished manually from the cockpit and is covered by an Electronic Centralized Aircraft Monitoring (ECAM) procedure.
The modification of the electrical power distribution system includes, depending on the configuration, adding a new circuit breaker and new relay to the AC/DC ESS BUS circuit, and adding a diode between a certain relay and terminal block. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued Service Bulletin A320–24–1120, Revision 03, dated July 10, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 633 products of U.S. registry. We also estimate that it would take about 46 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $2,200 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,867,630, or $6,110 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by April 9, 2010.
(b) None.
(c) This AD applies to Airbus Model A318–111, –112, –121, and –122 airplanes; Model A319–111, –112, –113, –114, –115, –131, –132, and –133 airplanes; Model A320–111, –211, –212, –214, –231, –232, and –233 airplanes; and Model A321–111, –112, –131, –211, –212, –213, –231, and –232 airplanes; certificated in any category; all manufacturer serial numbers; except airplanes that have received Airbus modification 37317 in production.
(d) Air Transport Association (ATA) of America Code 24: Electrical power.
(e) The mandatory continuing airworthiness information (MCAI) states:
“Several occurrences of loss of the AC [alternating current] BUS 1 have been reported which led in some instances to the loss of the AC ESS [essential] BUS and DC [direct current] ESS BUS and connected systems. The affected systems include multiple flight deck Display Units (Primary Flight Display, Navigation Display and Upper Electronic Centralised Aircraft Monitoring display).
“The reasons for these events have been investigated but have not been fully established for all cases.
“Due to the range of system losses some crews reported difficulty in establishing the failure cause during the events and, consequently, the appropriate actions to be taken may not be completed in a timely manner.
“The loss of multiple display units, if not corrected expediently during a high workload period, potentially affects the capability of the flight crew and could contribute to a loss of situational awareness and consequent control of the aeroplane, which would constitute an unsafe condition.
“This AD therefore mandates the modification of the electrical network configuration management logic consisting in adding an automatic switching of the AC and DC ESS BUS power supply such that upon the loss of the AC BUS 1, the AC BUS 2 will automatically take over the power supply. On pre-MOD aeroplanes, this power supply switching can only be accomplished manually from the cockpit and is covered by an Electronic Centralized Aircraft Monitoring (ECAM) procedure.”
The modification of the electrical power distribution system includes, depending on the configuration, adding a new circuit breaker and new relay to the AC/DC ESS BUS circuit, and adding a diode between a certain relay and terminal block.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 48 months after the effective date of this AD, modify the electrical power distribution system, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–24–1120, Revision 03, dated July 10, 2009.
(h) Actions accomplished before the effective date of this AD, in accordance with a service bulletin identified in Table 1 of this AD, are considered acceptable for compliance with the corresponding actions specified in this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(i) The following provisions also apply to this AD:
(1)
(2)
(3)
(j) Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2009–0235, dated October 29, 2009; and Airbus Service Bulletin A320–24–1120, Revision 03, dated July 10, 2009; for related information.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a safety zone on the Great Wicomico River in the vicinity of Mila, VA in support of the Wicomico Community Fireworks event. This action is intended to restrict vessel traffic movement on the Great Wicomico River to protect mariners from the hazards associated with fireworks displays.
Comments and related material must be received by the Coast Guard on or before April 26, 2010.
You may submit comments identified by docket number USCG–
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call LT Tiffany Duffy, Chief Waterways Management Division, Sector Hampton Roads, Coast Guard; telephone (757) 668–5580, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG–2010–0023), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Tiffany Duffy, Chief, Waterways Management Division, Sector Hampton Roads at the telephone number or e-mail address indicated under the
On July 3, 2010 the Wicomico Church will sponsor a fireworks display on the Great Wicomico River approximately
The Coast Guard proposes establishing a safety zone on specified waters of the Great Wicomico River in the vicinity of Mila, Virginia. This safety zone will encompass all navigable waters within 420 feet of the fireworks display located at position 37°50′31″ N/076°19′42″ W (NAD 1983). This regulated area will be established in the interest of public safety during the Wicomico Community Fireworks event and will be enforced from 9 p.m. to 10 p.m. on July 3, 2010, with a rain date of July 4, 2010. Access to the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.
We developed this proposed 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.
This proposed 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
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed 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 governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities because the zone will only be in place for a limited duration and maritime advisories will be issued allowing the mariners to adjust their plans accordingly. However, this rule may affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in that portion of the Great Wicomico River from 9 p.m. to 10 p.m. on July 3, 2010.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Tiffany Duffy, Chief, Waterways Management Division, Sector Hampton Roads at (757) 668–5580. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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.
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.
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 (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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 which do not individually or cumulatively have a significant effect on the human environment. Therefore, this rule is categorically excluded, under section 2.B.2. Figure 2–1, paragraph 34(g), of the Instruction and neither an environmental assessment nor an
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:
1. The authority citation for part 165 continues to read as follows:
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 and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T05–XXXX to read as follows:
(a)
(b)
(c)
(2) The operator of any vessel in the immediate vicinity of this safety zone shall:
(i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii) Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3) The Captain of the Port, Hampton Roads can be reached through the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia at telephone Number (757) 668–5555.
(4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF–FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).
(d)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval and limited disapproval of revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions concern coarse particulate matter (PM
Any comments must arrive by March 25, 2010.
Submit comments, identified by docket number EPA–R09–OAR–2010–0120, by one of the following methods:
1.
2.
3.
Andrew Steckel, EPA Region IX, (415) 947–4115,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency, ICAPCD, and submitted by the California Air Resources Board (ARB).
On July 21, 2006, we found that the State's submittal for ICAPCD Regulation VIII, Rules 800–806, met the completeness criteria in 40 CFR part 51, Appendix V. A completeness determination by EPA means that the submission provides sufficient information for EPA to evaluate it for action under CAA sections 110(k)(3) and (4).
There are no previous versions of Rules 800–806 in the SIP.
Exposure to ambient PM
The Imperial Valley is designated nonattainment for PM
Rule 800, General Requirements for Control of Fine Particulate Matter, provides definitions, a compliance schedule, exemptions and other requirements generally applicable to all seven rules. It also describes specific exemptions and requirements for the U.S. Department of Defense (DOD), U.S. Bureau of Land Management (BLM) and U.S. Border Patrol (BP). Appendices A and B describe methods for determining compliance with opacity and surface stabilization requirements in Rules 801 through 805.
Rule 801, Construction and Earthmoving Activities, establishes a 20% opacity limit and control requirements for construction and earthmoving activities. Affected sources must submit a dust control plan and comply with other portions of Regulation VIII regarding bulk materials, carry-out and track-out, and paved and unpaved roads. The rule exempts construction of single family homes and waives the 20% opacity limit in winds over 25 mph under certain conditions.
Rule 802, Bulk Materials, establishes a 20% opacity limit and control requirements for bulk material handling, storage, transport and hauling.
Rule 803, Carry-Out and Track-Out, establishes control requirements for removing carry-out and track-out material transported onto paved roads from unpaved roads and areas.
Rule 804, Open Areas, establishes a 20% opacity limit and requires land owners to prevent vehicular trespass and to stabilize disturbed soil on certain open areas. Agricultural operations are exempt from the rule.
Rule 805, Paved and Unpaved Roads, establishes a 20% opacity limit and control requirements for unpaved haul and access roads, canal roads, and traffic areas that meet certain size or traffic thresholds. Single family residences and agricultural operations are exempt from the rule.
Rule 806, Conservation Management Practices, requires agricultural operation sites greater than 40 acres to implement at least one conservation management practice (CMP) for each of these categories: land preparation and cultivation, harvest activities, unpaved roads and unpaved traffic areas.
EPA's technical support document (TSD) has more specific information about these rules. The submission from ICAPCD also provides additional details and includes the Regulation VIII rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing SIP requirements (see sections 110(l) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM) for certain emissions sources in moderate PM
We used the following guidance and policy documents to evaluate enforceability and to interpret RACM or BACM requirements:
1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987
2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
3. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
4. “State Implementation Plans for Serious PM–10 Nonattainment Areas, and Attainment Date Waivers for PM–10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994).
5. “PM–10 Guideline Document,” EPA 452/R–93–008, April 1993.
6. “Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures,” EPA 450/2–92–004, September 1992.
Please see our TSD for other documents we have used in our evaluation.
Because Imperial County is a PM
We based the list of significant sources in Table 2 in part on ICAPCD's analysis of such sources in its 2009 PM
On December 22, 2009, EPA did not concur with the State's request to exclude the 2006 and 2007 exceedances as due to high wind exceptional events.
In addition to the sources in Table 2 above, we believe BACM is required for unpaved traffic areas and agricultural harvest operations. These activities occur at the same facilities and are integrally related to other activities identified as significant (i.e., unpaved roads and tilling respectively). By analogy, where enforceable volatile organic compound (VOC) reasonably available control technology (RACT) level controls are required for refineries, SIP rules generally impose leak detection and repair requirements on valves, flanges, threaded connections, and other related equipment even if emissions from any one of these taken individually might be much smaller than the major source threshold requiring RACT.
Rules 800–806 improve the SIP by providing more stringent emission limits, monitoring, recording, and recordkeeping provisions for these sources compared to existing provisions in the SIP for the ICAPCD portion of California. The rules are largely consistent with the relevant statutory requirements, and with relevant policy and guidance regarding enforceability, RACM and BACM. Rule provisions that do not meet the evaluation criteria are summarized below and discussed further in the TSD.
While, as indicated above, BACM is determined on a case-by-case basis, the identification of potential BACM for a significant source category in Imperial County necessarily involves a consideration of control measures adopted and/or implemented in other geographical areas for the same and similar source categories. Therefore, in evaluating Regulation VIII, we have compared its individual rules to analogous requirements in the South Coast Air Quality Management District (SCAQMD), San Joaquin Valley Air Pollution Control District (SJVAPCD), Maricopa County Air Quality Department (MCAQD), Clark County Department of Air Quality and Environmental Management (CCDAQEM) and other areas. In doing so, we recognize that some variability exists among sources in different geographical areas, and that technically and economically feasible controls in one area may not be feasible in another area.
Based on our analysis, we believe that Regulation VIII is generally consistent with analogous requirements in other serious PM
Recreational off-highway vehicle (OHV)
ICAPCD must provide an analysis of potential BACM controls for OHV activity in open areas and on unpaved
Please see Section III.B.1 of our TSD for further discussion of this deficiency.
The term “disturbed surface area” is used in several Regulation VIII rules but is never defined. For example, Rule 804 applies to a source category for which BACM is required and relies on the undefined term to describe rule applicability in Rule 804 Section B. In order to ensure that these rules are enforceable at a BACM level, ICAPCD must define “disturbed surface area” as do, for example, SJVAPCD Rule 8010 and SCAQMD Rule 403.
The CAA requires ICAPCD to implement BACM by 2008 (i.e., four years after reclassification to serious).
Rule 805 Section E.7's requirement to stabilize all non-exempt unpaved County roads is also not adequately enforceable as currently structured. If ICAPCD retains the same structure, it must revise Rule 805 Section E.7 to clarify that the County must: (a) Implement (and not just submit) a stabilization plan; (b) stabilize different unpaved roads each year; and (c) maintain all stabilized roads.
Rule 805 Section D.2 exempts agricultural roads and traffic areas from the opacity and stabilization requirements applicable to non-agricultural operation sites. Farm roads and traffic areas are only required to implement a CMP from the menus for unpaved roads and traffic areas in Rule 806. In contrast, for example, SJVAPCD requires that CMPs be implemented to meet opacity and stabilization requirements at the following thresholds: Unpaved farm roads with ≥ 75 VDT or ≥ 25 average daily vehicle trips by three or more axle vehicles; unpaved traffic areas with ≥ 50 average daily vehicle trips (on an annual basis) or ≥ 25 average daily vehicle trips (on an annual basis) by three or more axle vehicles. ICAPCD must remove the exemption in Rule 805 Section D.2 or demonstrate how BACM is met in Imperial County for farm roads and traffic areas that are subject to less stringent requirements than other roads and traffic areas in the County and farm roads and traffic areas in other areas.
Rule 806 Sections E.3 and E.4 list CMPs intended to control emissions from agricultural unpaved roads and traffic areas but these measures are broadly defined and there is no other mechanism in the rule to ensure specificity. The absence of sufficiently defined requirements makes it difficult for regulated parties to understand and comply with the requirements, and makes it difficult for ICAPCD or others to verify compliance and to enforce the requirements if necessary. The lack of specificity similarly renders it difficult to assess whether the measures constitute BACM level controls. ICAPCD must revise Rule 806 to ensure that unpaved road and traffic area CMPs are enforceable and are implemented at a BACM level or demonstrate why such a rule revision is not necessary. SJVAPCD Rule 4550, for example, relies on an application submittal and approval process to ensure sufficient specificity of the particular measures implemented at each source. Great Basin Unified Air Pollution Control District (GBUAPCD) Rule 502 also has an application submittal and approval process. Alternatively, there may be another mechanism to ensure adequate specificity such as by revising and clarifying ICAPCD's CMP application forms.
Rule 800 Section F.6.c exempts roads owned or operated by BP from Rule 805 requirements that are “inconsistent with BP authority and/or mission.” It is not clear what this exemption is intended to address, or how it would be implemented and enforced, particularly because both BP and ICAPCD staff have informally informed EPA that BP does not own or operate any roads in Imperial County. ICAPCD must either remove this exemption or narrow the exemption to specific mission activities and demonstrate that the exemption is minimized and necessary, consistent with BACM requirements.
Rule 806 Sections E.1 and E.2 list CMPs intended to control emissions from agricultural land preparation and cultivation (including tilling), and harvest activities, but these measures are broadly defined and there is no other mechanism in the rule to ensure specificity. The absence of sufficiently defined requirements makes it difficult for regulated parties to understand and comply with the requirements, and makes it difficult for ICAPCD or others to verify compliance and to enforce the requirements if necessary. The lack of specificity similarly renders it difficult to assess whether the measures constitute BACM level controls. ICAPCD must revise Rule 806 to ensure that tilling and harvesting CMPs are enforceable and are implemented at a BACM level or demonstrate why such a rule revision is not necessary. SJVAPCD Rule 4550, for example, relies on an application submittal and approval process to ensure sufficient specificity of the particular measures implemented at each source. GBUAPCD Rule 502 also has an application submittal and
In addition, Rule 806 Section E requires one CMP from the “land preparation and cultivation” category and one CMP from the “harvest” category, while SJVAPCD Rule 4550 requires an additional CMP from the “cropland-other” category. GBUAPCD Rule 502 also requires that one CMP each be selected from the “land preparation and cultivation,” “harvest,” and the “cropland-other” categories. ICAPCD must similarly require an additional CMP for cropland, or demonstrate why that is not appropriate.
Windblown dust from non-pasture agricultural lands is also a significant source of PM
Rule 802 Section D.1 allows the Air Pollution Control Officer (APCO) to set aside controls that might be used instead of water to stabilize surfaces of bulk materials. This discretion allows ICAPCD to approve alternatives to the applicable SIP without following the SIP revision process described in CAA section 110. Moreover, ICAPCD has not demonstrated why such discretion is needed for measures such as covering, enclosing or sheltering material piles. While we prefer removal of the exemption and APCO discretion, SJVAPCD Rule 8031 remedies the enforceability issue by requiring EPA approval.
Our TSD describes additional rule revisions that we recommend for the next time ICAPCD modifies the rules, but are not the basis for disapproval at this time.
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is proposing a limited approval of the seven inter-related Regulation VIII rules to strengthen the SIP. If finalized, this action would incorporate the submitted rules into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the seven inter-related Regulation VIII rules under sections 110(k)(3), 110(a) and 189(a)(1)(C) and (b)(1)(B) for the reasons set forth in Section II.C. of this proposed rule. If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the rule deficiencies set forth in sections II.C.1 through 3 of this proposed rule within 18 months of the disapproval. These sanctions would be imposed according to 40 CFR 52.31. A final disapproval would also trigger the 2-year clock for the federal implementation plan (FIP) requirement under section 110(c). The deficiency identified in Section II.C.4 of this proposed rule would not trigger sanctions or a FIP obligation at this time because it does not appear that it is associated with SIP revisions that are required by the CAA.
Note that the submitted rules have been adopted by ICAPCD, and EPA's final limited disapproval would not prevent ICAPCD from enforcing them.
We will accept comments from the public on our proposed limited approval and limited disapproval action for 30 days from publication in the
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because the proposed Federal SIP limited approval/limited disapproval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the limited approval/limited disapproval action
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to approve or disapprove a State rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.
EPA specifically solicits additional comment on this proposed rule from tribal officials.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a state rule implementing a Federal standard.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Corporation for National and Community Service.
Proposed rule.
On April 21, 2009, President Obama signed into law the Edward M. Kennedy Serve America Act (“The Serve America Act” or “SAA”). The Serve America Act reauthorizes and expands national service programs administered by the Corporation for National and Community Service (“the Corporation”) by amending the National and Community Service Act of 1990 (“NCSA” or “the Act”) and the Domestic Volunteer Service Act of 1973 (“DVSA”). The Corporation publishes this proposed rule to implement changes to the operation of the National Service Trust under the Serve America Act. This proposed rule provides flexibility for exceptions to the 80 percent cost reimbursement requirement for Senior Companion and Foster Grandparent programs based on hardship. In addition, this proposed rule reorders and renumbers certain parts of the existing regulations, adds new definitions, and makes several minor technical edits.
To be sure your comments are considered, they must reach the Corporation or or before April 26, 2010.
You may send your comments electronically through the Federal government's one-stop rulemaking Web site at
Amy Borgstrom, Docket Manager, Corporation for National and Community Service,
We invite you to submit comments about these proposed regulations. To ensure that your comments have maximum value in helping us develop the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each comment addresses and to arrange your comments in the same order as the proposed regulations. During and after the comment period, you may inspect all public comments about these proposed regulations on
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact Amy Borgstrom, Docket Manager, Corporation for National and Community Service,
On April 21, 2009, President Obama signed into law the Edward M. Kennedy Serve America Act (Serve America Act). The Serve America Act reauthorizes and expands national service programs administered by the Corporation by amending the NCSA and DVSA. The Corporation engages four million Americans in service each year, including approximately 75,000 AmeriCorps members, 492,000 Senior Corps Volunteers, 1.1 million Learn and Serve America students, and 2.2 million additional community volunteers mobilized and managed through agency programs.
Section 6101 of the Serve America Act authorizes the Chief Executive Officer of the Corporation to issue such regulations as may be necessary to carry out the amendments required under the Act. To fulfill that responsibility, on September 10, 2009, the Corporation issued an interim final rule to implement time-sensitive changes to the Corporation's AmeriCorps State and National, Senior Corps, and Learn and Serve America program regulations. (74 FR 46495). The changes resulting from the interim final rule were required as a result of amendments to the NCSA and DVSA by the Serve America Act, which took effect for most purposes on October 1, 2009.
In that rule, we stated our intention to engage in full notice and comment rulemaking to implement those amendments mandated by the Serve America Act that did not require immediate regulatory action. This rule primarily proposes amendments and additions to existing regulations regarding the National Service Trust, including limitations on education award receipt, the available uses of education awards, eligibility to receive an education award, eligibility to transfer an education award, and the amount of an education award. This proposed rule also addresses the limitation on the number of terms an individual may serve in an AmeriCorps State and National program. The proposed rule allows flexibility in managing match requirements for Senior Companion and Foster Grandparent programs facing hardship. Finally, this rule makes several technical corrections inadvertently omitted from the interim final rule, including an amendment to the provision on pre-approval of Subtitle C formula programs, amendments to the AmeriCorps State and National selection criteria, and an amendment to include a reference to the Department of Education's new Public Service Loan Forgiveness Program. An overview of specific changes for each program is set out below.
The National Service Trust is an account in the U.S. Treasury authorized to disburse education awards to national service participants. Prior to passage of the Serve America Act, the Corporation was authorized to disburse one type of education award from the National Service Trust—a national service education award, also known as a Segal AmeriCorps education award, available upon successful completion of a term of service in an approved AmeriCorps position. An “approved AmeriCorps position” is one of the positions described in Sec. 123 of the Act, including a position in AmeriCorps State and National, AmeriCorps NCCC, AmeriCorps VISTA, and the newly authorized ServeAmerica Fellowship program.
The Serve America Act authorizes two new types of education awards: (1) A Silver Scholar education award of $1,000, available upon successful completion of a term of service in an approved Silver Scholar position; and (2) a Summer of Service education award of between $500 and $750, available upon successful completion of a term of service in an approved Summer of Service position. To align with the amended statute, this proposed rule amends § 2525.20 by adding three separate definitions for “AmeriCorps education award,” “Silver Scholar education award,” and “Summer of Service education award.”
Each of these awards is based upon successful completion of a term of service in an approved position. For a position of any type to be considered “approved,” the Corporation must have agreed to provide a corresponding education award upon successful completion of a term of service in that position. This proposed rule amends § 2510.20 by adding definitions to clarify that in order for a Summer of Service or Silver Scholar position to be considered approved, it must be approved by the Corporation for the receipt of a Silver Scholar or Summer of Service education award, respectively.
There are different service requirements for each type of education award. A term of service in an approved AmeriCorps position is for at least 1,700 hours during a period of not more than one year, with options for part-time or reduced part-time terms of service, as defined in § 2522.220, for AmeriCorps State and National members. A term of service in an approved Silver Scholar position must be for at least 350 hours during a period of one year. A term of service in an approved Summer of Service position must be for at least 100 hours “during the summer months.” To clarify that what constitutes a term of service will vary depending upon the program, this proposed rule amends the definition of “term of service” in § 2525.20 to align with the NCSA by providing separate descriptions for terms of service in approved AmeriCorps, Silver Scholar, and Summer of Service positions.
As stated above, a Summer of Service education award will generally be $500. However, the NCSA authorizes the Corporation to establish a Summer of Service award of $750 for “economically disadvantaged youth.” The Corporation proposes in this rule to define “economically disadvantaged youth” for the purposes of the larger Summer of Service education award as a child who is eligible for a free lunch and breakfast under the Richard B. Russell National School Lunch Act. This proposed rule amends § 2525.20 to add this definition.
The Serve America Act created two new types of education awards: Silver Scholar education awards and Summer of Service education awards, for $1000 and $500 respectively, available upon successful completion of an approved Silver Scholar or Summer of Service position. This proposed rule amends § 2526.10 to include individuals who successfully complete terms of service in approved Silver Scholar or Summer of positions as eligible to receive an education award from the National Service Trust.
Previously, the list of eligibility criteria to receive an education award in § 2526.10 has reflected the eligibility criteria to serve in AmeriCorps State and National, AmeriCorps NCCC, and AmeriCorps VISTA, including age and education criteria that would necessarily exclude individuals in Summer of Service positions, which are available for “youth who will be enrolled in any of grades 6 through 12 at the end of the summer” (42 U.S.C. 12563(c)(8)). To align with the amended statute, this proposed rule amends § 2526.10 to defer to the eligibility criteria of individual programs for program-specific criteria.
Under the proposed rule, for an individual to be eligible to receive an education award, the organization responsible for the individual's supervision must certify: (1) That the individual met the applicable eligibility requirements for the approved national service position, approved Silver Scholar position, or approved Summer of Service position, as appropriate; (2) that the individual successfully completed the term of service in the AmeriCorps, Silver Scholar, or Summer of Service program; and (3) that the individual is a citizen, national, or lawful permanent resident alien of the United States.
Sec. 146 of the NCSA directs the Corporation to determine a process by which an organization responsible for the supervision of a national service participant may determine whether the participant successfully completed a term of service. This proposed rule adds a new § 2526.15 specifying the process for determining whether an individual successfully completed a term of service for the purposes of receiving an education award from the National Service Trust. Under this rule, organizations supervising AmeriCorps State and National participants would continue to use the existing process detailed at § 2522.220(d). For all other programs, the organization would be required to conduct an end-of-term evaluation for each participant to determine whether: (1) The individual completed the required number of service hours for the respective term of service; (2) the individual performed satisfactorily on assignments, tasks, or projects; and (3) the individual met any other performance criteria as communicated to the member by the organization. What is considered “satisfactory performance” is within the discretion of the program. While the Corporation encourages programs to keep records of end-of-term evaluations of member performance for their own purposes, for the purpose of this requirement certification that an individual did or did not successfully complete a term of service will be deemed to incorporate an end-of-term evaluation. A certification will not, however, suffice as documentation of hours served.
Sec. 147 of the NCSA authorizes the Corporation to make education awards in five different amount categories: (1) An amount for successful completion of a full-time approved national service position; (2) an amount for successful completion of a part-time approved national service position; (3) an amount for partial completion of service, available upon release for compelling personal circumstances from an approved national service position; (4) an amount for a Silver Scholar education award for successful completion of an approved Silver Scholar position; and (5) an amount for a Summer of Service education award for successful completion of an approved Summer of Service position. Partial awards are described only in the context of release for compelling personal circumstances from an
This proposed rule amends § 2526.20 and adds a new § 2526.25 to clarify that partial awards will not be available for individuals who are released early from Silver Scholar or Summer of Service positions, even for compelling reasons.
This proposed rule also amends § 2526.20 to reflect the statutory requirement that an individual must have performed satisfactorily prior to being released for compelling personal circumstances in order to receive a partial education award.
Prior to the effective date of the Serve America Act, under Sec. 148(c)(6) of the NCSA, the Corporation's disbursement from an individual's education award for any period of enrollment at an institution of higher education could not exceed the difference between that individual's cost of attendance for that period of enrollment and the sum of (1) the individual's estimated financial assistance for that period under part A of title IV of the Higher Education Act and (2) the individual's veterans' benefits as defined under section 480(c) of the Higher Education Act. The Serve America Act amended Sec. 148(c)(6) to no longer consider an individual's veterans' benefits in this manner. This proposed rule amends §§ 2528.30 and 40 to align with amended Sec. 148(c)(6) by removing any consideration of an individual's veterans' benefits when determining the maximum amount of the individual's education award that may be disbursed to an institution of higher education.
The Serve America Act amended Sec. 148 of the NCSA to add a fifth available
This proposed rule would require that the institution or training establishment at which an individual requests to use an education award certify under penalty of law that the amount requested would be used to pay all or part of the individual's expenses attributable to a course, program of education, apprenticeship, or job training program offered by that institution or training establishment, and certify under penalty of law that the course or program for which the individual is requesting to use the education award has been and is currently approved by the State approving agency for the State where the institution or establishment is located, or by the Secretary of Veterans Affairs. The Department of Veterans Affairs is the agency responsible for approving courses or programs of education under chapter 36 of title 38, U.S. Code, and the Corporation defers to the decisions made by the State approving agencies and the Secretary of Veterans Affairs regarding approving—or withdrawing approval—of a program of education; if an institution or establishment cannot verify that a course or program of education has received the requisite approval, the Corporation will not disburse the funds to the school.
Unlike G.I. education benefits, which may be disbursed directly to an individual, under this proposed rule, the education award would be disbursed directly to the educational institution or training establishment.
If an individual for whom the Corporation has disbursed an education award withdraws or fails to complete the period of enrollment at an educational institution or training establishment in a program of education approved by the Secretary of Veterans Affairs, this proposed rule would require the educational institution or training establishment to provide a pro-rated refund to the Corporation.
This proposed rule amends § 2529.10, which currently provides for interest forbearance to individuals serving in approved AmeriCorps positions, to clarify that individuals who successfully complete terms of service in approved Silver Scholar positions may also be eligible for payments of interest accrued on qualified student loans while serving. The proposed rule does not include Summer of Service positions, as Summer of Service positions are reserved for rising 6th through 12th graders who, having not yet enrolled in an institution of higher education, will not yet have incurred qualified students loans.
The Serve America Act also amended Sec. 123 by expanding the list of positions considered to be approved national service positions to include “a position involving service in the ServeAmerica Fellowship program.” The term “approved national service position” is used interchangeably with the term “approved AmeriCorps position.” Thus, although this proposed rule does not explicitly amend § 2529.10 to include ServeAmerica Fellows, they are incorporated by definition.
Upon successful completion of a term of service in an approved AmeriCorps position, including positions in AmeriCorps State and National, AmeriCorps VISTA, AmeriCorps NCCC, and Serve America Fellows, an individual is eligible to receive an AmeriCorps education award from the National Service Trust. Prior to the passage of the Serve America Act, the amount of a full-time AmeriCorps education award was set in law at $4,725.
The Serve America Act amended Sec. 147 of the NCSA by changing the amount of a full-time national service education award to be “equal to the maximum amount of a Federal Pell Grant under section 401 of the Higher Education Act of 1965 (20 U.S.C. 1071a) that a student eligible for such Grant may receive in the aggregate * * * for the year for which the national service position is approved by the Corporation.” This proposed rule amends § 2527.10 to conform to the changes in the NCSA in the amount of the full-time award.
The amount of the Pell Grant upon which AmeriCorps education awards will be based may change each year, thus, the amount of an AmeriCorps education award may also change annually. To determine the amount of an AmeriCorps education award, the Corporation will use the amount of the Pell Grant as of October 1 (the first day of the Federal fiscal year) in the fiscal year in which the national service position is approved. For example, if a national service position is approved in September of 2010, the amount of the education award will be based on a full-time amount of $5,350—the amount of the Pell Grant as of October 1, 2009 (the first day of fiscal year 2010).
The trigger date for determining the amount of an education award for a particular national service position is the date that position is
In accordance with the national service laws, funding for education awards are obligated on a different schedule for AmeriCorps VISTA, AmeriCorps NCCC, and AmeriCorps State and National. What follows is a detailed discussion on how the approval date for a national service position is determined for the purposes of establishing the amount of an education award.
For AmeriCorps VISTA, a position is considered to be approved at the time the Corporation enters into an enforceable agreement with an individual, signified by the individual's taking the VISTA oath of service. (42 U.S.C. 4954(c)). For an AmeriCorps VISTA position, the education award amount is equal to the amount of a Pell Grant on October 1 of the fiscal year in which the VISTA takes the oath of service. For example, a VISTA who takes the oath on any date between October 1, 2009, and September 30, 2010, is eligible for a full-time award amount of $5,350—the amount of the Pell Grant as of October 1, 2009.
For AmeriCorps NCCC, a position is considered to be approved at the time the Corporation enters into an enforceable agreement with an individual, signified by the individual's signing of an AmeriCorps NCCC member agreement. For an AmeriCorps NCCC position, the education award amount will be equal to the amount of a Pell Grant on October 1 of the fiscal year in which the AmeriCorps NCCC member signs the member agreement. Therefore, an individual who signs an
For AmeriCorps State and National, by law, a position is considered to be approved at the time the Corporation executes a grant used to support the AmeriCorps member—
As an example, if an AmeriCorps State program receives a grant on August 1, 2010, and enrolls a member using fiscal year 2010 grant funds on August 3, 2010, that member will receive an education award based on a full-time amount of $5,350—the amount of the Pell Grant on October 1, 2009, the first day of the fiscal year in which the August 2010 grant was made. If the program then enrolls another member on October 10, 2010, that member will also receive an education award based on the $5,350 amount—even though at that point a new fiscal year has begun, and the Pell Grant for fiscal year 2011 may have increased as of October 1, 2010. The determining factor is that the member position was approved by the Corporation in fiscal year 2010.
Further, unlike an AmeriCorps NCCC or AmeriCorps VISTA member, whose approval date will closely correlate with the day the individual begins service, it is possible for an AmeriCorps State and National member beginning service in one fiscal year to be supported with funds from a grant made in a prior fiscal year. Therefore, it is possible for two AmeriCorps members starting service on the same day to be supported by two different grant awards made in two different fiscal years, resulting in two different approval dates and two different education award amounts.
For example, a program might receive a continuation grant on August 1, 2011, but still have grant funds carried over from a grant made in 2010. If the program enrolls two members on August 1, 2011—one supported with the 2010 grant and one supported with the 2011 grant—the one supported with the 2010 grant will be eligible for an award based on a full-time award of $5,350—the amount of the Pell Grant on October 1, 2009, the first day of the fiscal year in which the 2010 grant was made. The member who is being supported with 2011 funds will be eligible for an award based on whatever the amount of the Pell Grant is on October 1, 2010.
The Corporation recognizes the possibility for confusion among AmeriCorps State and National members, who, unlike AmeriCorps NCCC and AmeriCorps VISTA members, will not be able to rely on their service start dates to figure out the amount of the award they are eligible to receive. To reduce confusion, it is essential for AmeriCorps programs—particularly those with AmeriCorps State and National members—to clearly communicate to each member, prior to the commencement of service, the amount of the education award the individual will receive upon successful completion of the term of service. Beginning with grants made in 2010, AmeriCorps State and National grant provisions will direct grantees to specify the amount of the education award of the funds being used to support the position in the member service agreement.
It is important to remember that the Serve America Act went into effect on October 1, 2009. All positions approved prior to that date are eligible for awards based on a full-time amount of $4,725. This includes all AmeriCorps State and National positions, even those that began after October 1, 2009, since no AmeriCorps State and National positions have been approved with fiscal year 2010 funds to date.
To learn more about the amount of the education award and how it is determined, visit the AmeriCorps Web site at
As previously discussed, the Serve America Act created two new types of education awards: Silver Scholar education awards and Summer of Service education awards. This proposed rule amends § 2527.10 to include the Silver Scholar education award of $1000, available upon successful completion of a term of service of at least 350 hours in a Silver Scholar position.
This proposed rule also amends § 2527.10 to include the Summer of Service education award of $500, available upon successful completion of at least 100 hours in a Summer of Service position. The Corporation may authorize a Summer of Service education award of $750 if the participant is economically disadvantaged. In order to authorize the increased award, the Corporation must receive a certification from the school with which the participant served that the participant meets the definition of “economically disadvantaged,” defined in this rule as a child that is eligible for a free lunch and breakfast under the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)).
Pro-rated education awards for an early release for compelling personal circumstances from a Silver Scholar or Summer of Service position are not available. If an individual fails to complete either type of term for any reason, the individual will not receive any award. And unlike the AmeriCorps education award described in the previous section, Silver Scholar and Summer of Service education awards will not vary in amount from one year to the next.
Prior to the passage of the Serve America Act, the national service laws limited individuals to receiving an education award “only on the basis of the first and second * * * terms of service.” A term of service includes full-time, part-time, or less-than-part-time terms, terms in which the person served at least 15 percent of the term of service, and terms for which an individual was released for misconduct regardless of the amount of time served. Terms range in service hour requirements from 300 hours to more than 1,700 hours, but despite the contrast in the level of commitment required or the service opportunity presented, all terms were previously considered of equal value for the purposes of limiting the receipt of education awards.
The Serve America Act amended the national service laws to no longer limit the receipt of education awards based upon the number of terms served, but rather place the limit on the value of education awards received. Sec. 146(c) now states: “An individual may not receive, through national service educational awards and silver scholar
The amended law allows for an individual to earn more than two education awards, so long as the aggregate value of all awards received does not exceed the aggregate value of two full-time national service education awards. Significantly, the law does not create an entitlement to receive the aggregate value of two full-time awards; rather, it prohibits an individual from receiving more than the aggregate value of two full-time awards. This proposed rule amends § 2526.50 to align with the amended statutory language.
As previously discussed, the amount of a full-time education award is now tied to the amount of a Pell Grant in the year the position is awarded, and is likely to change each year. The Corporation does not interpret the amended statute to suggest that the
The Corporation considers an education award to be the counterpart to successful completion of a term of service, and while the amount of that award might change, the service opportunity offered by a particular term of service is constant. The Corporation interprets the “value” of a full-time education award to be representative of the service opportunity upon which it is based, therefore, a limitation of two full-time education awards can be understood as a limitation of two full-time service opportunities.
In order to attribute a value to an award received on the basis of a static service opportunity in an environment in which the award amount may fluctuate annually, the Corporation proposes to measure the
For example, an individual who completed a part-time position approved in 2009 received an education award of $2362.50. The value of this award is the amount received, $2,362.50, divided by $4,725, the amount of a full-time award in the year the position was approved, or .5. Another individual completes a part-time position approved in 2010 and receives an education award of $2,675. The value of this award is the amount received, $2,675, divided by $5,350, the amount of a full-time award in the year the position was approved, or .5. Using this calculation, the value of an award received for part-time service will always be equal to .5.
If an individual leaves a term of service for compelling personal circumstances and receives a pro-rated award, the value attributed to that award will be based on the amount actually received. For example, an individual was released for compelling personal circumstances from a full-time position approved in 2009 after serving 800 hours, and received a pro-rated award of $2,223.52. The value of this award is the amount of the award received, $2,223.52, divided by, $4,725, the amount of a full-time award in the year the position was approved, or .47. Another individual was released for compelling personal circumstances from a full-time position approved in 2010 after serving 800 hours, and received a pro-rated award of $2,517.64. The value of this award is the amount of the award received, $2,517.64, divided by, $5,350, the amount of a full-time award in the year the position was approved, or .47.
If an individual exits a term for cause and does not receive an education award, the amount received will be $0, and therefore no value will be attributed to the individual for purposes of this section. However, an exit for cause will have an impact on the individual's eligibility to serve subsequent terms of service. A term exited for cause is considered a term of service for the purposes of term limitations for individual programs. For example, if an individual has already served one term of service in AmeriCorps NCCC, and exits a second term in AmeriCorps NCCC for cause, the individual has exhausted the two terms of service one may serve in AmeriCorps NCCC. Additionally, if an individual is released for cause from an approved AmeriCorps position (including positions in AmeriCorps State and National, AmeriCorps VISTA, AmeriCorps NCCC, and Serve America Fellows), and the program determines in the end-of-term evaluation that the individual served unsatisfactorily, the individual may not be permitted to serve a subsequent term in an approved AmeriCorps position.
For the purpose of transferred awards (discussed further in the section in this preamble on transfer), this rule proposes that the value of the award received by a transferee will be the actual amount of the award received divided by the amount of a full-time award in the year the position for which the transferring individual received the award was approved. For example, if an individual receives an education award based on a term of service approved in 2010, and later transfers $1,000 of that award to a grandchild, the grandchild will be considered to have received an award value of .19, the result of dividing the amount received, $1,000, by the amount of a full-time award in 2010, $5,350. If the transferring individual revokes all or part of an award, this rule proposes that the value considered to be received by the designated individual will be decreased accordingly. An individual who receives the aggregate value of two full-time awards through transferred awards will not be eligible to enroll in a term of service the successful completion of which would result in the receipt of an education award.
Under the proposed rule, an award is considered to be received at the time it becomes available for an individual's use, and the fact that an individual does not use an award does not diminish its value for the purposes of this section. In addition, under the proposed rule an individual who transfers an award will still be considered to have received the award, and the value of the award for the purposes of this section will not be decreased by the amount the individual transfers to a designated individual. For example, if an individual successfully completes two full-time terms of service, and the individual then transfers both full-time awards to a child, both the child and the transferring individual will be considered to have received two full-time awards.
The proposed rule states that an individual may receive no more than the aggregate value of two full-time education awards. In this rule, the Corporation proposes that the aggregate value of awards received will be equal to the sum of the value of each national service education award received (awards received from terms of service in AmeriCorps State and National, AmeriCorps VISTA, AmeriCorps NCCC, or ServeAmerica fellowships), including partial awards, the value of each Silver Scholar award received, and the value of each transferred award received. The calculation of the aggregate value does not include Summer of Service education awards, as these are explicitly excluded by law.
For example, an individual served a full-time term in 2008 and received an award of $4,725. The same individual served a part-time term in 2009 and received an award of $2,362.50. The individual enrolls in a minimum-time term in 2010 and receives an award of $1,132.60. The value of the first award is 1 ($4,725 divided by $4,725), the value of the second award is .5 ($2,362.50 divided by $4,725), and the value of the third award is .21 ($1,132.60 divided by $5,350). The aggregate value of awards received is 1.71 (1 + .5 + .21).
While the amended law separates the previously indivisible limitations on number of terms served and education awards received, the limitation on education awards an individual is eligible to receive may impact an individual's eligibility to enroll in a subsequent term of service. The proposed rule states that an individual may not enroll in a subsequent term of service if successful completion of that term of service would result in receipt of an education award the value of which, when added to the aggregate value of awards previously received, would be greater than 2. This limitation would not, however, prevent an individual from enrolling in a term of service for which the individual chooses to waive receipt of an education award, including a VISTA term of service for which the individual elects to receive an end-of-service stipend.
Using the example above, if an individual had received an aggregate value of 1.71 awards in the past, that individual may be eligible to enroll in a quarter-time, minimum-time, reduced part-time, or Silver Scholar position, but would not be eligible to enroll in a part-time or full-time position, since the value of a part-time award, .5, plus 1.71, is greater than 2.
The Corporation has received questions regarding whether an individual could enroll in a term of service, and exit for compelling personal circumstances in order to receive a pro-rated award that, when added to other awards received, would not exceed the aggregate value of two full-time education awards. Exiting in order to receive an education award of a particular amount would not be considered to be a compelling personal circumstance. The proposed rule is based upon the assumption that every individual who enrolls in a term of service does so with the intention of successfully completing that term. Therefore, an individual would not be permitted to enroll in a term with the intention of leaving early in order to receive a pro-rated award of a lesser value.
The Corporation has received questions about whether awards received prior to the effective date of the Serve America Act will be included in determining the value of education awards received. The national service laws, as amended by the Serve America Act, do not differentiate between awards received prior to the effective date. All awards earned in the past will have a value attributed to them for the purposes of this section. Thus, under the proposed rule, if an individual has received two full-time education awards in the past, that individual is not eligible to receive another education award, and may not enroll in a term of service that will result in the receipt of an education award.
Separate from the limitation on education award receipt, individual Corporation programs—AmeriCorps NCCC, AmeriCorps VISTA, and AmeriCorps State & National—have their own term limitations. Each full-time term, part-time term, and term for which the individual leaves after serving 15% or for misconduct is considered one term for the purposes of these program-specific term limitations. Thus, if an individual serves two terms of service in AmeriCorps NCCC and exits from one for compelling personal circumstances, that individual may be able to enroll in a minimum time AmeriCorps State and National or AmeriCorps VISTA position, but will not be able to enroll in another AmeriCorps NCCC term because the individual has already met the term limit for that program. Because the limit on the value of education awards an individual may receive necessarily will limit the number of terms an individual will be able to serve across the Corporation's AmeriCorps and Silver Scholar programs, the Corporation does not intend to set an overall limit for
The Serve America Act amended Subtitle D of title I of the NCSA to authorize individuals to transfer an education award, with limitations on who can transfer an award, and who can receive a transferred award. By statute, to transfer an award, an individual must: (1) Have successfully completed a term of service in an approved AmeriCorps State and National or Silver Scholar position; and (2) have been age 55 or older before beginning that term of service. To receive an award, an individual must: (1) Be designated by a qualifying transferring individual; (2) be the child, grandchild, or foster child of the transferring individual; and (3) be a citizen, national, or lawful permanent resident alien of the United States. The effective date of this provision was October 1, 2009; only individuals beginning service on or after that date will be eligible to transfer an education award.
Sec. 148(f) specifies that the “designated individual,” meaning the child, grandchild, or foster child designated by the transferring individual to receive the award, may use the award for the purposes described in paragraphs (b), (c), and (d) of that section—
This section of the NCSA also permits a transferring individual to, “on any date on which a portion of the education award remains unused, modify or revoke the transfer of the educational award with respect to that portion.”
This proposed rule adds a new Part 2530 on transfer, including rules reflecting statutory guidelines, and details on the processes for requesting both transfers and revocations of transferred awards. The NCSA also includes a provision requiring the Corporation to “establish requirements to prevent waste, fraud, or abuse in connection with the transfer of an educational award and to protect the integrity of the educational award under this subsection.” This proposed rule includes several measures intended to protect a transferred education award from waste, fraud, or abuse.
First, as part of the process for the transferring individual to request the transfer and the process for the designated individual to accept the transfer, the proposed rule would require both the transferring individual and the designated individual to provide a certification under penalty of law that each meets the criteria to transfer, or receive, a transferred award. As with all certifications, an individual may be asked to produce verifying documentation.
Second, the proposed rule would limit an individual to making a single transfer of an education award that is attributable to a single term of service, thereby limiting the opportunity for waste, fraud, or abuse. In order to transfer awards to more than one designated individual, the transferring individual will need to earn awards for more than one term of service. Under no circumstance may an individual partition a single award attributable to completion of a single term of service to multiple designated individuals. Notably, this proposed rule would permit an individual to transfer all or a portion of an award to a designated individual, thus, the transferring individual could keep a portion of the award for his or her use, and transfer a portion of the award to a designated individual.
As stated above, a transferring individual also has the authority to revoke any unused portion of an education award from a designated individual. As another measure to prevent waste, fraud, or abuse, and in line with the Corporation's intent to limit individuals to a single transfer from each award, a transferring individual would not, as a general rule, be permitted to re-transfer a revoked award to another individual.
The proposed rule includes an exception to this general rule for those situations in which the Corporation considers the award to have been revoked for good cause, as demonstrated by the transferring individual. For example, if a transferring individual revokes the full amount transferred upon the death of a designated individual, the Corporation would permit the transferring individual to re-transfer the award in whole or in part.
This proposed rule also includes several clarifying provisions. As discussed in the section in this rule on the limitation on the value of education awards an individual may receive, the NCSA prohibits an individual from receiving more than the aggregate value of two education awards. Under this proposed rule, an award would be considered to be “received” at the time it becomes available for an individual's use. The fact that an individual transfers an award to a designated individual would not decrease the value of awards the individual would be considered to have received. Transferred awards a designated individual receives would also be considered when calculating the aggregate value of awards received.
For example, if an individual receives two full-time awards, and transfers both awards to a child, both the transferring and designated individual will be considered to have received the aggregate value of two full-time awards, and neither will be eligible to receive additional AmeriCorps or Silver Scholar awards from the National Service Trust. Notably, because Summer of Service education awards are not included in the calculation of aggregate value of education awards received, a designated individual could still receive Summer of Service education awards even if the designated individual had already received the aggregate value of two full-time education awards. As discussed in the section on calculating the value of an education award, a transferred award would have a value based on the amount of a full-time education award in the year the position on which the transferring individual's award was based was approved.
Finally, under the national service laws, an individual has seven years from the date the individual completes a term of service upon which an award is based to use an award, and a designated individual receiving a transferred award has ten years from the date the term of service is completed to use the award. For example, if an individual receives an award for a term completed in 2010, and transfers the award five years after receiving the award, the designated individual would have five years to use the award. In accordance with these statutory time frames, the proposed rule permits an individual to revoke an award at any point prior to its use, but the individual may only use a revoked award for his or her use if the award has not expired. For example, if an individual received an award for a term completed in 2010, transferred the award five years after receiving the award, and then revoked the unused portion six years after receiving the award, the transferring individual would have only one year to use the award. If, however, the transferring individual had revoked the award eight years after it was originally earned, the award would expire immediately upon revocation, because although the award had not yet expired for use by the designated individual, it would have expired for the transferring individual a year earlier.
Under Sec. 146 of the NCSA, the period of availability for a Silver Scholar education award is seven years from the date the individual completes a term of service. The period of availability for a Summer of Service education award is ten years from the date the individual completes the term of service. Individuals who receive a transferred award may use the award within ten years of the date the transferring individual completes the term of service that is the basis for the award—not the date the designated individual receives the transferred award. For example, if an individual transfers an award five years after the date the individual completed the term of service, the designated individual would have five years to use the award—ten years from the date the transferring individual completed the term of service. This proposed rule amends section § 2526.40 to include periods of availability for Silver Scholar, Summer of Service, and transferred education awards.
Similar to national service education awards, Sec. 146 authorizes the Corporation to grant an extension to the period of availability for a Silver Scholar education award, a Summer of Service education award, or a
The ten year period of availability for transferred education awards has raised questions about whether extensions will be granted if a designated individual is still too young to use an award by its expiration date. The NCSA does not specify a minimum age for the designated individual. Thus, if an individual transfers an award to a grandchild who was four years old at the time the individual completed the term of service that was the basis of the award, the ten year period of availability will expire when the child is fourteen. It is unlikely that, at that time, the child would have had an opportunity to use the education award, thus, the award would expire unused.
Sec. 148(f) of the NCSA directs the Corporation to “establish requirements to prevent waste, fraud, or abuse in connection with the transfer of an educational award and to protect the integrity of the educational award.” To permit extensions for a designated individual who is too young to use an award would mean, in some cases, extensions for up to nine years beyond the original expiration date—nearly twice the statutory period of availability. The longer the period of availability, the greater the risk of fraud, waste, or abuse. Further, Congress selected ten years as a reasonable period of availability for a transferred award. Based upon these considerations, this proposed rule specifies that an individual who is unable to use an education award as a result of being too young will not be considered to be unavoidably prevented from using the education award. Individuals wishing to transfer an award will be reminded at the time they request a transfer that while there is no minimum age for a designated individual, extensions based on age will not be granted.
The Serve America Act amended the NCSA by adding a new section 146A, which imposes a requirement that a national service program certify under penalty of law that an individual successfully completed an agreed-upon term of service to be eligible to receive an education award from the National Service Trust. Specifically Sec. 146A(a) provides that, in making disbursements from the National Service Trust, the Corporation is authorized to act on the basis of certifications that individuals who served in approved AmeriCorps positions, approved Summer of Service positions, or approved Silver Scholar positions, successfully completed the term of service required to be eligible for an education award. These certifications must be made by the entity which selected the individual to serve in the position, and supervised the individual's performance of their service. This proposed rule implements Sec. 146A(a) by including the certification requirement in the determination of who is eligible to receive an education award under § 2526.10(a)(2)(A), (C), and (D).
Under Sec. 146A(b) of the NCSA, if the Corporation finds that a certification made under Sec. 146A(a) is erroneous or incorrect, the Corporation shall assess a charge against the national service program which made the certification. The charge is to be assessed for the amount of any payment which the Corporation has or may make from the National Service Trust based on the erroneous certification. In assessing the amount of a charge, the Corporation is to consider the full facts and circumstances surrounding the erroneous or incorrect certification.
This proposed rule implements Sec. 146A(b) and specifies that any Corporation determination in regard to a charge under § 2526.70 will not preclude the Corporation from taking any other actions which may be warranted under other applicable authorities, such as the Program Fraud Civil Remedies Act.
On September 27, 2007, President Bush signed the College Cost Reduction and Access Act of 2007 (Pub. L. 110–84) into law. The CCRAA created the Public Service Loan Forgiveness Program. This program offers forgiveness for outstanding Federal Direct loans for those individuals who make 120 qualifying payments after October 1, 2007, while working full-time in a “public service job.” In the Department of Education's implementing rules, “public service job” has been defined to include “serving in a full-time AmeriCorps * * * position.” (34 CFR 685.219(c); 73 FR 63527, Oct. 23, 2008). “AmeriCorps position” as defined in that section would include full-time service in AmeriCorps State and National, AmeriCorps NCCC, AmeriCorps VISTA, and ServeAmerica Fellowships.
Generally, an individual cannot receive an education award and related interest benefits from the National Service Trust as well as other loan cancellation benefits for the same service. For example, the law authorizing the Teacher Loan Forgiveness Program (TLFP) explicitly states that “no borrower may, for the same service, receive a benefit under this [program] and subtitle D of title I of the National and Community Service Act of 1990.” (20 U.S.C. 1078–10(g)(2)). Thus, an AmeriCorps member serving in a teacher corps program would have to choose whether to count the service year towards TLFP or AmeriCorps, but would not be able take both benefits for the same period of service.
The Public Service Loan Forgiveness Program is an exception to this general rule. Service performed by an individual serving in a full-time AmeriCorps position may be credited to both an education award and Public Service Loan Forgiveness.
This rule amends § 2526.60 to include an exception to the general prohibition on an individual's receiving an education award and related interest benefits from the National Service Trust as well as other loan cancellation benefits for the Public Service Loan Forgiveness Program.
For more information on qualifying for Public Service Loan Forgiveness while serving in AmeriCorps, please visit:
AmeriCorps State and National is the national service program funded under subtitle C of title I of the NCSA. Prior to passage of the Serve America Act, Sec. 140(h) of the NCSA included a limitation that no program could use any Federal funds to support an individual during a third term of service in an AmeriCorps State and National position. The Serve America Act removed Sec. 140(h) of the NCSA, thereby eliminating the statutory limitation on the number of terms in which one could be supported with Federal funds while serving in AmeriCorps State and National position. The Serve America Act amended Sec. 146(c) by changing the limitation from receiving awards for the first two terms of service to receiving up to the value of two full-time education awards. As discussed in the section on the limitation of education award receipt, these amendments now give the
Theoretically, using the calculation for the aggregate value of awards received (discussed previously in this preamble), without term limitations, an individual could potentially serve as few as two full-time terms, or as many as 9 minimum-time terms, in AmeriCorps State and National. The number of minimum-time terms could be even higher if an individual leaves one or more terms for compelling personal circumstances. A minimum-time term may be completed over two years. Thus, without term limitations, a single individual could potentially serve in AmeriCorps State and National for nearly 20 years.
By statute, one of the Corporation's guiding purposes is to “encourage citizens of the United States * * * to engage in full-time or part-time national service.” In furtherance of this, the Corporation's longstanding policy is to limit the number of terms an individual may serve in an approved national service position to ensure that there are opportunities for all interested Americans to serve. Increasingly, applications for AmeriCorps far exceed available positions. The Corporation's current limitation of two terms of service in AmeriCorps State and National means that, after a maximum of two terms, a position will be available for a new individual to have an opportunity to serve.
As discussed previously in this preamble, however, the Corporation appreciates that the law as amended affords more opportunities to serve for those individuals who serve in less-than-full-time positions. To balance the increased flexibility afforded by the amended statute with the Corporation's interest in providing more Americans an opportunity to serve, the Corporation proposes to double the number of available terms in AmeriCorps State and National from two to four. This would provide twice as many opportunities as were previously available, but would place a reasonable limit in order to ensure service opportunities are available for other interested participants.
This proposed rule amends § 2522.235 to limit the number of terms an individual may serve in AmeriCorps State and National to four. A term of service includes full-time, part-time, and reduced-part-time terms, as well as any term from which one exits after serving 15 percent of the agreed term of service or a term from which one is exited for misconduct. If a person leaves for reasons other than misconduct prior to serving 15%, the term is not considered a term of service for the purposes of this limitation. This does not mean that an individual is guaranteed four terms of service in AmeriCorps State and National.
Exhaustion of the number of terms one serves in AmeriCorps State and National would not necessarily prevent an individual from enrolling in a position in another national service program, such as AmeriCorps NCCC, AmeriCorps VISTA, or Silver Scholars, and receiving an education award for successful completion of the service. For example, if an individual serves four minimum-time terms in AmeriCorps State and National, for an aggregate value of .85 education awards received, the individual could enroll in a term in another national service program such as AmeriCorps VISTA, AmeriCorps NCCC, or Silver Scholars.
However, under the proposed rule, an individual may not enroll in any term of service for which the successful completion would result in receipt of an award that, when combined with the aggregate value of awards previously received, would exceed the value of two full-time education awards. Thus, if an individual served for two full-time terms of service in AmeriCorps State and National and received two full-time education awards, the individual would not be eligible to enroll in any term in AmeriCorps State and National, AmeriCorps NCCC, AmeriCorps VISTA, Silver Scholar, or other national service program for which the successful completion would result in the receipt of an AmeriCorps or Silver Scholar education award.
Please note that the Corporation's current regulatory limitation of two terms of service in AmeriCorps State and National fits within the current statutory framework, and will remain in effect until this proposed rule has been finalized.
The Serve America Act amended Subtitle C of title I of the NCSA by placing greater emphasis on a grantee's impact. Programs are now described not only in terms of their programmatic activities and the unmet community needs the programs are addressing, but also in terms of `performance indicators' that demonstrate the program's impact. Additionally, the NCSA now requires the Corporation to each year fund at least two of five statutorily described programs, including programs that address unmet education, health, economic opportunity, veteran, and clean energy needs. While the Corporation can accommodate these changes in future grant competitions without changing our current published selection criteria, the current “sub-categories” of the basic selection criteria and the published weights for the sub-categories are an imperfect fit for the increased emphasis on performance and funding of programs addressing particular community needs.
This proposed rule would remove §§ 2522.425–435, the sections that describe the sub-categories of the three basic selection criteria, as well as §§ 2522.445–448, the sections that set out the weights given to the sub-categories.
The Corporation will, in the future, publish specific sub-categories for the basic selection criteria as well as funding priorities in the Notice of Funds Availability. This will enable the Corporation to adjust application components and the weights given to sub-components. Additionally, this will further the Corporation's continued efforts to simplify the application process, as supported by the Serve America Act.
The Corporation will continue to use a multi-stage process, including review by a panel of experts, and will continue to make funding decisions based on the same basic selection criteria of program design, organizational capability, and cost-effectiveness and budget adequacy. The weights given to the basic selection criteria—50% for program design, 25% for organizational capability, and 25% for cost-effectiveness and budget adequacy—would not change. The change in location of published sub-categories and their respective weights does not signify a change in the Corporation's standards for transparency, clarity, and consistency in considering applications; all applicants will be made aware of sub-categories of selection criteria in advance of the application and review process.
Please note that for the 2010 AmeriCorps State and National grant competition, the currently published selection criteria, sub-categories, and weights remain in effect.
The Serve America Act amended Sec. 130(g) of the NCSA, which previously required the Corporation to “reject an application * * * if a project proposed to be conducted using assistance requested by the applicant is already described in another application pending before the Corporation.” As amended, this section now prohibits the Corporation from providing “more than [one] grant under the national service laws for a fiscal year to support the same project under the national service laws.” This provision, as amended, supports the Corporation's longstanding practice not to provide more than one grant to the same project. In addition, the revised language increases the Corporation's flexibility in structuring its grant application review process.
This proposed rule aligns the regulations with the amended statute by removing the regulatory conditions under which an applicant may submit multiple applications for the same project. In the future, the Corporation will include guidance on applying for different funds for the same project in the grant application instructions. For the purposes of preventing the same project from receiving more than one grant under the national service laws, the Corporation will continue to use the characteristics currently listed in § 2522.340 when determining whether two projects are the same.
Please note that the current regulations at §§ 2522.320–330 prohibiting the submission of more than one application for the same project in a single competition remain in effect for the 2010 AmeriCorps State and National grant competition.
Sec. 130(f) of the NCSA was amended by the Serve America Act by removing the requirement that a State's application for Subtitle C (of title I of the NCSA) formula funds include an assurance that formula programs be selected on a competitive basis prior to submission of the application. This amendment aligns with language from the Corporation's annual appropriations and conforms to current practice. States continue to be required to provide an assurance that formula programs will be selected on a competitive basis, however, States may select these programs after submitting the application for Subtitle C formula funds. This proposed rule amends § 2550.80 to reflect this change.
Under current regulations, the total of cost reimbursements attributable to Senior Companions or Foster Grandparents, including stipends, insurance, transportation, meals, physical examinations, and recognition, may not exceed 80 percent of the Federal share of the grant award. Because of the financial challenges faced by some organizations as a result of the recent economic downtown and the real potential for a decrease in non-Federal support, the proposed rule permits the Corporation to allow an exception to the 80 percent limit in cases of demonstrated need. Demonstrated need would include initial difficulties in developing local funding sources in the first three years of operation; an economic downturn, natural disaster, or other similar event that severely reduces sources of local funding support; or the unexpected discontinuation of a long-term local funding source.
The Corporation intends to make any final rule based on this proposed rule effective no sooner than 30 days after the final rule is published in the
Under Executive Order 12866, the Chief Executive Officer must determine whether this regulatory action is “significant” and therefore subject to the requirements of the Executive Order and review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments, or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) create novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Chief Executive Officer has determined that this regulatory action is not significant under the Executive Order.
The Corporation has determined that the regulatory action will not result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601
Sections 2526.10, 2528.10, 2528.30, 2528.40, 2528.60, 2528.70, 2529.10, 2530.30, and 2530.85 contain information collection requirements. Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Corporation has submitted a copy of these sections to the Office of Management Budget (OMB) for its review.
Section 2526.10 identifies two new categories of individuals eligible to receive education awards—individuals who have successfully completed terms of service in Silver Scholar and Summer of Service positions. The proposed addition requires the development of new enrollment and exit forms for the National Service Trust for individuals enrolling in and exiting from Silver Scholar or Summer of Service positions. The Corporation estimates the burden associated with filling out a Silver Scholar or Summer of Service enrollment form to be 3 minutes and a Silver Scholar or Summer of Service
Section 2528.10 expands the available uses of an education award to include use for current educational expenses incurred in enrolling in an educational institution or training establishment approved for educational benefits under the Montgomery G.I. Bill for offering programs of education, apprenticeship, or on-job training for which educational assistance may be provided by the Secretary of Veterans Affairs. Sections 2528.60–70 lay out the processes for requesting to use an award for this purpose. These proposed provisions affect individuals who choose to use education awards for this purpose, and the educational institutions or training establishments at which such individuals elect to use their awards. The burden hour estimate associated with the current voucher and payment request form reported under OMB Control Number 3045–0014 is 5 minutes. The Corporation does not expect the proposed additions to increase the burden for this collection.
Section 2529.10 expands the availability of payments on accrued interest to individuals who successfully complete terms of service in Silver Scholar positions. This affects those individuals who serve in Silver Scholar programs and elect to place qualified student loans in forbearance, and request accrued interest payments from the National Service Trust. The burden hour estimate associated with the current forbearance request form and interest accrual form, reported under OMB Control Numbers 3045–0030 and 3045–0053 are 1 minute and 10 minutes, respectively. The Corporation does not expect the proposed changes to increase the burdens for these collections.
Sections 2530.30 and 2530.85 set forth the processes for requesting to transfer an award, accepting a transferred award, and revoking a transferred award. This affects those individuals who choose to transfer their education awards and those individuals receiving awards via transfer. The Corporation estimates the burden associated with requesting to transfer an award and accepting a transferred award to be 5 minutes, and the burden associated with revoking a transferred award to be 5 minutes.
Grant programs—social programs, Volunteers.
Grants administration, Grant programs—social programs, Volunteers.
Grant programs—social programs, Student aid, Volunteers.
Education, Grant programs—social programs, Student aid, Volunteers.
Education, Grant programs—social programs, Student aid, Volunteers.
Education, Grant programs—social programs, Student aid, Volunteers.
Education, Grant programs—social programs, Student aid, Volunteers.
Education, Grant programs—social programs, Student aid, Volunteers.
Grant programs—social programs.
Grant programs—social programs, Volunteers.
Grants administration, Grant programs—social programs.
Grants administration, Grant programs—social programs.
Grants administration, Grant programs—social programs, Volunteers.
Grants administration, Grant programs—social programs, Volunteers.
For the reasons stated in the preamble, under the authority 42 U.S.C. 12651d, the Corporation for National and Community Service proposes to amend chapter XXV, title 45 of the Code of Federal Regulations, as follows:
1. The authority citation for Part 2510 continues to read as follows:
42 U.S.C. 12501
2. Amend § 2510.20 by adding definitions for “Approved Silver Scholar position” and “Approved Summer of Service position” in alphabetical order, to read as follows:
3. The authority citation for Part 2522 continues to read as follows:
42 U.S.C. 12571–12595; 12651b–12651d; E.O. 13331, 69 FR 9911.
4. Amend § 2522.220 by:
a. Revising the heading;
b. Removing paragraph (b);
c. Redesignating paragraphs (c) through (g) as (b) through (f), respectively; and
d. Revising newly redesignated paragraph (b).
The revisions read as follows:
(b)
5. Amend § 2522.230 by:
a. Revising paragraphs (b)(6) and (b)(7); and
b. Revising paragraph (e).
The revisions read as follows:
(b) * * *
(6) An individual's eligibility for a subsequent term of service in AmeriCorps will not be affected by release for cause from a prior term of service so long as the individual received a satisfactory end-of-term performance review as described in § 2522.220(d)(2) for the period served in the prior term.
(7) Except as provided in paragraph (e) of this section, a term of service from which an individual is released for cause counts as one of the terms of service described in § 2522.235 for which an individual may receive the benefits described in §§ 2522.240 through 2522.250.
(e)
6. Add a new § 2522.235 to read as follows:
(a)
(b)
(c)
7. Amend § 2522.240 by:
a. Revising paragraph (a); and
b. Removing the reference to § 2522.220(g) in paragraph (c) and adding a reference to § 2522.220(f) in its place.
The revision will read as follows:
(a)
8. Remove and reserve §§ 2522.320, 2522.330, 2522.425, 2522.430, 2522.435, 2522.445, and 2522.448.
9. The authority citation for Part 2525 is revised to read as follows:
42 U.S.C. 12601–12606.
10. Amend § 2525.20 by:
a. Removing the definition for “approved school-to-work program”;
b. Revising the definitions for “education award” and “term of service”; and
c. Adding definitions for “AmeriCorps education award,” “economically disadvantaged youth,” “Silver Scholar education award,” and “Summer of Service education award” in alphabetical order, to read as follows:
(1) For an individual serving in an approved AmeriCorps position, one of the terms of service specified in § 2522.220 of this chapter;
(2) For an individual serving in an approved Silver Scholar position, not less than 350 hours during a one-year period; and
(3) For an individual serving in an approved Summer of Service position, not less than 100 hours during the summer months.
11. The authority citation for Part 2526 is revised to read as follows:
42 U.S.C. 12601–12604, 12606.
12. Amend § 2526.10 by revising paragraph (a) to read as follows:
(a)
(1) Met the applicable eligibility requirements for the approved AmeriCorps position, approved Silver Scholar position, or approved Summer of Service position, as appropriate, in which the individual served;
(2)(i) For an AmeriCorps education award, successfully completed the required term of service in the approved national service position;
(ii) For a partial AmeriCorps education award, completed at least 15 percent of the originally-approved term of service, and performed satisfactorily prior to being granted a release for compelling personal circumstances consistent with § 2522.230(a);
(iii) For a Summer of Service education award, successfully completed the required term of service in a Summer of Service position; or
(iv) For a Silver Scholar education award, successfully completed the required term of service in a Silver Scholar position; and
(3) Is a citizen, national, or lawful permanent resident alien of the United States.
13. Add a new § 2526.15 to read as follows:
(a) An organization responsible for the supervision of an individual serving in an AmeriCorps State and National position will determine whether an individual successfully completed a term of service based upon an end-of-term evaluation conducted pursuant to § 2522.220(d).
(b) An organization responsible for the supervision of an individual serving in a program other than AmeriCorps State and National will determine whether an individual successfully completed a term of service based upon an end-of-term evaluation that examines whether the individual:
(1) Completed the required number of service hours for the term of service;
(2) Satisfactorily performed on assignments, tasks, or projects; and
(3) Met any performance criteria as determined by the program and communicated to the member.
(c) A certification by the organization responsible for the supervision of an individual that the individual did or did not successfully complete a term of service will be deemed to incorporate an end-of-term evaluation.
14. Amend § 2526.20 by revising paragraph (a) to read as follows:
(a)
(1) Performed satisfactorily prior to being granted a release for compelling personal circumstances; and
(2) Completed at least 15 percent of the originally-approved term of service.
15. Add a new § 2526.25 to read as follows:
No. An individual released for any reason prior to completing an approved term of service in a Silver Scholar or Summer of Service position is not eligible to receive a pro-rated award.
16. Revise § 2526.40 to read as follows:
(a)
(1) An individual may use an AmeriCorps education award or a Silver Scholar education award within seven years of the date on which the individual successfully completed a term of service in an approved AmeriCorps or Silver Scholar position;
(2) An individual may use a Summer of Service education award within ten years of the date on which the individual successfully completed a term of service in an approved Summer of Service position;
(3) A designated individual who receives a transferred education award in accordance with § 2530.10 may use the transferred education award within ten years of the date on which the individual who transferred the award successfully completed the term of service in an approved AmeriCorps or Silver Scholar position that is the basis of the award.
(b)
(1) If the Corporation determines that an individual was performing another term of service in an approved AmeriCorps, Summer of Service, or Silver Scholar position during the original period of availability, the Corporation will grant an extension for a time period that is equivalent to the time period during which the individual was performing the other term of service.
(2) If the Corporation determines that an individual was unavoidably prevented from using the education award during the original period of availability, the Corporation will grant an extension for a period of time that the Corporation deems appropriate. An individual who is ineligible to use an education award as a result of the individual's conviction of the possession or sale of a controlled substance is not considered to be unavoidably prevented from using the education award for the purposes of this paragraph. In the case of a transferred award, an individual who is unable to use an education award as a result of being too young to enroll in an institution of higher education or other training establishment is not considered to be unavoidably prevented from using the education award.
17. Revise § 2526.50 to read as follows:
(a)
(b)
(c)
(1) The value of each education award received as a result of successful completion of an approved AmeriCorps position;
(2) The value of each partial education award received as a result of release from an approved AmeriCorps position for compelling personal circumstances;
(3) The value of each education award received as a result of successful completion of a term of service in an approved Silver Scholar position; and
(4) The value of any amount received as a transferred education award, except as provided in § 2530.60(c).
(d)
18. Add a new § 2526.55 to read as follows:
No individual may enroll in a subsequent term of service if successful completion of that term of service would result in receipt of an education award the value of which, when added to the aggregate value of awards previously received, would be greater than 2.
19. Revise § 2526.60 to read as follows:
An individual may not receive an education award and related interest benefits from the National Service Trust for a term of service and have that same service credited toward repayment, discharge, or cancellation of other student loans, except as provided under 31 CFR 685.219.
20. Add a new § 2526.70 to read as follows:
(a) If the Corporation determines that the certification made by an national service program under § 2526.10(a)(2)(i), (iii), or (iv) is erroneous, the Corporation shall assess against the national service program a charge for the amount of any associated payment or potential payment from the National Service Trust, taking into consideration the full facts and circumstances surrounding the erroneous or incorrect certification.
(b) Nothing in this section shall prohibit the Corporation from taking any action authorized by law based upon any certification that is knowingly made in a false, materially misleading, or fraudulent manner.
21. The authority citation for Part 2527 is revised to read as follows:
42 U.S.C. 12601–12606.
22. Amend § 2527.10 by:
a. Revising the heading;
b. Revising paragraphs (a), (b), and (c); and
c. Adding new paragraphs (e) and (f).
The revisions and additions read as follows:
(a)
(b)
(c)
(1) The number of hours of service required to complete the reduced part-time term of service divided by 900; and
(2) The amount of the education award for a part-time term of service described in paragraph (b) of this section.
(e)
(2)
(f)
23. The authority citation for Part 2528 is revised to read as follows:
42 U.S.C. 12601–12606.
24. Revise § 2528.10(a)(3) to read as follows:
(a) * * *
(3) To pay expenses incurred in enrolling in an educational institution or training establishment approved for educational benefits under the Montgomery G.I. Bill (38 U.S.C. 3670
25. Revise § 2528.30(a)(2)(vi)(A) and (B) to read as follows:
(a) * * *
(2) * * *
(vi) * * *
(A) The individual's cost of attendance and other educational expenses; and
(B) The individual's estimated student financial assistance for that period under part A of title IV of the Higher Education Act (20 U.S.C. 1070
26. Revise § 2528.40(a) and (b) to read as follows:
(a) The individual's cost of attendance and other educational expenses, determined by the institution of higher education in accordance with section 472 of the Higher Education Act of 1965 (20 U.S.C. 1987ll); and
(b) The individual's estimated financial assistance for that period under part A of title IV of the Higher Education Act.
27. Revise § 2528.60 to read as follows:
To use the education award to pay expenses incurred in enrolling at an educational institution or training establishment in a program of education approved by the Secretary of Veterans Affairs (38 U.S.C. 3670
28. Revise § 2528.70 to read as follows:
(a)
(1) An individual's written authorization and request for a specific payment amount;
(2) Verification from the individual that the individual meets the criteria in § 2528.60; and
(3) Information from the educational institution or training establishment as requested by the Corporation, including verification that—
(i) The amount requested will be used to pay all or part of the individual's expenses attributable to a course, program of education, apprenticeship, or job training offered by the institution or establishment;
(ii) The course(s) or program(s) for which the individual is requesting to use the education award has been and is currently approved by the State approving agency for the State where the institution or establishment is located, or by the Secretary of Veterans Affairs; and
(iii) If an individual who has used an education award withdraws or otherwise fails to complete the period of enrollment for which the education award was provided, the institution or establishment will ensure a pro-rata refund to the Corporation of the unused portion of the education award.
(b)
29. Add a new § 2528.80 to read as follows:
(a) If an individual for whom the Corporation has disbursed education award funds withdraws or otherwise fails to complete a period of enrollment, the approved educational institution or training establishment that receives a disbursement of education award funds from the Corporation must provide a pro-rata refund to the Corporation of the unused portion of the education award.
(b) The Corporation will credit any refund received for an individual under paragraph (a) of this section to the individual's education award allocation in the National Service Trust.
30. The authority citation of Part 2529 is revised to read as follows:
42 U.S.C. 12601–12606.
31. Amend § 2529.10 by revising the heading and paragraph (a)(1) to read as follows:
(a) * * *
(1) The individual successfully completes a term of service in an approved AmeriCorps position or approved Silver Scholar position; and
32. Redesignate parts 2530, 2531, 2532, and 2533 as parts 2531, 2532, 2533 and 2534, respectively
33. Add a new Part 2530 to read as follows:
42 U.S.C. 12601–12606.
An individual may transfer an education award to the individual's child, grandchild, or foster child if—
(a) The individual enrolled in an approved AmeriCorps State and National position or approved Silver Scholar position on or after October 1, 2009;
(b) The individual was age 55 or older on the day the individual commenced the term of service in an approved AmeriCorps State and National position or in approved Silver Scholar position;
(c) The individual successfully completed a term of service in an approved AmeriCorps State and National position or an approved Silver Scholar position;
(d) The award the individual is requesting to transfer has not expired, consistent with the period of availability set forth in § 2526.40(a);
(e) The individual designated to receive the transferred award is the transferring individual's child, grandchild, or foster child; and
(f) The individual designated to receive the transferred award is a citizen, national, or lawful permanent resident alien of the United States.
A transferred award may be used by a designated individual to repay qualified student loans or to pay current educational expenses at an institution of higher education, as described in § 2528.10.
(a)
(1) The individual's written authorization to transfer the award, the year in which the award was earned, and the specific amount of the award to be transferred;
(2) Identifying information for the individual designated to receive the transferred award;
(3) A certification that the transferring individual meets the requirements of § 2530.10; and
(4) A certification that the designated individual is the child, grandchild, or foster child of the transferring individual.
(b)
(c)
(d)
(a)
(b)
Consistent with § 2526.50, no individual may receive more than an amount equal to the value of two full-time education awards. If the sum of the value of the requested transfer plus the aggregate value of educational awards a designated individual has previously received would exceed the aggregate value of two full-time education awards, as determined pursuant to § 2526.50(b), the designated individual will be deemed to have rejected that portion of the award that would result in the excess. If a designated individual has already received the aggregate value of two full-time education awards, the individual may not receive a transferred award, and the designated individual will be deemed to have rejected the award in full.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(1) The individual's written authorization to revoke the award;
(2) The year in which the award was earned;
(3) The specific amount to be revoked; and
(4) The identity of the designated individual.
(b)
(c)
(c)
(d)
No, an individual must have successfully completed a term of service in an approved AmeriCorps position or Silver Scholar position to be eligible for the payment of accrued interest under Part 2529.
34. The authority citation for Part 2550 continues to read as follows:
42 U.S.C. 12638.
35. Amend § 2550.80 by revising paragraph (b) to read as follows:
(b)
(1) Prepare an application to the Corporation to receive funding or education awards for national service programs operating in and selected by the State.
(2) Administer a competitive process to select national service programs for funding. The State is not required to select programs for funding prior to submission of the application described in paragraph (b)(1) of this section.
36. The authority citation for Part 2551 continues to read as follows:
42 U.S.C. 4950
37. Amend § 2551.92 by revising paragraph (e) to read as follows:
(e)
(2) The Corporation may allow exceptions to the 80 percent cost reimbursement requirement in cases of demonstrated need such as:
(i) Initial difficulties in the development of local funding sources during the first three years of operations;
(ii) An economic downturn, the occurrence of a natural disaster, or similar events in the service area that severely restrict or reduce sources of local funding support; or
(iii) The unexpected discontinuation of local support from one or more sources that a project has relied on for a period of years.
38. The authority citation for Part 2552 continues to read as follows:
42 U.S.C. 4950
39. Amend § 2552.92 by revising paragraph (e) to read as follows:
(e)
(2) The Corporation may allow exceptions to the 80 percent cost reimbursement requirement in cases of demonstrated need such as:
(i) Initial difficulties in the development of local funding sources during the first three years of operations; or
(ii) An economic downturn, the occurrence of a natural disaster, or similar events in the service area that severely restrict or reduce sources of local funding support; or
(iii) The unexpected discontinuation of local support from one or more sources that a project has relied on for a period of years.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a collection currently approved for State Agency Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamp Program, administrative matters.
Comments on this notice must be received by April 26, 2010, to be assured of consideration.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Send comments and requests for copies of this information collection to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 818, Alexandria, Virginia 22302.
All comments will be summarized and included in the request for Office of Management and Budget approval. All comments will become a matter of public record.
Requests for additional information or copies of this information collection should be directed to Jane Duffield at (703) 605–4385.
Under section 16 of the Act, 7 U.S.C. 2025, the Secretary is authorized to pay each State agency an amount equal to 50 percent of all administrative costs involved in each State agency's operation of the SNAP. Under corresponding SNAP regulations at 7 CFR 272.2, the State agencies must submit annually to FNS for approval, a Budget Projection Statement (Form FNS–366A), which projects the total costs for major areas of SNAP operations, and a Program Activity Statement (Form FNS–366B), which provides a summary of SNAP operations during the preceding fiscal year. The reports are required to substantiate the costs the State agency expects to incur during the next fiscal year. Form FNS–366A is submitted annually by August 15, for the upcoming fiscal year and Form FNS–366B must be submitted no later than 45 days after the end of each State agency's fiscal year.
In fiscal year (FY) 2009, 91 percent of State agencies submitted the FNS–366A electronically and 9 percent submitted a paper report. For FY 2009, a total of 82 percent of State agencies submitted the FNS–366B electronically with the remaining 18 percent submitting paper reports.
Finally, State agencies are required to submit certain other documents to FNS for review relating to certain specific activities that the State agency may choose to do. These other submissions include but are not limited to Advance Planning Documents (APD) if the State agency wishes to acquire proposed automated data processing (ADP) services, systems or equipment; outreach plans if the State elects to do program information activities; and updates related to options exercised under the Act, as amended.
Plan of Operation Updates: 53 State agencies once a year.
Form FNS–366A: 53 State agencies once a year.
Form FNS–366B: 53 State agencies once a year.
Other APD, Plan, or Update Submissions: Up to 53 State agencies may submit one or more APD, plan or update submission averaging 4.75 submissions per respondent per year or 252 total responses.
Estimate of Burden:
Plan of Operation Updates: The State agencies submit Plan updates at an estimate of 10 hours per respondent, or 530 total hours.
Form FNS–366A: The State agencies submit Form FNS–366A at an estimate of 13 hours per respondent, or 689 total hours.
Form FNS–366B: The total burden for the collection of information for Form FNS–366B is 18 hours per respondent, or 954 hours.
Other APD, Plan, or Update Submissions: We estimate that up to 53 States may submit one or more APD, plan, or update for a total of 251.75 annual responses at an average estimate of 2.681 hours per respondent, or 675.5 hours.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Austin/Tonopah Ranger Districts, Humboldt-Toiyabe National Forest will prepare an environmental impact statement (EIS) on a proposal to authorize continued livestock grazing
Comments concerning the scope of the analysis must be received by March 25, 2010. The draft environmental impact statement is expected November, 2010 and the final environnental impact statement is expected April, 2011.
Send written comments to District Ranger, Austin/Tonopah Ranger Districts, P.O. Box 130, Austin, NV 89310. Comments may also be sent via e-mail to
It is important that reviewers provide their comments at such times and in such a way that they are useful to the Agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
For further information, mail correspondence to or contact Vernon Keller, Project Coordinator, at 1200 Franklin Way, Sparks, Nevada 89431. The telephone number is 775–355–5356. E-mail address is
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The purpose and need for the proposed Federal action is to provide livestock grazing opportunities to perinittees in a way that sustains the health of the land and protects essential ecosystem functions and values.
The Austin/Tonopah Ranger Districts propose to authorize continued domestic livestock grazing on approximately 816,433 acres within the Monitor-Hot Creek Rangeland Project area under a specific management regimen designed to sustain and improve the overall ecological condition of the project area. Under this proposal, we would incorporate updated direction in new grazing permits and allotment management plans to guide grazing management within the project area during the coming decade, or until amendments are warranted, based on changed condition or monitoring.
The Kelly Creek/North Monitor, White Rock, South Monitor, Table Mountain and Monitor Valley East allotments are currently vacant. Livestock grazing would be authorized in these allotments and they would be used to reduce conflicts on allotments that are currently grazed or as forage reserve allotments. These allotments comprise approximately 259,232 acres.
Monitor Winter, Horse Heaven, North Monitor Winter, Hicks Station, Wagon Johnnie, Little Fish Lake, Monitor Complex, Saulsbury and Stone Cabin allotments have active term grazing permits and would continue to have authorized grazing. These allotments comprise approximately 557,201 acres.
Morey, Hot Creek and McKinney allotments are currently vacant and would be closed. These allotments comprise approximately 135,801 acres.
In addition to the proposed action, we have tentatively identified two additional alternatives that will be analyzed in the EIS.
(1)
(2)
Steven Williams, District Ranger, Austin/Tonopah Ranger Districts, Humboldt-Toiyabe National Forest, P.O. Box 130, Austin, NV 89310.
Based on the environmental analysis on the EIS, the Austin/Tonopah District Ranger will decide whether or not to authorize grazing on the allotments within the Monitor-Hot Creek Project area in accordance with the standards in the proposed action or as modified by additional mitigation measures and monitoring requirements.
The following are some potential issues identified through internal Forest Service scoping based on our experience with similar projects. The list is not considered all inclusive, but should be viewed as a starting point. We are asking you to help us further refine the issues and identify other issues or concerns relevant to the proposed project.
• Continued livestock grazing has to potential to affect soil quality within the project area.
• Continued livestock grazing has the potential to adversely affect water quality within the project area.
• Continued livestock grazing has the potential to affect fisheries habitat within the project area.
• Continued livestock grazing has the potential to affect vegetation, which may result in a decline in the long-term productivity of the land base.
• Continued livestock grazing has the potential to affect wildlife habitat, particularly for elk and sage grouse, within the project area.
• Continued livestock grazing has the potential to affect heritage resources within the project area.
This notice of intent initiates the scoping process, which guide the development of the environmental impact statement. The Forest Service will use a mailing of information to interested parties. Public involvement will be ongoing throughout the analysis process and at certain times public input will be specifically requested. There are currently no scoping meetings planned.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.
Agricultural Marketing Service, USDA.
Notice of public meeting.
The purpose of this notice is to notify all interested parties that the Agricultural Marketing Service (AMS) will hold a Fruit and Vegetable Industry Advisory Committee (Committee) meeting that is open to the public. The U.S. Department of Agriculture (USDA) established the Committee to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary of Agriculture on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. This notice sets forth the schedule and location for the meeting.
Tuesday, March 30, 2010, from 8 a.m. to 5 p.m., and Wednesday, March 31, 2010, from 8 a.m. to 1 p.m.
The Committee meeting will be held at the Holiday Inn Capitol, 550 C Street, SW., Washington, DC 20024.
Pamela Stanziani, Designated Federal Official, USDA, AMS, Fruit and Vegetable Programs. Telephone: (202) 690–0182. Facsimile: (202) 720–0016. E-mail:
Pursuant to the Federal Advisory Committee Act (FACA) (5 U.S.C. App. II), the Secretary of Agriculture established the Committee in August 2001 to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. The Committee was re-chartered March 31, 2009 with new members appointed December 2009 by USDA from industry nominations.
AMS Deputy Administrator for Fruit and Vegetable Programs, Robert C. Keeney, serves as the Committee's Executive Secretary. Representatives from USDA mission areas and other government agencies affecting the fruit and vegetable industry are called upon to participate in the Committee's meetings as determined by the Committee Chairperson. AMS is giving notice of the Committee meeting to the public so that they may attend and present their recommendations. Reference the date and address section of this announcement for the time and place of the meeting.
Topics of discussion at the advisory committee meeting will include the following: audit requirements, Perishable Agricultural Commodities Act program, marketing agreements, food safety, local farmer/education initiatives, commodity purchasing programs, and work group assignments and orientation for the new members.
Those parties that would like to speak at the meeting should register on or before March 1, 2010. To register as a speaker, please e-mail your name, affiliation, business address, e-mail address, and phone number to Ms. Pamela Stanziani at:
The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing suggestions and ideas on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. Equal opportunity practices were considered in all appointments to the Committee in accordance with USDA policies.
If you require special accommodations, such as a sign language interpreter, please use either contact name listed above.
The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Once submitted, the request will be publicly available in electronic format through the Information Collection Review page at
•
•
•
Written comments and recommendations for the proposed information collection should be sent on or before March 25, 2010 to Nicholas A. Fraser, OMB Desk Officer, via e-mail to
National Institute of Standards and Technology, Commerce.
Notice of intent to develop or revise standards and request for public comment and participation in standards development.
The American Petroleum Institute (API), with the assistance of other interested parties, continues to develop standards, both national and international, in several areas. This notice lists the standardization efforts currently being conducted by API committees. The publication of this notice by the National Institute of Standards and Technology (NIST) on behalf of API is being undertaken as a public service. NIST does not necessarily endorse, approve, or recommend the standards referenced.
American Petroleum Institute, 1220 L Street, NW., Washington, DC 20005; telephone (202) 682–8000,
All contact individuals listed in the supplementary information section of this notice may be reached at the American Petroleum Institute.
The American Petroleum Institute develops and publishes voluntary standards for equipment, materials, operations, and processes for the petroleum and natural gas industry. These standards are used by both private industry and by governmental agencies. All interested persons should contact the appropriate source as listed for further information.
Roland Goodman, Standards Department,
Steve Crimaudo, Standards Department,
Paula Watkins, Standards Department,
David Soffrin, Standards Department,
David Soffrin, Standards Department,
Notice of Application for an Export Trade Certificate of Review from Alaska Longline Cod Commission (“ALCC”)
The Export Trading Company Affairs (“ETCA”) unit, Office of Competition and Economic Analysis, International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review (“Certificate”). This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Joseph E. Flynn, Director, Office of Competition and Economic Analysis, International Trade Administration, by telephone at (202) 482–5131 (this is not a toll free number) or E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001–21) authorizes the Secretary of Commerce to issue Export
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked “privileged” or “confidential business information” will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021X, Washington, DC 20230, or transmitted by E-mail at
ALCC seeks a Certificate of Review to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets:
ALCC plans to export frozen at-sea, headed and gutted, Alaska cod (Gadus macrocephalus), also known as Pacific cod. Headed and gutted means the head and viscera are removed prior to freezing. Frozen-at-sea means that the export product is frozen on the catcher-processor vessel while at-sea immediately after being headed and gutted.
The export markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
ALCC and its members seek certification for the following activities and exchanges of information:
1. Each member will from time to time independently determine in its sole discretion (i) the quantity of export product that it makes available for sale in export markets, and (ii) whether any portion of such quantity will be sold independently by it, be sold in cooperation with some or all of the other members, or be made available to ALCC for sale in export markets. ALCC may not require any member to export any minimum quantity of export product.
2. ALCC and/or its members may enter into agreements to act in certain countries or markets as the members' exclusive or non-exclusive export intermediary(ies) for the quantity of export product dedicated by each member for sale by ALCC or any member(s) in that country or market. In any such agreement (i) ALCC or the member(s) acting as the exclusive export intermediary may agree not to represent any other supplier of export product with respect to one or more export market(s), and (ii) members may agree that they will export the quantity of export product dedicated for sale in such export markets only through ALCC or the member(s) acting as an exclusive export intermediary, and that they will not export the export product otherwise, either directly or through any other export intermediary.
3. ALCC and/or one or more of its members may engage in joint bidding or selling arrangements for export markets and allocate sales resulting from such arrangements among the members.
4. The members may refuse to deal with export intermediaries other than ALCC and its members.
5. ALCC may, for itself and on behalf of its members, by agreement with its members or its members' distributors or agents, or on the basis of its own determination:
a. Establish the prices at which export product will be sold in export markets;
b. Establish standard terms of sale of export product;
c. Establish standard quality grades for export product;
d. Establish target prices for sales of export product by its members in export markets, with each member remaining free to deviate from such target prices in its sole discretion;
e. Subject to the limitations set forth in paragraph 1, above, establish the quantity of export product to be sold in export markets;
f. Allocate among the members export markets or customers in the export markets;
g. Refuse to quote prices for, or to market or sell, export product in export markets; and
h. Engage in joint promotional activities aimed at developing existing or new export markets, such as advertising and trade shows.
6. ALCC may, for itself and on behalf of its members, contact non-member suppliers of export product to elicit information relating to price, volume delivery schedules, terms of sale, and other matters relating to such suppliers'
7. Subject to the limitations set forth in paragraph 1, above, ALCC and its members may agree on the quantities of export product and the prices at which ALCC and its members may sell export product in and for export markets, and may also agree on territorial and customer allocations in export markets among the members.
8. ALCC and its members may enter into exclusive and non-exclusive agreements appointing third parties as export intermediaries for the sale of export product in export markets. Such agreements may contain the price, quantity, territorial and customer restrictions for export markets contained in paragraph 5, above.
9. ALCC and its members may solicit individual non-member suppliers of Product to sell such Product to ALCC or members for sale in export markets.
10. ALCC may compile for, collect from, and disseminate to its members, and the members may discuss among themselves, either in meetings conducted by ALCC or independently via telephone and other available and appropriate modes of communication, the information described in Item 14 below.
11. ALCC and its members may prescribe conditions for withdrawal of members from and admission of members to ALCC.
12. ALCC may, for itself or on behalf of its members, establish and implement a quality assurance program for export product, including without limitation establishing, staffing, and operating a laboratory to conduct quality testing, promulgating quality standards or grades, inspecting export product samples and publishing guidelines for and reports of the results of laboratory testing.
13. ALCC may conduct meetings of its members to engage in the activities described in paragraphs 1 through 12, above.
14. ALCC and its members seek to exchange and discuss the following types of export-related information:
a. Sales and marketing efforts, and activities and opportunities for sales of export product, including but not limited to selling strategies and pricing, projected demand for export product, standard or customary terms of sale in export markets, prices and availability of export product from competitors, and specifications for export product by customers in export markets;
b. Price, quality, quantity, source, and delivery dates of export product available from the members for export including but not limited to export inventory levels and geographic availability;
c. Terms and conditions of contracts for sales to be considered and/or bid on by ALCC and its members;
d. Joint bidding or selling arrangements and allocation of sales resulting from such arrangements among the members, including each member's share of the previous calendar year's total foreign sales;
e. Expenses specific to exporting to and within export markets, including without limitation transportation, trans- or intermodal shipments, cold storage, insurance, inland freight to port, port storage, commissions, export sales, documentation, financing, customs duties, and taxes;
f. U.S. and foreign legislation regulations and policies affecting export sales; and
g. ALCC's and/or its members' export operations, including without limitation, sales and distribution networks established by ALCC or its members in export markets, and prior export sales by members (including export price information).
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The Advisory Committee on Earthquake Hazards Reduction (ACEHR or Committee), will hold a meeting on Monday, March 15, 2010 from 8:30 a.m. to 5:30 p.m. and Tuesday, March 16, 2010, from 8:30 a.m. to 4 p.m. The primary purpose of this meeting is to develop the Committee's draft report to the NIST Director. The agenda may change to accommodate Committee business. The final agenda will be posted on the NEHRP Web site at
The ACEHR will hold a meeting on Monday, March 15, 2010, from 8:30 a.m. until 5:30 p.m. The meeting will continue on Tuesday, March 16, 2010, from 8:30 a.m. until 4 p.m. The meeting will be open to the public.
The meeting will be held in the Heritage Room, in the Administration Building at NIST in Gaithersburg, Maryland. Please note admittance instructions under the
Dr. Jack Hayes, National Earthquake Hazards Reduction Program Director, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8604, Gaithersburg, Maryland 20899–8604. Dr. Hayes' e-mail address is
The Committee was established in accordance with the requirements of Section 103 of the NEHRP Reauthorization Act of 2004 (Pub. L. 108–360). The Committee is composed of 15 members appointed by the Director of NIST, who were selected for their technical expertise and experience, established records of distinguished professional service, and their knowledge of issues affecting the National Earthquake Hazards Reduction Program. In addition, the Chairperson of the U.S. Geological Survey (USGS) Scientific Earthquake Studies Advisory Committee (SESAC) serves in an ex officio capacity on the Committee. The Committee assesses:
• Trends and developments in the science and engineering of earthquake hazards reduction;
• The effectiveness of NEHRP in performing its statutory activities (improved design and construction methods and practices; land use controls and redevelopment; prediction techniques and early-warning systems; coordinated emergency preparedness plans; and public education and involvement programs);
• Any need to revise NEHRP; and
• The management, coordination, implementation, and activities of NEHRP.
Background information on NEHRP and the Advisory Committee is available at
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Advisory Committee on Earthquake Hazards Reduction (ACEHR) will hold a meeting on Monday, March 15, 2010, from 8:30 a.m. until 5:30 p.m. The meeting will continue on Tuesday, March 16, 2010, from 8:30 a.m. until 4 p.m. The meeting will be held in the Heritage Room, in the Administration Building at NIST in Gaithersburg, Maryland. The primary purpose of this meeting is to develop the Committee's draft report to the NIST
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request a place on the agenda. On March 16, 2010, approximately one-half hour will be reserved at the end of the meeting for public comments, and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received, but is likely to be about 3 minutes each. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements to the ACEHR, National Institute of Standards and Technology, 100 Bureau Drive, MS 8630, Gaithersburg, Maryland 20899–8630, via fax at (301) 975–4032, or electronically by e-mail to
All visitors to the NIST site are required to pre-register to be admitted. Anyone wishing to attend this meeting must register by close of business Monday, March 1, 2010, in order to attend. Please submit your name, time of arrival, e-mail address, and phone number to Michelle Harman. Non-U.S. citizens must also submit their country of citizenship, title, employer/sponsor, and address. Mrs. Harman's e-mail address is
National Institute of Standards and Technology, Commerce.
Notice of Prospective Grant of Exclusive Patent License.
This is a notice in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i) that the National Institute of Standards and Technology (“NIST”), U.S. Department of Commerce, is contemplating the grant of an exclusive license in the United States of America, its territories, possessions and commonwealths, to NIST's interest in the invention embodied in U.S. Patent No. 6,088,679 (Application No. 08/980,908), titled “Workflow Management Employing Role-based Access Control,” NIST Docket No. 96–052 to Rockwise, Inc., having a place of business at 223 Surnac Circle, Morgantown, WV 26508. The grant of the license would be for the field of use: HealthCare Information Technology.
J. Terry Lynch, National Institute of Standards and Technology, Office of Technology Partnerships, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, Phone 301–975–2691.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty days from the date of this published Notice, NIST receives written evidence and argument which establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. The availability of the invention for licensing was published in the
U.S. Patent No. 6,088,679 is owned by the U.S. government, as represented by the Secretary of Commerce. The patent involves a workflow sequence specified by a process definition that is managed by a workflow management system which enacts each segment in the order specified by that process definition. Role-based access control (RBAC) is used to define membership of individuals in groups,
United States Patent and Trademark Office, Commerce.
Notice and request for nominations.
The Department of Commerce (United States Patent and Trademark Office) is requesting nominations of individuals to serve on the National Medal of Technology and Innovation Nomination Evaluation Committee. The United States Patent and Trademark Office will consider nominations received in response to this notice as well as from other sources. The
Please submit nominations within 60 days of the publication of this notice.
Nominations should be submitted to Richard Maulsby, Program Manager, National Medal of Technology and Innovation Program, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313–1450. Nominations also may be submitted via fax: (571) 270–9100 or by electronic mail to:
Richard Maulsby, Program Manager, National Medal of Technology and Innovation Program, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313–1450, telephone (571) 272–8333, or electronic mail:
• Committee members are appointed by and serve at the discretion of the Secretary of Commerce. The committee provides advice to the Secretary on the implementation of Public Law 96–480 (15 U.S.C. 3711), as amended August 9, 2007.
• The committee functions solely as an advisory body under the FACA. Members are appointed to the 12-member committee for a term of three years. Each will be reevaluated at the
• Members are responsible for reviewing nominations and making recommendations for the Nation's highest honor for technological innovation, awarded annually by the President of the United States. Members of the committee must have an understanding of, and experience in, developing and utilizing technological innovation and/or be familiar with the education, training, employment and management of technological manpower.
• Under the FACA, membership on a committee must be balanced. To achieve balance, the Department is seeking additional nominations of candidates from small, medium-sized, and large businesses or with special expertise in the following sub-sectors of the technology enterprise:
Medical Innovations/Bioengineering and Biomedical Technology;
Technology Management/Computing/IT/Manufacturing Innovation;
Technological Manpower/Workforce Training/Education.
Committee members generally are Chief Executive Officers or former Chief Executive Officers, former winners of the National Medal of Technology and Innovation; presidents or distinguished faculty of universities; or senior executives of non-profit organizations. As such, they not only offer the stature of their positions but also possess intimate knowledge of the forces determining future directions for their organizations and industries. The committee as a whole is balanced in representing geographical, professional, and diverse interests.
• Nominees must be United States citizens, must be able to fully participate in meetings pertaining to the review and selection of finalists for the National Medal of Technology and Innovation, and must uphold the confidential nature of an independent peer review and competitive selection process.
• The United States Patent and Trademark Office is committed to equal opportunity in the workplace and seeks a broad-based and diverse committee membership.
National Institute of Standards and Technology (NIST), United States Department of Commerce
Notice.
Due to extreme weather conditions in the Mid-Atlantic United States, NIST is extending the deadline for proposal submission for its Summer Undergraduate Research Fellowship Program competition to 5 p.m. Eastern time, Friday, February 19, 2010, for SURF Gaithersburg, and noon Mountain Time, Friday, February 19, 2010, for SURF Boulder.
Paper and electronic submissions must be received no later than 5 p.m. Eastern time, Friday, February 19, 2010, for SURF Gaithersburg, and noon Mountain Time, Friday, February 19, 2010, for SURF Boulder.
Paper submissions for SURF Gaithersburg must be sent to Ms. Anita Sweigert, Administrative Coordinator, SURF NIST Gaithersburg Programs, National Institute of Standards and Technology, 100 Bureau Drive, Stop 8400, Gaithersburg, MD 20899–8400. Paper applications for SURF Boulder must be sent to Ms. Cynthia Kotary, Administrative Coordinator, SURF NIST Boulder Programs, National Institute of Standards and Technology, 325 Broadway, Mail Stop 104, Boulder, CO 80305–3337. Electronic submissions must be sent as specified in the original program announcement,
Program questions for SURF Gaithersburg should be addressed to Ms. Anita Sweigert, Administrative Coordinator, SURF NIST Gaithersburg Programs, National Institute of Standards and Technology, 100 Bureau Drive, Stop 8400, Gaithersburg, MD 20899–8400,
On December 15, 2009, the National Institute of Standards and Technology's (NIST) Gaithersburg and Boulder Summer Undergraduate Research Programs (SURF) announced that they were soliciting proposals for financial assistance (74 FR 66219). The due date for submission of all proposals was 5 p.m. Eastern Time, Tuesday, February 16, 2010. Due to extreme weather conditions and associated power outages, Internet outages, and closings of public facilities in the Mid-Atlantic area, including a shut-down of the Federal government and universities, some proposers did not have the opportunity to timely prepare applications. In order to provide all interested parties a fair and reasonable opportunity to submit a proposal, NIST is extending the solicitation period until 5 p.m. Eastern Time, Friday, February 19, 2010, for SURF Gaithersburg, and noon Mountain Time, Friday, February 19, 2010, for SURF Boulder. Electronic and paper proposals received between the original deadline of 5 p.m. Eastern Time February 16, 2010, and 5 p.m. Eastern Time February 19, 2010 for SURF Gaithersburg, or between the original deadline of 5 p.m. Mountain Time February 16, 2010 and noon Mountain Time February 19, 2010 for SURF Boulder, are deemed timely.
All SURF application and competition requirements and information announced in the December 15, 2009
Administrative Procedure Act and Regulatory Flexibility Act. Prior notice and comment are not required under 5 U.S.C. 553, or any other law, for rules relating to public property, loans, grants, benefits or contracts (5 U.S.C. 553(a)). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Notice document 2010–3168 appearing on page 7441 in the issue of Friday, February 19, 2010 was included in error. The document was withdrawn and should not have appeared in the issue.
Tuesday, February 16, 2010, 2 p.m.–4 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
1. Unblockable Drains/Public Accommodations—Virginia Graeme Baker Pool and Spa Safety Act/Minimum State Requirements for Grants.
A live webcast of the Meeting can be viewed at
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814 (301) 504–7923.
Council on Environmental Quality.
Notice of Availability, Draft Guidance, “Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act.”
On February 18, 2010, the Council on Environmental Quality (CEQ) announced four steps to modernize, reinvigorate, and ease the use and increase the transparency of implementation of the National Environmental Policy Act (NEPA). Enacted in 1970, NEPA is a fundamental tool used to harmonize our economic, environmental, and social aspirations and is a cornerstone of our Nation's efforts to protect the environment. NEPA recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their proposed actions before acting. Additionally, NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and the risks associated with proposed actions be assessed and publicly disclosed.
CEQ, which is charged with implementing NEPA, recognizes that it is a visionary and versatile law that can be used effectively to address new environmental challenges facing our Nation and also to engage the public widely and effectively. Furthermore, CEQ wants to develop more effective and accessible tools for citizen involvement in government decision-making. These actions are designed to provide carefully-tailored new assessment and reporting requirements, facilitate agency compliance with NEPA, and enhance the quality of public involvement in governmental decisions relating to the environment.
Comments should be submitted on or before April 9, 2010.
The NEPA Draft Guidance documents are available at
Ted Boling, Senior Counsel, at (202) 395–5750.
Many Federal actions do not have significant effects on the environment. When these actions fall into broad categories of activities, agencies may apply a “categorical exclusion” from further NEPA review. This draft guidance clarifies the rules for categorical exclusions and ensures that there is a concise public record when agencies apply them. While CEQ previously has sought public comments on this matter, this guidance provides additional clarifications, so it will seek additional public comment for 45 days. Draft guidance documents are now available at the Council on Environmental Quality Web site at
Public comments are requested on or before April 9, 2010.
Council On Environmental Quality.
Notice of Availability, Draft Guidance, “Consideration of the Effects of Climate Change and Greenhouse Gas Emissions.”
On February 18, 2010, the Council on Environmental Quality (CEQ) announced four steps to modernize, reinvigorate, and ease the use and increase the transparency of implementation of the National Environmental Policy Act (NEPA). Enacted in 1970, NEPA is a fundamental tool used to harmonize our economic, environmental, and social aspirations and is a cornerstone of our Nation's efforts to protect the environment. NEPA recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their proposed actions before acting. Additionally, NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and the risks associated with proposed actions be assessed and publicly disclosed.
CEQ, which is charged with implementing NEPA, recognizes that it is a visionary and versatile law that can be used effectively to address new environmental challenges facing our nation and also to engage the public widely and effectively. Furthermore, CEQ wants to develop more effective and accessible tools for citizen involvement in government decision-making. These actions are designed to provide carefully-tailored new assessment and reporting requirements, facilitate agency compliance with NEPA, and enhance the quality of public involvement in governmental decisions relating to the environment.
Comments should be submitted on or before May 24, 2010.
The NEPA Draft Guidance documents are available at
Ted Boling, Senior Counsel, at (202) 395–5750.
CEQ is issuing draft guidance for public comment on when and how Federal agencies must consider the impacts of proposed Federal actions on global climate change, as well as the expected environmental effects from climate change that may be relevant to the design of the proposed Federal action. CEQ has been asked to provide guidance on this subject informally by Federal agencies and formally by a petition under the Administrative Procedure Act. The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA by (1) providing practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger consideration of a quantitative analysis, and (2) suggestions to agencies on how to assess the effects of climate change on the proposed action, and, in turn, on the design of agency actions. CEQ will seek public comment on this guidance for 90 days. Draft guidance documents are now available at the Council on Environmental Quality Web site at
Public comments are requested on or before May 24, 2010.
Council On Environmental Quality.
Notice of Availability, Draft Guidance, “NEPA Mitigation and Monitoring.”
On February 18, 2010, the Council on Environmental Quality (CEQ) announced four steps to modernize, reinvigorate, and ease the use and increase the transparency of implementation of the National Environmental Policy Act (NEPA). Enacted in 1970, NEPA is a fundamental tool used to harmonize our economic, environmental, and social aspirations and is a cornerstone of our Nation's efforts to protect the environment. NEPA recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their proposed actions before acting. Additionally, NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and the risks associated with proposed actions be assessed and publicly disclosed.
CEQ, which is charged with implementing NEPA, recognizes that it is a visionary and versatile law that can be used effectively to address new environmental challenges facing our nation and also to engage the public widely and effectively. Furthermore, CEQ wants to develop more effective and accessible tools for citizen involvement in government decision-making. These actions are designed to provide carefully-tailored new assessment and reporting requirements, facilitate agency compliance with NEPA, and enhance the quality of public involvement in governmental decisions relating to the environment.
Comments should be submitted on or before May 24, 2010.
The NEPA Draft Guidance documents are available at
Comments on the NEPA Draft Guidance “NEPA Mitigation and Monitoring” should be submitted electronically to
Ted Boling, Senior Counsel, at (202) 395–5750.
Draft Guidance Clarifying (1) the Appropriateness of “Findings of No Significant Impact” and (2) Specifying the Need for Ongoing Monitoring of Environmental Mitigation Commitments: Many Federal actions receive an environmental review, known as an Environmental Assessment. In those instances, NEPA compliance is usually completed with a “Finding of No Significant Impact” (FONSI) on the environment and a more
Public comments are requested on or before May 24, 2010.
Department of the Army, U.S. Army Corps of Engineers; DOD.
Notice of Intent.
Pursuant to the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), the U.S. Army Corps of Engineers, Sacramento District (USACE) intends to prepare a joint environmental impact statement/environmental impact report (EIS/EIR) for the Lower Walnut Creek General Reevaluation Report (LWCGRR). USACE will serve as lead agency for compliance with NEPA, and the Contra Costa County Flood Control and Water Conservation District (CCCFCWCD) will serve as lead agency for compliance with CEQA. The LWCGRR will evaluate alternatives, including a locally preferred plan, for providing flood risk management and ecosystem restoration along the northern portion of the Walnut Creek watershed in the Central Coast of California. The approximate drainage area of the proposed action and analysis is 180 square miles.
Written comments regarding the scope of the environmental analysis should be received by March 23, 2010.
Written comments concerning this study and requests to be included on the LWCGRR mailing list should be submitted to Ms. Jamie LeFevre, U.S. Army Corps of Engineers, Sacramento District, Attn: Planning Division (CESPK–PD–R), 1325 J Street, Sacramento, CA 95814.
Ms. Jamie LeFevre via telephone at (916) 557–6693, e-mail at
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Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers (USACE), Wilmington District, Regulatory Division has received a request for Department of the Army authorization, pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, from Duke Energy Carolinas, LLC, to construct up to three (3) power generating wind turbines within the Pamlico Sound and to conduct research relating to the development of future offshore wind energy projects. This project is located within a 3-mile square area located approximately 7.3 miles west of Avon and 9.1 miles north of Frisco within the Pamlico Sound, NC. In order to maximize exposure to prevailing winds, the turbines will be oriented in a northwest to southeast
A public scoping meeting for the Draft Environmental Impact Statement (DEIS) will be held at the Dare County Justice Center, 962 Marshall C. Collins Drive, Manteo, NC, on Thursday, March 18, 2010, beginning at 6 p.m. EST. Written comments will be received until April 2, 2010.
Copies of comments and questions regarding scoping of the Draft EIS may be addressed to: U.S. Army Corps of Engineers, Wilmington District, Regulatory Division, ATTN: File Number SAW 2009–01880, Post Office Box 1000, Washington, NC 27889–1000.
Questions about the proposed action and DEIS may be directed to the Regulatory Division, Mr. David Lekson, telephone (910) 251–4595; or Ms. Tracey Wheeler, telephone (910) 251–4627.
Duke Energy Carolinas, LLC, is an investor-owned utility that serves over 2 million customers within both North and South Carolina. Legislation was passed in NC to facilitate the development of this project and UNC completed a study on the feasibility of establishing wind turbines in NC's coastal waters, entitled
Duke Energy's stated purpose of the project is to construct and operate a demonstration wind energy facility in the coastal waters of North Carolina in order to evaluate the ecological risks, engineering obstacles, and potential mitigation measures associated with water-based wind energy development in North Carolina. If commercial-scale wind energy development is deemed to be feasible, this demonstration project will also provide research data that can be used in development of future wind power projects.
Based on the size, complexity, and potential impacts of the proposed project, Duke Energy has been advised by the USACE to identify and disclose the environmental impacts of the proposed project in an Environmental Impact Statement (EIS). Within the EIS, the Applicant will conduct a thorough environmental review, including an evaluation of a reasonable number of alternatives. After distribution and review of the Draft EIS and Final EIS, the Applicant understands that the USACE will issue a Record of Decision (ROD) for the project. The ROD will document the completion of the EIS process and will serve as a basis for permitting decisions by Federal and State agencies.
Notice of Meeting of the Air University Board of Visitors.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, the Department of Defense announces that the Air University Board of Visitors' meeting will take place on Monday, March 30th, 2010, from 11 a.m. to 12 p.m. The meeting will be a conference call meeting and the conference number is 334–953–1945. The purpose and agenda of this meeting is to provide independent advice and recommendations on matters pertaining to the proposal of a Ph.D. degree at Air University. Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.155 all sessions of the Air University Board of Visitors' meeting will be open to the public. Any member of the public wishing to provide input to the Air University Board of Visitors should submit a written statement in accordance with 41 CFR 102–3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Air University Board of Visitors until its next meeting. The Designated Federal Officer will review all timely submissions with the Air University Board of Visitors' Board Chairperson and ensure they are provided to members of the Board before the meeting that is the subject of this notice. Additionally, any member of the public wishing to attend this meeting should contact either person listed below at least five calendar days prior to the meeting for information on base entry passes.
Dr. Dorothy Reed, Federal Designated Officer, Air University Headquarters, 55 LeMay Plaza South, Maxwell Air Force Base, Alabama 36112–6335, telephone (334) 953–5159 or Mrs. Diana Bunch, Alternate Federal Designated Officer, same address, telephone (334) 953–4547.
Notice of Meeting of the Air University Board of Visitors.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, the Department of Defense announces that the Air University Board of Visitors' meeting will take place on Monday, April 19th, 2010, from 8 a.m.–5 p.m., and Tuesday, April 20th, 2010, from 8 a.m.–8 p.m. The meeting will be held in the Air University Commander's Conference Room located in building 836. Please contact Dr. Dorothy Reed, 334–953–5159 for further details of the meeting location.
The purpose of this meeting is to provide independent advice and recommendations on matters pertaining to the educational, doctrinal, and research policies and activities of Air University. The agenda will include topics relating to the policies, programs, and initiatives of Air University educational programs.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.155 all sessions of the Air University Board of Visitors' meeting will be open to the public. Any member of the public wishing to provide input to the Air University Board of Visitors should submit a written statement in accordance with 41 CFR 102–3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Air University Board of Visitors until its next meeting. The Designated Federal Officer will review all timely submissions with the Air University Board of Visitors' Board Chairperson and ensure they are provided to members of the Board before the meeting that is the subject of this notice. Additionally, any member of the public wishing to attend this meeting should contact either person listed below at least five calendar days prior to the meeting for information on base entry passes.
Dr. Dorothy Reed, Federal Designated Officer, Air University Headquarters, 55 LeMay Plaza South, Maxwell Air Force Base, Alabama 36112–6335, telephone (334) 953–5159 or Mrs. Diana Bunch, Alternate Federal Designated Officer, same address, telephone (334) 953–4547.
Department of Education.
The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 26, 2010.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Reporting and Recordkeeping Hour Burden:
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, March 4, 2010, 9 a.m.–5 p.m.
Shilo Inn, 50 Comstock, Richland, WA 99352.
Paula Call, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7–75, Richland, WA, 99352; Phone: (509) 376–2048; or E-mail:
• Discussion and potential advice on Draft Tank Closure and Waste Management Environmental Impact Statement.
• Board Business.
Department of Energy.
Notice of open meeting.
This notice announces a combined meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford (known locally as the Hanford Advisory Board [HAB]), River and Plateau, Tank Waste, Public Involvement, Health Safety and Environmental Protection and Budgets and Contracts Subcommittees. The Federal Advisory Committee Act (Pub. L. No. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, March 3, 2010, 8:30 a.m.–12 p.m.
Shilo Inn, 50 Comstock, Richland, WA 99352.
Paula Call, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7–75, Richland, WA, 99352; Phone: (509) 376–2048; or E-mail:
Take notice that on January 29, 2010, Petal Gas Storage, L.L.C. (Petal), 1100 Louisiana Street, Houston, Texas, 77002, filed with the Federal Energy Regulatory Commission an abbreviated application pursuant to section 7(c) of the Natural Gas Act (NGA), as amended, and part 157 of the Commission's regulations for authorization to convert an existing salt-brine production cavern, referred to as Cavern No. 12A, to natural gas storage and to connect the converted cavern to its existing natural gas storage facilities with approximately 1,525 feet of 16-inch-diameter natural gas pipeline. All of the proposed facilities are located east of Hattiesburg, Mississippi, in Forrest County, within Petal's existing natural gas storage complex. The project would increase Petal's total storage capacity by approximately 8.2 Bcf consisting of 5.0 Bcf of working gas and 3.2 Bcf of cushion gas all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Commission's Web site at
Any questions regarding the application should be directed to Patricia A. Totten, Vice President and Regulatory Counsel, Petal Gas Storage, L.L.C., 1100 Louisiana Street, Houston, Texas 77002, (713) 381–3939, (713) 803–1307 (fax), or via e-mail at
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify Federal and State agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all Federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Protests and interventions may be filed electronically via the Internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Take notice that, on February 5, 2010, Stetson Wind II, LLC filed to amend, its filing in the above captioned docket with information required under the Commission's regulations. Such filing served to reset the filing date in this proceeding.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Centre Lane Trading Ltd.'s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is March 4, 2010.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that on January 29, 2010, Southern Star Central Gas Pipeline, Inc. (Southern Star), 4700 State Highway 56, Owensboro, Kentucky 42301, filed in Docket No. CP10–48–000, a prior notice request pursuant to sections 157.205, 157.210, and 157.216 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act for authorization to replace a two mile section of the 12-inch diameter XT pipeline by constructing approximately two miles of 20-inch diameter pipeline, located in Johnson County, Missouri, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Specifically, Southern Star proposes to replace two miles of 12-inch diameter XT pipeline with two miles of 20-inch diameter XM pipeline as a continuation of its multi-year plan initiated in 2008 to replace the remaining miles of 12-inch diameter XT pipeline. Southern Star estimates the cost of construction to be $4,961,000, for which internally generated funds will be used. Southern Star asserts that after the proposed construction is completed, approximately two miles of the 12-inch diameter XT pipeline will be abandoned either in place or by removal at landowners' discretion. Southern Star states that the replacement pipeline will improve reliability and offer flexibility on its system, but does not provide any additional firm capacity upstream and will continue to be operated at its current Maximum Allowable Operating Pressure (MAOP) of 570 psi.
Any questions regarding the application should be directed to David N. Roberts, Manager, Regulatory Affairs, Southern Star Central Gas Pipeline, Inc., 4700 State Highway 56, Owensboro, Kentucky 42301, or call (270) 852–4654.
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the Natural Gas Act (NGA) (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Environmental Protection Agency (EPA).
Notice of extension of public comment period.
EPA is announcing an extension of the original 30-day public comment period for the draft document titled, “A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change” (EPA/600/R–09/011). This extension is being granted in response to request from interested parties. The document was prepared by the National Center for Environmental Assessment within EPA's Office of Research and Development. This draft document describes an evaluative framework that may be used to categorize the relative vulnerability of species to climate change. To illustrate the use of this framework, it was applied to six U.S. threatened and endangered species: the golden-cheeked warbler, the salt marsh harvest mouse, the Mount Graham red squirrel, the Lahontan cutthroat trout, the desert tortoise and the bald eagle.
An external peer review of this report has been completed. The public comment period and the external peer review are separate processes. The public comment period provides an opportunity for all interested parties to comment on the document. When finalizing the draft document, EPA will consider any public comments received in accordance with this notice.
EPA released this draft document solely for the purpose of pre-dissemination review and comment under applicable information quality guidelines. This document has not been formally disseminated by EPA. It does not represent and should not be construed to represent any Agency policy or determination.
The original 30-day public comment period began on November 25, 2009 and closed on December 28, 2009. All comments received to date will be considered, including those received after the close of the original public comment period. An additional 30-day comment period begins on February 23, 2010, and ends March 25, 2010. Comments should be in writing and must be received by EPA by March 25, 2010.
The draft “A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change” is available primarily via the Internet on the National Center for Environmental Assessment's home page under the Recent Additions and the Publications menus at
Comments may be submitted electronically via
For information on the public comment period, contact the Office of Environmental Information Docket; telephone: 202–566–1752; facsimile: 202–566–1753; or e-mail:
For technical information and all other questions, contact Susan Julius, NCEA; telephone: 703–347–8619; facsimile: 703–347–8694; or e-mail:
The document, “A Framework for Categorizing the Relative Vulnerability of Threatened and Endangered Species to Climate Change” describes an evaluative framework that may be used to categorize the relative vulnerability of species to climate change. Four modules compose this framework: Module 1 categorizes baseline vulnerability to extinction or major population reduction by scoring those elements of the species' life history, demographics, and conservation status that influence the likelihood of its survival or extinction (excluding climatic changes); Module 2 scores the likely vulnerability of a species to future climate change, including the species' potential physiological, behavioral, demographic, and ecological responses to climate change; Module 3 combines the results of Modules 1 and 2 into a matrix to produce an overall score of the species' vulnerability to climate change, which maps to an adjectival category, such as “critically vulnerable,” “highly vulnerable,” “less vulnerable,” and “least vulnerable;” Module 4 is a qualitative determination of uncertainty of overall vulnerability (high, medium, and low) based on evaluations of uncertainty done in each of the first 3 modules.
To illustrate the use of this framework, it was applied to six U.S. threatened and endangered species. Based on the framework, four of those species were categorized as “critically vulnerable:” the golden-cheeked warbler (
This framework was developed by EPA's Global Change Research Program and is offered as one of a number of potential approaches for prioritizing those species most vulnerable to climate change. It is not intended to serve as a tool for determining whether a species is endangered or threatened under the Section 4 listing process of the Endangered Species Act.
EPA's Global Change Research is an assessment-oriented program committed to developing frameworks and tools to assist decision-makers in evaluating the impacts of climate change to air quality, water quality and ecosystems.
Submit your comments, identified by Docket ID No. EPA–HQ–ORD 2009–0816, by one of the following methods:
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If you provide comments by mail or hand delivery, please submit three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before March 25, 2010.
Submit your comments, referencing Docket ID No. EPA–HQ–OW–2002–0059 to (1) EPA online using
Howard E. Rubin, Mail Code 4606M, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564–2051; fax number: (202) 564–3757; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On Monday, October 26, 2009 (74 FR 54996), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OW–2002–0059, which is available for online viewing at
Use EPA's electronic docket and comment system at
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As a result of the American Recovery and Reinvestment Act signed by the President on February 17, 2009, the Drinking Water State Revolving Fund received an additional $2 billion in funding for assistance agreements for projects to be under contract or construction by February 17, 2010. EPA expects an estimated two-fold increase of respondents (in some years) due to this additional funding.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
Environmental Protection Agency (EPA).
Notice of Decision Granting Authorization of California's New Nonroad Compression Ignition Engine Emission Standards
The Environmental Protection Agency (EPA) today, pursuant to section 209(e) of the Clean Air Act (Act), 42 U.S.C. 7543(e), is granting California its request for an authorization of its emission standards and accompanying test procedures for new nonroad compression ignition (CI) engines. EPA is also confirming that one sub-set of California's amended regulations does fall within-the-scope of an authorization that EPA previously granted.
Materials relevant to this decision are contained in Docket No. EPA–HQ–OAR–2008–0670. The docket is located at The Air Docket, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20460, and may be viewed between 8 a.m. and 5:30 p.m., Monday through Friday. The telephone is (202) 566–1742. A reasonable fee may be charged by EPA for copying docket material.
Additionally, an electronic version of the public docket is available through the Federal Government's electronic public docket and comment system. You may access EPA dockets at
Kristien G. Knapp, Compliance and Innovative Strategies Division, United States Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343–9949. E-mail Address:
By this decision, issued pursuant to section 209(e) of the Clean Air Act (the “Act”), 42 U.S.C. 7543(e), the Environmental Protection Agency (“EPA”) has determined that the California Air Resources Board's (“CARB's”) regulations and amendments regarding new nonroad compression ignition (“CI”) engine emission standards and testing procedures, that were adopted in 2000 and 2004–05, warrant EPA's authorization. CARB's regulations and amendments meet the criteria for such an authorization as outlined in section 209(e)(2) of the Act. CARB has requested that EPA find that its nonroad CI regulations and amendments fall within-the-scope of previously granted authorizations or, in the alternative, that EPA adopt and apply a new “harmonization construct” when California's emission standards harmonize with federal emission standards. CARB's regulations and amendments affect three power categories of nonroad CI engines as expressed in kilowatts (kW): those less than 19 kW, those greater than 19 kW but less than 130 kW, and those greater than 130 kW. EPA has previously granted authorizations for California's Small Off-Road Engine less than 19 kW (“SORE”) regulations.
In a letter dated July 18, 2008,
Section 209(e)(1) of the Act permanently preempts any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain new nonroad engines or vehicles. Section 209(e)(2) of the Act requires the Administrator to grant California authorization to enforce its own standards for new nonroad engines or vehicles which are not listed under section 209(e)(1), subject to certain restrictions. On July 20, 1994, EPA promulgated a rule that sets forth, among other things, the criteria, as found in section 209(e)(2), which EPA must consider before granting any California authorization request for new nonroad engine or vehicle emission standards.
As stated in the preamble to the section 209(e) rule, EPA has historically interpreted the section 209(e)(2)(iii) “consistency” inquiry to require, at minimum, that California standards and enforcement procedures be consistent with section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that subsection in the context of section 209(b) motor vehicle waivers).
In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from state regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Pursuant to section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if she finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. Previous decisions granting waivers and authorizations have noted that state standards are inconsistent with section 202(a) if: (1) There is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time, or (2) the federal and state testing procedures impose inconsistent certification requirements.
In its July 18, 2008 letter to EPA, CARB notified EPA of additional regulations and amendments to its nonroad CI emissions program and asked EPA to confirm that these regulations and amendments are within-the-scope of previous authorizations. EPA can make such a confirmation if certain conditions are present. Specifically, if California acts to amend a previously authorized standard or accompanying enforcement procedure, the amendment may be considered as falling within-the-scope of a previously granted authorization provided that it: (1) Does not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable Federal standards, (2) does not affect consistency with section 209 of the Act, and (3) raises no new issues affecting EPA's previous authorization.
California's request, as noted above, concerns its emissions program for nonroad CI engines which are inclusively categorized by three engine power classes. Since EPA's previous authorizations regarding California's nonroad CI program, California has amended its standards for two of the classes and established and amended standards for the third class. These new standards and the amendments for each class were adopted over the course of two distinct CARB rulemakings: one in 2000 (hereinafter the “2000 Rulemaking”) and another in 2004–05 (hereinafter the “2004–05 Rulemaking”). The 2000 Rulemaking adopted by CARB generally harmonized California's emission standards and test procedures to the federal standards for the same nonroad CI engines that were promulgated in 1998 (Tier 1 through Tier 3). Similarly, the 2004–05 Rulemaking generally harmonized California's Tier 4 standards to the federal Tier 4 standards for these same nonroad CI engines that EPA adopted in 2004. All of CARB's standards for nonroad CI engines appear in Title 13 of the California Code of Regulations (CCR) sections 2420–2427. The federal emission standards for nonroad CI engines appear in 40 CFR parts 89 and 1039.
The first category of engines includes nonroad CI engines under 19 kW. The 2000 Rulemaking merely re-codified California's previously promulgated standards for this engine category, which EPA had previously found to be within-the-scope of its SORE authorization.
The second category of engines includes those nonroad CI engines greater than 19 kW but less than 130 kW. This category of standards was first established by the 2000 Rulemaking and was subsequently amended in the
The third category of engines includes those nonroad CI engines greater than 130 kW. This category of standards was amended, including increases in numerical stringency, in both the 2000 Rulemaking and 2004–05 Rulemaking. As with the above-described categories, the standards for this category align with federal standards: Tier 2 standards are required for model years 2001–2006, Tier 3 standards are required for model year 2006–2010, and Tier 4 standards are required for model years beginning with and beyond 2011. All tiers of California standards numerically match the corresponding federal standards for the same engine size.
At the heart of both CARB's 2000 and 2004–05 Rulemakings were adoption of the above-noted emission standards. In each proceeding, though, additional amendments to California's regulations were made, largely to harmonize with Federal compliance and enforcement procedures. In its 2000 Rulemaking, CARB adopted requirements mirroring federal requirements for maintenance intervals, recordkeeping, warranties, test procedures, certification test fuel, and engine useful life.
Because EPA believed it possible that CARB's amendments did in fact raise “new issues” as they impose new standards for the category of nonroad CI engines between 19 kW and 130 kW and raise the stringency of standards for the smaller and larger categories of nonroad CI engines, EPA offered the opportunity for a public hearing and requested public comments on these new standards and testing procedures.
In
[C]onsider all evidence that passes the threshold test of materiality and * * * thereafter assess such material evidence against a standard of proof to determine whether the parties favoring a denial * * * have shown that the factual circumstances exist in which Congress intended a denial * * *.
The court in
The court upheld the Administrator's position that, to deny a waiver, “there must be `clear and compelling evidence' to show that proposed procedures undermine the protectiveness of California's standards.”
With respect to the consistency finding, the court did not articulate a standard of proof applicable to all section 209 proceedings, but found that the opponents of the waiver were unable to meet their burden of proof even if the standard were a mere preponderance of the evidence. Although
[E]ven in the two areas concededly reserved for Federal judgment by this legislation—the existence of “compelling and extraordinary” conditions and whether the standards are technologically feasible—Congress intended that the standards of EPA review of the State decision to be a narrow one.”
Furthermore, Congress intended that EPA's review of California's decision-making be narrow in scope.
The law makes it clear that the waiver requests cannot be denied unless the specific findings designated in the statute can properly be made. The issue of whether a proposed California requirement is likely to result in only marginal improvement in air quality not commensurate with its cost or is otherwise an arguably unwise exercise of regulatory power is not legally pertinent to my decision under section 209, so long as the California requirement is consistent with section 202(a) and is more stringent than applicable Federal requirements in the sense that it may result in some further reduction in air pollution in California.
Thus, EPA's consideration of all the evidence submitted concerning this authorization decision is circumscribed by its relevance to those questions which the Administrator is directed to consider by section 209.
Finally, opponents of the waiver bear the burden of showing whether California's waiver request is inconsistent with section 202(a). As found in
The language of the statute and its legislative history indicate that California's regulations, and California's determinations that they comply with the statute, when presented to the Administrator are presumed to satisfy the waiver requirements and that the burden of proving otherwise is on whoever attacks them. California must present its regulations and findings at the hearing, and thereafter the parties opposing the waiver request bear the burden of persuading the Administrator that the waiver request should be denied.
The Administrator's burden, on the other hand, is to determine that she has made a reasonable and fair evaluation of the information in the record when coming to the waiver decision. As the court in
Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an authorization if the agency finds that CARB was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. CARB's Board made a protectiveness determination in Resolution 00–3, dated January 27, 2000, finding that sections 2111, 2112, 2137, 2139, 2140, 2141, 2400, 2401, 2403, 2420–27 and Appendix A to article 2.1, chapter 2, division 3 of Title 13, California Code of Regulations, as amended, (the 2000 Rulemaking) will not cause the California emission standards, in the aggregate, to be less protective of public health and welfare than applicable Federal standards.
In addition, EPA did not receive any comments stating that CARB's nonroad CI requirements are not, in the aggregate, as stringent as applicable Federal standards.
Therefore, based on the record before me, I cannot find that CARB's nonroad CI regulations and amendments, as noted, would cause the California nonroad emission standards, in the aggregate, to be less protective of public health and welfare than applicable Federal standards.
Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an authorization if the agency finds that California “does not need such California standards to meet compelling and extraordinary conditions * * *.” This criterion restricts EPA's inquiry to whether California needs its own mobile source pollution program to meet compelling and extraordinary conditions, and not whether any given standards are necessary to meet such conditions.
EPA has not received any adverse comments to suggest that California no longer suffers from serious and unique air pollution problems. In its authorization request letter, CARB concluded that “there can be no doubt of the continuing existence of compelling and extraordinary conditions justifying California's need for its own nonroad vehicle and engine emissions control program.”
Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant an authorization if California's standards and enforcement procedures are not consistent with section 209. As delineated above in Section II.A., EPA has historically evaluated this criterion for consistency with sections 209(a), 209(e)(1), and 209(b)(1)(C). First, California's nonroad CI engine emission standards are consistent with section 209(a) because they do not apply to new motor vehicles or engines. Second, California's nonroad CI engine emission standards are consistent with section 209(e)(1) because they do not affect new farming or construction vehicles or their engines below 175 hp, or new locomotives or their engines.
California standards are inconsistent with section 202(a) of the Act if there is inadequate lead time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that time. California's accompanying enforcement procedures would also be inconsistent with section 202(a) if the Federal and California test procedures were not consistent.
The scope of EPA's review of whether California's action is consistent with section 202(a) is narrow. The determination is limited to whether those opposed to the authorization or waiver have met their burden of establishing that California's standards are technologically infeasible, or that California's test procedures impose requirements inconsistent with the Federal test procedure.
Congress has stated that the consistency requirement of section 202(a) relates to technological feasibility.
For example, a previous EPA waiver decision considered California's standards and enforcement procedures to be consistent with section 202(a) because adequate technology existed as well as adequate lead time to implement that technology.
As CARB notes, all three categories of the nonroad CI regulations have been written to align and harmonize California standards with Federal standards and testing procedures. Notably, because California's standards align to Federal standards, these are the same numerical standards that EPA, in the course of its own rulemaking under Clean Air Act authority, has already determined to be technologically feasible.
EPA did not receive any comments suggesting that CARB's standards and testing procedures are technologically infeasible. Consequently, based on the record before me, I cannot deny California's authorization based on technological infeasibility.
California's standards and accompanying enforcement procedures would also be inconsistent with section 202(a) if the California test procedures were to impose certification requirements inconsistent with the Federal certification requirements. Such inconsistency means that manufacturers would be unable to meet both the California and Federal testing requirements using the same test vehicle or engine.
CARB makes clear that its nonroad CI certification procedures, for all three power categories, align with Federal certification procedures so that a manufacturer can use the same test engine to certify for both emissions programs.
EPA received no comments suggesting that CARB's nonroad CI requirements pose a testing procedure consistency problem. Therefore, based on the record before me, I cannot find that CARB's testing procedures are inconsistent with section 202(a). I cannot, then, deny CARB's request based on this criterion.
CARB suggests in its request letter that since the new requirements for two of the categories are amendments to previously authorized California standards and that all three categories of regulations align California requirements to Federal requirements, this request should be found as within-the-scope of previous EPA authorizations. Typically, if California acts to amend a previously authorized standard or accompanying enforcement procedure, the amendment may be considered within-the-scope of a previously granted authorization provided that it: (1) Does not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards, (2) does not affect consistency with section 209 of the Act, and (3) raises no new issues affecting EPA's previous authorization.
Only one sub-set of the standards for which CARB requests a within-the-scope confirmation meets EPA's above-noted third criterion for within-the-scope confirmation. Because the smallest category of nonroad CI engines were merely re-codified as a result of
Even though the first two within-the-scope criteria have already been established above for all three engine categories, the third criterion prevents EPA from considering this entire request as within-the-scope of EPA's prior authorizations. First, since the middle category of engines has not been previously authorized, it very clearly presents a “new issue” that has not previously been subject to an authorization request.
As an alternative to the within-the-scope confirmation, California proposes that EPA adopt and apply a new “harmonization construct,” under which EPA would limit its review of California's standards and presumptively authorize California to enforce more stringent California standards if those standards align with—but do not surpass—EPA's Federal emission standards. Although EPA has considered CARB's proposed harmonization construct, we did not receive any comment on this authorization request, which leaves us with no public input on the appropriateness of adopting such a construct. Lacking public input on this authorization request, the Agency does not believe it appropriate to adopt such a construct at this time, without further consideration. While EPA is not adopting this proposed construct at this time, we may consider and apply it in future waivers if appropriate.
EPA's analysis finds that the criteria for granting a full authorization have been met for these regulations and amendments. All three engine categories require a full authorization because “new issues” are presented by new or more stringent standards in each category. For the smallest category of engines (those less than 19kW), numerical emission standards were raised in CARB's 2004–05 Rulemaking. These standards require and have met the criteria for a full authorization. CARB's amendments to this category's standards in its 2000 Rulemaking did not increase the standards' stringency and, thus, EPA can confirm that those standards fall within-the-scope of EPA's previous authorization for those standards. CARB is newly regulating the middle category of engines (those between 19 kW and 130 kW). EPA determined that this entire category presents new issues for which it must conduct a full authorization evaluation. Upon application of that evaluation, EPA has determined that CARB has met the requirements for a full authorization. For the largest category of engines (those greater than 130 kW), CARB has raised emission standards in both of its rulemakings. The increased stringency raised new issues for EPA to consider and required EPA to apply a full authorization analysis. Upon evaluation, EPA has determined that CARB has met the criteria for a full authorization for these standards.
The Administrator has delegated the authority to grant California a section 209(e) authorization to enforce its own emission standards for nonroad engines to the Assistant Administrator for Air and Radiation. Having given consideration to all the material submitted for this record, and other relevant information, I find that I cannot make the determinations required for a denial of an authorization pursuant to section 209(e) of the Act. Therefore, I grant authorization to the State of California with respect to its new nonroad CI engine requirements as set forth above.
My decision will affect not only persons in California but also manufacturers outside the State who must comply with California's requirements in order to produce engines for sale in California. For this reason, I determine and find that this is a final action of national applicability for purposes of section 307(b)(1) of the Act.
Pursuant to section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by April 26, 2010. Judicial review of this final action may not be obtained in subsequent enforcement proceedings, pursuant to section 307(b)(2) of the Act.
As with past authorization and waiver decisions, this action is not a rule as defined by Executive Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as required for rules and regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities.
Further, the Congressional Review Act, 5 U.S.C. 801
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public meeting on March 10–11, 2010 of the Clean Air Scientific Advisory Committee (CASAC) Particulate Matter Review Panel to review EPA's
An optional public teleconference will be held on April 9, 2010 in the event more time is needed to discuss EPA's
The public meeting will be held on March 10, 2010 from 8:30 a.m. to 5 p.m. (Eastern Time) and March 11, 2010 from 8:30 a.m. to 2 p.m. (Eastern Time). A public teleconference will be held on April 8, 2010 from 10 a.m. to 2 p.m. (Eastern Time). An additional public teleconference will be held on April 9, 2010 from 10 a.m. to 12 p.m. (Eastern Time) in the event more time is needed.
The March 10–11, 2010 meeting will be held at the Marriott in Research Triangle Park, NC, 4700 Guardian Drive, Durham, North Carolina 27703. The public teleconferences will be conducted by telephone only.
Any member of the public who wants further information concerning the public meeting or public teleconferences may contact Dr. Holly Stallworth, Designated Federal Officer (DFO), EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via telephone/voice mail (202) 343–9867; fax (202) 233–0643; or e-mail at
Section 109(d)(1) of the CAA requires that the Agency periodically review and revise, as appropriate, the air quality criteria and the National Ambient Air Quality Standard (NAAQS) for the six “criteria” air pollutants, including particulate matter (PM). EPA conducts scientific and policy assessments related to both primary (health-based) and secondary (welfare-based) standards for each of these pollutants. As part of that process, the CASAC Particulate Matter Review Panel reviews a series of EPA's assessments that provide the basis for EPA rulemaking.
The purpose of the March 10–11, 2010 meeting is to review second drafts of the
Background information about the formation of the CASAC Particulate Matter Review Panel was published in the
Environmental Protection Agency.
Notice.
The Safe Drinking Water Act (SDWA) requires the Environmental Protection Agency (EPA) to promulgate regulations establishing criteria for a monitoring program for unregulated contaminants. Monitoring varies based on system size, source water, and contaminants likely to be found. SDWA also specifies that for systems serving 10,000 persons or fewer, only a representative sample of systems must monitor. Per SDWA, EPA is required to issue, every five years, a list of not more than 30 unregulated contaminants to be monitored by public water systems. The first list of unregulated contaminants was published on September 17, 1999, and the second list on January 4, 2007. The third list is scheduled to be proposed by November 2010.
The purpose of this notice is to announce a public stakeholder meeting to present information to stakeholders concerning the status of the Agency's efforts in the areas of analyte selection, analytical methods, sampling design, determination of minimum reporting levels, and other possible revisions to the current Unregulated Contaminant Monitoring Regulation.
The meeting will be held on April 7, 2010, from 9 a.m. to 5 p.m., Eastern Daylight Saving Time.
The public meeting will be held at the Crystal City Marriott at Reagan National Airport, in the Salon D Room, at 1999 Jefferson Davis Highway, Arlington, VA 22202. The hotel is located near the Ronald Reagan Washington National Airport, and has access to the Crystal City Station on the Blue and Yellow Lines of the Washington Metrorail System (Metro). The Marriott's telephone number is (703) 413–5500.
General background information, please contact the Safe Drinking Water Hotline, phone: (800) 426–4791 or (703) 412–3330. Technical information contact David J. Munch or Brenda D. Parris, USEPA, Office of Ground Water and Drinking Water, Mail Code 140, 26 West Martin Luther King Drive, Cincinnati, OH 45268, or by e-mail:
The meeting is open to the public. Statements from the public will be taken if time permits. This meeting will be held in a building that is accessible to persons using wheelchairs and scooters. Any person needing special accommodations at this meeting, including wheelchair access, should contact Susan Bjork of The Cadmus Group at (617) 673–7166 or
Environmental Protection Agency (EPA).
Notice.
The Acting Regional Administrator of EPA Region 10 is hereby granting a waiver of the Buy America requirements of ARRA Section
The Acting Regional Administrator is making this determination based on the review and recommendations of the Drinking Water Unit. The City has provided sufficient documentation to support their request.
Johnny Clark, DWSRF ARRA Program Management Analyst, Drinking Water Unit, Office of Water & Watersheds (OWW), (206) 553–0082, U.S. EPA Region 10 (OWW–136), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
In accordance with ARRA Section 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111–5, Buy American requirements, to the City for the acquisition of ORION ® Water Meter Monitor with Leak Detection Indicator in-home water meter monitors manufactured in Malaysia by Escatech, Inc., under license from Badger Meter, Inc., located in Milwaukee, Wisconsin. The applicant indicates that Badger in-home water meter monitors are the only devices that are compatible with the water meter heads installed by the City since 2007 and that no other water meter monitors are capable or meeting satisfactory quality to meet the technical specifications. Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project is produced in the United States unless a waiver is provided to the recipient by EPA. A waiver may be provided under Section 1605(b) if EPA determines that (1) Applying these requirements would be inconsistent with public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
This ARRA-funded project involves implementing a Water Meter Replacement Project by (1) improving efficiency by providing customers with a single meter reading platform and (2) promoting water conservation by providing customers with in-home monitoring devices. Because of extreme winter temperatures that can reach −60° F., the City requires that water meters be installed inside heated structures. Moreover, the in-home monitoring feature strongly promotes water conservation through the early detection and remediation of leaks. The City has used residential water meters supplied by Badger Meter, Inc. since the 1990s. In 2007, the City began replacing the heads on previously installed water meters with water meter heads containing a new transmitting technology, also from Badger Meter, Inc. The replacement Badger water meter head transmits a radio signal that can only be read by Badger Meter licensed meter reading technology including the in-home water meter monitoring units which are the subject of this waiver request. The City has completed the installation of approximately 425 of these meters, with the cost of procuring and installing the remaining approximately 100 replacement meters to be supported by this ARRA assistance agreement.
An inquiry by EPA's national contractor confirmed that no other electronic monitoring device is compatible with the Badger meter transmitter system. Based on available information, it is unlikely that another in-home meter monitoring device that is not licensed by Badger Meter, Inc. would function with the City's existing meter configuration. Use of another meter monitoring system would thus likely require replacement of the existing 425 meters and transmitters.
EPA finds these considerations as stated by the City provide ample functional justification for their specification of these meters, particularly because the use of meters with the specified features is required for their effective performance in the respects required by the City. Further, as the City initiated its procurement and installation of these meters in 2007, well before the enactment of ARRA, the decision to do so was clearly not an attempt to avoid application of the Buy American provisions of ARRA. Therefore, the City's specifications for the particular Badger Meter model and features were justified.
The April 28, 2009 EPA HQ Memorandum, Implementation of Buy American provisions of Public Law 111–5, the “American Recovery and Reinvestment Act of 2009”, defines “satisfactory quality ” as the quality of iron, steel or the relevant manufactured good as specified in the project plans and design. The City has provided information to the EPA representing that there are currently no domestic manufacturers of the in-home water meter monitors that meet the project specification requirements. Based on additional research by EPA's consulting contractor (Cadmus), and to the best of the Region's knowledge at this time, there does not appear to be any other manufacturers capable of meeting the City's specifications.
Furthermore, the purpose of the ARRA provisions was to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already shovel ready by requiring entities, like the City, to revise their design and potentially choose a more costly and less effective project. The imposition of ARRA Buy American requirements on such projects eligible for DWSRF assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with the most fundamental economic purposes of ARRA; to create or retain jobs.
The Drinking Water Unit has reviewed this waiver request and has determined that the supporting documentation provided by the City is sufficient to meet the following criteria listed under Section 1605(b) and in the April 28, 2009, Implementation of Buy American provisions of Public Law 111–5, the “American Recovery and Reinvestment Act of 2009” Memorandum: Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The basis for this project waiver is the authorization provided in Section 1605(b)(2), due to the lack of production of this product in the United States in sufficient and reasonably available
P.L. 111–5, section 1605.
Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Thursday, February 18, 2010 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Item No. 1: Ex-Im Bank Sub-Saharan Africa Advisory Committee for 2010.
The meeting will be open to public observation for Item No. 1 only.
For further information, contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571, (202) 565–3957.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology and (e) ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number.
Persons wishing to comment on this information collection should submit comments by April 26, 2010. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395–5167, or via e-mail at
For additional information about the information collection send an e-mail to
The information in entries A1 through A3 below has been imported from the Cable Operations & Antenna (COALS) database. Please review this data and make any necessary corrections. If you would like the COALS database updated to reflect this information, click here:
A1. 6-digit community unit identification. (CUID) (1/1/10)
A2. Name of the community associated with this CUID. (1/1/10)
A3. Name of county in which the community is situated. (1/1/10)
A4. 5-digit Zip Code in community with the highest number (or significant portion) of subscribers. (1/1/10)
Local governments have authority to regulate the price of the basic service tier unless the FCC grants an “Effective Competition” petition for the franchise area. If the FCC has granted Effective Competition status, the answer to question A5 is “no”. If the FCC has not granted Effective Competition status, the answer depends on whether the local government exercises its authority to regulate the price of the basic service tier.
A5. Does the local government regulate the basic tier rate in this community? (yes/no) (1/1/10)
A6. Did you operate a video service in this community on 1/1/2009? (yes/no)
The information in entries A7 through A9 has been imported from the Cable Operations & Antenna (COALS) database. Please review the data and make any necessary corrections. If you would like the COALS database updated to reflect this information, click here.
A7. Name of cable system. (1/1/10)
A8. Street address and/or POB. (1/1/10)
A9. City, State and Zip Code. (1/1/10)
A10. Name of ultimate parent entity. (1/1/10)
A11. Name of survey contact person. (1/1/10)
A12. E-mail address of contact person. (1/1/10)
A13. Area Code & telephone number. (1/1/10)
A14. Number of video subscribers nationwide of parent entity. (1/1/10)
I certify that I have examined this report and all statements of fact herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith. Willful false statements made on this form are punishable by fine and/or imprisonment (U.S. Code, Title 18, Section 1001) and/or forfeiture (U.S. Code, Title 47, Section 503).
A15. Name.
A16. Title.
A17. Date.
A18. Choose the system physical infrastructure that best describes your system from the drop down menu (hybrid fiber-coaxial cable, fiber to the home, twisted copper pair, other—please explain).
A19. Answer “yes” to one of Questions a–f, or explain in g, the scenario which best describes the way local broadcast television station signals you receive from local broadcasters are sent from the cable headend to subscribers.
a. System is analog only. Analog broadcast signals are received at the headend and sent to subscribers in analog format. No headend equipment is in place to convert a digital broadcast signal to analog format. (1/1/10)
b. System is analog only. Signals are sent in analog format from headend to subscribers. Headend equipment is in place to convert a broadcaster's digital signal to analog format, in case a station is digital only. (1/1/10)
c. Separate analog/digital signals are sent on separate paths from the headend to be viewed by analog and digital customers, respectively. Digital signal can be either SD or HD, with an HD version being converted by a SD digital subscriber's set-top box to SD format. (1/1/10)
d. Separate analog/SD digital/HD digital signals are sent from the headend to be viewed by analog, SD digital, and HD digital customers, respectively. (1/1/10)
e. SD digital signals only are sent from the headend, and the set-top box can covert the signals to analog format for viewing on analog television. (1/1/10)
f. HD digital signals only are sent from the headend, and the set-top box can convert the signals to SD digital format, and then to analog format if necessary. (1/1/10)
g. If none of the above, please describe.
A20. Number of local broadcast television stations transmitted over your system in this community. Count each local broadcast station only once. For example, if a local broadcast station is carried on one channel and simulcast in HD on another channel, these two channels count as one station for purpose of this question. (1/1/10)
A21. Of the local broadcast stations above, how many are carried under the FCC must-carry rules,
A22. Of all the stations (must carry and retransmission consent), how many can be viewed in HD format? (Enter “0” if none.) (1/1/10)
A23. Of only the stations carried under the must-carry rules, how many can be viewed in HD format? (Enter “0” if none or if you have no must-carry stations.) (1/1/10)
Responses to questions B1 and B2 may be at the level of the video (or cable) system. In defining your system, use the smallest physical system area surrounding the community for which you maintain subscriber counts for video services.
B1. Number of households passed (households your system currently reaches and could provide service, regardless of whether or not these households subscribe to your service). (1/1/10)
B2. Number of video subscribers. (1/1/10, 1/1/09)
Responses to “yes/no” questions below, as well as responses for prices and channels should be provided at the community level. Number of subscribers may be in the system area.
B3. Total number of channels available in the community.* (1/1/10, 1/1/09)
B4. Do you offer high-speed Internet access? (yes/no) (1/1/10, 1/1/09)
* Count local broadcast stations, PEG channels, commercial leased access channels, and any networks viewable for customers. The count should include the maximum number of channels available, including channels that would require additional equipment, such as an SD or an HD converter box. Do not count audio-only channels such as DMX music suite. Do count premium, pay-per-view or other pay channels. A Video-on-Demand channel can be counted as one channel.
BST is the entry level video (cable) TV programming package that subscribers can purchase. Typically, BST is a “limited basic” service which consists of local broadcast channels; public, educational, and governmental access (PEG) channels; and a few national and/or other channels. In contrast to the “limited basic” tier just described, some operators only offer a BST bundled with a large number of national networks. For these operators, the bundled service should be reported as the BST. Whether limited basic or bundled, the BST should be the entry-level service that is required for all customers.
B5. Is the BST a “limited basic” as described above? (yes/no) (1/1/10, 1/1/09)
B6. Name of tier. (If there is none, enter “na” for not applicable.) (1/1/10, 1/1/09)
B7. How many subscribers take only the basic service tier (BST)? (1/1/10, 1/1/09)
B8. Monthly price: Basic cable service tier (BST) (1/1/10, 1/1/09)
B9. Number of channels on the BST.* (1/1/10, 1/1/09)
B10. Is equipment needed to view the channels on the BST? (yes/no) (1/1/10, 1/1/09)
B11. What is the monthly fee to lease the most commonly-used equipment needed to view the channels on the BST? (1/1/10, 1/1/09)
B12. Identify the features that are included with this equipment: VOD, DVR, HD, other. (1/1/10, 1/1/09)
* Count local broadcast stations, PEG channels, commercial leased access channels, and any networks viewable for customers of the BST. The count should include the maximum number of channels available when purchasing the BST only, including channels that would require additional equipment, such as an SD or an HD converter box. Do not count audio-only channels such as DMX music suite. Do not count premium, pay-per-view or other pay
In most cases, expanded basic service includes the limited basic BST channels plus a large number of national networks. However, if you answered “no” to Question B5 (you do not offer a limited basic tier) then BST and expanded basic service are the same, and Questions B13–B19 below are automatically filled.
Check box if this package was not offered last year.
B13. Name of package. (If there is none, enter “na” for not applicable.) (1/1/10, 1/1/09)
B14. Number of subscribers taking this package. (1/1/10, 1/1/09)
B15. Monthly price of package (including the price of the BST). (1/1/10, 1/1/09)
B16. Number of channels in this package (including BST channels).* (1/1/10, 1/1/09)
B17. Is equipment needed to view the channels in this package? (yes/no) (1/1/10, 1/1/09)
B18. What is the monthly fee to lease the most commonly-used equipment needed to view the channels in this package? (1/1/10, 1/1/09)
B19. Identify the features that are included with this equipment: VOD, DVR, HD, other. (1/1/10, 1/1/09)
* Count the maximum number of channels available when purchasing the package, including channels that would require additional equipment, such as an SD or an HD converter box. Do not count audio-only channels such as DMX music suite. Do not count premium, pay-per-view or other pay channels unless they are viewed in the package at no additional charge. A Video-on-Demand channel that offers content at no additional charge can be counted as one channel.
For this package include the expanded basic channels plus a group of additional video programming channels. Provide the most popular package that includes at least seven (7) additional non-premium, national cable networks.
Check box if this package was not offered last year.
B20. Name of package. (If there is none, enter “na” for not applicable.) (1/1/10, 1/1/09)
B21. Number of subscribers taking this package. (1/1/10, 1/1/09)
B22. Monthly price of this package (including expanded basic price). (1/1/10, 1/1/09)
B23. Number of channels in this package (including expanded basic channels).* (1/1/10, 1/1/09)
B24. Is equipment needed to view the channels in this package? (yes/no) (1/1/10, 1/1/09)
B25. What is the monthly fee to lease the most commonly-used equipment needed to view the channels in this package? (1/1/10, 1/1/09)
B26. Identify the features that are included with this equipment: VOD, DVR, HD, other. (1/1/10, 1/1/09)
* Count the maximum number of channels available when purchasing the package, including channels that would require additional equipment, such as an SD or an HD converter box. Do not count audio-only channels such as DMX music suite. Do not count premium, pay-per-view or other pay channels unless they are viewed in the package at no additional charge. A Video-on-Demand channel that offers content at no additional charge can be counted as one channel.
B27. As of Jan. 1, 2010, did you offer a family package in this community? (yes/no) (1/1/10). If no, skip to Section C, below.
B28. If you answered yes to question B27, did you report this package in response to the questions already asked about your program packages? (yes/no). If yes, skip to Section C, below.
B29. Name of package. (If there is none, enter “na” for not applicable.) (1/1/10, 1/1/09)
B30. Number of subscribers taking this package. (1/1/10)
B31. Monthly price of this package (including BST price). (1/1/10)
B32. Number of channels in this package (including BST channels).* (1/1/10)
B33. Is equipment needed to view the channels in this package? (yes/no) (1/1/10)
B34. What is the monthly fee to lease the most commonly-used equipment needed to view the channels in this package? (1/1/10)
* Count the maximum number of channels available when purchasing the package, including channels that would require additional equipment, such as an SD or an HD converter box. Do not count audio-only channels such as DMX music suite. Do not count premium, pay-per-view or other pay channels unless they are viewed in the package at no additional charge. A Video-on-Demand channel that offers content at no additional charge can be counted as one channel.
Rows:
C1. Number of local broadcast stations.
C2. Number of stations above for which a separate simulcast channel is carried.
C3. Number of public, educational & governmental (PEG) access channels.
C4. Number of commercial leased access channels.
*
Column:
Report number of channels.
Indicate if the channel(s) is on the BST.
Indicate if the channel(s) is on the expanded basic package.
Indicate if the channel(s) is on the next most-subscribed package.
Indicate if the channel(s) is on the family-friendly program package.
Rows listing individual regional and national networks.
We have estimated that each response to this collection of information will take, on average, 6 hours. Our estimate includes the time to read the instructions, look through existing records, gather and maintain required data, and actually complete and review the response. If you have any comments on this estimate, or on how we can improve the collection and reduce the burden it causes you, please write to the Federal Communications Commission, AMD–PERM, Paperwork Reduction Project (3060–0647), Washington, DC 20554. We will also accept your comments via the Internet if you send them to
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520. Comments are requested concerning: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Persons wishing to comments on this information collection should submit comments on or before March 25, 2010. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395–5167, or via the Internet at
Judith B. Herman, OMD, 202–418–0214. For additional information about the information collection(s) send an e–mail to
OMB Control No: 3060–1096.
Title: Prepaid Calling Card Service Provider Certification, WC Docket No. 05–68.
Form No.: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit.
Number of Respondents: 158 respondents; 1,896 responses.
Estimated Time Per Response: 2.5 – 20 hours.
Frequency of Response: Quarterly reporting requirement, recordkeeping requirement and third party disclosure requirement.
Obligation to Respond: Mandatory. Statutory authority for this collection of information is contained in 47 U.S.C. sections 151, 152, 154(i), 201, 202, and 254.
Total Annual Burden: 15,800 hours.
Total Annual Cost Burden: N/A.
Privacy Act Impact Assessment: N/A.
Nature and Extent of Confidentiality: The Commission does not anticipate providing confidentiality of the information submitted by prepaid calling card providers. Particularly, the prepaid calling card providers must send reports to their transport providers. Additionally, the quarterly certifications sent to the Commission will be made public through the Electronic Comment Filing System (ECFS) process. These certifications will be filed in the Commission's docket associated with this proceeding. If the respondents submit information they believe to be confidential, they may request confidential treatment of such information under 47 CR 0.459 of the Commission's rules.
Need and Uses: The Commission will submit this expiring information collection to the Office of Management and Budget (OMB) during this comment period in order to obtain the full three year clearance from them. There is no change to the reporting, recordkeeping and/or third party disclosure requirements. There is a 62,900 hour reduction in the total annual burden which is due to a decrease in respondents. This is due in part to an inaccurate number of respondents in the previous submission to the OMB.
Prepaid calling card providers are to report on a quarterly basis the percentage of interstate, intrastate and international traffic and call volumes to carriers from which they purchase transport services. Prepaid calling card providers must also file certifications with the Commission on a quarterly basis that include the above information and a statement that they are contributing to the federal Universal Service Fund (USF) based on all interstate and international revenue, except for revenue from the sale of prepaid calling cards by, to, or pursuant to contract with the Department of Defense (DoD) or a DoD entity.
The Commission adopted the reporting and certification requirements to obtain information necessary to evaluate whether all prepaid calling cards are properly contributing to the USF, pursuant to section 254 of the Communications Act of 1934, as amended.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520. Comments are requested concerning: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Persons wishing to comments on this information collection should submit comments on or before March 25, 2010. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395–5167, or via the Internet at
Judith B. Herman, OMD, 202–418–0214. For additional information about the information collection(s) send an e–mail to
OMB Control No: 3060–0816.
Title: Local Telephone Competition and Broadband Reporting (Report and Order, WC Docket No. 07–38, FCC 08–89; Order on Reconsideration, WC Docket No. 07–38, FCC 08–148).
Form No.: FCC Form 477.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit, not–for–profit institutions, and state, local or tribal government.
Number of Respondents: 1,790 respondents; 3,580 responses.
Estimated Time Per Response: 289 hours.
Frequency of Response: Semi–annual reporting requirement.
Obligation to Respond: Mandatory. Statutory authority for this information collection is contained in 47 U.S.C. 4(i), 201, 218–220, 251–252, 271, 303(r), 332 and 403 of the Communications Act of 1934, as amended; and in section 706 of the Telecommunications Act of 1996, as amended, codified in section 1302 of the Broadband Data Improvement Act, 47 U.S.C. section 1302.
Total Annual Burden: 1,034,620 hours.
Privacy Act Impact Assessment: N/A.
Nature and Extent of Confidentiality: The Commission will continue to allow respondents to certify, on the first page of each submission, that some data contained in that submission are privileged or confidential commercial or financial information and that disclosure of such information would likely cause substantial harm to the competitive position of the entity making the submission. If the Commission receives a request for, or proposes to disclose the information, the respondent would be required to show, pursuant to the Commission's rules for withholding from public inspection information submitted to the Commission, that the information in question is entitled to confidential treatment. We will retain our current policies and procedures regarding the confidential treatment of submitted FCC Form 477 data, including use of aggregated, non–company specific data in our published reports.
Need and Uses: The Commission will submit this information collection to the Office of Management and Budget (OMB) during this comment period in order to obtain the full three year clearance from them. The Commission is submitting this information collection to OMB as an extension (no change in the reporting requirement). There is a 50,520 hourly burden reduction that is being reported to OMB. This adjustment is due to a reduction in the estimated time per response from the last submission to the OMB. It is also due to respondents' increased familiarity with the new, online filing procedures and with the changes in their own systems that were necessary to comply with this information collection, which respondents have gained in experience during the two filings required during OMB's one year approval of the data collection on a pilot basis.
This collection improves the Commission's understanding of the extent of broadband deployment, facilitating the development of appropriate broadband policies and the Commission's ability to carry out its obligation under section 706 of the Telecommunications Act of 1996 to “determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.” In addition, the Telecommunications Act of 1996 directs the Commission to take actions to open all participants, including new entrants. A central task in creating his framework is the opening of previously monopolized local telecommunications markets. By collecting timely and reliable information about the pace and extent of competition for local telephony service in different geographic areas, including rural areas, the Commission significantly improves the ability to evaluate the effectiveness of actions the Commission and the states are taking to facilitate economic competition in those areas.
The information is used by Commission staff to prepare reports that help inform consumers and policy makers at the federal and state level of deployment of competition in the local telephone service market and the deployment of broadband services. The Commission will continue to use the information to better inform its understanding of broadband deployment in conjunction with its congressionally mandated section 706 reports. The Commission also uses the data to support this analyses in a variety of rulemaking proceedings under the Communications Act of 1934, as amended. Absent this information collection, the Commission would lack essential data for assisting it in determining the effectiveness of its policies and fulfilling its statutory responsibilities in accordance with the Communications Act of 1934, as amended.
Federal Communications Commission.
Notice.
This document announces the auction of certain broadcast FM, AM, and FM Translator construction permits scheduled to commence on July 20, 2010 (Auction 88). This document also seeks comments on competitive bidding procedures for Auction 88.
Comments are due on or before February 25, 2010, and reply comments are due on or before March 11, 2010. Auction 88 applicants must provide supplemental information by March 12, 2010.
You may submit comments, identified by AU Docket No. 10–31, by any of the following methods:
•
•
•
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW–A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
•
• The Wireless Telecommunications Bureau requests that a copy of all comments and reply comments be submitted electronically to the following address:
•
This is a summary of the
1. The Wireless Telecommunications and the Media Bureaus (the Bureaus) announced an auction of certain broadcast FM, AM, and FM Translator construction permits and sought comment on the procedures to be used for this auction. The
2. Auction 88 will resolve pending closed groups of mutually exclusive applications for full-power FM and FM translator construction permits that have been the subject of various Commission and judicial decisions. Included in these groups are twelve applications that were recently amended to specify operation as commercial broadcast stations. Auction 88 will also resolve mutual exclusivity between applications for new AM stations on 640 kHz and 1230 kHz in the Terre Haute, Indiana, area. The 13 FM application groups and the two FM Translator application groups (all of which are former Mixed Groups), and the three closed AM application groups identified in Attachment A of the
3. Auction 88 will offer construction permits for 13 commercial FM stations, two commercial FM translator stations, and three commercial AM stations as listed in Attachment A. Attachment A of the
4. An applicant listed in Attachment A of the
5. Potential bidders are reminded that they are solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the construction permits for broadcast facilities they are seeking in this auction. Bidders are responsible for assuring themselves that, if they win a construction permit, they will be able to build and operate facilities in accordance with the Commission's rules. The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC construction permittee in a broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.
6. Each applicant is required to submit its FCC Registration Number (FRN) by no later than 5 p.m. Eastern Time (ET) on Friday, March 12, 2010, in order to be able and eligible to participate in Auction 88. Failure to submit an FRN pursuant to the instructions in the
7. The Commission's rules require all persons and entities doing business with the Commission to obtain a unique identifying number called the FRN and to provide the FRN with all applications or feeable filings, as well as with other transactions with the Commission involving payment of money. Accordingly, use of an FRN is mandatory for all applicants for Auction 88. Submission of an FRN is necessary to permit each applicant to log in to the FCC's Integrated Spectrum Auction System (ISAS or FCC Auction System) and continue to participate in the auction process.
8. Applicants that do not have an FRN must obtain one by registering using the FCC's Commission Registration System (CORES). To access CORES, point your web browser to the FCC Auctions page at
9. To submit an FRN, each applicant listed in Attachment A must provide its applicant name and FRN in an e-mail to
10. For further information, contact the FCC ULS Customer Support Hotline at (877) 480–3201 option 2, (717) 338–2888, or (717) 338–2824 (TTY). The hotline is available to assist with questions Monday through Friday 8 a.m. to 6 p.m. ET. In order to provide better service to the public, all calls to the hotline are recorded.
11. The Bureaus will specify procedures for Auction 88 applicants to electronically file short-forms applications (FCC Form 175) in ISAS in a future public notice. Those procedures will include instructions for reporting changes pursuant to 47 CFR 1.65. Applicants are reminded that certain changes may be considered a major modification of an application and could result in dismissal of the application and disqualification of an applicant from participation in Auction 88.
12. The Bureaus proposed to auction all construction permits included in Auction 88 using the Commission's standard simultaneous multiple-round (SMR) auction format. This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which eligible bidders may place bids on individual construction permits. Typically, bidding remains open on all construction permits until bidding stops on every construction permit. The Bureaus seek comment on this proposal.
13. The Commission will conduct Auction 88 over the Internet, and telephonic bidding will be available as well. The toll-free telephone number for the Auction Bidder Line will be provided to qualified bidders. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction.
14. The auction will consist of sequential bidding rounds, each followed by the release of round results. Details on viewing round results, including the location and format of downloadable round results files, will be included in the same public notice.
15. The Bureaus proposed to retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Under this proposal, the Bureaus may change the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. The Bureaus seek comment on this proposal. Commenters may wish to address the role of the bidding schedule in managing the pace of the auction and the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means.
16. The Bureaus have discretion to establish stopping rules before or during multiple round auctions in order to terminate the auction within a reasonable time. For Auction 88, the Bureaus proposed to employ a simultaneous stopping rule approach. A simultaneous stopping rule means that all construction permits remain available for bidding until bidding closes simultaneously on all construction permits. More specifically, bidding will close simultaneously on all construction permits after the first round in which no bidder submits any new bids, applies a proactive waiver, or withdraws any provisionally winning bids (if bid withdrawals are permitted in this auction). Thus, unless the Bureaus announce alternative procedures, bidding will remain open on all construction permits until bidding stops on every construction permit. Consequently, it is not possible to determine in advance how long the auction will last.
17. Further, the Bureaus proposed to retain the discretion to exercise any of the following options during Auction 88: (1) Use a modified version of the simultaneous stopping rule. The modified stopping rule would close the auction for all construction permits after the first round in which no bidder applies a waiver, withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or places any new bids on any construction permit for which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule; (2) Declare that the auction will end after a specified number of additional rounds (special stopping rule). If the Bureaus invoke this special stopping rule, they will accept bids in the specified final round(s), after which the auction will close; and (3) Keep the auction open even if no bidder places any new bids, applies a waiver, or withdraws any provisionally winning bids (if withdrawals are permitted in this auction). In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.
18. The Bureaus proposed to exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureaus are likely to attempt to change the pace of the auction by, for example, changing the number of bidding rounds per day and/or changing minimum acceptable bids. The Bureaus proposed to retain the discretion to exercise any of these options with or without prior announcement during the auction. The Bureaus seek comment on these proposals.
19. For Auction 88, the Bureaus proposed that, by public notice or by announcement during the auction, the Bureaus may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureaus, in their sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. The Bureaus emphasize that exercise of this authority is solely within the discretion of the Bureaus, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity
20. The Bureaus have delegated authority and discretion to determine an appropriate upfront payment for each construction permit being auctioned, taking into account such factors as the efficiency of the auction process and the potential value of similar spectrum. The upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on construction permits. Upfront payments related to the specific spectrum subject to auction protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction. With these considerations in mind, the Bureaus proposed the upfront payments set forth in Attachment A of the
21. The Bureaus further proposed that the amount of the upfront payment submitted by a bidder will determine the bidder's initial bidding eligibility in bidding units. The Bureaus proposed that each construction permit be assigned a specific number of bidding units equal to the upfront payment listed in Attachment A of the
22. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating.
23. The Bureaus proposed a single stage auction with the following activity requirement: In each round of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on one hundred (100) percent of its bidding eligibility. A bidder's activity in a round will be the sum of the bidding units associated with any construction permits upon which it places bids during the current round and the bidding units associated with any construction permits for which it holds provisionally winning bids. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction. The Bureaus seek comment on this proposal.
24. Use of an activity rule waiver preserves the bidder's eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic and are principally a mechanism for auction participants to avoid the loss of bidding eligibility in the event that exigent circumstances prevent them from bidding in a particular round.
25. The FCC Auction System assumes that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining; or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder that is eligible to bid on only one construction permit has no waivers remaining and does not satisfy the required activity level, its eligibility will be permanently reduced, eliminating the bidder from the auction. If a bidder that is eligible to bid on more than one construction permit has no waivers remaining and does not satisfy the required activity level, its current eligibility will be permanently reduced, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.
26. A bidder that is eligible to bid on more than one construction permit and has insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC Auction System. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rule. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility, even if the round has not yet closed.
27. Under the proposed simultaneous stopping rule, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively applies an activity rule waiver (using the apply waiver function in the FCC Auction System) during a bidding round in which no bids are placed or withdrawn (if bid withdrawals are permitted in this auction), the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver applied by the FCC Auction System in a round in which there are no new bids, withdrawals (if bid withdrawals are permitted in this auction), or proactive waivers will not keep the auction open. A bidder cannot apply a proactive waiver after bidding in a round, and applying a proactive waiver will preclude a bidder from placing any bids in that round. Applying a waiver is irreversible; once a proactive waiver is submitted, that waiver cannot be unsubmitted, even if the round has not yet closed.
28. The Bureaus proposed that each bidder in Auction 88 be provided with three activity rule waivers that may be used at the bidder's discretion during the course of the auction. The Bureaus seek comment on this proposal.
29. The Bureaus proposed to establish minimum opening bid amounts for Auction 88. The Bureaus believe a minimum opening bid amount, which has been used in other broadcast auctions, is an effective bidding tool for accelerating the competitive bidding process. The Bureaus do not propose to establish a separate reserve price for the
30. For Auction 88, the Bureaus proposed minimum opening bid amounts determined by taking into account the type of service and class of facility offered, market size, population covered by the proposed broadcast facility, and recent broadcast transaction data. A proposed minimum opening bid amount for each construction permit available in Auction 88 is set forth in Attachment A of the
31. If commenters believe that these minimum opening bid amounts will result in unsold construction permits, are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so, and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids. In establishing the minimum opening bid amounts, the Bureaus particularly seek comment on factors that could reasonably have an impact on valuation of the broadcast spectrum, including the type of service and class of facility offered, market size, population covered by the proposed broadcast FM, AM and FM Translator station and any other relevant factors.
32. The Bureaus proposed that, in each round, eligible bidders be able to place a bid on a given construction permit in any of up to nine different amounts. Under this proposal, the FCC Auction System interface will list the acceptable bid amounts for each construction permit.
33. The first of the acceptable bid amounts is called the minimum acceptable bid amount. The minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be a certain percentage higher. That is, the minimum acceptable bid amount will be calculated by multiplying the provisionally winning bid amount times one plus the minimum acceptable bid percentage. If, for example, the minimum acceptable bid percentage is 10 percent, the minimum acceptable bid amount will equal (provisionally winning bid amount) * (1.10), rounded. If bid withdrawals are permitted in this auction, in the case of a construction permit for which the provisionally winning bid has been withdrawn, the minimum acceptable bid amount will equal the second highest bid received for the construction permit.
34. The eight additional bid amounts are calculated using the minimum acceptable bid amount and a bid increment percentage, which need not be the same as the percentage used to calculate the minimum acceptable bid amount. The first additional acceptable bid amount equals the minimum acceptable bid amount times one plus the bid increment percentage, rounded. If, for example, the bid increment percentage is 5 percent, the calculation is (minimum acceptable bid amount) * (1 + 0.05), rounded, or (minimum acceptable bid amount) * 1.05, rounded; the second additional acceptable bid amount equals the minimum acceptable bid amount times one plus two times the bid increment percentage, rounded, or (minimum acceptable bid amount) * 1.10, rounded; etc. The Bureaus will round the results using the Commission's standard rounding procedures for auctions.
35. For Auction 88, the Bureaus proposed to use a minimum acceptable bid percentage of 10 percent. This means that the minimum acceptable bid amount for a construction permit will be approximately 10 percent greater than the provisionally winning bid amount for the construction permit. To calculate the additional acceptable bid amounts, the Bureaus proposed to use a bid increment percentage of 5 percent.
36. The Bureaus retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid percentage, the bid increment percentage, and the number of acceptable bid amounts if the Bureaus determine that circumstances so dictate. Further, the Bureaus retain the discretion to do so on a construction permit-by-construction permit basis. The Bureaus also retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureaus could set a $10,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid percentage results in a minimum acceptable bid amount that is $12,000 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $10,000 above the provisionally winning bid. The Bureaus seek comment on the circumstances under which the Bureaus should employ such a limit, factors the Bureaus should consider when determining the dollar amount of the limit, and the tradeoffs in setting such a limit or changing other parameters, such as changing the minimum acceptable bid percentage, the bid increment percentage, or the number of acceptable bid amounts. If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC Auction System during the auction. The Bureaus seek comment on these proposals.
37. Provisionally winning bids are bids that would become final winning bids if the auction were to close in that given round. At the end of a bidding round, a provisionally winning bid for each construction permit will be determined based on the highest bid amount received for the construction permit. In the event of identical high bid amounts being submitted on a construction permit in a given round (i.e., tied bids), the Bureaus will use a random number generator to select a single provisionally winning bid from among the tied bids. (Each bid is assigned a random number, and the tied bid with the highest random number wins the tiebreaker.) The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to end with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If any bids are received on the construction permit in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.
38. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the construction permit at the close of a subsequent round, unless the provisionally winning bid is withdrawn (if bid withdrawals are permitted in this auction). Bidders are reminded that provisionally winning bids count toward activity for purposes of the activity rule.
39. For Auction 88, the Bureaus proposed the following bid removal procedures. Before the close of a bidding round, a bidder has the option of removing any bid placed in that
40. The Bureaus also seek comment on whether bid withdrawals should be permitted in Auction 88. When permitted in an auction, bid withdrawals provide a bidder with the option of withdrawing bids placed in prior rounds that have become provisionally winning bids. A bidder may withdraw its provisionally winning bids using the withdraw bids function in the FCC Auction System. If permitted, a bidder that withdraws its provisionally winning bid(s) is subject to the bid withdrawal payment provisions of the Commission rules.
41. In Auction 88, bidders will have limited opportunity to aggregate construction permits because of the pre-established closed MX Groups. Moreover, bid withdrawals, particularly those made late in Auction 88, could result in delays in licensing new broadcast FM, AM and FM Translator stations and attendant delays in the offering of new broadcast service to the public. The Commission also has noted that in some instances bidders may seek to withdraw bids for improper purposes. Based on this Commission guidance, on the experience of the Bureaus with past broadcast auctions, and on the potential for delays in providing broadcast service to the public, for this auction the Bureaus proposed to prohibit bidders from withdrawing any bids after the round has closed in which bids were placed. The Bureaus seek comment on this proposal.
42. If withdrawals are allowed in this auction, the Bureaus seek comment on the appropriate percentage of a withdrawn bid that should be assessed as an interim withdrawal payment, in the event that a final withdrawal payment cannot be determined at the close of the auction. In general, the Commission's rules provide that a bidder that withdraws a bid during an auction is subject to a withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the winning bid in the same or a subsequent auction. However, if a construction permit for which a bid has been withdrawn does not receive a subsequent higher bid or winning bid in the same auction, the final withdrawal payment cannot be calculated until a corresponding construction permit receives a higher bid or winning bid in a subsequent auction. When that final payment cannot yet be calculated, the bidder responsible for the withdrawn bid is assessed an interim bid withdrawal payment, which will be applied toward any final bid withdrawal payment that is ultimately assessed.
43. The Commission's rules provide that, in advance of each auction, a percentage shall be established between three percent and twenty percent of the withdrawn bid to be assessed as an interim bid withdrawal payment. The Commission has indicated that the level of the interim withdrawal payment in a particular auction will be based on the nature of the service and the inventory of the construction permits being offered. The Commission noted that it may impose a higher interim withdrawal payment percentage to deter the anti-competitive use of withdrawals when, for example, there are few synergies to be captured by combining construction permits.
44. Applying the reasoning that a higher interim withdrawal payment percentage is appropriate when aggregation of construction permits is not expected, as with the construction permits subject to competitive bidding in Auction 88, if the Bureaus allow bid withdrawals in this auction, the Bureaus proposed the maximum interim withdrawal payment allowed under the current rules. Specifically, the Bureaus proposed to establish an interim bid withdrawal payment of twenty percent of the withdrawn bid for this auction. The Bureaus seek comment on this proposal.
45. Any winning bidder that defaults or is disqualified after the close of an auction (i.e., fails to remit the required down payment within the prescribed period of time, fails to submit a timely long-form application, fails to make full payment, or is otherwise disqualified) is liable for a default payment under 47 CFR 1.2104(g)(2). This payment consists of a deficiency payment, equal to the difference between the amount of the bidder's bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less.
46. The Commission's rules provide that, in advance of each auction, a percentage shall be established between three percent and twenty percent of the applicable bid to be assessed as an additional default payment. The Commission has indicated that the level of the additional payment in a particular auction will be based on the nature of the service and the inventory of the construction permits being offered. As the Commission has indicated, the level of this payment in each case will be based on the nature of the service and the inventory of the construction permits being offered.
47. As previously noted by the Commission, defaults weaken the integrity of the auction process and may impede the deployment of service to the public, and an additional default payment of more than the previous three percent will be more effective in deterring defaults. In light of these considerations for Auction 88, the Bureaus proposed an additional default payment of twenty percent of the relevant bid. The Bureaus seek comment on this proposal.
48. This proceeding has been designated as a permit-but-disclose proceeding in accordance with the Commission's
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
In accordance with requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 26, 2010.
Interested parties are invited to submit written comments. All comments should refer to the name of the collection. Comments may be submitted by any of the following methods:
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A copy of the comments may also be submitted to the FDIC Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
For further information about this renewal, please contact Gary A. Kuiper, by telephone at 202.898.3877 or by mail at the address identified above.
The FDIC is proposing to renew this collection:
Comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimate of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The United States Department of Justice (“Department”) files these comments in support of the petition of the National Customs Brokers and Forwarders Association of America, Inc. (“the Petition”) requesting an exemption for non-vessel-operating common carriers (“NVOCCs”) from certain tariff publishing and enforcement requirements. NVOCC tariff publishing requirements impose significant costs that limit competition, resulting in higher shipping rates. These costs far outweigh any justification. The Department has long supported exempting NVOCCs from all tariff-publishing requirements to produce the greatest competitive benefits.
Many shippers of overseas cargo, particularly smaller ones, book shipments through NVOCCs instead of contracting directly with the operators of ocean-going vessels (“vessel-operating common carriers” or “VOCCs”). NVOCCs provide a variety of services for their shipper customers. By negotiating service contracts with VOCCs for the aggregated volume of their shipper customers' cargoes, NVOCCs can obtain better rates than individual shippers could obtain on their own. In addition, many NVOCCs provide intermodal combinations of ocean and inland transportation services. Some add still other services to their transportation packages, such as packing, loading, labeling, warehousing, customs clearance, supply-chain management and other logistical services.
The Shipping Act of 1984 requires that each common carrier, including NVOCCs, publish tariffs showing all “rates, charges, classifications, rules, and practices between all points or ports.”
Tariff publishing requirements place a particularly high burden on NVOCCs due to the nature of their business. As explained in multiple comments filed in this proceeding, NVOCCs typically handle small to mid-size shipments on a spot basis rather than through long-term contracts. Shippers routinely contact NVOCCs to negotiate rate quotes to move a particular shipment at a specific time. NVOCCs in turn deal with multiple VOCCs to provide the actual transportation, and the VOCCs frequently adjust rates and surcharges they impose on the NVOCCs. As a result, NVOCCs typically tailor their charged rates to the specific circumstances of each shipment and, accordingly, must make frequent tariff filings and adjustments to meet the regulatory requirements. This is a costly and burdensome process.
The Federal Maritime Commission (“Commission”) has issued rule changes in which it has used its exemption authority under § 16 of the 1984 Shipping Act, later broadened by the Ocean Shipping Reform Act (“OSRA”),
The Petition seeks to broaden the filing exemption to cover those instances where an NVOCC has individually negotiated rates with its shipping customers and memorialized those rates in writing.
The proposed elimination of the NVOCC tariff publication requirements is an appropriate exercise of the Commission's exemption authority under 46 U.S.C. 40103(a), which allows the Commission to exercise its exemption authority if the exemption “will not result in a substantial reduction in competition or be detrimental to commerce.” That standard is clearly met here.
As the Department explained in prior comments, “exempting all NVOCCs from all tariff publication requirements would produce the greatest competitive benefits.”
The costs associated with the tariff publication requirement greatly exceed any benefits. As the NCBFAA noted, tariffs are rarely, if ever, reviewed or consulted by shippers to determine ocean shipping rates.
In conclusion, the Department supports the goal of the relief requested in the Petition to further exempt NVOCCs from tariff publishing and enforcement requirements.
U.S. Department of Justice, Antitrust Division, Transportation, Energy & Agriculture Section, 450 Fifth Street, NW., Washington, DC 20530.
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a Federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a Federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App. 2).
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the President's Advisory Council on Faith-Based and Neighborhood Partnerships announces the following meetings:
There will also be a conference call line available for those who cannot attend the meeting in person. The call-in line is: 800–857–8628, Passcode: 5091968.
Please visit
In compliance with the requirement of Section 3506(c) (2) (A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Heart, Lung, and Blood Institute (NHLBI), the National Institutes of Health (NIH), will publish periodic summaries of proposed projects to the Office of Management and Budget (OMB) for review and approval.
The main objectives of the study are:
1. To explore reasons behind errors in the donor screening process when donors initially fail to disclose an accurate and complete health history.
2. To explore PDI donors' knowledge, attitudes, behaviors and beliefs (KABB) about the health history questionnaire and their experience with the screening process and the center.
3. To compare KABB in PDI donors to deferred (but not PDI) donors and accepted donors.
The study sample will consist of three donor groups:
1. Donors with a PDI: all identified donors of interest with an FDA reportable donor suitability error classified as PDI at the REDS–II centers
2. Deferred donors: appropriately deferred (but not PDI deferred donors) at the REDS–II centers
3. Accepted Donors: appropriately accepted for donation at the REDS–II centers
Telephone interviews will be conducted with consented donors to collect information regarding their knowledge, attitudes, behaviors and beliefs about the donor health history process. Even though the interviews with the donors will be individual, we would like to form groups of similar PDI and deferred donors for analysis purposes.
The five groups of interest include PDI occurrences or deferrals that are due to
All interviews will be digitally-recorded and the recordings uploaded onto computers as dss files; these files will be transcribed and then coupled to the interviewer notes to form an analytic package for the data analysts. Once the interview is conducted successfully, each study donor will be mailed a check of $25 as an incentive for participating in the study.
The cognitive testing of the interview guide will be conducted at the Hoxworth Blood Center and at the Coordinating Center. For this purpose, the blood center staff will identify 2 PDI and 2 deferred donors from the five broad categories of interest. They will also contact 2 accepted donors for study consent and interview. These donors will be approached and consented by following the same procedures that will be used for the actual study.
The data from the semi-structured interviews will be analyzed in two ways. The close-ended responses will be analyzed quantitatively. This will likely take the form of 3-way cross-tabulations of frequency distributions in responses to key questions. The open-ended responses will be analyzed as qualitative data. All analytic steps and assumptions that led up to the conclusions, including competing interpretations of the data, will be fully discussed in the final report.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the act) permanently debarring Patrick J. Lais from providing services in any capacity to a person that has an approved or pending drug product application. We base this order on a finding that Mr. Lais was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the act. Mr. Lais has notified FDA that he acquiesces to debarment, and therefore has waived his opportunity for a hearing concerning this action.
This order is effective February 23, 2010.
Submit applications for special termination of debarment to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Kenny Shade, Office of Regulatory Affairs (HFC–230), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 240–632–6844.
On April 25, 2005, Mr. Patrick J. Lais, formerly president of York Pharmaceutical, pleaded guilty to introducing and delivering, and causing to be introduced and delivered into interstate commerce, a drug that was adulterated within the meaning of 21 U.S.C. 351(a)(2)(B) of the act, a felony under Federal law in violation of 21 U.S.C. 331(a) and 333(a)(2). Judgment was entered against him for this felony on August 15, 2005. The basis for this conviction was as follows:
Beginning in 1997 and lasting until September 2001, Mr. Lais was the president of York Pharmaceutical (York). Mr. Lais had responsibility for and authority over drug manufacturing at York. York manufactured generic over-the-counter drugs during the period January 1999 through July 2001.
York distributed in interstate commerce human drug products that were adulterated within the meaning of 21 U.S.C. 351(a)(2)(B) of the act, in that York manufactured and distributed, among other things, subpotent burn spray, aspirin that had failed dissolution testing, and antacid products contaminated with bacteria.
Mr. Lais knew that York's manufacturing facility lacked basic validation processes and controls and that York's drug products were adulterated within the meaning of the act. Mr. Lais also knew that York: (1) Did not use procedures that ensured that its drugs had the identity, strength, quality, and purity characteristics that they were represented to possess; (2) did not test raw materials before using them; (3) did not perform appropriate laboratory determinations of conformance with final specifications for each of its drug products; (4) shipped drug product known not to meet established quality control criteria; (5) frequently failed to assess the stability characteristics of the drugs it produced; (6) did not maintain the buildings used in the manufacture, processing, packing, and holding of its drug products in a clean and sanitary condition; and (7) did not clean, maintain, and sanitize its manufacturing equipment and utensils in such a way as to prevent contamination of final drug products.
In January 2000, York manufactured and compressed a drug product identified as “Uncoated Aspirin.” This drug failed its final dissolution testing. Neither Mr. Lais nor the employees under his authority and control determined the cause of the dissolution failure. Rather, York coated the failed aspirin and renumbered the lot. Part of this lot then was packaged as “Coated Aspirin.” On or about February 21, 2000, Mr. Lais caused the shipment of 625 cases of adulterated drug products, identified as “Coated Aspirin,” to customers in Kansas City, MO. In May 2000, this “Coated Aspirin” failed 3–month stability testing. Mr. Lais and the employees under his authority and control did not determine the cause of the failure and did not inform York's customers that the aspirin was adulterated.
Mr. Lais is subject to debarment based on a finding, under section 306(a)(2)(B) of the act (21 U.S.C. 355a(a)(2)(B)), that he was convicted of a felony under Federal law for conduct relating to the regulation of a drug product.
In the plea agreement entered on April 25, 2005, Mr. Lais expressly waived his right, if any, to contest any debarment that may be initiated by the Secretary of Health and Human Services under 21 U.S.C.335a. In accordance with section 306(c)(2)(B) of the act, Mr. Lais notified FDA of his acquiescence to debarment in a letter signed on October 3, 2006. A person subject to debarment is entitled to an opportunity for an agency hearing on disputed issues of material fact under section 306(i) of the act, but by acquiescing to debarment Mr. Lais waived his opportunity for a hearing and to raise any contentions concerning his debarment.
Therefore, the Acting Director, Office of Enforcement, Office of Regulatory Affairs, under section 306(a)(2)(B) of the act, under authority delegated to the Acting Director (Staff Manual Guide 1410.35), finds that Patrick J. Lais has been convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the act.
As a result of the foregoing finding and based on his notification of acquiescence, Mr. Lais is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective October 3, 2006, the date of notification of acquiescence (see sections 306(c)(1)(B), (c)(2)(A)(ii), and 201(dd) of the act (21 U.S.C. 321(dd))). Any person with an approved or pending drug product application who knowingly employs or retains as a consultant or contractor, or otherwise uses the services of Patrick J. Lais, in any capacity during Mr. Lais's debarment, will be subject to civil money penalties (section 307(a)(6) of the act (21 U.S.C. 335b(a)(6))). If Mr. Lais provides services in any capacity to a person with an approved or pending drug product application during his period of debarment he will be subject to civil money penalties (section 307(a)(7) of the act). In addition, FDA will not accept or review any abbreviated new drug applications submitted by or with the assistance of Mr. Lais during his period of debarment (section 306(c)(1)(B) of the act).
Any application by Mr. Lais for special termination of debarment under section 306(d)(4) of the act should be identified with Docket No. FDA–2009–N–0585 and sent to the Division of Dockets Management (see
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852–3804; telephone: 301/496–7057; fax: 301/402–0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
When CTC is performed in conjunction with CAD software, screening may become easier on patients, less time-consuming, and more accurate. The effectiveness of the method was verified in experiments in which the polyp location was used as a measure for the registration error. The algorithm was tested on a CTC dataset of 12 patients with 14 polyps. Experimental results showed that by using this method, the estimation error of polyp location could be reduced 60.4% (from 47.2mm to18.7mm on average) compared to a traditional method based on dynamic time warping.
Colon cancer is the second leading cause of cancer-related deaths in the United States, and the method used in this invention will aid in effective early detection of the disease, which will have a significant impact on its prognosis.
The structural information of glycosyltransferases has revealed that the specificity of the sugar donor in these enzymes is determined by a few residues in the sugar-nucleotide binding pocket of the enzyme, which is conserved among the family members from different species. This conservation has made it possible to reengineer the existing glycosyltransferases with broader sugar donor specificities. Mutation of these residues generates novel glycosyltransferases that can transfer a sugar residue with a chemically reactive functional group to N-acetylglucosarnine (GlcNAc), galactose (Gal) and xylose residues of glycoproteins, glycolipids and proteoglycans (glycoconjugates). Thus, there is potential to develop mutant glycosyltransferases to produce glycoconjugates carrying sugar moieties with reactive groups that can be used in the assembly of bio-nanoparticles to develop targeted-drug delivery systems or contrast agents for medical uses.
Accordingly, methods to synthesize N-acetylglucosamine linkages have many applications in research and medicine, including in the development of pharmaceutical agents and improved vaccines that can be used to treat disease.
This application claims compositions and methods based on the structure-based design of alpha 1–3 N-Acetylgalactosaminyltransferase (alpha 3 GalNAc-T) mutants from alpha l-3galactosyltransferase (a3Gal-T) that can transfer 2′-modified galactose from the corresponding UDP-derivatives due to mutations that broaden the alpha 3Gal-T donor specificity and make the enzyme alpha3 GalNAc-T.
The structural information of glycosyltransferases has revealed that the specificity of the sugar donor in these enzymes is determined by a few residues in the sugar-nucleotide binding pocket of the enzyme, which is conserved among the family members from different species. This conservation has made it possible to reengineer the existing glycosyltransferases with broader sugar donor specificities. Mutation of these residues generates novel glycosyltransferases that can transfer a sugar residue with a chemically reactive functional group to N-acetylglucosarnine (GlcNAc), galactose (Gal) and xylose residues of glycoproteins, glycolipids and proteoglycans (glycoconjugates). Thus, there is potential to develop mutant glycosyltransferases to produce glycoconjugates carrying sugar moieties with reactive groups that can be used in the assembly of bio-nanoparticles to develop targeted-drug delivery systems or contrast agents for medical uses.
Accordingly, methods to synthesize N-acetylglucosamine linkages have many applications in research and medicine, including in the development of pharmaceutical agents and improved vaccines that can be used to treat disease.
The invention claims beta (1,4)-galactosyltransferase I mutants having altered donor and acceptor and metal ion specificities, and methods of use thereof. In addition, the invention claims methods for synthesizing oligosaccharides using the beta (1,4)-galactosyltransferase I mutants and to using the beta (1,4)-galactosyltransferase I mutants to conjugate agents, such as therapeutic agents or diagnostic agents, to acceptor molecules. More specifically, the invention claims a double mutant beta 1, 4 galactosyltransferase, human beta-1, 4-Tyr289Leu-Met344His-Gal-T1, constructed from the individual mutants, Tyr289Leu-Gal-T1 and Met344His-Gal-T1, that transfers modified galactose in the presence of magnesium ion, in contrast to the wild-type enzyme which requires manganese ion.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The National Institutes of Health (NIH) is requesting public comment on a revision to the definition of human embryonic stem cells (hESCs) in the “National Institutes of Health Guidelines for Human Stem Cell Research” (Guidelines).
On July 7, 2009, NIH issued Guidelines (
In Section II of the final Guidelines, hESCs are defined as: “For the purpose of these Guidelines, `human embryonic stem cells (hESCs)' are cells that are derived from the inner cell mass of blastocyst stage human embryos, are capable of dividing without differentiating for a prolonged period in culture, and are known to develop into cells and tissues of the three primary germ layers.”
This definition had the unintended consequence of excluding certain hESCs which may otherwise be appropriate for Federal funding. For example, the current definition excludes hESCs from an embryo which fails to develop to the blastocyst stage.
Therefore, the NIH proposes replacing the current definition of hESCs in Section II with the following: “For the purpose of these Guidelines, `human embryonic stem cells (hESCs)' are pluripotent cells that are derived from
This proposed change in no way alters the rigorous ethical standards set forth in the Guidelines.
Written comments on this proposed change must be received by NIH on or before March 25, 2010 in order to be considered.
Public comments may be may be entered at:
Comments may also be mailed to: NIH Stem Cell Guidelines, MSC 7997, 9000 Rockville Pike, Bethesda, Maryland 20892–7997. Comments will be made publicly available. Personally identifiable information (except for organizational affiliations) will be removed prior to making comments publicly available.
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA) is announcing the opening of a docket to obtain information about current practices and conditions for the production and packing of fresh produce. FDA is establishing this docket in order to provide an opportunity for interested parties to provide information and share views that will inform the development of safety standards for fresh produce at the farm and packing house and strategies and cooperative efforts to ensure compliance.
Submit electronic or written comments by May 24, 2010.
Submit electronic comments to
Michelle A. Smith, Center for Food Safety and Applied Nutrition (HFS–317), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740–3835, 301–436–2024.
On March 19, 2009, President Barack Obama established a new Food Safety Working Group (FSWG), chaired by the Secretaries of the Department of Health and Human Services and the Department of Agriculture. In announcing creation of the FSWG, the President said the group would advise him on how to upgrade U.S. food safety laws for the 21st century, foster coordination of food safety efforts throughout the Government, and ensure laws are being adequately enforced to keep the American people safe from foodborne illness (Ref. 1).
On July 1, 2009, the FSWG recommended a new public health-focused approach to food safety based on three core principles: (1) Prioritizing prevention; (2) strengthening surveillance and enforcement; and (3) improving response and recovery (Ref. 1). The FSWG announced steps to be taken by FDA and other Federal agencies to achieve these goals.
With regard to fresh produce, the FSWG announced that FDA would issue “commodity-specific draft guidance on preventive controls that industry can implement to reduce the risk of microbial contamination in the production and distribution of tomatoes, melons, and leafy greens” (Ref. 1). The FSWG also announced that FDA, over the next 2 years, would “seek public comment and work to require adoption of these approaches through regulation” (Ref. 1).
On August 3, 2009, FDA made available draft guidances to industry for leafy greens, melons, and tomatoes (Refs. 3 through 5). FDA is now establishing a docket in order to provide an opportunity for interested parties to provide information and share views that will inform the development of: (1) Safety standards for fresh produce at the farm and packing house and (2) strategies and cooperative efforts to ensure compliance.
We are requesting comments that will inform the development of: (1) Safety standards for fresh produce at the farm and packing house and (2) strategies and cooperative efforts to ensure compliance. In particular, we welcome input on any of these general categories:
• Role of the good agricultural practice guidelines entitled “Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables” (GAPs Guide, Ref. 6);
• Standards for domestic and foreign growers and packers;
• Identification and prioritization of risk factors;
• Environmental assessment of hazards and possible pathways of contamination;
• The impact of scale of growing operations on the nature and degree of possible food safety hazards;
• Methods to tailor preventive controls to particular hazards and conditions affecting an operation;
• Possible approaches to tailoring preventive controls to the scale of an operation so that the controls achieve an appropriate level of food safety protection and are feasible for a wide range of large and small operations;
• Coordination of produce food safety practices and sustainable and/or organic production methods;
• Coordination of produce food safety practices and environmental and/or conservation goals or practices;
• Coordination of produce food safety practices and Federal, State, local and tribal government statutes and regulations;
• Microbial testing;
• Post-harvest operations and the role of the current good manufacturing practices in 21 CFR part 110;
• Records and other documentation that would be useful to industry and regulators in ensuring the safety of fresh produce; and
• Strategies to enhance compliance.
The agency will consider information submitted to the docket in developing safety standards for fresh produce. Comments previously submitted to the Division of Dockets Management for the following dockets will also be considered by FDA and do not need to be resubmitted:
• “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Tomatoes; Availability” (74 FR 38438, August 3, 2009; Docket No. FDA–2009–D–0346);
• “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Melons” (74 FR 38437, August 3, 2009; Docket No. FDA–2009–D–0347);
• “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Leafy Greens; Availability” (74 FR 38439, August 3, 2009; Docket No. FDA–2009–D–0348); and
• “Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables; Request for Comments and for Scientific Data and Information” (73 FR 51306, September 2, 2008; Docket No. FDA–2008–N–0455).
Interested persons may submit to the Division of Dockets Management (see
FDA has placed the following references on display in FDA's Division of Dockets Management (see
1. Food Safety Working Group, “Food Safety Working Group: Key Findings” (July 1, 2009), Available at
2. Food Safety Working Group, “President's Food Safety Working Group: Delivering Results,” Available at
3. FDA, “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Tomatoes; Availability” (74 FR 38438, August 3, 2009).
4. FDA, “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Melons” (74 FR 38437, August 3, 2009).
5. FDA, “Draft Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards of Leafy Greens; Availability” (74 FR 38439, August 3, 2009).
6. FDA, “Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables,” October 26, 1998, Available at
Privacy Office, DHS.
Notice of Federal Advisory Committee Meeting.
The DHS Data Privacy and Integrity Advisory Committee will meet on March 18, 2010, in Washington, DC. The meeting will be open to the public.
The DHS Data Privacy and Integrity Advisory Committee will meet on Thursday, March 18, 2010, from 8:30 a.m. to 1 p.m. Please note that the meeting may end early if the Committee has completed its business.
The meeting will be held at the US Citizenship and Immigration Services Tomich Center, 111 Massachusetts Ave, NW., (corner of New Jersey Avenue) Washington, DC 20529. Written materials, requests to make oral presentations, and requests to have a copy of your materials distributed to each member of the Committee prior to the meeting should be sent to Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, by March 11, 2010. Persons who wish to submit comments and who are not able to attend or speak at the meeting may submit comments at any time. All submissions must include the Docket Number (DHS–2010–0009) and may be submitted by any
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Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528, by telephone (703) 235–0780, by fax (703) 235–0442, or by e-mail to
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. (Pub. L. 92–463). During the meeting, the Chief Privacy Officer will provide the DHS Data Privacy and Integrity Advisory Committee an update on the activities of the DHS Privacy Office. The Committee will also hear presentations on the Department's cyber security efforts. In addition, the Committee's subcommittees will discuss their ongoing work. The agenda will be posted in advance of the meeting on the Committee's Web site at
If you wish to attend the meeting, please plan to arrive at the Tomich Center by 8:15 a.m., to allow extra time to be processed through security, and bring a photo ID. The DHS Privacy Office encourages you to register for the meeting in advance by contacting Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, at
For information on services for individuals with disabilities or to request special assistance, contact Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, as soon as possible.
Privacy Office; DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to update and reissue Department of Homeland Security/ALL—023 Personnel Security Management System of Records to include record systems within the Federal Protective Service and records of federal, state, local and foreign law enforcement personnel who apply for and/or are granted authority to enforce federal laws on behalf of the Department. Categories of individuals, categories of records, purpose, and routine uses of this system have been reviewed and updated to reflect the personnel security management record systems of the Department, including the Federal Protective Service. The activities performed by the Department's personnel security program often overlap with other security-related activities such as access control and investigatory records. Accordingly, data within each of the categories of individuals, categories of records, purpose and routine uses may have similarities with other security-related systems of records, but each system is distinct based on its purpose.
Further, this system of records is separate from Department of Homeland Security/ALL 026—Personal Identity Verification Management System of Records, June 25, 2009, which supports the administration of the Homeland Security Presidential Directive—12 program, directing the use of a common identification credential for both logical and physical access to federally controlled facilities and information systems while enhancing security, increasing efficiency, reducing identity fraud, and protecting personal privacy.
There will be no change to the Privacy Act exemptions currently in place for this system of records and therefore remain in effect. This updated system will continue to be included in the Department of Homeland Security's inventory of record systems.
Written comments must be submitted on or before March 25, 2010. This updated system will be effective March 25, 2010.
You may submit comments, identified by docket number DHS–2009–0041 by one of the following methods:
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For general questions and privacy issues please contact: Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security (DHS) and its components and offices rely on DHS/ALL—023 Personnel Security Management System of Records (74 FR 3084, January 16, 2009) for the collection and maintenance of records that pertain to personnel security management.
DHS is updating and reissuing this Department-wide system of records under the Privacy Act (5 U.S.C. 552a), for DHS personnel security management records, to include records systems within the Federal Protective Service (FPS) and records of federal, state, local, and foreign law enforcement personnel
The purpose of this system is to maintain processing records of personnel security-related clearance actions, to record suitability determinations, to record whether security clearances are issued or denied, and to verify eligibility for access to classified information or assignment to a sensitive position. Also, records may be used by the Department for adverse personnel actions such as removal from sensitive duties, removal from employment, and denial to a restricted or sensitive area, and revocation of security clearance. The system also assists in capturing background investigations and adjudications; directing the clearance process for granting, suspending, revoking and denying access to classified information; directing the clearance process for granting, suspending, revoking and denying other federal, state, local, or foreign law enforcement officers the authority to enforce federal laws on behalf of DHS; managing state, local, and private-sector clearance programs and contractor suitability programs; determining eligibility for unescorted access to DHS facilities or information technology systems; and other activities relating to personnel security management responsibilities at DHS. The Department's authority for this collection is primarily 5 U.S.C. 301; 44 U.S.C. 3101; 8 U.S.C. 1357(g); 19 U.S.C. 1401(i); Executive Order (EO) 9397; EO 10450; EO 12968; 5 CFR part 731; 5 CFR part 732; 5 CFR part 736; 32 CFR part 147; and DCID 6/4. This system will collect individuals' personal information to support the Department's efforts related to their personnel security activity. Efforts have been made to safeguard records in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. The routine uses posted are unchanged from the previous publishing and consistent with the purpose for collection. This system of records is collecting information under the Paperwork Reduction Act using the following forms: (1.) Questionnaire for Non-Sensitive Positions—SF–85—OMB No. 3206–0005; (2.) Questionnaire for Public Trust Position—SF–85P—OMB No. 3206–0191; (3.) Supplemental Questionnaire for Selected Positions—SF–85P–S OMB No. 3206–0191; (4.) Questionnaire for National Security Positions—SF–86—OMB No. 3206–0005; and (5.) Continuation Sheet for Questionnaires—SF–86A—OMB No. 3206–0005. Further reviews are being conducted to determine if the system of records collects other information under the Paperwork Reduction Act. Categories of individuals, categories of records, the purpose, and routine uses of this system have been reviewed and updated to reflect the personnel security management record systems of the Department, including the FPS. The Privacy Office has updated the categories of individuals covered by the system to include DHS-covered individuals, such as federal employees, applicants, excepted service federal employees, contractor employees, retired employees, past employees providing support to DHS and who require unescorted access to DHS-secured facilities, and federal, state, local, and foreign law enforcement personnel who apply for or are granted authority to enforce federal laws on behalf of DHS. The categories of records have been updated to include facial photographs and criminal background investigations. The purpose has been revised to reflect that the system assists in directing the clearance process for granting, suspending, revoking and denying other federal, state, local, or foreign law enforcement officers the authority to enforce federal laws on behalf of DHS and eligibility for unescorted access to DHS secured facilities. An existing routine use (Routine Use H) was modified to permit the sharing of information from this system of records with agencies where it is relevant and necessary to the agencies' decision concerning the delegation or designation of authority. Lastly, a new routine use was added to permit sharing of information with the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
Privacy Impact Assessments (PIAs) have been conducted and are on file for the (1.) Personnel Security Activities Management System; (2.) Integrated Security Management System; (3.) DHSAccessGate System; (4.) Automated Continuing Evaluation System (ACES) Pilot; (5.) Personal Identity Verification System; (6.) Federal Protective Service Information Support Tracking System (FISTS) Contract Suitability Module; and (7.) Federal Protective Service Dispatch Incident Records Management Systems along with other related component specific PIAs and can be found at
Consistent with DHS's information sharing mission, information stored within the DHS/ALL—023 Personnel Security Management System of Records may be shared with other DHS components, as well as appropriate federal, state, local, tribal, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.
The Office of the Chief Security Officer is implementing a new web-based personnel and information security application, Integrated Security Management System (ISMS). ISMS has replaced many of the existing case management systems currently in use at the Department's Headquarters, U.S. Customs and Border Protection (CBP), the Federal Law Enforcement Training Center (FLETC), and the Federal Emergency Management Agency (FEMA). ISMS will replace the existing case management systems currently in use at the U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and the U.S. Coast Guard (USCG) in the near future.
There will be no change to the Privacy Act exemptions currently in place for this system of records and therefore remain in effect. This updated system will continue to be included in DHS's inventory of record systems.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates an individual's records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is stored and retrieved by the name of the individual or by some identifying number such as property address, mailing address, or symbol assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. DHS extends administrative Privacy Act protections to all individuals where information is maintained on both U.S. citizens, lawful permanent residents, and visitors. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this new system of records to the Office of Management and Budget (OMB) and to Congress.
DHS/ALL–023
Department of Homeland Security (DHS)/ALL—023 Personnel Security Management System of Records.
Unclassified, sensitive, for official use only, and classified.
Records are maintained at several DHS Headquarters locations and component offices in Washington, DC and field locations; and the Department of Treasury (DTR), Bureau of Public Debt for Office of Inspector General employees and applicants. For background investigations adjudicated by the Office of Personnel Management (OPM), OPM may retain copies of those files pursuant to their records retention schedules.
Categories of individuals covered by this system include federal employees, applicants, excepted service federal employees, contractor employees, retired employees, and past employees providing support to DHS who require: (1.) Unescorted access to DHS-owned facilities, DHS-controlled facilities, DHS-secured facilities, or commercial facilities operating on behalf of DHS; (2.) access to DHS information technology (IT) systems and the systems' data; or (3.) access to national security information including classified information.
Also covered are: (1.) State and local government personnel and private-sector individuals who serve on an advisory committee or board sponsored by DHS; (2.) federal, state, local, and foreign law enforcement personnel who apply for or are granted authority to enforce federal laws on behalf of DHS; and (3.) individuals, including state and local government personnel and private-sector individuals, who are authorized by DHS to access Departmental facilities, communications security equipment, and/or information technology systems that process sensitive or classified national security information.
Categories of records in the system include:
• Individual's name;
• Date and place of birth;
• Social security number;
• Citizenship;
• Access Control Pass or Credential number;
• Facial photograph;
• Records relating to the management and operation of DHS personnel security program, including but not limited to:
○ Completed standard form questionnaires issued by the Office of Personnel Management;
○ Originals or copies of background investigative reports;
○ Supporting documentation related to the background investigations and adjudications including criminal background, medical and financial data;
○ Information related to congressional inquiry; and
○ Other information relating to an individual's eligibility for access to classified or sensitive information.
• Records relating to management and operation of DHS programs to safeguard classified and sensitive but unclassified information, including but not limited to:
○ Document control registries;
○ Courier authorization requests;
○ Non-disclosure agreements;
○ Records of security violations;
○ Records of document transmittals; and
○ Requests for secure storage and communications equipment.
• Records relating to the management and operation of DHS special security programs, including but not limited to:
○ Requests for access to sensitive compartmented information (SCI);
○ Contact with foreign officials and foreign travel registries; and
○ Briefing/debriefing statements for special programs, sensitive positions, and other related information and documents required in connection with personnel security clearance determinations.
• Records relating to the management and operation of the DHS security program, including but not limited to:
○ Inquiries relating to suspected security violation(s);
○ Recommended remedial actions for possible security violation(s);
○ Reports of investigation regarding security violations;
○ Statements of individuals;
○ Affidavits;
○ Correspondence;
○ Documentation pertaining to investigative or analytical efforts by DHS Security program personnel to identify threats to DHS personnel, property, facilities, and information; and
○ Intelligence reports and database results relating to DHS personnel, applicants, or candidates for DHS employment or access to DHS facilities or information.
5 U.S.C. 301; 44 U.S.C. 3101; 8 U.S.C. 1357(g); 19 U.S.C. 1401(i); Executive Order (EO) 9397; EO 10450; EO 12968; 5 CFR part 731; 5 CFR part 732; 5 CFR part 736; 32 CFR part 147; and DCID 6/4.
The purpose of this system is to collect and maintain records of processing of personnel security-related clearance actions, to record suitability determinations, to record whether security clearances are issued or denied, and to verify eligibility for access to classified information or assignment to a sensitive position. Also, records may be used by the Department for adverse
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records of information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (including United States Attorney Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the written request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual who relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, delegation or designation of authority, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, delegation or designation of authority, or other benefit and disclosure is appropriate to the proper performance of the official duties of the person making the request.
I. To an individual's prospective or current employer to the extent necessary to determine employment eligibility.
J. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or pursuant to the order of a court of competent jurisdiction in response to a subpoena from a court of competent jurisdiction.
K. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.
L. To a public or professional licensing organization when such information indicates, either by itself or in combination with other information, a violation or potential violation of professional standards, or reflects on the moral, educational, or professional qualifications of an individual who is licensed or who is seeking to become licensed.
M. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure
Records may be retrieved by individual's name, date of birth, social security number, if applicable, or other unique individual identifier such as access control pass or credential number.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Pursuant to GRS 18, Item 21 through 25, records relating to alleged security violations are destroyed two years after completion of final action or when no longer needed, whichever is sooner; records relating to alleged violations of a sufficient serious nature that are referred for prosecutive determinations are destroyed five years after the close of the case; personnel security clearance files are destroyed upon notification of death or not later than five years after separation or transfer of employee or no later than five years after contract relationship expires, whichever is applicable.
For Headquarters components of DHS: Chief, Personnel Security Division (202–447–5010), Office of Security, Department of Homeland Security, Washington, DC 20528. For components of DHS, the System Manager can be found at
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Headquarters or component's FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are generated from sources contacted during personnel and background investigations.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in (c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act pursuant to 5 U.S.C. 552a (k)(1), (k)(2), (k)(3), and (k)(5) of the Privacy Act.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to update and reissue a Department-wide system of records notice titled, Department of Homeland Security–2004–0004 Oral History Program: The History of the Department of Homeland Security System of Records. The updated system of records is being renamed Department of Homeland Security/ALL–027 The History of the Department of Homeland Security System of Records and will consist of information that is created and used by the Department's Historian, and component historians. As a result of the biennial review of this system, updates have been made reflecting a new name to better describe records covered; added system classification of classified, sensitive, and unclassified information; system location to reflect the move of the History Office from the Office of Public Affairs to the Office of Policy; expanded categories of individuals and the categories of records covered by the system to include those used by components, as the Department proposes that this be a Department-wide system; routine uses to better reflect the needs of the History Office including sharing with appropriate agencies, entities, and persons when there is a compromise or risk to the system (Routine Use D), to federal, state, tribal, local, international, or foreign law
Submit comments on or before March 25, 2010. This reissued system will be effective March 25, 2010.
You may submit comments, identified by docket number [DHS–2009–0040] by one of the following methods:
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•
•
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For general questions please contact: Historian (202–282–8682), History Office, Office of Policy, U.S. Department of Homeland Security, Washington, DC 20528. For privacy issues please contact: Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security (DHS) and its components and offices rely on the Privacy Act system of records notice, DHS–2004–0004 Oral History Program: The History of the Department of Homeland Security System of Records (69 FR 56781, September 22, 2004) for the collection and maintenance of records that concern the Department's history records. The system name is being changed to DHS/ALL–027 The History of the Department of Homeland Security System of Records.
As part of its efforts to maintain its Privacy Act records systems, DHS is updating and reissuing a Department-wide system of records under the Privacy Act (5 U.S.C. 552a) for DHS history records. This will ensure that all components of DHS follow the same privacy rules for collecting and handling history records. The collection and maintenance of this information will assist DHS in managing the Department's history records in order to promote an accurate and complete portrayal of DHS history.
The History Office was established to record, collect, preserve, describe, analyze, publish, and disseminate the history of the Department. Initially established within the Office of Public Affairs, the History Office has since been transferred to the Office of Policy, and serves with the support of the components, in developing a complete history of the Department.
The purpose of this system is to collect historically relevant information about the Department to support policy, initiatives, announcements, public releases of information, as well as to inform current and future leadership, employees, and the public about the history of the Department. DHS is authorized to implement this program primarily through 5 U.S.C. 301 and 44 U.S.C. 3101. This system has an effect on individuals' privacy that is balanced by the notice provided to the individual during an oral interview, while completing historical questionnaires, or when providing information. This information is needed to accurately capture and maintain the Department's history. Information is safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is stored. Information within this system is shared consistent with 5 U.S.C. 552a(b) of the Privacy Act and the compatibility requirements outlined in 5 U.S.C. 552a(7). Routine uses added during this biennial review are sharing with appropriate agencies, entities, and persons when there is a compromise or risk to the system (Routine Use D), to federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order (Routine Use F); to audiences attending a particular event, location, or meeting where the history of the Department is exhibited or presented (Routine Use I); and to scholars (historians and other disciplines) or any other interested individuals for research in writing dissertations, articles, books, and other documents for government, commercial, and nonprofit publication or developing material for other media use (Routine Use J). All remaining routine uses are as previously published. This system does use a form(s) to collect information. An inventory of forms is being conducted to ensure that appropriate Privacy Act notices are in place and that the Paperwork Reduction Act is being honored.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
DHS/ALL–027
Department of Homeland Security—The History of the Department of Homeland Security System of Records.
Classified, sensitive, and unclassified.
Records are maintained at Department of Homeland Security headquarters (History Office, Office of Policy) as well as component headquarters in Washington, DC, and field locations.
Categories of individuals covered by this system include: Current and former federal employees, including political appointees, civilian, contractor, and military personnel assigned or detailed to the Department. Also, covered by this system are individuals who are formally or informally associated with the Department, including advisory committee members, employees of other agencies and departments in the federal government, and other individuals in the private and public sector who contribute to the history of the Department.
Categories of records in this system include:
• Individuals or interviewees full name;
• Individuals or interviewees provided address;
• Individuals or interviewees provided phone number(s);
• Individuals or interviewees provided e-mail address;
• Occupational background and position(s);
• Public speeches and articles by an individual;
• Public and internal correspondence, interviews, press releases and announcements, and various other tapes and transcripts of Departmental activities;
• Photographs;
• Biographical information;
• Interview records on magnetic tape or other electronic format;
• Transcriptions from written and oral interviews and discussions;
• Access agreements; and
• Interviewee accounts and recollections of experiences at component legacy agencies; the events of September 11, 2001; the establishment of the Department and its predecessor the Office of Homeland Security; the history of the Department including legacy components; major issues facing the Department; and the future of the Department.
5 U.S.C. 301; and 44 U.S.C. 3101.
The purpose of this system is to collect historically relevant information about the Department to support policy, initiatives, announcements, public releases of information, as well as to inform current and future leadership, employees, and the public about the history of the Department.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (including United States Attorney Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individuals that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
E. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
F. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or
G. To the Government Printing Office or other publishing offices for production of a final document.
H. To the National Archives and other government or public libraries in order to respond to inquiries about DHS.
I. To audiences attending a particular event, location, or meeting where the history of the Department is exhibited or presented.
J. To scholars (historians and other disciplines) or any other interested individuals for research in writing dissertations, articles, books, and other documents for government, commercial, and nonprofit publication or developing material for other media use.
K. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD–ROM.
Records may be retrieved by name, subject, employment position, or event.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Records relating to background material are temporary, to be destroyed when no longer needed for administrative purposes, or ten years after the completion of the project. Records for the Headquarters History Office Project Files and Oral History Program are permanent in accordance with National Archives and Records Administration through approved schedule N1–563–07–3.
Historian (202–282–8682), History Office, Office of Policy, U.S. Department of Homeland Security, Washington, DC 20528.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Headquarters' or component's FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Individuals, interviewees, press releases, newspapers, journals, copies of internal Department records, and individuals submit records on a voluntary basis to the History Offices. Individuals who are interviewed for records must sign and are provided a notice under the Privacy Act pursuant to 5 U.S.C. 552a.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in (c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(5), and (e)(8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in (c)(3), (d), (e)(1), (e)(4)(G), (H), (I), and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to establish a new system of records titled, “Department of Homeland Security/Transportation Security Administration—023 Workplace Violence Prevention Program System of Records.” This system will allow the Transportation Security Administration to collect and maintain records on their Workplace Violence Prevention Program. Additionally, the Department of Homeland Security is issuing a Notice of Proposed Rulemaking concurrent with this system of records elsewhere in the
Submit comments on or before March 25, 2010. This new system will be effective March 25, 2010.
You may submit comments, identified by docket number DHS–2009–0140 by one of the following methods:
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•
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For general questions please contact: Peter Pietra (
The Department of Homeland Security (DHS) Transportation Security Administration (TSA) is establishing a new system of records under the Privacy Act (5 U.S.C. 552a) titled, DHS/TSA–023 Workplace Violence Prevention Program System of Records. The system will cover records regarding current and former employees and contractors of TSA and members of the public who have been involved in workplace violence at TSA facilities, or while on or because of their official duty, or who are being or have been assisted or counseled by the TSA Workplace Violence Prevention Program. Records include acts, remarks, or gestures that communicate a threat of harm or otherwise cause concern for the safety of any individual at TSA facilities or while on or because of their official duty. These records may include identifying information, information documenting workplace violence, and actions taken by the Workplace Violence Prevention Program or TSA. The program provides oversight and management of potential or actual incidents of violence in the workplace. It provides assistance to affected individuals, guidance on prevention and response to workplace violence, analyzes data as needed, and provides training.
Additionally, DHS is issuing a Notice of Proposed Rulemaking (NPRM) concurrent with this system of records elsewhere in the
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and legal permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.
The Privacy Act requires that each agency publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this new system of records to the Office of Management and Budget and to the Congress.
DHS/TSA–023
Transportation Security Administration Workplace Violence Prevention Program System of Records.
Unclassified.
Records are maintained at TSA Headquarters in Arlington, Virginia and field locations.
Categories of individuals covered by this system include: Current and former employees and contractors of TSA and members of the public who have been involved in workplace violence at TSA facilities, or while on or because of their official duty, or who are being or have been assisted or counseled by their Workplace Violence Prevention Program.
Categories of records in this system include:
• Individual's full name;
• Date of birth;
• Social Security number;
• Work and home address;
• Work, home and cell numbers;
• Job title, duty station and work shift;
• Leave and attendance records;
• Performance records;
• Supervisor's name and contact information;
• Investigative reports including:
○ Documentation of alleged inappropriate behavior;
○ Video or audio recordings; or
○ Photographs;
○ Court records;
○ Documentation of management or local assessment and response team actions.
• Medical or mental health records including:
○ Evaluations or reports;
○ Attendance at treatment or counseling programs; or
○ Substance abuse records and prognosis.
5 U.S.C. 301; 44 U.S.C. 3101; Aviation and Transportation Security Act, Public Law 107–71; 5 U.S.C. 7361, 7362, 7901, 7904; 42 U.S.C. 290dd–2; Executive Order 9397; and Executive Order 12564.
This record system will maintain information gathered by and in the possession of the Workplace Violence Prevention Program, an internal TSA program designed to prevent and respond to workplace violence.
Records of identity, diagnosis, prognosis, or treatment of any client/patient, irrespective of whether or when he/she ceases to be a client/patient, maintained in connection with the performance of any alcohol or drug abuse prevention and treatment function conducted, regulated or directly or indirectly assisted by any department or agency of the United States, shall, except as provided therein, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd–2. This statute takes precedence over the Privacy Act of 1974 in regard to accessibility of such records except to the individual to whom the record pertains. The routine uses listed below do not apply to these types of records.
A. To the Department of Justice (including United States Attorney Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body when it is necessary to the litigation, and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where the Department of Justice or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
E. To appropriate state and local authorities to report, under state law, incidents of suspected child abuse or neglect to the extent described under 42 CFR 2.12.
F. To any individual or entity, including medical or mental health personnel or law enforcement, when an individual poses a risk of harm to himself/herself or others, or when relevant to medical or mental health counseling, treatment or evaluation.
G. To the appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, license, or treaty where DHS determines that the information would assist in the enforcement of civil or criminal laws.
H. To designated officers and employees of federal, state, local, or international agencies in connection with the hiring or continued employment of an individual, the conduct of a suitability or security investigation of an individual, the grant, renewal, suspension, or revocation of a security clearance, or the certification of security clearances, to the extent that DHS determines the information is relevant and necessary to the agency's decision.
I. To airport operators, aircraft operators, maritime and surface transportation operators, indirect air carriers, and other facility operators on individuals who are their employees, prospective employees (job applicants), contractors, or persons to whom they issue identification credentials or grant clearances to secured areas in transportation facilities when relevant to such employment, application, contract, or the issuance of such credentials or clearances.
J. To a court, magistrate, or administrative tribunal where a federal agency is a party to the litigation or administrative proceeding in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in connection with criminal law proceedings.
K. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy or a risk to transportation or national security.
None.
Records may be maintained on paper, audio and video recordings, and in computer-accessible storage media. Records may also be stored on microfiche and roll microfilm. Records that are sensitive or classified are safeguarded in accordance with agency procedures, and applicable Executive Orders and statutes.
Data may be retrieved by an individual's name, social security number, date of birth, and/or other personal identifier related to his/her specific case.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the
The Department is proposing to retain records for seven years after administrative action has been taken. Records associated with this system will be maintained until the National Archives and Records Administration has approved the proposed records disposition schedule.
Program Manager, National Workplace Violence Prevention, TSA–18, Transportation Security Administration, 601 S. 12th St., Arlington, VA 20598–6018.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, TSA will consider individual requests to determine whether or not information may be released. Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the TSA FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
Same as “Notification procedure” above. Provide your full name and a description of information that you seek, including the time frame during which the record(s) may have been generated. Individuals requesting access must comply with the Department of Homeland Security Privacy Act regulations on verification of identity (6 CFR 5.21(d)).
Same as “Notification procedure” and “Record Access Procedure,” above.
Information originates from personnel seeking assistance, TSA and its offices, counselors, treatment facilities, and coworkers.
The Secretary of Homeland Security has exempted portions of this system from the following provisions of the Privacy Act, subject to the limitations set forth in (c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Arizona (FEMA–3307–DR), dated January 24, 2010, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that the incident period for this emergency is closed effective January 29, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Arkansas (FEMA–1872–DR), dated February 4, 2010, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated
I have determined that the damage in certain areas of the State of Arkansas resulting from severe storms and flooding during the period of December 23, 2009, to January 2, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Kevin L. Hannes, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Arkansas have been designated as adversely affected by this major disaster:
Bradley, Calhoun, Clark, Clay, Cleveland, Craighead, Dallas, Drew, Grant, Greene, Hempstead, Jackson, Jefferson, Lafayette, Lincoln, Lonoke, Miller, Monroe, Nevada, Ouachita, Poinsett, Prairie, White, and Woodruff Counties for Public Assistance. Direct Federal assistance is authorized. All counties within the State of Arkansas are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of North Carolina (FEMA–1871–DR), dated February 2, 2010, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated February 2, 2010, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of North Carolina resulting from severe winter storms and flooding during the period of December 18–25, 2009, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael Bolch, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of North Carolina have been designated as adversely affected by this major disaster:
Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Jackson, Madison, McDowell, Mitchell, Watauga, and Yancey Counties for Public Assistance.
All counties within the State of North Carolina are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Coast Guard, DHS.
Notice.
The American Society of Mechanical Engineers (ASME), in coordination with the United States Coast Guard (USCG), is sponsoring a two-day public workshop in Washington DC on marine technology and standards. This public workshop will provide a unique opportunity for classification societies, industry groups, standards development organizations, government organizations, and other interested members of the public to
The two-day workshop will be held on Thursday, July 29, 2010, and Friday, July 30, 2010. The deadline for advance registration is Friday, July 16, 2010. If you are interested in presenting a paper at the workshop, you must submit a 100 word abstract to Mr. Joseph S. Brzuszkiewicz, Project Engineering Manager, ASME, by e-mail to
See
The workshop will be held at The Liaison Capitol Hill, An Affinia Hotel, located at 415 New Jersey Avenue, NW., in Washington, DC, approximately 3 blocks from Union Station. The hotel phone number is (202) 638–1616 and the hotel Web site is:
If you have questions on this notice, contact Lieutenant Commander Rob Griffiths, Office of Design and Engineering Standards, USCG, telephone (202) 372–1367, e-mail
If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826.
The ASME/USCG Workshop on Marine Technology and Standards provides a unique opportunity for classification societies, industry groups, standards development organizations, government agencies, and interested members of the public to come together for a professional exchange of information on topics ranging from the technological impact on the marine industry, corresponding coverage in related codes and standards, and government regulations.
The public workshop is sponsored by the American Society of Mechanical Engineers (ASME), in coordination with the USCG Office of Design and Engineering Standards. ASME is a standards setting organization with wide-ranging volunteer committee membership, which includes USCG supported personnel who serve as members of various ASME committees in support of USCG missions in maritime safety and environmental protection. The USCG Office of Design and Engineering Standards is responsible for developing and promulgating national regulations and standards that govern the safe design and construction of ships and shipboard equipment, including hull structure, stability, electrical & mechanical systems, lifesaving and fire safety equipment, and related equipment approval and laboratory acceptance.
Topics for the 2010 workshop are listed below and include application of various marine technologies to promote green ships, such as safe and economical use of hydrogen (H
This workshop comprises a series of panel sessions over a two-day period covering a variety of topics, including:
• Hydrogen Fuel Cell Propulsion
• Standards for H
• Emission Cleaning Technology
• CO
• Gas Fueled Ships
• CNG/LNG Technologies
• Use of Biofuels
• Floating, Production, Storage and Offloading (FPSO) Units—Topside
• Floating Wind Turbines
• Deepwater Ports
• Diving Systems to Support Offshore Activities
• Updates to ASME Code Section VIII, Divisions 2 and 3 regarding Rules of Construction for Pressure Vessels
• Use of ASME Code Section XII—Transport Tanks
• Limit Design for Pressure Vessels
• ASME Code Section X on Fiber-Reinforced Plastic Pressure Vessels for CNG Transport
• ASME Code for Pressure Vessels for Human Occupancy (PVHO)
• Nonmetallic Materials for Shipboard Equipment
• Composite Pressure Vessels
• Coating Selection
• Transporting CNG as Cargo
• Shipboard Fire Safety for Green Ship/Emerging Technology
• Maintenance and Inservice Inspection
• Rulemaking Process/Future Actions
• Regulatory Gaps Pertaining to Technological Advancements
• Adoption of Standards in Regulations
• Updates on Classification Issues
• OMB Circular A 119
• Ballast Water Management Systems Standardization
If you are interested in presenting a paper on one or more topics listed above, submit a 100 word abstract to Mr. Joseph S. Brzuszkiewicz, Project Engineering Manager, ASME, by e-mail to
If you receive notification from us that your abstract is accepted, you may then submit a draft paper and presentation to Lieutenant Commander Rob Griffiths, Office of Design and Engineering Standards, USCG, by e-mail to
For additional information on this workshop, visit the USCG Web site at
To register for this workshop, visit the USCG Web Site listed above in Web Sites. While the workshop is open to the public, meeting space is limited by room capacity. Since seating is limited, we ask anyone interested in attending the workshop to register in advance. The deadline for advance registration is Friday, July 16, 2010. Registration on the first day of the workshop will be permitted on a space-available basis. The registration fee for this event is USD$300. The registration fee includes admission for one person to each panel session for the two day event, several coffee breaks, and a reception on the first day of the event.
Material presented at the workshop will be made available to the public on the USCG Web Site listed above in Web Sites for 30 days after the conclusion of this event. For additional information on material presented at this event, you may contact one of the individuals listed above in
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act, system of records notice regarding our public dockets in the January 17, 2008, issue of the
Persons with disabilities who require special assistance should advise us of their anticipated special needs as early as possible by contacting Mr. Joseph S. Brzuszkiewicz, Project Engineering Manager, ASME, telephone (212) 591–8533, e-mail
Please note that the workshop may adjourn early if all business is finished.
This notice is issued under authority of 5 U.S.C. 552(a) and 14 U.S.C. 93(a)(4).
National Park Service, Interior.
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3507) and 5 CFR part 1320, Reporting and Recordkeeping Requirements, the National Park Service (NPS) invites comments on an extension of a currently approved information collection clearance Office of Management and Budget (OMB) #1024–0232. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NPS published a 60-day notice to solicit public comments on this ICR in the
Public comments on the Information Collection Request (ICR) will be accepted on or before March 25, 2010.
You may submit comments directly to the Desk Officer for the Department of the Interior (OMB #0124–0232), Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), by fax at 202/395–5806, or by electronic mail at
Diane Miller, Midwest Regional Office, National Park Service, 601 Riverfront Drive, Omaha, Nebraska 68102 or via fax at 402/661–1982. You are entitled to a copy of the entire ICR package free-of-charge. You may access this ICR at
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service, Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on July 31, 2010. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
To ensure that we are able to consider your comments on this IC, we must receive them by April 26, 2010.
Send your comments on the IC to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222–ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); or
To request additional information about this IC, contact Hope Grey by mail or e-mail (see ADDRESSES) or by telephone at (703) 358–2482.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) uses a system of permits and certificates to help ensure that international trade is legal and does not threaten the survival of wildlife or plant species in the wild. Prior to the import or export of CITES-listed species, the Management Authority and Scientific Authority must make appropriate determinations and issue CITES documents. Section 8A of the Endangered Species Act (16 U.S.C. 1531 et seq.) designates the Secretary of the Interior as the U.S. Management Authority and U.S. Scientific Authority for CITES. The Secretary delegated these authorities to the Fish and Wildlife Service.
Before a country can issue an export permit for CITES Appendix I or II specimens, the CITES Scientific Authority of the exporting country must determine that the export will not be detrimental to the species, and the Management Authority must be satisfied that the specimens were acquired legally. For the export of Appendix III specimens, the Management Authority must be satisfied that the specimens were acquired legally (CITES does not require findings from the Scientific Authority). Prior to the importation of Appendix I specimens, both the Scientific Authority and the Management Authority of the importing country must make required findings. The Scientific Authority must also monitor trade of all species to ensure that the level of trade is sustainable.
Article VIII(3) of the treaty states that participating parties should make efforts to ensure that CITES specimens are traded with a minimum of delay. Section XII of Resolution Conf. 12.3 (Rev. CoP13) recommends use of simplified procedures for issuing CITES documents to expedite trade that will have no impact, or a negligible impact, on conservation of the species involved.
We use FWS Form 3-200-74 (Single-Use Export Permits Under a Master File or Annual Program File (CITES)) to streamline the application process for CITES documents that involve multiple, similar actions over a given amount of time. For the initial application, respondents use forms designed specifically to address their particular activity (approved under OMB Control No. 1018-0093). From information in the application, we create a master file or annual program file that contains all the information necessary for us to make the required legal acquisition and nondetriment findings. The applicant can then submit FWS Form 3-200-74 to request authorization to carry out multiple, identical activities over the next 6 months. On FWS Form 3-200-74, we request information only about the number of additional documents the applicant requires to carry out activities approved under the previous application process. By referencing information in the master file or annual program file, we can quickly issue partially completed CITES documents (with certain specific areas left blank for completion by the applicant).
United States facilities, such as farms and aquaculture operations, produce several native U.S. taxa listed in CITES Appendices II and III in closed and semi-closed production systems. By registering a production facility and setting up a master file, we can expedite issuance of export permits for that facility. The registration is valid for 1 year. We use FWS Form 3-200-75 (Registration of a Production Facility for Export of Certain Native Species (CITES)) to collect information on annual production levels, method of producing specimens, source of the parental and founder stock, and method of transport for international trade. This information allows us to issue documents on a very short turnaround time, and we do not need to collect additional information prior to the issuance of export documents.
We invite comments concerning this IC on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Indian Affairs, Interior.
Notice of submission to the Office of Management and Budget.
The Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) are submitting the information collection, titled “Indian Self-Determination and Education Assistance Act Programs, 25 CFR 900” to the Office of Management and Budget for renewal. The current approval, designated by OMB Control Number 1076–0136, expires on February 28, 2010. The information is collected to process contracts, grants, or cooperative agreements for award by the BIA and the IHS, as authorized by the Indian Self-Determination and Education Assistance Act.
Submit comments on or before March 25, 2010.
You may submit comments on the information collection to the Desk Officer for Department of the Interior at the Office of Management and Budget, by facsimile to (202) 395–5806 or you may send an e-mail to:
You may request further information or obtain copies of the information collection request submission from Terry Parks, telephone: (202) 513–7625.
Representatives of the BIA and IHS seek renewal of the approvals for information collections conducted under their joint rule, 25 CFR part 900, implementing the Indian Self-Determination and Education Assistance Act, as amended (25 U.S.C. 450
The information requirements for this joint rule represent significant differences from other agencies in several respects. Both the BIA and IHS let contracts for multiple programs whereas other agencies usually award single grants to tribes. Under the Act, tribes are entitled to contract and may renew contracts annually, whereas other agencies provide grants on a discretionary or competitive basis.
The BIA and IHS use the information collected to determine applicant eligibility, evaluate applicant capabilities, protect the service population, safeguard Federal funds and other resources, and permit the Federal agencies to administer and evaluate contract programs. Tribal governments or tribal organizations provide the information by submitting Public Law 93–638 contract or grant proposals to the appropriate Federal agency. No third party notification or public disclosure burden is associated with this collection. Approval for the collection expires on February 28, 2010.
The BIA and IHS request that you send your comments on this collection to the locations listed in the
Please note that an agency may not sponsor or conduct, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Affairs, Interior.
Request for comments.
As required by the Paperwork Reduction Act, the Office of Facilities, Environmental, and Cultural Resources (OFECR), in the Office of the Assistant Secretary—Indian Affairs, is seeking comments on a renewing the information collection entitled “Tax Credit Bonds for Bureau of Indian Affairs-Funded Schools,” which has been assigned Office of Management and Budget (OMB) Control Number 1076–0173 and expires on April 30, 2010. This information collection is related to tax credit bonds for BIA-funded schools authorized by the American Reinvestment and Recovery Act of 2009 (ARRA). Indian Tribes interested in obtaining an allocation of the bonding authority to finance construction, rehabilitation, or repair of a BIA-funded elementary or secondary school or dormitory must provide certain information as part of the application. This notice requests comments on the information collection associated with the application.
Submit comments on or before April 26, 2010.
Mail or hand-carry comments to Bernadette Myers, U.S. Department of the Interior, Office of Facilities, Environmental and Cultural Resources, 2051 Mercator Drive, Reston, Virginia 20191; or e-mail to:
Bernadette Myers (703) 390–6655.
This information collection allows OFECR to receive written applications for allocations of the $400,000,000 in Tax Credit Bonding Authority granted to the Secretary as a result of the ARRA of 2009. This bonding authority is for the purpose of the construction, rehabilitation and repair of BIA-funded schools. The information collection allows OFECR to determine whether the project is eligible to be considered for an allocation. No third party notification or public disclosure burden is associated with this collection. OFECR obtained an emergency approval of this information collection from OMB to allow it to solicit applications for tax credit bonds.
The Paperwork Reduction Act of 1995 provides an opportunity for interested parties to comment on information collection requests. OFECR is proceeding with this public comment period as the first step in obtaining renewal of the information collection clearance from OMB. Each clearance request contains (1) type of review, (2) title, (3) summary of the collection, (4) respondents, (5) frequency of collection, (6) reporting and record keeping requirements.
If you would like to comment on this information collection, please send your comments to the location listed in the
Please note that an agency may not sponsor or conduct and an individual need not respond to a collection of information unless it has a valid OMB Control Number. It is our policy to make all comments available to the public for review at the location listed in the
Notice document 2010–3374 appearing on pages 7515 through 7517 in the issue of Friday, February 19, 2010 was included in error. The document was withdrawn and should not have appeared in the issue.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving the surface estate in certain lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to Zho-Tse, Incorporated. The lands are in the vicinity of Shageluk, Alaska, and are located in:
The subsurface estate in these lands will be conveyed to Doyon, Limited, when the surface estate is conveyed to Zho-Tse, Incorporated. Notice of the decision will also be published four times in the Fairbanks Daily News-Miner.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until March 25, 2010 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513–7504.
The Bureau of Land Management by phone at 907–271–5960, or by e-mail at
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving the surface estates in certain lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to NANA Regional Corporation, Inc., Successor in Interest to Buckland Nunachiak Corporation and Successor in Interest to Deering Ipnatchiak Corporation. The lands are in the vicinity of Buckland and Deering, Alaska, and are located in:
The subsurface estate in these lands will also be conveyed to NANA Regional Corporation, Inc. when the surface estate is conveyed.
Notice of the decision will also be published four times in the Arctic Sounder.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until March 25, 2010 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR Part 4, Subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513–7504.
The Bureau of Land Management by phone at 907–271–5960, or by e-mail at
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving the conveyance of surface estate only for certain lands pursuant to the Alaska Native Claims Settlement Act will be issued to The Aleut Corporation for 32.15 acres located on Adak Island, Alaska. Notice of the decision will also be published four times in the Anchorage Daily News.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until March 25, 2010 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR Part 4, Subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513–7504.
The Bureau of Land Management by phone at 907–271–5960, or by e-mail at
Bureau of Reclamation, Interior.
Notice of change.
The Water Resources Planning Act of 1965 and the Water Resources Development Act of 1974 require an annual determination of a discount rate for Federal water resources planning. The discount rate for Federal water resources planning for fiscal year 2010 is 4.375 percent. Discounting is to be used to convert future monetary values to present values.
This discount rate is to be used for the period October 1, 2009 through and including September 30, 2010.
Brooke Miller-Levy, Water and Environmental Resources Office, Denver, Colorado 80225;
Notice is hereby given that the interest rate to be used by Federal agencies in the formulation and evaluation of plans for water and related land resources is 4.375 percent for fiscal year 2010.
This rate has been computed in accordance with Section 80(a), Public Law 93–251 (88 Stat. 34) and 18 CFR 704.39, which: (1) Specify that the rate will be based upon the average yield during the preceding fiscal year on interest-bearing marketable securities of the United States which, at the time the computation is made, have terms of 15 years or more remaining to maturity (average yield is rounded to nearest one-eighth percent); and (2) provide that the rate will not be raised or lowered more than one-quarter of 1 percent for any year. The Treasury Department calculated the specified average to be 3.9910 percent. This average value is then rounded to the nearest one-eighth of a point, resulting in 4.0 percent. This exceeds the permissible one-quarter of 1 percent change from fiscal year 2009 to 2010. Therefore, the change is limited to a one-quarter percent decrease.
The rate of 4.375 percent will be used by all Federal agencies in the formulation and evaluation of water and related land resources plans for the purpose of discounting future benefits and computing costs or otherwise converting benefits and costs to a common-time basis.
Fish and Wildlife Service, Interior.
Notice of intent to prepare a comprehensive conservation plan and environmental assessment; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a Comprehensive Conservation Plan (CCP) and Environmental Assessment (EA) for the Don Edwards San Francisco Bay National Wildlife Refuge located in Alameda, Santa Clara, and San Mateo Counties of California. We provide this notice in compliance with our CCP policy to advise other Federal and State agencies, Tribes, and the public of our intentions, and to obtain suggestions and information on the scope of issues to consider in the planning process.
To ensure consideration, we must receive your written comments by April 26, 2010.
Send your comments or requests for more information by any of the following methods.
Winnie Chan, Refuge Planner, or Eric Mruz, Refuge Manager, at (510) 792–0222 or
With this notice, we initiate our process for developing a CCP for Don Edwards San Francisco Bay NWR in Alameda, Santa Clara, and San Mateo Counties, CA. This notice complies with our CCP policy to (1) advise other Federal and State agencies, Tribes, and the public of our intention to conduct
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Each unit of the National Wildlife Refuge System was established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the National Wildlife Refuge System mission, and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals, objectives, and strategies that will ensure the best possible approach to wildlife, plant, and habitat conservation, while providing for wildlife-dependent recreation opportunities that are compatible with each refuge's establishing purposes and the mission of the National Wildlife Refuge System.
Our CCP process provides opportunities for participation by Tribal, State, and local governments; agencies; organizations; and the public. We will be contacting identified stakeholders and individuals at this time for initial input. If you would like to meet with planning staff or would like to receive periodic updates, please contact us (
We will conduct the environmental review of this project in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
Don Edwards San Francisco Bay National Wildlife Refuge was created by Congress under Public Law 92–330 in 1972, but we did not acquire any lands within the Refuge until 1974. The Refuge was established to preserve and enhance wildlife habitat, protect migratory birds, protect threatened and endangered species, and provide opportunities for wildlife-dependent recreation and environmental education under several acts, including the Act Authorizing the Transfer of Certain Real Property for Wildlife, or other purposes (16 U.S.C. 667b), Endangered Species Act of 1973 (16 U.S.C. 1537), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742f(b)(1)). The 30,000-acre Don Edwards San Francisco Bay National Wildlife Refuge, located in Alameda, Santa Clara, and San Mateo Counties of California, consists of several non contiguous parcels divided into four management units that surround the southern edge of the San Francisco Bay.
We have identified preliminary issues, concerns, and opportunities that we may address in the CCP. These include: Wildlife management, habitat management, wildlife-dependent recreation, environmental education, and cultural resources. During public scoping, we may identify additional issues.
We will give the public an opportunity to provide input at a public meeting (or meetings). You can obtain the schedule from the refuge planner or refuge manager (
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of availability: Final comprehensive conservation plan and finding of no significant impact.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of our final comprehensive Conservation Plan (CCP) and finding of no significant impact (FONSI) for the environmental assessment for Bond Swamp National Wildlife Refuge (NWR). In the final CCP, we describe how we will manage this refuge for the next 15 years.
You may obtain a copy of the CCP by writing to: Ms. Carolyn Johnson, Assistant Refuge Manager, Bond Swamp National Wildlife Refuge, 718 Round Oak-Juliette Road, Round Oak, GA 31038. You may also access and download the document from the Service's Internet Web site:
Ms. Carolyn Johnson; telephone: 478/986–5441; fax: 478/986–9646; e-mail:
With this notice, we finalize the CCP process for Bond Swamp NWR. We started this process through a notice in the
Bond Swamp NWR is in Bibb and Twiggs Counties, Georgia, about 6 miles south of the city of Macon, Georgia. The refuge covers a total of 7,348 acres within the 18,000-acre acquisition boundary and is situated along the Ocmulgee River. The refuge has a diversity of vegetation communities, including upland mixed pine/hardwood, bottomland hardwood, and tupelo gum swamp forests. Creeks, beaver swamps, and oxbow lakes traverse the forested wetlands. Annually, 8,000 to 10,000 visitors participate in refuge activities.
We announce our decision and the availability of the final CCP and FONSI for Bond Swamp NWR in accordance with the National Environmental Policy Act (NEPA) [40 CFR 1506.6(b)] requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft comprehensive conservation plan and environmental assessment (Draft CCP/EA). The CCP will guide us in managing and administering Bond Swamp NWR for the next 15 years.
The compatibility determinations for hunting, fishing, wildlife observation/photography, environmental education/interpretation, boating, firewood cutting, forest management, off-road vehicle use (disabled persons only), resource research studies, and walking/jogging/bicycling are also available in the CCP
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Approximately 60 copies of the Draft CCP/EA were made available for a 30-day public review period as announced in the
After considering the comments we received, and based on the sound professional judgment of the planning team, we selected Alternative C to implement the CCP. This alternative will emphasize biological and visitor services programs on the refuge, which will be protected, maintained, and enhanced by adding more staff, equipment, and facilities. This management alternative will restore and manage the forested wetlands and associated uplands in support of wildlife, especially waterfowl, neotropical migratory birds, and other native wildlife. We considered this alternative to be the most effective for meeting the purposes of the refuge. Alternative C best achieves national, ecosystem, and refuge-specific goals and objectives and positively addresses significant issues and concerns expressed by the public.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105–57.
Bureau of Indian Affairs, Interior.
Notice of Approved Tribal-State Class III Gaming Compact.
This notice publishes approval of the Tribal-State Compact between the Pyramid Lake Paiute Indian Tribe and the State of Nevada Governing Class III Gaming.
Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219–4066.
Under section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100–497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before February 13, 2010. Pursuant to section 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by March 10, 2010.
Request for Boundary Decrease has been made for the following resource:
Request for REMOVAL has been made for the following resource:
Pursuant to (36 CFR 60.13(b, c)) and (36 CFR 63.5), this notice, through publication of the information included herein, is to apprise the public as well as governmental agencies, associations and all other organizations and individuals interested in historic preservation, of the properties added to, or determined eligible for listing in, the National Register of Historic Places from November 30 to December 4, 2009.
For further information, please contact Edson Beall via: United States Postal Service mail, at the National Register of Historic Places, 2280, National Park Service, 1849 C St., NW., Washington, DC 20240; in person (by appointment), 1201 Eye St., NW., 8th floor, Washington, DC 20005; by fax, 202–371–2229; by phone, 202–354–2255; or by e-mail,
Bureau of Land Management, Interior.
Notice.
The United States Department of Agriculture (USDA) Forest Service has filed an application with the Bureau of Land Management (BLM) that proposes to extend the duration of Public Land Order (PLO) No. 6888 for an additional 20-year period. This order withdrew approximately 320 acres of National Forest System land from surface entry and mining, but not from mineral leasing laws, to protect the recreational values of the Juneau Falls Recreation Area. This notice gives an opportunity to comment on the proposed action and to request a public meeting.
Comments meeting requests for a public meeting must be received by May 24, 2010.
Comments and meeting requests should be sent to the Alaska State Director, BLM Alaska State Office, 222 West 7th Avenue, No. 13, Anchorage, Alaska 99513–7504.
Robert Lloyd, BLM Alaska State Office, 907–271–4682 or at the address listed above.
The withdrawal created by PLO No. 6888 (56 FR 50661 (1991)) will expire on October 7, 2011, unless extended. The USDA Forest Service has filed an application to extend the withdrawal for an additional 20-year period to protect the recreational values of the Juneau Falls Recreation Area.
This withdrawal comprises approximately 320 acres of National Forest System land located in the Chugach National Forest, within T. 5 N., R. 4 W., Seward Meridian, as described in PLO No. 6888.
A complete description, along with all other records pertaining to the extension application, can be examined in the BLM Alaska State Office at the address listed above.
As extended, the withdrawal would not alter the applicability of those public land laws governing the use of land under lease, license, or permit or governing the disposal of the mineral or vegetative resources other than under the mining laws.
The use of a right-of-way or interagency or cooperative agreement would not adequately protect the recreational values of the Juneau Falls Recreation Area.
There are no suitable alternative sites available that could be substituted for the above described National Forest system land, since the Juneau Falls Recreation Area is unique.
No water rights would be needed to fulfill the purpose of the requested withdrawal extension.
For a period of 90 days from the date of publication of this notice, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal extension may present their views in writing to the BLM Alaska State Director at the address listed above. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Individual respondents may request confidentiality. If you wish to withhold your name or address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comments. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal extension. All interested parties who desire a public meeting for the purpose of being heard on the proposed withdrawal must submit a written request to the BLM Alaska State Director to the address listed above within 90 days from the date of publication of this notice. Upon determination by the authorized officer that a public meeting will be held, a notice of the time and place will be published in the
The withdrawal extension proposal will be processed in accordance with the regulations set forth in 43 CFR 2310.4 and subject to Section 810 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3120.
43 CFR 2310.3–1(b).
United States International Trade Commission.
Revised schedule for the subject reviews.
Elizabeth Haines (202–205–3200), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On January 4, 2010, the Commission established a schedule for the conduct of the expedited five-year reviews and
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Revised schedule for the subject review.
Cynthia Trainor (202–205–3354), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
On October 15, 2009, the Commission established a schedule for the conduct of this review (74 FR 55065, October 26, 2009).
Subsequently, counsel for three domestic interested parties filed a request to appear at the hearing or, in the alternative, for leave to submit written testimony in lieu of an oral presentation. In connection with the offer of written testimony, counsel indicated a willingness to respond to written questions of the Commissioners by a date to be set by the Commission. No other party filed a request to appear at the hearing. Consequently, the public hearing in connection with the review, scheduled to begin at 9:30 a.m. on February 18, 2010, at the U.S. International Trade Commission Building is cancelled.
The Commission has determined to accept the offer to submit written testimony in lieu of an oral public hearing presentation. Written testimony shall be filed with the Commission by the close of business on Thursday, February 18, 2010. The parties are expected to respond to the Commission's written questions in their post-hearing briefs, which are due to be filed on March 1, 2010.
For further information concerning this investigation see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on January 14, 2010, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Eastman Kodak Company of Rochester, New York. A letter supplementing the complaint was filed on February 4, 2010. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain mobile telephones and wireless communication devices featuring digital cameras, and components thereof by reason of infringement of certain claims of U.S. Patent No. 6,292,218. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202–205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
Vu Q. Bui, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone 202–205–2582.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2009).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain mobile telephones or wireless communication devices featuring digital cameras, or
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Eastman Kodak Company, 343 State Street, Rochester, NY 14650.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Commission investigative attorney, party to this investigation, is Vu Q. Bui, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern, Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
Revised schedule for the subject investigations.
Mary Messer (202–205–3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Effective December 23, 2009, the Commission established a schedule for the conduct of the final phase of the subject investigations (75 FR 4104, January 26, 2010). On January 28, 2010, the Commission was notified by the petitioners of a substantial conflict with respect to their ability to participate in the hearing. Accordingly, at the request of the petitioners and absent any argument to the contrary, the Commission is revising its schedule.
The Commission's new schedule for the investigations is as follows: requests to appear at the hearing must be filed with the Secretary to the Commission not later than April 30, 2010; the prehearing conference will be held at the U.S. International Trade Commission Building at 9:30 a.m. on May 4, 2010; the prehearing staff report will be placed in the nonpublic record on April 22, 2010; the deadline for filing prehearing briefs is April 29; the hearing will be held at the U.S. International Trade Commission Building at 9:30 a.m. on May 6, 2010; the deadline for filing posthearing briefs is May 14, 2010; the Commission will make its final release of information on June 2, 2010; and final party comments are due on June 4, 2010.
For further information concerning these investigations see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Revised schedule for the subject antidumping and countervailing duty investigations.
Angela M.W. Newell (202–708–5409), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal at 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Effective December 31, 2009, the Commission established a schedule for the conduct of these investigations (75 FR 877, January 6, 2010). Due to the closure of the Federal Government for four days as a result of inclement weather and related disruptions, the Commission is issuing a revised schedule.
The Commission's new schedule for the investigations is as follows: the Commission must reach its preliminary determination in these antidumping and countervailing duty investigations by February 22, 2010, and the Commission's views are due to the U.S. Department of Commerce five business days thereafter, or by March 1, 2010.
For further information concerning the investigations see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
The investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Revised schedule for the subject review.
Edward Petronzio (202–205–3176), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On August 20, 2009, the Commission established a schedule for the conduct of the review (74 FR 43155, August 26, 2009). Due to the closure of the Federal Government for four days as a result of inclement weather and related disruptions, the Commission is issuing a revised schedule.
The Commission's new schedule for the review is as follows: the closing of the record and final release of data to parties will be February 18, 2010, and final comments of parties will be due on February 22, 2010.
For further information concerning the review see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
The review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has issued a limited exclusion order as well as cease and desist orders directed to cast steel railway wheels and products containing same manufactured by or for Respondents using any of the trade secrets asserted in this investigation.
Panyin A. Hughes, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3042. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on September 16, 2008, based on a complaint filed on August 14, 2008, by Amsted Industries Incorporated of Chicago, Illinois (“Amsted”). 73 FR 53441–42 (Sept. 16, 2008). The complaint alleged violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cast steel railway wheels and certain products containing same by reason of misappropriation of trade secrets, the threat or effect of which is to substantially injure an industry in the United States. The complaint named four respondents: Tianrui Group Company Limited of China; Tianrui Group Foundry Company Limited of China (collectively “Tianrui”); Standard Car Truck Company, Inc. of Park Ridge, Illinois (“SCT”); and Barber Tianrui Railway Supply, LLC of Park Ridge, Illinois (“Barber”).
On October 16, 2009, the Administrative Law Judge (“ALJ”) issued his final initial determination (“ID”) finding a violation of section 337 by respondents. He found that Amsted owns the asserted trade secrets, the ABC Trade Secrets, and that respondents misappropriated the trade secrets via disclosure by former employees of Amsted's predecessors, the threat or effect of which is to destroy or substantially injure an industry in the United States. On October 29, 2009, the ALJ issued his recommended determination (“RD”) on remedy and bonding. The ALJ recommended that the Commission issue a limited exclusion order as well as cease and desist orders directed to respondents found in violation of section 337. He further recommended that the
On October 30, 2009, SCT and Barber (“SCT–Barber”) filed a joint petition for review of the final ID. Tianrui filed a petition for review on November 2, 2009, and complainant Amsted filed a contingent petition for review that same day. Amsted filed responses to SCT–Barber's and Tianrui's petitions on November 9 and 10, respectively, and SCT–Barber and Tianrui filed their responses to Amsted's petition on November 10. The Commission investigative attorneys (“IAs”) filed responses to the various petitions for review on November 10. The IAs did not petition for review of the ID.
On December 17, 2009, the Commission determined not to review the ID and requested briefing on remedy, the public interest, and bonding. 74 FR 68282–83 (Dec. 23, 2009). On December 29, 2009, the parties submitted written submissions on the issues for which the Commission requested further briefing, and submitted replies to the written submissions on January 6, 2010.
Having reviewed the record in this investigation, including the ID and the parties' written submissions, the Commission has determined that the appropriate remedy is a limited exclusion order lasting a period of ten (10) years as well as cease and desist orders, lasting the same period, directed to Respondents. The limited exclusion order prohibits the entry of cast steel railway wheels and products containing same, manufactured using any of the asserted ABC Trade Secrets by or on behalf of, or imported by or on behalf of, Respondents, or any of their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns, for consumption in the United States. The cease and desist orders prohibit Respondents from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), soliciting U.S. agents or distributors, or aiding or abetting other entities in the importation, sale for importation, sale after importation, transfer (except for exportation), or distribution of cast steel railway wheels and products containing the same manufactured using any of the asserted ABC Trade Secrets.
The Commission further determines that the public interest factors enumerated in section 337(d) and (f) (19 U.S.C. 1337(d), (f)) do not preclude issuance of the limited exclusion order. Finally, the Commission determines that a bond of five percent of the entered value is required to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)) of cast steel railway wheels and products containing the same that are subject to the order. The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.50 of the Commission's Rules of Practice and Procedure, 19 CFR 210.50.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 19) of the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation based on a settlement agreement.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3115. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on March 30, 2009, based on a complaint filed by LG Electronics of Seoul, Korea (“LG”), alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain electronic devices having image capture or display functionality or components thereof by reason of infringement of certain claims of U.S. Patent Nos. 5,995,767, 5,774,131, and 6,281,895. 74 FR 14157 (2009). The complainant named Eastman Kodak Company of Rochester, New York (“Kodak”) as the respondent.
On December 16, 2009, LG and Kodak jointly moved to terminate the investigation based on a settlement agreement. The Commission investigative attorney supported the motion.
On January 19, 2010, the ALJ issued an ID (Order No. 19) granting the motion. No party petitioned for review of the ID, and the Commission has determined not to review it.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.21 and 210.42(h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.21, 210.42(h).
By order of the Commission.
Notice is hereby given that, on January 8, 2010, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 17, 2004, IEEE filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 28, 2009. A notice was published in the
Notice is hereby given that, on December 31, 2009, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project.
On July 28, 2009, ICC filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on January 11, 2010, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCOIC intends to file additional written notifications disclosing all changes in membership.
On November 19, 2004, NCOIC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on October 26, 2009. A notice was published in the
Notice is hereby given that, on January 15, 2010, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: wTe Corporation, Bedford, MA; Energy Research Company, Staten Island, NY; and National Recovery Technologies, Inc., Nashville, TN. The general area of JV TIP H009's planned activity is to develop, scale-up and integrate transformational technologies for high-speed scrap sortation of mixed metals by alloy type, and for real-time, molten metal analysis of high-temperature alloys.
Employee Benefits Security Administration, Labor.
Grant of Individual Exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and (c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
[Prohibited Transaction Exemption 2010–01; Exemption Application Nos. D–11082 and D–11109.]
The restrictions of sections 406(a)(1)(A) through (D) and 406(b)(1) and (b)(2) of the Act (or ERISA), and the taxes imposed by section 4975(a) and (b) of Code, by reason of section 4975(c)(1)(A) through (E) of the Code,
(1) A trade-related currency conversion, or
(2) An income item conversion.
(a) At the time the foreign exchange transaction is entered into, the terms of the transaction are not less favorable to the client plan, in-house plan or pooled fund than the terms generally available in a comparable arm's length foreign exchange transaction between unrelated parties.
(b) The exchange rate used for a particular foreign exchange transaction does not deviate by more than 3 percent (above or below) the interbank bid and asked rates for such currency at the time of the transaction as displayed on an independent, nationally-recognized service that reports rates of exchange in the foreign currency market for such currency.
(c) The covered transactions are limited to those less developed currencies in which a transaction is executed with Deutsche Bank or its affiliate acting as local subcustodian at the direction of the global custodian because the global custodian either does not make a market in such currency, or otherwise determines to execute with the local subcustodian because of market conditions, market restrictions, illiquidity of the currency or similar exigencies.
(d) Where a market is served by more than one subcustodian, Deutsche Bank or its affiliate, as asset manager, has no decision making authority or role, or otherwise makes no recommendations with respect to the global custodian's selection of the subcustodian.
(e) The foreign exchange transaction is executed by Deutsche Bank or its affiliate thereof acting as subcustodian at the direction of the global custodian in the ordinary course of its business as global custodian.
(f) The decision to select Deutsche Bank or its affiliate as the subcustodian is made by an unrelated global custodian for the relevant account.
(g) The selection of Deutsche Bank or its affiliate as subcustodian and any foreign exchange transactions executed by Deutsche Bank or its affiliate at the direction of the global custodian are not part of any agreement, arrangement or understanding, written or otherwise, designed to benefit Deutsche Bank, its affiliate or any other party in interest.
(h) Deutsche Bank or its affiliate, as asset manager, appoints an independent fiduciary to receive, review and take appropriate action, if any, with respect to the report required by Section II(l)(3) and the notices in Section III(a) and (c) on behalf of (1) an in-house plan, or
(2) plans investing in a restricted pooled fund.
(i) The decision to select Deutsche Bank or its affiliate as asset manager is part of an investment strategy that is adopted by an independent fiduciary of a client plan whose assets are held in a separately managed account or the independent fiduciary of an unrelated pooled fund.
(j) On an annual basis, determined as of December 31 of the relevant year, the percentage of assets of in-house plans and pooled funds in which client plans invest for which Deutsche Bank and/or its affiliates select the global custodian represent less than 20 percent of the total assets under custody by any such global custodian.
(k) Foreign affiliates of Deutsche Bank which engage in the covered transactions—
(1) Agree to submit to the jurisdiction of the United States;
(2) Agree to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(3) Consent to service of process on the Process Agent;
(4) Agree that they may be sued in the United States Courts in connection with the covered transactions described in this exemption;
(5) Agree that any judgment on behalf of a plan or pooled fund may be collected in the United States from Deutsche Bank; and
(6) Agree to comply with, and be subject to, all relevant provisions of the Act.
(l) With respect to the covered transactions —
(1) Deutsche Bank or its affiliate as asset manager, designates an individual (the responsible reviewing individual) who is responsible for periodically (but no less frequently than on an annual basis) reviewing a sample of such foreign exchange transactions to determine whether the covered transactions have been executed in accordance with the terms of this exemption. Such sample must include a sufficient number of transactions to ensure that each affected currency is tested.
(2) Deutsche Bank or its affiliate provides the responsible reviewing individual with the records (which may be provided electronically) described in Section IV(a)(1)–(7), on an annual basis.
(3) The responsible reviewing individual notifies Deutsche Bank or its affiliate as asset manager, the independent fiduciary of each client plan whose assets are held in a separately managed account, the independent fiduciary of an in-house plan and any restricted pooled fund required under Section II(h), the independent fiduciary of an unrelated pooled fund, and the independent fiduciary of each plan investing in an unrestricted pooled fund, of its findings in a written report within 90 days after the period to which the periodic review relates. Such report describes the steps performed by such individual during the course of the review, the level of compliance by Deutsche Bank or its affiliate with the terms and conditions of the exemption, and any specific instances of non-compliance by Deutsche Bank or its affiliate with the terms and conditions of the exemption.
(a) At the time Deutsche Bank or its affiliate is retained as asset manager, or prior to the initial investment of the plan's assets or pooled fund's assets in any foreign investments that may require the execution of a foreign exchange transaction by Deutsche Bank or its affiliate as subcustodian, Deutsche Bank or its affiliate provides the independent fiduciary of each client plan whose assets are held in a separately managed account, the independent fiduciary of each in-house plan and restricted pooled fund as required under Section II(h), the independent fiduciary of each unrelated pooled fund, and the independent fiduciary of each plan investing in an unrestricted pooled fund, a written notice (which may be effected electronically) that includes the following:
(1) The reasons why Deutsche Bank or its affiliate as asset manager, may consider a particular market to be an appropriate investment for the plan or pooled fund.
(2) The factors considered by Deutsche Bank or its affiliate as asset manager, in its selection of a global custodian (if applicable) including: (i) The identity of the global custodian; and (ii) a summary of the global custodian's policies and procedures regarding the handling of foreign exchange transactions for plans or pooled funds with respect to which Deutsche Bank or its affiliate is a fiduciary and the factors that the global custodian considers in its selection of a subcustodian.
(3) Notice that such foreign exchange transaction may be executed by Deutsche Bank or its affiliate as subcustodian, at the direction of a global custodian.
(4) A list of the markets in which plans or pooled funds may invest where Deutsche Bank or its affiliate serves as a subcustodian, where a foreign exchange transaction may be executed by Deutsche Bank or its affiliate as subcustodian at the direction of a global custodian.
(5) A list of the markets where currency transactions are executed by Deutsche Bank or an affiliate, as subcustodian, to the extent known.
(6) Notice that Deutsche Bank or its affiliate maintains records (described in Section IV), and that such records are reasonably available at their customary location for examination in the U.S., during normal business hours, by the responsible reviewing individual, the independent fiduciary of a client plan whose assets are held in a separate account, the independent fiduciary of an in-house plan or a restricted pooled fund, as required under Section II(h), the independent fiduciary of an unrelated pooled fund, the independent fiduciary of each plan investing in an unrestricted pooled fund, any participant or beneficiary of such plan or pooled fund, or any duly authorized employee or representative of such participant or beneficiary.
(7) Copies of the notice of proposed exemption and the grant of final exemption with respect to the subject transactions.
(8) Notice of the definition of the term “independent” under this exemption as used in the term “independent fiduciary,” and a request that the independent fiduciary of a client plan notify Deutsche Bank or its affiliate asset manager if, at any time, such fiduciary is not independent of Deutsche Bank.
(b) If the independent fiduciary fails to object in writing to Deutsche Bank or its affiliate within 30 days following receipt of the information described in Section III(a) by such fiduciary, then such fiduciary's authorization of the arrangement contemplated under this exemption shall be presumed.
(c) Deutsche Bank or its affiliate as asset manager shall provide notification of any changes to the information required by Section III, including, but not limited to, the situation where Deutsche Bank or its affiliate as asset manager, replaces the global custodian with another independent entity or where there are changes in the markets in which currency transactions are executed by the subcustodian. If the independent fiduciary fails to object in writing to Deutsche Bank or its affiliate as asset manager within 30 days following disclosure of such changes, such fiduciary's approval of these changes shall be presumed.
(d) With respect to pooled funds, in the event the independent fiduciary of a client plan submits a notice in writing to the person engaging in or proposing to engage in the covered transaction objecting to the implementation of, a material change in or continuation of the arrangement, the plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the pooled fund without penalty to the plan, within such time as may be necessary to effect the withdrawal in an orderly manner that is equitable to all withdrawing plans and to the non-withdrawing plans. In the case of a plan that elects to so withdraw, the withdrawal shall be effected prior to the implementation of a material change in the arrangement, but an existing arrangement need not be discontinued
(a) Deutsche Bank or its affiliate maintains, or causes to be maintained, for a period of six years from the date of the covered transactions, the following records, as well as any records necessary to enable the persons described in paragraph (c) of this Section IV, to determine whether the conditions of this exemption have been met:
(1) The account name,
(2) The foreign exchange transaction execution date,
(3) The exchange rate,
(4) The high and low on Reuters or similar independent service on the date of the transaction,
(5) The identity of the foreign currency sold or purchased,
(6) The amount of foreign currency sold or purchased,
(7) The amount of U.S. dollars exchanged, where the exchange is between foreign currencies and U.S. dollars or the amount of foreign currency exchanged, where the exchange is between two foreign currencies, and
(8) The annual report described in Section II(l).
(b) The following are exceptions to paragraph (a) of this Section IV:
(1) If the records necessary to enable the persons described in paragraph (c) to determine whether the conditions of the exemption have been met are lost or destroyed, due to circumstances beyond the control of Deutsche Bank, then no prohibited transaction will be considered to have occurred solely on the basis of the unavailability of those records; and
(2) No party in interest, other than Deutsche Bank, shall be subject to the civil penalty that may be assessed under section 502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of the Code if the records are not maintained or are not available for examination as required by paragraph (c) below.
(c)(1) Except as provided in paragraph (c)(2) of this Section IV and notwithstanding the provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to above in paragraph (a) of this Section IV are unconditionally available for examination during normal business hours at their customary location to the following persons or an authorized representative thereof:
(i) Any duly authorized employee or representative of the Department or the Internal Revenue Service;
(ii) The independent fiduciary of a client plan whose assets are held in a separately managed account, the independent fiduciary of an in-house plan or restricted pooled fund required under Section II(h), the independent fiduciary of each unrelated pooled fund, or the independent fiduciary of each plan investing in an unrestricted pooled fund, or
(iii) Any participant or beneficiary of such plans or pooled funds (described in paragraph (ii) above) or any duly authorized employee or representative of such participant or beneficiary.
(2) None of the persons described above in paragraphs (ii) and (iii) of this paragraph (c)(1) of this Section IV shall be authorized to examine trade secrets of Deutsche Bank, or any commercial or financial information, which is privileged or confidential.
(3) Should Deutsche Bank refuse to disclose information on the basis that such information is exempt from disclosure, Deutsche Bank shall, by the close of the thirtieth (30th) day following the request, provide written notice advising that the person of the reason for the refusal and that the Department may request such information.
For purposes of this exemption,
(a) The term “Deutsche Bank” means Deutsche Bank AG.
(b) An “affiliate” of Deutsche Bank means any domestic or foreign bank or broker-dealer that is, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Deutsche Bank;
(c) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(d) The term “bank” means a bank as defined in section 202(a)(2) of the Investment Advisers Act of 1940 (the Investment Advisers Act), or an institution that has substantially similar powers to a bank defined in section 202(a) of the Investment Advisers Act, and is—
(1) Supervised by the United States or a State;
(2) Supervised and examined by the German banking authorities, or monitored and controlled pursuant to the statutory and regulatory standards of German law; or
(3) Subject to regulation and oversight by governmental entities that are substantially similar to the regulatory oversight of banks present in the United States.
(e) The term “broker-dealer” means a broker-dealer registered under the Securities Exchange Act of 1934, or is engaged in the business of effecting transactions in securities for the account of others, and is—
(1) Registered and regulated under the relevant securities laws of the United States;
(2) Registered and regulated under the relevant securities laws of Germany; or
(3) Registered and regulated under the relevant securities laws of a country with securities laws that are substantially similar to the securities laws governing broker-dealers in the United States.
(f) The term “global custodian” means a bank or broker-dealer that is unrelated to Deutsche Bank or its affiliate, which is selected by (1) The independent fiduciary of a client plan in the case of a separately managed account; (2) the sponsor (other than Deutsche Bank or its affiliate) of an unrelated pooled fund; (3) Deutsche Bank or its affiliate as asset manager, in the case of an in-house plan; or (4) Deutsche Bank or its affiliate as asset manager in the case of a pooled fund established by Deutsche Bank or an affiliate, for the purpose of holding and safeguarding the assets of the client plan, in-house plan, or pooled fund, physically or through securities depositories, foreign clearing agencies or other entities which act as securities depositories, through its branches or through its subcustodian network. For purposes of Section V(f) only, the global custodian will be unrelated to Deutsche Bank or its affiliate if the global custodian is not controlling, controlled by under common control with Deutsche Bank, directly or indirectly through one or more intermediaries.
(g) The term “subcustodian” means a bank or broker-dealer, selected by a global custodian, to hold and safekeep designated assets of the plan or pooled fund at securities depositories, foreign clearing agencies or other entities which act as securities depositories, and at the direction of the global custodian to execute foreign exchange transactions and income item conversions. A subcustodian has no contractual relationship with the global custodian's clients for custodial or subcustodial services with respect to the assets involved in the covered transactions, but the subcustodian's contractual relationship with respect to subcustody is only with the global custodian.
(h) The term “responsible reviewing individual” means a senior official appointed by Deutsche Bank or its affiliate acting as asset manager, who has at least 10 years experience with the fiduciary responsibility provisions of
(i) The term “in-house plan” means an employee benefit plan as described in section 3(3) of the Act, or a plan as described in section 4975(e)(1) of the Code, that is sponsored by Deutsche Bank or any person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Deutsche Bank.
(j) The term “client plan” means an employee benefit plan, as described in section 3(3) of the Act, or a plan, as described in section 4975(e)(1) of the Code, other than an in-house plan, with respect to which Deutsche Bank or its affiliate acts as a fiduciary with discretionary authority over the management of the assets involved in covered transactions (whether or not any such authority has been delegated to an unaffiliated sub-adviser).
(k) The term “pooled fund” means a collective investment fund or a pooled arrangement: (1) That is deemed to hold “plan assets” (within the meaning of section 3(42) of the Act and the regulations thereunder), (2) that holds assets of at least two or more unrelated employee benefit plans within the meaning of section 3(3) of the Act or plans within the meaning of section 4975(e)(1) of the Code, and (3) for which Deutsche Bank or its affiliate acts as fiduciary with discretionary authority over the management of its assets (whether or not any such authority has been delegated to an unaffiliated sub-adviser).
(l) The term “restricted pooled fund” refers to a pooled fund (1) that is sponsored and managed by Deutsche Bank or an affiliate, (2) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent 20% or more (determined as of the last day of each month) of the total invested assets of such pooled fund, and (3) for which Deutsche Bank or an affiliate will appoint an independent fiduciary, as described in Section V(o) below, to represent the interests of all plans investing in such fund.
(m) The term “unrestricted pooled fund” refers to a pooled fund that (1) is sponsored and managed by Deutsche Bank or an affiliate and (2) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent less than 20% (determined as of the last day of each month) of the total invested assets of such pooled fund.
(n) The term “unrelated pooled fund” refers to a pooled fund that is not sponsored by Deutsche Bank or an affiliate, but is managed by either of these entities.
(o) The term “independent” as used in the term “independent fiduciary” means—
(1) In the case of a client plan whose assets are held in a separately managed account or an unrelated pooled fund, a plan fiduciary or the named fiduciary of a pooled fund, or a fiduciary appointed by the named fiduciary that is unrelated to, and independent of, Deutsche Bank and it affiliates. For purposes of this exemption, a plan fiduciary will be deemed to be unrelated to, and independent of, Deutsche Bank if neither such fiduciary, nor any individual responsible for the decision to authorize or terminate authorization for the transactions described in Section I, is an officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of Deutsche Bank and such fiduciary represents that it will advise Deutsche Bank or its affiliate if those facts change, or
(2) In the case of the fiduciary required under Section II(h), in connection with an in-house plan or in connection with a restricted pooled fund, an individual or company is qualified and independent of Deutsche Bank and its affiliates if such individual or company: (i) Has at least 10 years experience in the financial services business and significant experience in foreign currency trading and pricing, and (ii) certifies that the gross income received from Deutsche Bank and its affiliates for the current year does not exceed 5% of such fiduciary's gross income from all services for the prior fiscal year. The independent fiduciary shall represent to Deutsche Bank that such fiduciary is aware of its ERISA duties and responsibilities in acting as a fiduciary with respect to an in-house plan or a restricted pooled fund and the covered transactions.
(3) In the case of an unrestricted pooled fund, the persons described in Section V(o)(1) or (2).
(4) Notwithstanding anything to the contrary in this Section V(o), a plan fiduciary is not independent if—
(i) Such fiduciary directly or indirectly controls, is controlled by, or is under common control with Deutsche Bank, other than described herein;
(ii) Such fiduciary directly or indirectly receives any compensation or other consideration from Deutsche Bank for his own personal account in connection with any transaction described in this exemption in excess of the 5% gross income limitation set forth in Section V(o)(2)above;
(iii) Any officer, director or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of Deutsche Bank or an affiliate responsible for the transactions described in Section I is an officer, director or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of the client plan sponsor, the sponsor of an unrelated pooled fund, or of the fiduciary responsible for the decision to authorize or terminate authorization for transactions described in Section I. However, if such individual is a director of the client plan sponsor, the sponsor of an unrelated pooled fund, or of the responsible fiduciary, and if he or she abstains from participation in (A) the choice of Deutsche Bank or an affiliate as the investment manager/adviser for the client plan or unrelated pooled fund and (B) the decision to authorize or terminate authorization for transactions described in Section I, then Section V(o)(4)(iii) shall not apply.
(p) The term “officer” means a president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), or any other officer who performs a policy-making function for the entity.
(q) The term “foreign exchange” transaction means the exchange of the currency of one nation for the currency of another nation.
(r) The term “less developed currencies” means those currencies in which the global custodian does not make a market at the time of the transaction and in which the global custodian determines to purchase from or sell to the plan's or pooled fund's local subcustodian on behalf of a plan or pooled fund because the currency is difficult to trade, undeveloped or the subject of local government restrictions, or because of the volatility or lack of liquidity in the market at the time of the transaction. The term “less developed currencies” does not include the following currencies: The Euro; the British pound; the Swiss franc, the Canadian dollar; or the Japanese yen.
(s) The term “trade-related currency conversion” means the conversion of trade-related items (i.e., amounts necessary for purchases or proceeds
(t) The term “income item conversions” means the conversion of income items (e.g., interest, dividends, tax reclaims or other distributions) denominated in a foreign currency into U.S. dollars or another foreign currency.
The proposed exemption gave interested persons an opportunity to comment and to request a hearing. In this regard, all interested persons were invited to submit written comments and/or requests for a hearing on the pending exemption on or before August 22, 2008. During the comment period, the Department received one written comment letter and no requests for a public hearing. The comment was submitted by the Applicant, and it is intended to clarify the operative language and the Summary of Facts and Representations of the proposed exemption in a number of areas or to confirm their validity. A discussion of the comments and the responses made by the Department is presented below.
1.
In response to this comment, the Department has substituted the terms “restricted pooled fund” and “unrestricted pooled fund” for the terms “large pooled fund” and “small pooled fund” in the final exemption.
2.
In response to this comment, the Department has revised Section II(i) of the final exemption to clarify that the decision to select Deutsche Bank or an affiliate as asset manager is made by the independent fiduciary of a client plan whose assets are held in a separately managed account or the independent fiduciary of an unrelated pooled fund.
3.
In response to this comment, the Department has made the requested modifications to Section II(l)(3), and deleted Section V(q) of the proposal. The Department has also made corresponding revisions to Section III(a) and Section IV(c)(1)(ii) where these terms appear, as well.
4.
Section II(l)(3) of the proposal requires that the responsible reviewing individual notify Deutsche Bank, the independent fiduciary of each client plan whose assets are held in a separately managed account, the independent fiduciary of an in-house plan and any restricted pooled fund required under II(h), the independent fiduciary of unrelated pooled fund, and the independent fiduciary of each plan investing in an unrestricted pooled fund, of its findings in a written report within 90 days following the period to which the periodic review relates. Such report is to be completed annually. The Applicant states in the preamble to the proposed exemption (in the last paragraph of Representation 30) that within 90 days of a request by the independent fiduciary, Deutsche Bank must provide written compliance reports. The Applicant notes that the operative language does not contain this condition. The Applicant believes that such reports, would be duplicative of those required by Section II(l) and be overly burdensome. In response to this comment, the Department concurs with the Applicant, and notes that the exemption does not require additional reports other than those described in II(l)(3).
In addition, Section III(a)(4) of the proposed exemption states that Deutsche Bank or an affiliate is required to provide written disclosure to an independent fiduciary of the list of markets in which plans or pooled funds invest where Deutsche Bank or its affiliate serves as a subcustodian. Representation 30(e) of the Summary of Facts and Representations adds that
The Department concurs with the Applicant's comment and clarifies that disclosure of whether a particular market is served by more than one subcustodian is not required.
5.
The independent fiduciary required under Section II(h) shall not have any authority under this section. With respect to pooled funds, in the event the independent fiduciary submits a notice in writing to the person engaging in or proposing to engage in the covered transaction objecting to the implementation of, material change in or continuation of the arrangement, the plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the pooled fund, without penalty to the plan, within such time as may be necessary to effect the withdrawal in an orderly manner that is equitable to all withdrawing plans and to the non-withdrawing plans. In the case of a plan that elects to so withdraw, the withdrawal shall be affected prior to the implementation of a material change in the arrangement, but an existing arrangement need not be discontinued by reason of a plan electing to withdraw.
In response to this comment, the Department has determined to make some of the changes requested by the Applicant by adding a new condition designated as Section III(d). However, the Department has determined not to adopt the exclusionary language appearing in the first sentence of the above-referenced text, as suggested by the Applicant, which pertains to the independent fiduciary required under Section II(h) because of the independent fiduciary's critical role in protecting an in-house plan or a restricted pooled fund by taking all actions that are necessary and proper on behalf of such plan or pooled fund. Section III(d) of the final exemption reads as follows:
With respect to pooled funds, in the event the independent fiduciary of a client plan submits a notice in writing to the person engaging in or proposing to engage in the covered transaction objecting to the implementation of, a material change in or continuation of the arrangement, the plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the pooled fund without penalty to the plan, within such time as may be necessary to effect the withdrawal in an orderly manner that is equitable to all withdrawing plans and to the non-withdrawing plans. In the case of a plan that elects to so withdraw, the withdrawal shall be effected prior to the implementation of a material change in the arrangement, but an existing arrangement need not be discontinued by reason of a plan electing to withdraw.
6.
7.
The Department has determined not to make the Applicant's requested change because it greatly expands the scope of the relief proposed without an opportunity for notice and comment by interested persons.
8.
The term “global custodian” means a bank or broker-dealer that is unrelated to Deutsche Bank or its affiliate, which is selected by (1) the named fiduciary of a client plan; (2) the sponsor (other than Deutsche Bank or its affiliate) of an unrelated pooled fund; (3) Deutsche Bank or its affiliate in the case of an in-house plan; or (4) Deutsche Bank or its affiliate in the case of a pooled fund established by Deutsche Bank or an affiliate, for the purpose of holding and safeguarding all assets of the client plan, in-house plan, or pooled fund, physically or through a depository, through its branches or through its subcustodian network.
For clarity, the Applicant requests that Section V(f)(1) of the definition be modified by substituting the term “named” with the term “independent” because Deutsche Bank will not know whether the plan fiduciary selecting the global custodian is actually a named fiduciary because such plan fiduciary may be the trustee or some other fiduciary to whom a named fiduciary has delegated appropriate authority. In response to this comment, the Department has made the requested change.
In addition, the Applicant requests that, in the last clause of Section V(f), the word “all” be deleted because some plans or funds may have more than one global custodian. Further, the Applicant suggests that the last clause of Section V(f) the phrase “a depository” be substituted with the phrase “securities depositories, foreign clearing agencies or other entities which act as securities depositories.” According to the Applicant, this will ensure consistency with Section V(g) of the exemption which utilizes the latter language. The Department concurs with the Applicant's suggested revisions and has made the changes in the final exemption.
In addition, at the Applicant's recommendation, the Department has modified Section V(f) of the final exemption by clarifying that the term “unrelated,” as used therein, means that “the global custodian will be unrelated to Deutsche Bank or its affiliates if the global custodian is not controlling, controlled by or under common control with Deutsche Bank, directly or indirectly through one or more intermediaries.” Thus, the revised definition of the term “global custodian” is set forth as follows:
The term “global custodian” means a bank or broker-dealer that is unrelated to Deutsche
9.
The term “in-house plan” means a plan sponsored by Deutsche Bank or any affiliate. For purposes of the foregoing only, “affiliate” means a member of either (1) a controlled group of corporations (as defined in section 414(b) of the Code) of which Deutsche Bank is a member, or (2) a group of trades or businesses under common control (as defined in section 414(c) of the Code) of which Deutsche Bank is a member; provided that “50 percent” shall be substituted for “80 percent” wherever “80 percent” appears in section 414(b) or 414(c) or the rules thereunder.”
The Department notes that the Applicant's suggested definition of “in-house plan,” which is taken from PTE 96–23 would limit certain plans from being considered “in-house plans” as these plans would not come within the proposed definition. Therefore, the Department has not adopted the requested change. Instead, the Department has modified the definition of “in-house plan” as follows:
The term “in-house plan” means an employee benefit plan as described in section 3(3) of the Act, or a plan as described in section 4975(e)(1) of the Code, that is sponsored by Deutsche Bank or any person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Deutsche Bank.
10.
The term “client plan” means an employee benefit plan, as described in section 3(3) of the Act, or a plan, as described in section 4975(e)(1) of the Code, other than an in-house plan, with respect to which Deutsche Bank or its affiliate acts as a fiduciary with discretionary authority over the management of the assets involved in covered transactions (whether or not any such authority has been delegated to an unaffiliated sub-adviser).
The Applicant states that the revised definition clarifies Deutsche Bank's role with respect to plan assets because the meaning of the phrase “full investment discretion,” as used in the client plan definition, is unclear. In addition, the Applicant states that the modification ensures that separately managed accounts that are sub-advised by a third party are included within the scope of exemptive relief.
In response to this comment, the Department has made the Applicant's requested revision in the final exemption.
11.
The term “pooled fund” means a collective investment fund or a pooled arrangement established for investment on behalf of two or more unrelated employee benefit plans by Deutsche Bank or an affiliate or by a fund sponsor other than Deutsche Bank or an affiliate for which Deutsche Bank or its affiliate acts as fiduciary with full investment discretion. The assets of a pooled fund may include the assets of (i) client plans, (ii) in-house plans of Deutsche Bank or an affiliate, (iii) other pooled funds in which Deutsche Bank or an affiliate is not the fund sponsor, and (iv) other pooled funds in which Deutsche Bank or an affiliate is the fund sponsor.
The Applicant has suggested that this definition be deleted in its entirety and replaced with the following definition:
The term “pooled fund” means a collective investment fund or a pooled arrangement—(1) that is deemed to hold “plan assets” (within the meaning of section 3(42) of Act and the regulations thereunder), (2) that holds assets of at least two or more unrelated employee benefit plans within the meaning of section 3(3) of Act or plans within the meaning of section 4975(e)(1) of the Code, and (3) for which Deutsche Bank or its affiliate acts as fiduciary with discretionary authority over the management of its assets (whether or not any such authority has been delegated to an unaffiliated sub-adviser).
The Applicant believes that the requested change provides clarification that the exemption applies to pooled funds only when they are deemed to hold plan assets. Moreover, the Applicant states that the revised definition acknowledges that non-plan investors may be invested in pooled funds that hold plan assets. In response to this comment, the Department has made the requested change.
12.
The term “large pooled fund” refers to a pooled fund that is sponsored and managed by Deutsche Bank or an affiliate. A large pooled fund may include the assets of (i) client plans, (ii) in-house plans of Deutsche Bank or an affiliate, (iii) other pooled funds in which Deutsche Bank or an affiliate is not the fund sponsor, and (iv) other pooled funds in which Deutsche Bank or an affiliate is the fund sponsor. In a large pooled fund, the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent more than 20% of the total invested assets of such fund. Also, in a large pooled fund, Deutsche Bank will appoint an independent fiduciary, as described in Section V(o) below, to represent the interests of all plans investing in such fund.
The Applicant has requested that the term “large pooled fund” be changed to “restricted pooled fund” as it appears throughout the proposed exemption and as defined in Section V(l). In the Applicant's view, the modified language more accurately describes this term.
In response to this comment, the Department has replaced the term “large pooled fund” with “restricted pooled fund” throughout the operative language of the final exemption. The Department also notes the corresponding changes to the Summary of Facts and Representations.
In addition, the Applicant has requested that the definition of the term “large pooled fund” be replaced with the following new definition:
The term “restricted pooled fund” refers to a pooled fund (i) that is sponsored by Deutsche Bank or an affiliate, (ii) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether
The Applicant states that the revised definition omits the reference to Deutsche Bank's management because the revised definition of “pooled fund” already references Deutsche Bank's management. In addition, the Applicant explains that the revised definition acknowledges that non-plan investors often invest in pooled funds that hold plan assets and requires monthly testing of the level of in-house plan investment.
The Department concurs, in part, with the Applicant's revised definition of the term “restricted pooled fund.” However, the Department has decided to leave the reference to Deutsche Bank's or its affiliate's management authority intact in the final exemption in order to emphasize that Deutsche Bank or its affiliate sponsors the restricted pooled fund and has discretion over the assets of such pooled fund. Therefore, the revised definition of the term restricted pooled fund reads as follows:
The term “restricted pooled fund” refers to a pooled fund (1) that is sponsored and managed by Deutsche Bank or an affiliate, (2) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent 20% or more (determined as of the last day of each month) of the total invested assets of such pooled fund, and (3) for which Deutsche Bank or an affiliate will appoint an independent fiduciary, as described in Section V(o) below, to represent the interests of all plans investing in such fund.
13.
The term “small pooled fund” refers to a pooled fund that is sponsored and managed by Deutsche Bank or an affiliate. A small pooled fund may include the assets of (i) client plans, (ii) in-house plans of Deutsche Bank or an affiliate, (iii) other pooled funds in which Deutsche Bank or an affiliate is not the fund sponsor, and (iv) other pooled funds in which Deutsche Bank or an affiliate is the fund sponsor. In a small pooled fund, the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or through another pooled fund), represent less than 20% of the total invested assets of such fund.
The Applicant has requested that the term “small pooled fund” be changed to “unrestricted pooled fund.” Also, for the same reasons expressed above by the Applicant for modifying the term “large pooled fund,” the Applicant requests that Section V(m) be revised to the following:
The term “unrestricted pooled fund” refers to a pooled fund that (1) is sponsored by Deutsche Bank or an affiliate and (2) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent less than 20% (determined as of the last day of each month) of the total invested assets of such pooled fund.
The Department concurs with the Applicant's revised definition of the term “unrestricted pooled fund,” with the exception of deleting the reference to Deutsche Bank or its affiliate managing the fund, and has made appropriate changes in the final exemption. The revised definition reads as follows:
The term “unrestricted pooled fund” refers to a pooled fund that (1) is sponsored and managed by Deutsche Bank or an affiliate and (2) in which the total invested assets of an in-house plan (or in-house plans), if aggregated (whether invested directly or indirectly through another pooled fund), represent less than 20% (determined as of the last day of each month) of the total invested assets of such pooled fund.
1.
The Department does not concur with the Applicant's reasoning. To the extent Deutsche Bank or its affiliate are able to make appropriate fee disclosures to independent fiduciaries without undue burden, the Department would require Deutsche Bank or its affiliate to provide this information.
2.
In response to this comment, the Department believes that this comment is beyond the scope of the exemption. The Department notes that exemptive relief may be available for the global custodian under section 408(b)(18) of the Act to the extent the conditions therein are satisfied.
3.
Foreign affiliates of Deutsche Bank which engage in the covered transactions—
(1) Agree to submit to the jurisdiction of the United States;
(2) Agree to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(3) Consent to service of process on the Process Agent;
(4) Agree that they may be sued in the United
States Courts in connection with the covered transactions described in this proposed exemption;
(5) Agree that any judgment on behalf of a plan or pooled fund may be collected in the United States from Deutsche Bank; and
(6) Agree to comply with, and be subject to, all relevant provisions of the Act.
In response, the Department notes that this section does not preclude the application of foreign laws, but rather provides a means for a plan to seek a judgment in the courts of the United States if a claim arises in connection with the covered transactions. In addition, to the extent those foreign laws preclude a foreign affiliate of Deutsche Bank from meeting the conditions of the exemption, such affiliate may not rely on the relief provided by this exemption.
4.
In response to this comment, the Department notes that the requirements of Section III(a) relate exclusively to the information that Deutsche Bank must provide to certain designated persons.
For a complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption that was published in the
Accordingly, after giving full consideration to the entire record, including the Applicant's comment letters and supplements, the Department has decided to grant the exemption.
[Prohibited Transaction Exemption No. 2010–02; Application No. D–11522.]
The restrictions of sections 406(a)(1)(A) and (D) and 406(b) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), (D), (E), and (F) of the Code, shall not apply as of October 24, 2008, to the cash sale of certain mortgage, mortgage-related, and other asset-backed securities for $2,447,381,010 (the Sale) by stable value commingled funds and separate accounts both holding assets of employee benefit plans (the Accounts) to State Street Bank and Trust Company (State Street), the investment manager and/or trustee for the Accounts, provided that the conditions set forth below are met.
(a) The Sale was a one-time transaction for cash payment made on a delivery versus payment basis.
(b) The Accounts did not bear any commissions or transaction costs in connection with the Sale.
(c) The Accounts received as a purchase price for the securities an amount which, as of the effective date of the Sale, was equal to the fair market value of the securities, determined by reference to prices provided by independent third-party pricing sources consulted in accordance with pricing procedures used by the Accounts prior to the transaction.
(d) In connection with the Sale, State Street transferred to and allocated among the Accounts cash in the amount of $450,000,000.
(e) At the time of the transaction, State Street, as trustee of the Accounts, determined (except with respect to the State Street Salary Savings Program, an employee benefit plan maintained for employees of State Street and certain affiliates (the State Street Plan)) that the Sale was appropriate for and in the best interests of the Accounts and the employee benefit plans invested in the Accounts. An independent fiduciary determined at the time of the transaction that the Sale was appropriate for and in the best interest of the State Street Plan and its participants and beneficiaries.
(f) An independent consultant reviewed, after the Sale, the reasonableness of the prices used to purchase the securities, and concluded that the pricing methodology used by State Street provided a reasonable basis for determining the fair market value of the securities and that the methodology was reasonably applied with only immaterial deviations.
(g) In carrying out the Sale, State Street took all appropriate actions necessary to safeguard the interests of each Account and each employee benefit plan with a direct or indirect interest in an Account.
(h) State Street and its affiliates, as applicable, will maintain, or cause to be maintained, for a period of six (6) years from the date of the Sale such records as are necessary to enable the persons described below in paragraph (i)(i) to determine whether the conditions of this exemption have been met, except that—
(i) No party in interest with respect to a plan which engaged in the covered transaction, other than State Street and its affiliates, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by section 4975(a) and (b) of the Code, if such records are not maintained or are not available for examination as required by paragraph (i) below; and
(ii) A separate prohibited transaction shall not be considered to have occurred solely because due to circumstances beyond the control of State Street or its affiliate, as applicable, such records are lost or destroyed prior to the end of the six-year period.
(i)(i) Except as provided below, in paragraph (ii), and notwithstanding any provisions of subsections (a)(2) and (b) of sections 504 of the Act, the records referred to in paragraph (h) above, are unconditionally available at their customary location for examination during normal business hours by—
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, the Securities and Exchange Commission or the Federal Reserve Board;
(B) Any fiduciary of any plan that engaged in the covered transaction, or any duly authorized employee or representative of such fiduciary;
(C) Any employer of participants and beneficiaries and any employee organization whose members are covered by a plan that engages in the covered transactions, or any authorized employee or representative of these entities; or
(D) Any participant or beneficiary of a plan that engages in the covered transactions, or duly authorized employee or representative of such participant or beneficiary;
(ii) None of the persons described above in subparagraphs (B)–(D) of paragraph (i)(i) are authorized to examine the trade secrets of State Street or commercial or financial information that is privileged or confidential.
(iii) Should State Street refuse to disclose information on the basis that such information is exempt from disclosure, State Street shall, by the close of the thirtieth (30th) day following the request, provide written notice advising that person of the reason for the refusal and that the Department may request such information.
The Department received one comment regarding the proposed exemption. At the Department's request, State Street submitted a response to the comment. A discussion of the commenter's assertions, State Street's responses, and the Department's views follows.
The commenter first stated that State Street failed to disclose certain information to the Department. Specifically, the commenter cited several news items reporting on litigation involving State Street that the commenter believed to be relevant to the pending exemption. The commenter also asserted that State Street concealed certain matters from the Department, most notably, the fact that the SEC had issued a “Wells Notice” to State Street, indicating that the staff of the SEC is recommending enforcement action against the company for violations of the antifraud provisions of the federal securities laws, relating to the disclosure and management of State Street's active fixed income strategies during 2007 and prior periods.
In addition, the commenter took the position that the criteria established under section 408(a) of ERISA for the grant of an exemption would not be satisfied with respect to the pending exemption, in that the exemption would not serve the interests of the affected plans and their participants and beneficiaries.
In response, State Street stated that the news items identified by the commenter are not relevant to the transaction covered by the proposed exemption. In that regard, State Street pointed out that the news items did not involve funds affected by the proposed exemption, and pertain to events that occurred after the publication of the proposed exemption. State Street noted that the SEC Wells Notice was disclosed to the Department on July 8, 2009, and also was generally available as part of a public filing. State Street asserted that the other matters omitted from the application are not relevant to the Department's consideration of the proposed exemption. State Street stated that it believes it satisfied the requirements of the Department's regulations with respect to disclosures in its application.
The Department has carefully considered the issues raised by the commenter and the Applicant's responses. The Department does not believe that any of the news items or allegedly concealed or omitted matters would have materially affected the Department's decision to propose, and ultimately, grant the exemption.
With respect to plan contact information, the Department requested and the Applicant agreed to supplement its application with contact information for affected plans that were managed in separate accounts. As to plans invested in pooled funds, the Department's regulations at 29 CFR 2570.35 require disclosure of information with respect to the pooled funds as opposed to individual investing plans. See 29 CFR 2570.35(c)(2). State Street's original application provided the employer identification number for the pooled funds. Because the pooled funds are sponsored by State Street, the Department does not believe it is necessary to have additional contact information on file for the pooled funds.
Finally, the Department has determined that the exemption does satisfy the criteria established in section 408(a) of ERISA, including the requirement that the exemption be in the interests of the affected plans and their participants and beneficiaries. The Department does not believe that the grant of the exemption will undermine any rights that a plan participant or beneficiary might have against State Street as fiduciary. The Department's view is that by purchasing distressed securities (the Selected Assets) and making an additional cash infusion into the affected Accounts, State Street took actions designed to protect the interests of the plans invested in those Accounts. The Department believes that the Applicant was persuasive in arguing that it was necessary to remove the Selected Assets from the Accounts in order to reduce the likelihood that the wrap providers would terminate their contracts, thereby depriving the Accounts of “book value” treatment of plan investments. In this regard, the Department notes that the identification of the Selected Assets was confirmed by an independent consultant. In addition, the sale price of the Selected Assets was determined by independent third party pricing services and confirmed as reasonable by an independent consultant.
The Department has determined not to hold a public hearing with respect to the proposed exemption. The Department's regulations provide that a hearing will be held where necessary to fully explore material factual issues identified by the person requesting the hearing. See 29 CFR 2570.46. In this case, the Department concludes that the commenter has not identified any material factual issues that would require a hearing.
With respect to the additional disclosure requested by the commenter, the Department's regulations require disclosure of much of the information requested by the commenter, including lawsuits against the applicant concerning the applicant's conduct as a fiduciary or party in interest with respect to any plan, as well as contact information/EIN for affected plans or pooled funds. The Department believes that the additional disclosure requested by the commenter regarding plans that are not affected by the exemption is beyond the scope of the Department's exemption procedure regulation and this proceeding.
Accordingly, after giving full consideration to the entire record, including the written comment, the Department has determined to grant the exemption. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on September 25, 2009, at 74 FR 49031.
[Prohibited Transaction Exemption 2010–03; Exemption Application No. D–11571.]
The restrictions of sections 406(a) and 406(b)(1) and 406(b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply as of February 20, 2009, to the cash sale of certain floating rate securities (the Securities) issued by Lehman Brothers Holdings, Inc. or its affiliates (together, Lehman) for an aggregate purchase price of $235,737,419.05 by the EB Temporary Investment Fund—Lehman (Liquidating Fund), the EB SMAM Short Term Investment Fund—Lehman (Liquidating Fund), the DF Temporary Investment Fund—Lehman (Liquidating Fund) and the Pooled Employee Daily Liquidity Fund—Lehman (Liquidating Fund) (collectively, the Liquidating Funds) to the Bank of New York Mellon Corporation (BNYMC), a party in interest with respect to employee benefit plans (the Plans) invested, directly or indirectly, in the Liquidating Funds. This exemption is subject to the following conditions:
(a) The sale was a one-time transaction for cash;
(b) The Liquidating Funds received an amount for the sale of the Securities, which was equal to the sum of (1) The par value of the Securities plus (2) accrued but unpaid interest through September 12, 2008, determined at the contract rate, plus (3) accrued and unpaid interest from September 15, 2008 through the earlier of (i) the date of sale or (ii) the maturity date of the Securities, determined at the investment earnings rate of the collective fund from which the Securities were transferred to the Liquidating Fund for the period from September 15, 2008 to the earlier of the maturity date of the Security or February 20, 2009;
(c) The Liquidating Funds did not bear any commissions, fees, transaction costs or other expenses in connection with the sale of the Securities;
(d) BNY Mellon, as trustee of the Liquidating Funds, determined that the sale of the Securities was appropriate for and in the best interests of the Liquidating Funds, and the Plans invested, directly or indirectly, in the Liquidating Funds, at the time of the transaction;
(e) BNY Mellon took all appropriate actions necessary to safeguard the interests of the Liquidating Funds, and the Plans invested, directly or indirectly, in the Liquidating Funds, in connection with the transaction;
(f) If the exercise of any of BNYMC's rights, claims or causes of action in connection with its ownership of the Securities results in BNYMC recovering from Lehman, the issuer of the Securities, or from any third party, an aggregate amount that is more than the sum of:
(1) the purchase price paid for the Securities by BNYMC; and
(2) interest on the par value of the Securities from and after the date BNYMC purchased the Securities from the Liquidating Funds, determined at the last-published interest rate on the Securities preceding the Lehman's bankruptcy filing, BNYMC refunds such excess amount promptly to the Liquidating Funds (after deducting all reasonable expenses incurred in connection with the recovery);
(g) BNY Mellon and its affiliates, as applicable, maintain, or cause to be maintained, for a period of six (6) years from the date of any covered transaction such records as are necessary to enable the person described below in paragraph (h)(1), to determine whether the conditions of this exemption have been met, except that—
(1) No party in interest with respect to a Plan which engages in the covered transaction, other than BNY Mellon and its affiliates, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by section 4975(a) and (b) of the Code, if such records are not maintained, or not available for examination, as required, below, by paragraph (h)(1);
(2) A separate prohibited transaction shall not be considered to have occurred solely because due to circumstances beyond the control of BNY Mellon or its affiliates, as applicable, such records are lost or destroyed prior to the end of the six-year period;
(h)(1) Except as provided, below, in paragraph (h)(2), and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to, above, in paragraph (g) are unconditionally available at their customary location for examination during normal business hours by—
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the Securities and Exchange Commission; or
(B) Any fiduciary of any Plan that engages in the covered transaction, or any duly authorized employee or representative of such fiduciary; or
(C) Any employer of participants and beneficiaries and any employee organization whose members are covered by a Plan that engages in the covered transaction, or any authorized employee or representative of these entities; or
(D) Any participant or beneficiary of a Plan that engages in the covered transaction, or duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described above, in paragraph (h)(1)(B)–(D) shall be authorized to examine trade secrets of BNY Mellon or its affiliates, or commercial or financial information which is privileged or confidential; and
(3) Should BNY Mellon refuse to disclose information on the basis that such information is exempt from disclosure, BNY Mellon shall, by the
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on November 16, 2009 at 74 FR 58992.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
Employee Benefits Security Administration, Labor.
Notice of proposed exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or requests for a hearing on the pending exemptions, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this
All written comments and requests for a hearing (at least three copies) should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Room N–5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No., ___ , stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to EBSA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to: “
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
[Application No. D–11514.]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code, and
If the proposed exemption is granted, the restrictions of section 406(a)(1)(A) and (D) and section 406(b)(1) and (2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), (D), and (E) of the Code, shall not apply, effective February 1, 2008, to the sale by a Plan (as defined in Section V(e)) of an Auction Rate Security (as defined in Section V(c)) to Citigroup, where such sale (an Unrelated Sale) is unrelated to, and not made in connection with, a Settlement Agreement (as defined in Section V(f)), provided that the conditions set forth in Section II have been met.
(a) The Plan acquired the Auction Rate Security in connection with brokerage or advisory services provided by Citigroup to the Plan;
(b) The last auction for the Auction Rate Security was unsuccessful;
(c) Except in the case of a Plan sponsored by Citigroup for its own employees (a Citigroup Plan), the Unrelated Sale is made pursuant to a written offer by Citigroup (the Offer) containing all of the material terms of the Unrelated Sale. Either the Offer or other materials available to the Plan provide: (1) The identity and par value of the Auction Rate Security; (2) the interest or dividend amounts that are due and unpaid with respect to the Auction Rate Security; and (3) the most recent rate information for the Auction Rate Security (if reliable information is available). Notwithstanding the foregoing, in the case of a pooled fund maintained or advised by Citigroup, this condition shall be deemed met to the extent each Plan invested in the pooled fund (other than a Citigroup Plan) receives advance written notice regarding the Unrelated Sale, where such notice contains all of the material terms of the Unrelated Sale;
(d) The Unrelated Sale is for no consideration other than cash payment against prompt delivery of the Auction Rate Security;
(e) The sales price for the Auction Rate Security is equal to the par value of the Auction Rate Security, plus any accrued but unpaid interest or dividends;
(f) The Plan does not waive any rights or claims in connection with the Unrelated Sale;
(g) The decision to accept the Offer or retain the Auction Rate Security is made by a Plan fiduciary or Plan participant or IRA owner who is independent (as defined in Section V(d)) of Citigroup. Notwithstanding the foregoing: (1) in the case of an IRA (as defined in Section V(e)) which is beneficially owned by an employee, officer, director or partner of Citigroup, the decision to accept the Offer or retain the Auction Rate Security may be made by such employee, officer, director or partner; or (2) in the case of a Citigroup Plan or a pooled fund maintained or advised by Citigroup, the decision to accept the Offer may be made by Citigroup after Citigroup has determined that such purchase is in the best interest of the Citigroup Plan or pooled fund;
(h) Except in the case of a Citigroup Plan or a pooled fund maintained or advised by Citigroup, neither Citigroup nor any affiliate exercises investment discretion or renders investment advice within the meaning of 29 CFR 2510.3–21(c) with respect to the decision to accept the Offer or retain the Auction Rate Security;
(i) The Plan does not pay any commissions or transaction costs with respect to the Unrelated Sale;
(j) The Unrelated Sale is not part of an arrangement, agreement or understanding designed to benefit a party in interest to the Plan;
(k) Citigroup and its affiliates, as applicable, maintain, or cause to be maintained, for a period of six (6) years from the date of the Unrelated Sale, such records as are necessary to enable the persons described below in paragraph (l)(1), to determine whether the conditions of this exemption, if granted, have been met, except that:
(1) No party in interest with respect to a Plan which engages in an Unrelated Sale, other than Citigroup and its affiliates, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by section 4975(a) and (b) of the Code, if such records are not maintained, or not available for examination, as required, below, by paragraph (l)(1); and
(2) A separate prohibited transaction shall not be considered to have occurred solely because, due to circumstances beyond the control of Citigroup or its affiliates, as applicable, such records are lost or destroyed prior to the end of the six-year period;
(l)(1) Except as provided below in paragraph (l)(2), and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to above in paragraph (k) are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the U.S. Securities and Exchange Commission; or
(B) Any fiduciary of any Plan, including any IRA owner, that engages in an Unrelated Sale, or any duly authorized employee or representative of such fiduciary; and
(C) Any employer of participants and beneficiaries and any employee organization whose members are covered by a Plan that engages in the Unrelated Sale, or any authorized employee or representative of these entities;
(2) None of the persons described above in paragraphs (l)(1)(B)–(C) shall be authorized to examine trade secrets of Citigroup, or commercial or financial information which is privileged or confidential; and
(3) Should Citigroup refuse to disclose information on the basis that such information is exempt from disclosure, Citigroup shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
If the proposed exemption is granted, the restrictions of section 406(a)(1)(A) and (D) and section 406(b)(1) and (2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), (D), and (E) of the Code, shall not apply, effective February 1, 2008, to the sale by a Plan of an Auction Rate Security to Citigroup, where such sale (a Settlement Sale) is related to, and made in connection with, a Settlement
(a) The terms and delivery of the Offer are consistent with the requirements set forth in the Settlement Agreement and acceptance of the Offer does constitute a waiver of any claim of the tendering Plan;
(b) The Offer or other documents available to the Plan specifically describe, among other things:
(1) How a Plan may determine: the Auction Rate Securities held by the Plan with Citigroup; the number of shares or par value of the Auction Rate Securities; the interest or dividend amounts that are due and unpaid with respect to the Auction Rate Securities; and (if reliable information is available) the most recent rate information for the Auction Rate Securities;
(2) The background of the Offer;
(3) That neither the tender of Auction Rate Securities nor the purchase of any Auction Rate Securities pursuant to the Offer will constitute a waiver of any claim of the tendering Plan;
(4) The methods and timing by which Plans may accept the Offer;
(5) The purchase dates, or the manner of determining the purchase dates, for Auction Rate Securities tendered pursuant to the Offer;
(6) The timing for acceptance by Citigroup of tendered Auction Rate Securities;
(7) The timing of payment for Auction Rate Securities accepted by Citigroup for payment;
(8) The methods and timing by which a Plan may elect to withdraw tendered Auction Rate Securities from the Offer;
(9) The expiration date of the Offer;
(10) The fact that Citigroup may make purchases of Auction Rate Securities outside of the Offer and may otherwise buy, sell, hold or seek to restructure, redeem or otherwise dispose of the Auction Rate Securities;
(11) A description of the risk factors relating to the Offer as Citigroup deems appropriate;
(12) How to obtain additional information concerning the Offer; and
(13) The manner in which information concerning material amendments or changes to the Offer will be communicated to the Plan;
(c) The terms of the Settlement Sale are consistent with the requirements set forth in the Settlement Agreement; and
(d) All of the conditions in Section II have been met.
For purposes of this proposed exemption:
(a) The term “affiliate” means any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such other person;
(b) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual;
(c) The term “Auction Rate Security” or “ARS” means a security: (1) that is either a debt instrument (generally with a long-term nominal maturity) or preferred stock; and (2) with an interest rate or dividend that is reset at specific intervals through a Dutch auction process;
(d) A person is “independent” of Citigroup if the person is: (1) not Citigroup or an affiliate; and (2) not a relative (as defined in section 3(15) of the Act) of the party engaging in the transaction;
(e) The term “Plan” means an individual retirement account or similar account described in section 4975(e)(1)(B) through (F) of the Code (an IRA); an employee benefit plan as defined in section 3(3) of the Act; or an entity holding plan assets within the meaning of 29 CFR 2510.3–101, as modified by section 3(42) of the Act; and
(f) The term “Settlement Agreement” means a legal settlement involving Citigroup and a U.S. state or federal authority that provides for the purchase of an ARS by Citigroup from a Plan.
1. Citigroup Inc. is a holding company whose businesses provide a broad range of financial services to consumer and corporate customers around the world. As of June 30, 2008, Citigroup and its subsidiaries had total consolidated assets of approximately $2.1 trillion. Citigroup's consumer and corporate banking business is a global franchise encompassing, among other things, branch and electronic banking, consumer lending services, investment services, and credit and debit card services. Citigroup also provides securities trading, research, and brokerage services to consumer and corporate customers, primarily through its registered broker-dealer, Citigroup Global Markets Inc. Formerly, “Smith Barney” was the brand name used by Citigroup for its retail brokerage business, and Smith Barney had more than 15,000 financial advisors, located in approximately 800 offices across the United States, who served approximately 9.2 million domestic client accounts, representing approximately $1.5 trillion in assets.
2. The Applicant describes Auction Rate Securities and the arrangement by which ARS are bought and sold as follows. Auction Rate Securities are securities (issued as debt or preferred stock) with an interest rate or dividend that is reset at periodic intervals pursuant to a process called a Dutch Auction. Investors submit orders to buy, hold, or sell a specific ARS to a broker-dealer selected by the entity that issued the ARS. The broker-dealers, in turn, submit all of these orders to an auction agent. The auction agent's functions include collecting orders from all participating broker-dealers by the auction deadline, determining the amount of securities available for sale, and organizing the bids to determine the winning bid. If there are any buy orders placed into the auction at a specific rate, the auction agent accepts bids with the lowest rate above any applicable minimum rate and then successively higher rates up to the maximum applicable rate, until all sell orders and orders that are treated as sell orders are filled. Bids below any applicable minimum rate or above the applicable maximum rate are rejected. After determining the clearing rate for all of the securities at auction, the auction agent allocates the ARS available for sale to the participating broker-dealers
3. The Applicant states that, under a typical Dutch Auction process, Citigroup is permitted, but not obligated, to submit orders in auctions for its own account either as a bidder or a seller and routinely does so in the auction rate securities market in its sole discretion. Citigroup may place one or more bids in an auction for its own account to acquire ARS for its inventory, to prevent: (a) a failed auction (
4. The Applicant states that for many ARS, Citigroup has been appointed by the issuer of the securities to serve as a dealer in the auction and is paid by the issuer for its services. Citigroup is typically appointed to serve as a dealer in the auctions pursuant to an agreement between the issuer and Citigroup. That agreement provides that Citigroup will receive from the issuer auction dealer fees based on the principal amount of the securities placed through Citigroup.
5. The Applicant states further that Citigroup may share a portion of the auction rate dealer fees it receives from the issuer with other broker-dealers that submit orders through Citigroup, for those orders that Citigroup successfully places in the auctions. Similarly, with respect to ARS for which broker-dealers other than Citigroup act as dealer, such other broker-dealers may share auction dealer fees with Citigroup for orders submitted by Citigroup.
6. According to the Applicant, since February 2008, only a minority of auctions have cleared, particularly involving municipalities. As a result, Plans holding ARS may not have sufficient liquidity to make benefit payments, mandatory payments and withdrawals and expense payments when due.
7. The Applicant represents that, in certain instances, Citigroup may have previously advised or otherwise caused a Plan to acquire and hold an Auction Rate Security.
Also pursuant to the relevant settlement, by letter dated October 20, 2008, Applicant made an Offer (the Second Offer, and together with the First Offer, the Offers) to eligible customers who had transferred their account from Applicant to another securities firm or bank to purchase all Subject Securities purchased by such eligible customers. Eligible customers who wanted Applicant to purchase some or all of their auction rate securities by December 23, 2008 were required to notify Applicant of their desire to do so by December 5, 2008. Eligible customers who wanted Applicant to purchase some or all of their auction rate securities at any scheduled auction date between December 23, 2008 and June 12, 2009 were required to notify Applicant of their desire to do so at least three business days before the auction date. To take advantage of the Second Offer, eligible customers were also required to arrange for the transfer of the Subject Securities to Applicant through FINRA's Automated Customer Account Transfer Service. No additional custody charges were imposed in connection with transferred securities.
The Applicant is requesting retroactive and prospective relief for the Settlement Sales. With respect to Unrelated Sales, the Applicant states that to the best of its knowledge, no Unrelated Sale has occurred. However, the Applicant is requesting retroactive relief (and prospective relief) for Unrelated Sales in the event that a sale of Auction Rate Securities by a Plan to Citigroup has occurred outside the Settlement process. If granted, the proposed exemption will be effective February 1, 2008.
8. The Applicant is requesting relief for the sale of Auction Rate Securities under two different circumstances: (a) Where Citigroup initiates the sale by sending to a Plan a written Offer to acquire the ARS (
9. The Applicant represents that the proposed exemption is protective of the Plans. The Applicant states that: Each Covered Sale will be made pursuant to a written Offer; and the decision to accept the Offer or retain the ARS will be made by a Plan fiduciary or Plan participant or IRA owner who is independent of Citigroup. Additionally, each Offer will be delivered in a manner designed to alert a Plan fiduciary that Citigroup intends to purchase ARS from the Plan. Offers made in connection with an Unrelated Sale will include the material terms of the Unrelated Sale,
10. The Applicant represents that the proposed exemption, if granted, would be administratively feasible. In this regard, the Applicant notes that each Covered Sale will occur at the par value of the affected ARS (plus accrued but unpaid interest and dividends, to the extent applicable), and such value is readily ascertainable. The Applicant represents further that Citigroup will maintain the records necessary to enable the Department and Plan fiduciaries, among others, to determine whether the conditions of this exemption, if granted, have been met.
11. In summary, the Applicant represents that the transactions described herein satisfy the statutory criteria of section 408(a) of the Act because, among other things:
(a) Each Covered Sale shall be made pursuant to a written Offer;
(b) Each Covered Sale shall be for no consideration other than cash payment against prompt delivery of the ARS;
(c) The amount of each Covered Sale shall equal the par value of the ARS, plus any accrued but unpaid interest or dividends;
(d) Plans will not waive any rights or claims in connection with any Covered Sale;
(e)(1) the decision to accept an Offer or retain the ARS shall be made by a Plan fiduciary or Plan participant or IRA owner who is independent of Citigroup; and (2) neither Citigroup nor any affiliate shall exercise investment discretion or render investment advice within the meaning of 29 CFR 2510.3–21(c) with respect to the decision to accept the Offer or retain the ARS;
(f) Plans shall not pay any commissions or transaction costs with respect to any Covered Sale;
(g) A Covered Sale shall not be part of an arrangement, agreement or understanding designed to benefit a party in interest to the affected Plan;
(h) With respect to any Settlement Sale, the terms and delivery of the Offer, and the terms of Settlement Sale, shall be consistent with the requirements set forth in the Settlement Agreement;
(i) Citigroup shall make available in connection with an Unrelated Sale the material terms of the Unrelated Sale, including: (1) The identity and par value of the Auction Rate Security; (2) the interest or dividend amounts that are due but unpaid with respect to the Auction Rate Security; and (3) the most recent rate information for the Auction Rate Security (if reliable information is available);
(j) Each Offer made in connection with a Settlement Agreement shall describe the material terms of the Settlement Sale, including the following (and shall not constitute a waiver of any claim of the tendering Plan): (1) The background of the Offer; (2) that neither the tender of ARS nor the purchase of ARS pursuant to the Offer will constitute a waiver of any claim of the tendering Plan; (3) the methods and timing by which the Plan may accept the Offer; and (4) the purchase dates, or the manner of determining the purchase dates, for ARS pursuant to the Offer and the timing for acceptance by Citigroup of tendered ARS for payment; and
(k) Citigroup shall make available to the Plan information regarding how the Plan can determine: The ARS held by the Plan with Citigroup; the number of shares and par value of the ARS; interest or dividend amounts; purchase dates for the ARS; and (if reliable information is available) the most recent rate information for the ARS.
The Applicant represents that the potentially interested participants and beneficiaries cannot all be identified, and, therefore, the only practical means of notifying such participants and beneficiaries of this proposed exemption is by the publication of this notice in the
Brian Shiker of the Department, telephone (202) 693–8552. (This is not a toll-free number.)
[Application No. D–11531.]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and in accordance with the procedures set forth in 29 CFR part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of sections 406(a) and (b) of the Act shall not apply to the reinsurance of risks and the receipt of premiums therefrom by Pleiades Insurance Company, Ltd. (PIC) in connection with an insurance contract sold by Minnesota Life Insurance Company (MN Life) or any successor insurance company to MN Life which is unrelated to Subaru, to provide group-term life insurance to employees of Subaru under the Subaru of America, Inc. Welfare Benefit Plan (the Plan), provided the following conditions are met:
(a) PIC—
(1) Is a party in interest with respect to the Plan by reason of a stock or partnership affiliation with Subaru that is described in section 3(14)(E) or (G) of the Act,
(2) Is licensed to sell insurance or conduct reinsurance operations in at least one State as defined in section 3(10) of the Act, (3) Has a U.S. branch, the Pleiades Insurance Company Ltd. (US Branch), which has obtained a Certificate of Authority from the Insurance Commissioner of its domiciliary State which has neither been revoked nor suspended,
(4)(A) Has undergone and shall continue to undergo an examination by an independent certified public accountant for its last completed taxable year immediately prior to the taxable year of the reinsurance transaction; or
(B) Has undergone a financial examination (within the meaning of the law of its domiciliary State, the District of Columbia) by the Insurance Commissioner of the District of
(5) Is licensed to conduct reinsurance transactions by a State whose law requires that an actuarial review of reserves be conducted annually by an independent firm of actuaries and reported to the appropriate regulatory authority;
(b) The Plan pays no more than adequate consideration for the insurance contracts;
(c) In subsequent years, the formula used to calculate premiums by MN Life or any successor insurer will be similar to formulae used by other insurers providing comparable coverage under similar programs. Furthermore, the premium charge calculated in accordance with the formula will be reasonable and will be comparable to the premium charged by the insurer and its competitors with the same or a better rating providing the same coverage under comparable programs;
(d) The Plan only contracts with insurers with a rating of A or better from A.M. Best Company. The reinsurance arrangement between the insurer and PIC will be indemnity insurance only,
(e) No commissions are paid with respect to the reinsurance of such contracts; and
(f) For each taxable year of PIC, the gross premiums and annuity considerations received in that taxable year by PIC for life and health insurance or annuity contracts for all employee benefit plans (and their employers) with respect to which PIC is a party in interest by reason of a relationship to such employer described in section 3(14)(E) or (G) of the Act does not exceed 50% of the gross premiums and annuity considerations received for all lines of insurance (whether direct insurance or reinsurance) in that taxable year by PIC. For purposes of this condition (f):
(1) the term “gross premiums and annuity considerations received” means as to the numerator the total of premiums and annuity considerations received, both for the subject reinsurance transactions as well as for any direct sale or other reinsurance of life insurance, health insurance or annuity contracts to such plans (and their employers) by PIC. This total is to be reduced (in both the numerator and the denominator of the fraction) by experience refunds paid or credited in that taxable year by PIC.
(2) all premium and annuity considerations written by PIC for plans which it alone maintains are to be excluded from both the numerator and the denominator of the fraction.
1. Subaru of America, Inc. (Subaru), a wholly owned subsidiary of Fuji Heavy Industries, Ltd. of Japan (Fuji), is a marketer of Subaru products manufactured by Fuji. The Plan is a fully insured welfare plan within the meaning of section 3(1) of the Act. The Plan includes group-term life insurance (including basic, supplemental and dependent coverage).
2. PIC is a 100% owned subsidiary of Subaru. PIC's U.S. branch, the Pleiades Insurance Company, Ltd. (US Branch) (hereafter, “Branch”), is domiciled in the District of Columbia. As of March 31, 2009, PIC reported approximately $39 million in gross annual premiums and $214 million in total assets. The applicant represents that for each taxable year of PIC, the total amount of premiums, both for the subject reinsurance transactions as well as for any direct sale or other reinsurance of life insurance for all employee benefit plans for which PIC is a party in interest by reason of a relationship to the sponsoring employer described in section 3(14)(E) or (G) of the Act have not exceeded and will not exceed 50% of the gross premiums received by PIC from all lines of insurance in that taxable year.
3. Subaru provides to its employees certain welfare benefits through the Plan. The group-term life insurance component of the Plan currently has approximately 929 participants and beneficiaries.
4. The life insurance is currently underwritten by Minnesota Life Insurance Company (MN Life), an unaffiliated insurance carrier. Subaru has entered into a policy with MN Life for 100% of this coverage. Subaru proposes to use its subsidiary, PIC (through Branch), to reinsure 100% of the risk through a reinsurance contract between PIC and MN Life in which MN Life would pay 100% of the premiums to PIC. The premium paid to MN Life by Subaru includes fees for administrative costs, so there is no additional cost to the Plan as a result of the reinsurance arrangement. From the participants' perspective, the participants have a binding contract with MN Life, which is legally responsible for the group-term life insurance risk associated under the Plan. MN Life is liable to provide the promised coverage regardless of the proposed reinsurance arrangement.
5. The applicant represents that the proposed transaction will not in any way affect the cost to the insureds of the group-term life insurance contracts, and the Plan will pay no more than adequate consideration for the insurance. Neither Subaru nor PIC will profit from the reinsurance arrangement at the expense of the Plan or its participants. Also, Plan participants are afforded insurance protection from MN Life at competitive rates arrived at through arm's-length negotiations. MN Life is rated “A+” by the A. M. Best Company, whose insurance ratings are widely used in financial and regulatory circles. MN Life has assets in excess of $26 billion. MN Life will continue to have the ultimate responsibility in the event of loss to pay insurance benefits to the employee's beneficiary. The applicant represents that PIC is a sound, viable company which is dependent upon insurance customers that are unrelated to itself and its affiliates for premium revenue.
6. The applicant represents that the proposed reinsurance transaction will meet all of the conditions of PTE 79–41 covering direct insurance transactions:
(a) PIC is a party in interest with respect to the Plan (within the meaning of section 3(14)(G) of the Act) by reason of stock affiliation with Subaru, which maintains the Plan.
(b) Branch is licensed to do business in the District of Columbia.
(c) PIC has undergone an examination by an independent certified public accountant for its fiscal year ending March 31, 2009.
(d) PIC has received a Certificate of Authority from its domiciliary State (as defined in Act section 3(10)), the District of Columbia, which has neither been revoked nor suspended.
(e) The Plan will pay no more than adequate consideration for the insurance. The proposed transaction will not in any way affect the cost to the insureds of the group-term life insurance transaction.
(f) No commissions will be paid with respect to the acquisition of insurance by Subaru from MN Life or the acquisition of reinsurance by MN Life from PIC.
(g) For each taxable year of PIC, the “gross premiums and annuity considerations received” in that taxable year for group life and health insurance (both direct insurance and reinsurance) for all employee benefit plans (and their employers) with respect to which PIC is a party in interest by reason of a relationship to such employer described in section 3(14)(E) or (G) of the Act will not exceed 50% of the “gross premiums
7. In summary, the applicant represents that the proposed transaction will meet the criteria of section 408(a) of the Act because: (a) Plan participants and beneficiaries are afforded insurance protection by MN Life, an “A+” rated group insurer, at competitive market rates arrived at through arm's-length negotiations; (b) PIC is a sound, viable insurance company which does a substantial amount of public business outside its affiliated group of companies; and (c) each of the protections provided to the Plan and its participants and beneficiaries by PTE 79–41 will be met under the proposed reinsurance transaction.
Gary H. Lefkowitz of the Department, telephone (202) 693–8546. (This is not a toll-free number.)
[Application No. D–11584.]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code, in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990).
If the proposed exemption is granted, the restrictions of sections 406(a), 406(b)(1) and 406(b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of sections 4975(c)(1)(A) through (E) of the Code, shall not apply as of July 10, 2009, to the cash sale of certain medium term notes (the Notes) issued by Stanfield Victoria Finance Ltd. (Victoria Finance or the Issuer) for an aggregate purchase price of $26,997,049.52 by the BNY Mellon's Short Term Investment Fund (the Fund) to The Bank of New York Mellon Corporation (BNYMC), a party in interest with respect to employee benefit plans (the Plans) invested, directly or indirectly, in the Fund, provided that the following conditions are met:
(a) The sale was a one-time transaction for cash;
(b) The Fund received an amount which was equal to the sum of (1) the total current amortized cost of the Notes as of the date of the sale plus (2) interest for the period beginning on January 1, 2008 to July 12, 2009, calculated at a rate equal to the earnings rate of the Fund during such period;
(c) The Fund did not bear any commissions, fees, transaction costs, or other expenses in connection with the sale;
(d) BNY Mellon, as trustee of the Fund, determined that the sale of the Notes was appropriate for and in the best interests of the Fund, and the Plans invested, directly or indirectly, in the Fund, at the time of the transaction;
(e) BNY Mellon took all appropriate actions necessary to safeguard the interests of the Fund, and the Plans invested, directly or indirectly, in the Fund, in connection with the transaction;
(f) If the exercise of any of BNYMC's rights, claims or causes of action in connection with its ownership of the Notes results in BNYMC recovering from Victoria Finance, the Issuer of the Notes, or from any third party, an aggregate amount that is more than the sum of: (1) the purchase price paid for the Notes by BNYMC and (2) interest on the purchase price paid for the Notes at the interest rate specified in the Notes, then BNYMC will refund such excess amount promptly to the Fund (after deducting all reasonable expenses incurred in connection with the recovery);
(g) BNY Mellon and its affiliates, as applicable, maintain, or cause to be maintained, for a period of six (6) years from the date of any covered transaction such records as are necessary to enable the person described below in paragraph (h)(1), to determine whether the conditions of this exemption have been met, except that:
(1) No party in interest with respect to a Plan which engages in the covered transaction, other than BNY Mellon and its affiliates, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by sections 4975(a) and (b) of the Code, if such records are not maintained, or not available for examination, as required, below, by paragraph (h)(1); and
(2) A separate prohibited transaction shall not be considered to have occurred solely because, due to circumstances beyond the control of BNY Mellon or its affiliates, as applicable, such records are lost or destroyed prior to the end of the six-year period.
(h)(1) Except as provided in paragraph (h)(2), and notwithstanding any provisions of subsection (a)(2) and (b) of 504 of the Act, the records referred to, above, in paragraph (g) are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the Securities and Exchange Commission;
(B) Any fiduciary of any Plan that engages in the covered transaction, or any duly authorized employee or representative of such fiduciary;
(C) Any employer of participants and beneficiaries and any employee organization whose members are covered by a Plan that engages in the covered transaction, or any authorized employee or representative of these entities; or
(D) Any participant or beneficiary of a Plan that engages in the covered transaction, or duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described in paragraphs (h)(1)(B)-(D) shall be authorized to examine trade secrets of BNY Mellon or its affiliates, or commercial or financial information which is privileged or confidential; and
(3) Should BNY Mellon refuse to disclose information on the basis that such information is exempt from disclosure, BNY Mellon shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
1. BNY Mellon is a state bank subject to regulation by the State of New York. As of December 31, 2008, BNY Mellon managed assets in excess of $210 billion, a substantial part of which consisted of Plans subject to the Act. BNY Mellon is a subsidiary of BNYMC.
2. BNYMC is the parent of BNY Mellon by reason of its 100% ownership of BNY Mellon. BNYMC has a number of subsidiaries and affiliates. It is a Delaware financial services company that provides a wide range of banking and fiduciary services to a broad array of clients, including employee benefit plans subject to the Act and plans subject to Section 4975 of the Code. As of December 31, 2008, BNYMC had total assets of $237.5 billion.
3. The Fund is a group trust that is exempt from federal income tax pursuant to Rev. Rul. 81–100. BNY Mellon serves as a discretionary trustee for the Fund. The Fund is a short-term
4. On July 10, 2009, the value of the Fund's portfolio was approximately $4.9 billion. Also on July 10, 2009, there were in excess of 300 direct investors in the Fund, a substantial number of which were government-sponsored employee benefit plans, individual retirement accounts subject to section 408 of the Code, and employee benefit plans covered under section 401 of the Code.
5. On May 16, 2007, the Fund purchased, with settlement on May 18, 2007, the Notes, having an aggregate par value of $81,000,000, for $81,000,000. Victoria Finance, an unrelated party to BNY Mellon, issued these notes on May 18, 2007. The Notes had a maturity date of February 8, 2009. On November 30, 2007, BNY Mellon sold back to the Issuer $47,033,000 of the Notes pursuant to a tender offer by the Issuer. Although BNY Mellon had tendered all the Notes owned by the Fund, only a partial tender was accepted, leaving the Fund with a balance of $33,967,000 in the Notes.
6. The Issuer is a structured investment vehicle (SIV) that raised capital primarily by issuing various types and classes of commercial paper, including the Notes. The assets acquired by the Issuer, which consisted of corporate and asset backed securities, were then pledged to secure the Notes pursuant to a security agreement with an independent bank serving as collateral agent. The security agreement provided that, as a general rule, upon the occurrence of an “Enforcement Event” (as defined in the security agreement), the collateral agent was required to sell all of the Issuer's assets and distribute the proceeds thereof. Interest on the Notes was taxable and payable monthly at a variable rate that was reset on the 15th day of each month based upon the one-month London Interbank Offered Rate (LIBOR), minus four basis points. All interest accrued through December 31, 2007 was paid in full and on a timely basis.
7. The decision to invest in the Notes was made by BNY Mellon. Prior to the investment, BNY Mellon conducted an investigation of the potential investment, examining and considering the economic and other terms of the Notes. BNY Mellon represents that the investment in the Notes was consistent with the applicable investment policies and objectives of the Fund. At the time the Fund acquired the Notes, they were rated “A–1+” by Standard & Poor's Corporation (S&P) and “P–1” by Moody's Investor Services, Inc. (Moody's). Based on its consideration of the relevant facts and circumstances, BNY Mellon states that it was prudent and appropriate for the Fund to acquire the Notes.
Moreover, the Department is not providing any opinion as to whether a particular category of investments or investment strategy would be considered prudent or in the best interests of a plan as required by section 404 of the Act. The determination of the prudence of a particular investment or investment course of action must be made by a plan fiduciary after appropriate consideration of those facts and circumstances that, given the scope of such fiduciary's investment duties, the fiduciary knows or should know are relevant to the particular investment or investment course of action involved, including a plan's potential exposure to losses and the role the investment or investment course of action plays in that portion of the plan's portfolio with respect to which the fiduciary has investment duties (
8. On November 7, 2007, S&P placed a “negative watch” on the Notes. On December 21, 2007, Moody's downgraded the rating of the Notes to “Baa3.” On January 7, 2008, S&P downgraded the rating of the Notes to “B−.” Responding to these events, BNY Mellon, on behalf of the Fund, executed an amendment to the security agreement governing the Notes pursuant to which, by providing notice (Election Notice) on or before January 17, 2008, BNY Mellon could elect to have the pro-rata share of the collateral assets allocable to the Notes held by the Fund excluded from any asset sale by the collateral agent that would otherwise occur immediately upon the occurrence of an Enforcement Event. On January 8, 2008, as a result of the foregoing ratings down-grades, an Enforcement Event occurred. On January 15, 2008, Moody's further downgraded its rating of the Notes to “B2.” On January 16, 2008, BNY Mellon submitted an Election Notice to the collateral agent instructing the collateral agent to exclude the Fund's pro rata share of the Issuer's assets from the asset sale triggered by the occurrence of the Enforcement Event on January 8, 2008. On January 17, 2008, S&P further downgraded its rating of the Notes to “D.”
9. BNY Mellon's election was based on BNY Mellon's determination that the market for the collateral assets securing the Notes was severely distressed and that the inherent value of such assets was substantially greater than the price that could have been obtained if such assets were sold currently by the collateral agent. Accordingly, BNY Mellon determined that it was in the best interests of the Fund to exclude such assets from a current sale. Had BNY Mellon not executed this amendment and submitted the Election Notice, the assets of the Issuer underlying the Notes likely would have been sold at a substantial discount, resulting in large losses for the Fund's investors.
10. The Applicant represents that since the time of the Enforcement Event, a collateral agent and an enforcement manager have controlled the Issuer and, under the terms of the applicable security agreement, stopped paying interest or principal on the Notes. However, pro rata periodic distributions to holders of the Notes and other senior creditors of the Issuer have been made based on the cash flow received by the Issuer with respect to underlying assets. The Applicant represents that as of July 12, 2009, the Fund had received distributions from the collateral agent sufficient to pay down the unpaid interest accrued through January 15, 2008, plus approximately 23 percent of the amortized cost of the Notes (from $33,967,000 to $26,090,137.06).
11. BNY Mellon represents that following the date of the Enforcement Event, the market value of the Notes
12. In view of the foregoing, BNY Mellon and the BNY Mellon fiduciary committee with responsibility for overseeing the Fund ultimately determined that it would be appropriate and in the best interests of the Fund to sell the Notes to BNYMC at a price equal to the sum of (a) the total current amortized cost of the Notes, plus (b) interest for the period from January 1, 2008 to July 12, 2009, calculated at a rate equal to the earnings rate of the Fund during such period. Such a sale would protect the Fund from any investment loss with respect to the Notes. BNY Mellon also determined that the purchase of the Notes by BNYMC would be permissible under applicable banking law.
13. Shortly before the consummation of the transaction on July 10, 2009, BNY Mellon sent written notice to the designated representative of each of the investors having a direct interest in the Fund of BNY Mellon's intent to cause the Fund to sell the Notes to BNYMC. While such notice did not contemplate or require any response, it should be noted that this notice did not generate any negative reaction from any of the recipients thereof.
14. The Applicant represents that on July 10, 2009, BNYMC purchased the Notes from the Fund for an aggregate lump sum payment of $26,997,049.52, which amount represented the sum of (a) the total current amortized cost of the Notes ($26,090,137.06), plus (b) interest for the period from January 1, 2008 to July 12, 2009, calculated at a rate equal to the earnings rate of the Fund during such period ($906,912.46).
15. BNY Mellon, as trustee of the Fund, believed that the sale of the Notes to BNYMC was in the best interests of the Fund, and the Plans invested, directly or indirectly, in the Fund, at the time of the transaction. BNY Mellon states that any sale of the Notes on the open market would have produced significant losses for the Fund and for the participating investors in the Fund.
16. BNY Mellon represents that the sale of the Notes by the Fund to BNYMC benefited the investors in the Fund because the purchase price paid by BNYMC for the Notes substantially exceeded the aggregate fair market value of the Notes. In addition, BNY Mellon states that the transaction was a one-time sale for cash in connection with which the Fund did not bear any brokerage commissions, fees, or other expenses. BNY Mellon represents that it took all appropriate actions necessary to safeguard the interests of the Fund and its participating investors in connection with the sale of the Notes.
17. BNY Mellon states that the sale of the Notes by the Fund to BNYMC resulted in an assignment of all of the Fund's rights, claims, and causes of action against the Issuer or any third party arising in connection with or out of the issuance of the Notes or the acquisition of the Notes by the Fund. BNY Mellon states further that if the exercise of any of the foregoing rights, claims or causes of action results in BNYMC recovering from the Issuer or any third party an aggregate amount that is more than the sum of (a) the purchase price paid for the Notes by BNYMC, and (b) interest on the purchase price paid for the Notes at the interest rate specified in the Notes, then BNYMC will refund such excess amount promptly to the Fund (after deducting all reasonable expenses incurred in connection with the recovery).
18. In summary, the Applicant represents that the transactions satisfied the statutory criteria for an exemption under section 408(a) of the Act because: (a) the sale of the Notes by the Fund to BNYMC was a one-time transaction for cash; (b) the Fund received an amount equal to the sum of (i) the total current amortized cost of the Notes, plus (ii) interest for the period beginning on January 1, 2008 to July 12, 2009, calculated at a rate equal to the earnings rate of the Fund during such period, which amount was substantially greater than the aggregate market value of the Notes at the time of sale, as determined based on information regarding the then prevailing trading prices for the Notes obtained from two independent broker-dealers; (c) the Fund did not pay any commissions or other expenses with respect to the sale; (d) BNY Mellon, as trustee of the Fund, and the BNY Mellon fiduciary committee with responsibility for overseeing the Fund determined that the sale of the Notes to BNYMC was in the best interests of the Fund, and the Plans invested, directly or indirectly, in the Fund, at the time of the transaction; (e) BNY Mellon took all appropriate actions necessary to safeguard the interests of the Fund in connection with the transactions; and (f) BNYMC will promptly refund to the Fund any amount recovered from the Issuers or any third party in connection with its exercise of any rights, claims or causes of action as a result of its ownership of the Notes, if such amounts are in excess of the sum of (i) the purchase price paid for the Notes by BNYMC, and (ii) interest on the purchase price paid for the Notes at the interest rate specified in the Notes (after deducting all reasonable expenses incurred in connection with the recovery).
Mr. Brian Shiker of the Department, telephone (202) 693–8552. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and
Office of Management and Budget, Executive Office of the President.
Request for written submissions from the public.
The Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy building on the immense knowledge and expertise of the agencies charged with enforcing intellectual property rights. By committing to common goals, the Government will more effectively and efficiently combat intellectual property infringement. In this request for comments, the Government, through the office of the Intellectual Property Enforcement Coordinator (“IPEC”), invites public input and participation in shaping an effective intellectual property enforcement strategy.
This new effort is mandated by the Prioritizing Resources and Organization for Intellectual Property Act of 2008, Public Law 110–403 (Oct. 13, 2008) (“the PRO IP Act” or “the Act”) which created, within the Executive Office of the President, the position of the IPEC. The Act requires the IPEC to chair an interagency intellectual property enforcement advisory committee in order to develop an Administration strategy for enforcement against intellectual property infringement: The Joint Strategic Plan. The IPEC is currently working with the interagency advisory committee to develop this intellectual property enforcement strategy.
This request for comments and for recommendations for an improved enforcement strategy is divided into two parts. In the first, the IPEC seeks written submissions from the public regarding the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement. In the second part, the IPEC requests detailed recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government's intellectual property enforcement efforts. Responses to this request for comments may be directed to either of these two parts, or both, and may include a response to one or more requests for information found in either part.
Submissions must be received on or before Wednesday, March 24, 2010, at 5 p.m.
All submissions should be sent electronically via
Submissions filed in response to this request will be made available to the public by posting them on the Internet. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let us know, and we may request that additional information.
Thomas L. Stoll, Office of the Intellectual Property Enforcement Coordinator, at (202) 395–1808.
Through the PRO IP Act, Congress created the IPEC, to serve within the Executive Office of the President, and an interagency advisory committee specifically tasked with formulating and implementing a Joint Strategic Plan to improve the effectiveness of the U.S. Government's efforts to protect the rights of intellectual property owners and to reduce the costs of and threats posed by intellectual property infringement, in the U.S. and in other countries. The IPEC seeks public input, in the form of written comments, on the formulation of a Joint Strategic Plan and on the U.S. Government's intellectual property enforcement efforts.
The Joint Strategic Plan must contain an analysis of the threat posed by violations of intellectual property rights, including the costs to the U.S. economy resulting from such violations, and the threats to public health and safety created by infringement. Thus, the IPEC seeks written submissions from the public identifying the costs to the U.S. economy resulting from infringement of intellectual property rights, both direct and indirect, including any impact on the creation or maintenance of jobs.
In addition, the IPEC seeks written submissions identifying threats to public health and safety posed by intellectual property infringement, in the U.S. and in other countries.
Submissions directed to the economic costs of violations of intellectual property rights must clearly identify the methodology used in calculating the estimated costs and any critical assumptions relied upon, identify the source of the data on which the cost estimates are based, and provide a copy of or a citation to each such source.
Submissions directed to threats to public health or safety must include a detailed description of the threat, identify the source of the information substantiating the existence of that threat and provide a copy of or a citation to each such source.
The issues and challenges that pertain to adequate and appropriate enforcement of intellectual property are changing rapidly. Therefore, if desired, submissions may also identify and discuss emerging or future threats to the U.S. economy or to health and safety over the next five to ten years.
The IPEC requests written submissions from the public that provide specific recommendations for accomplishing one or more of the objectives of the Joint Strategic Plan, or other specific recommendations for significantly improving the U.S. Government's enforcement efforts. Recommendations may include, but need not be limited to: Proposed legislative changes, regulations, executive orders, other executive action, guidelines, or changes in policies, practices or methods.
Recommendations should include a detailed description of a preferred method for accomplishing the recommendation. If a submission includes multiple recommendations, the IPEC requests that the submission rank the recommendations in order of priority, where possible.
The objectives of the Joint Strategic Plan include:
• Reducing the supply of infringing goods, domestically and internationally;
• Identifying weaknesses, duplication of efforts, waste, and other unjustified
• Promoting information sharing between participating agencies to the extent permissible by law;
• Disrupting and eliminating infringement networks in the U.S. and in other countries;
• Strengthening the capacity of other countries to protect and enforce intellectual property rights;
• Reducing the number of countries that fail to enforce intellectual property rights;
• Assisting other countries to more effectively enforce intellectual property rights;
• Protecting intellectual property rights in other countries by:
• Working with other countries to reduce intellectual property crimes in other countries;
• Improving information sharing between law enforcement agencies in the U.S. and in other countries; and
• Establishing procedures for consulting with interested groups within other countries.
• Establishing programs to enhance the enforcement efforts of foreign governments by providing training and technical assistance designed to:
• Enhance the efficiencies and minimize the duplication of U.S. Government training and assistance efforts;
• Prioritize deployment of U.S. Government resources to those countries in which programs can be carried out most effectively and will have the greatest impact on reducing the number of infringing products in the relevant U.S. market, protecting the intellectual property rights of U.S. rights holders, and protecting the interests of U.S. persons otherwise harmed by infringements in other countries.
In addition to the foregoing, the IPEC requests information and/or recommendations on the following list of additional supplemental topics. The submission of responses to one or more of the following topics below is entirely optional.
1. Suggest methods to improve the adequacy, effectiveness and/or coordination of the various Federal departments, agencies and programs that are charged with enforcement of intellectual property.
2. Identify specific existing enforcement actions, methods, procedures or policies employed by the U.S. Government or governments of other countries that have been particularly effective at curtailing or preventing infringement (including, if possible, specific examples illustrating the effectiveness of those methods).
3. Identify specific existing processes involving cooperation between stakeholders and the U.S. Government (or between stakeholders and other governments) that have been particularly effective at curtailing or preventing infringement.
4. Provide examples of existing successful agreements, in the U.S. or abroad, that have had a significant impact on intellectual property enforcement, including voluntary agreements among stakeholders or agreements between stakeholders and the relevant government.
5. Suggest methods for strengthening information sharing between stakeholders and U.S. Government agencies to improve intellectual property rights enforcement efforts, including methods the U.S. Government can use to obtain more accurate information concerning the identities, corporate structures and locations of those suspected of intellectual property infringement.
6. Suggest new methods for rights holders and importers to provide information to U.S. Customs and Border Protection (CBP) on distribution and supply chains. Such information could enable CBP to increase the effectiveness of its process for selecting (“targeting”) imports for inspection by creating a segment of trusted imports, which would allow CBP to better focus its targeting on high risk imports and imports for which advance information is lacking.
7. Describe existing technology that could or should be used by the U.S. Government or a particular agency or department to more easily identify infringing goods or other products.
8. Suggest approaches for increasing standardization among authentication tools and technologies applied by rights holders to products to enable identification of these goods as genuine through a physical examination of the goods or product.
9. Suggest how state and local law enforcement authorities could more effectively assist in intellectual property enforcement efforts, including whether coordination could be improved, if necessary, and whether they should be vested with additional authority to more actively participate in prosecutions involving intellectual property enforcement.
10. Describe the adequacy and effectiveness of the reporting by the various agencies responsible for enforcing intellectual property infringements, such as the reporting of investigations, seizures of infringing goods or products, prosecutions, the results of prosecutions, including whether any further voluntary reporting of activities should be made, in keeping with other federal law.
11. Suggest methods to improve the adequacy, effectiveness and/or coordination of U.S. Government personnel stationed in other countries who are charged with enforcement of intellectual property, including but not limited to:
a. Department of Justice IP Law Enforcement Coordinator (IPLEC) program;
b. U.S. Patent and Trademark Office Intellectual Property attachés program;
c. Food and Drug Administration foreign country offices;
d. Foreign Agricultural Service;
e. Department of Commerce International Trade Administration Foreign Commercial Service officers;
f. Department of Commerce International Trade Administration compliance attachés;
g. Department of Homeland Security/Immigration and Customs Enforcement and Department of Homeland Security/Customs and Border Patrol attachés and other representatives;
h. Department of State's Foreign Service officers and post leadership; and
i. Office of the U.S. Trade Representative IP attaché.
12. Suggest ways to improve the adequacy, effectiveness and/or coordination of the enforcement training and technical assistance provided by the U.S. Government, including (but not limited to):
a. Identification of specific countries or geographical regions that could benefit from U.S. Government training and technical assistance and the program areas where training and assistance should focus;
b. Suggestions for how to leverage resources or partnerships to broaden the impact of U.S. Government training and assistance; and
c. Suggestions to enhance industry participation in relevant training programs.
13. Suggest specific measures to further secure the domestic and international supply chains to minimize the threat posed by infringing goods or products.
14. Suggest specific methods to limit or prevent use of the Internet to sell and/or otherwise distribute or disseminate infringing products (physical goods or digital content).
15. Provide information on the various types of entities that are involved, directly or indirectly, in the distribution or dissemination of infringing products and a brief
16. Discuss the effectiveness of recent efforts by educational institutions to reduce or eliminate illegal downloading over their networks. Submissions should include recent specific examples.
17. Suggest specific strategies for reducing the threats to public health and safety caused by the use or consumption of infringing goods (for example, counterfeit drugs, medical devices, biologics, and ingested consumer products).
18. Discuss the possible application of World Trade Organization provisions, including, but not limited to, those on anti-dumping, subsidies, standards and safeguard measures in cases where failure to enforce intellectual property laws in other jurisdictions produces unfair cost or other advantages for the production or distribution of goods and services or otherwise disadvantages U.S. right holders.
19. Suggest specific strategies to significantly reduce the demand for infringing goods or products both in the U.S. and in other countries.
20. Provide specific suggestions on the need for public education and awareness programs for consumers, including a description of how these programs should be designed, estimates of their cost, whether they should focus on specific products that pose a threat to public health, such as counterfeit pharmaceuticals, or whether should they be general infringement awareness programs.
The above list of topics for discussions and recommendations is not intended to limit the scope of the submissions. Rather, the public is encouraged to submit any detailed concrete recommendation for significantly improving intellectual property rights enforcement.
Institute of Museum and Library Services (IMLS), NFAH.
Notice of meeting.
This notice sets forth the agenda of the forthcoming meeting of the National Museum and Library Services Board. This notice also describes the function of the Board. Notice of the meeting is required under the Sunshine in Government Act.
Tuesday, February 23, 2010 from 9:30 a.m. until 1 p.m.
Nineteenth Meeting of the National Museum and Library Services Board.
(Open to the Public.)
The meetings will be held in the Room MO–9 of the Old Post Office, located at 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Elizabeth Lyons, Director of Special Events and Board Liaison, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC, 20036. Telephone: (202) 653–4676 or E-mail:
The National Museum and Library Services Board is established under the Museum and Library Services Act, 20 U.S.C. 9101
If you need special accommodations due to a disability, please contact: Institute of Museum and Library Services, 1800 M Street, NW., 9th Fl., Washington, DC 20036. Telephone: (202) 653–4676; TDD (202) 653–4614 at least seven (7) days prior to the meeting date.
9:30 a.m., Tuesday, March 9, 2010.
NTSB Conference Center, 429 L'Enfant Plaza, SW., Washington, DC 20594.
The one item is open to the public.
7954A Safety Study—Introduction of Glass Cockpit Avionics into Light Aircraft.
Telephone: (202) 314–6100.
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314–6305 by Friday, March 5, 2010.
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Candi Bing, (202) 314–6403.
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from January 28, 2010, to February 10, 2010. The last biweekly notice was published on February 9, 2010 (75 FR 6408).
The Commission has made a proposed determination that the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rulemaking and Directives Branch (RDB), TWB–05–B01M, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through EIE, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS Section 5.6.5 to incorporate a new large break LOCA analysis methodology. Specifically, the proposed change adds WCAP–16009–P–A to TS 5.6.5.b as a method used for establishing core operating limits. Accident analyses are not accident initiators; therefore, the proposed change does not involve a significant increase in the probability of an accident. The analyses using ASTRUM demonstrated that the acceptance criteria in 10 CFR 50.46, “Acceptance criteria for emergency core cooling systems for light water nuclear power reactors,” were met. Large break LOCA analyses performed consistent with the methodology in NRC approved WCAP–16009–P–A, including applicable assumptions, limitations and conditions, demonstrate that 10 CFR 50.46 acceptance criteria are met; thus, this change does not involve a significant increase in the consequences of an accident. No physical changes to the plant are associated with the proposed change.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises TS Section 5.6.5 to incorporate a new large break LOCA analysis methodology. Specifically, the proposed change adds WCAP–16009–P–A to TS 5.6.5.b as a method used for establishing core operating limits. There are no physical changes being made to the plant as a result of using the Westinghouse ASTRUM analysis methodology in WCAP–16009–P–A for performance of the large break LOCA analyses. Large break LOCA analyses performed consistent with the methodology in NRC approved WCAP–16009–P–A, including applicable assumptions, limitations and conditions, demonstrate that 10 CFR 50.46 acceptance criteria are met. No new modes of plant operation are being introduced. The configuration, operation, and accident response of the structures or components are unchanged by use of the new analysis methodology. Analyses of transient events have confirmed that no transient event results in a new sequence of events that could lead to a new accident scenario. The parameters assumed in the analyses are within the design limits of existing plant equipment.
In addition, employing the Westinghouse ASTRUM large break LOCA analysis methodology does not create any new failure modes that could lead to a different kind of accident. The design of systems remains unchanged and no new equipment or systems have been installed which could potentially introduce new failure modes or accident sequences. No changes have been made to instrumentation actuation setpoints. Adding the reference to WCAP–16009–P–A in TS Section 5.6.5.b is an administrative change that does not create the possibility of a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises TS Section 5.6.5 to incorporate a new large break LOCA analysis methodology. Specifically, the proposed change adds WCAP–16009–P–A to TS 5.6.5.b as a method used for establishing core operating limits.
The analyses using ASTRUM demonstrated that the applicable acceptance criteria in 10 CFR 50.46 are met. Margins of safety for large break LOCAs include quantitative limits for fuel performance established in 10 CFR 50.46. These acceptance criteria are not being changed by this proposed new methodology. Large break LOCA analyses performed consistent with the methodology in NRC approved WCAP–16009–P–A, including applicable assumptions, limitations and conditions, demonstrate that 10 CFR 50.46 acceptance criteria are met; thus, this change does not involve a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The Nuclear Regulatory Commission (NRC) staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
This proposed Technical Specifications change does not affect any plant systems, structures, or components designed for the prevention or mitigation of previously evaluated accidents. The amendment would only change how the reactivity anomaly check is performed. Verifying that the core reactivity is consistent with predicted values ensures that accident and transient safety analyses remain valid. This amendment changes the LCO [Limiting Condition for Operation] 3.1.2 and SR 3.1.2.1 requirements such that, rather than performing the check by comparing predicted to actual control rod density, the check is performed by a direct comparison of k
Therefore, since the reactivity anomaly check will continue to be performed by a viable method, the proposed amendment does not involve a significant increase in the probability or consequence of a previously evaluated accident.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any previously evaluated?
Response: No.
This Technical Specifications amendment request does not involve any changes to the operation, testing, or maintenance of any safety-related, or otherwise important to safety, system. All important to safety systems will continue to be operated, surveillances performed, and maintained within their design bases. The proposed changes to the reactivity anomaly LCO 3.1.2 and SR 3.1.2.1 will only provide a new, more efficient method of detecting an unexpected change in core reactivity.
Since all systems continue to be operated within their design bases, no new failure modes are introduced and the possibility of a new or different kind of accident is not created.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
This proposed Technical Specifications amendment proposes to change the LCO 3.1.2 and SR 3.1.2.1 method for performing the reactivity anomaly surveillance from a comparison of predicted to actual control rod density to a comparison of predicted to actual k
The proposed amendment does not therefore involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
The supplements dated April 3 and 29, 2008; May 15 and 28, 2008; September 30, 2008; October 7, 16, 23, and 28, 2008; November 6, 19, and 25, 2008; December 22, 2008; February 27, 2009; March 6, 2009; April 3 (2 separate letters), and April 30, 2009; June 19, 2009; August 10, 2009; November 5 and 19, 2009; and December 17, 2009; provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated January 28, 2010.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 1, 2010.
No significant hazards consideration comments received: No.
Renewed Facility Operating License Nos. DPR–44 and DPR–56: Amendments revised the License and Technical Specifications.
The supplement dated December 29, 2009, clarified the application, did not expand the scope of the application as originally noticed, and did not change the initial proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated January 28, 2010.
No significant hazards consideration comments received: No.
The supplement dated May 29, 2009, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated January 28, 2010.
The supplement letters dated September 8, 2009, October 9, 2009, and January 26, 2010, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated January 28, 2010.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 2, 2010.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30 days, the Commission may provide an opportunity for public comment. If comments have been requested, it is so stated. In either event, the State has been consulted by telephone whenever possible.
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and electronically on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
1.
2.
3.
As specified in 10 CFR 2.309, if two or more petitioners/requestors seek to co-sponsor a contention, the petitioners/requestors shall jointly designate a representative who shall have the authority to act for the petitioners/requestors with respect to that contention. If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the petitioners/requestors with respect to that contention.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E–Filing rule, which the NRC promulgated in August 28, 2007, (72 FR 49139). The E–Filing process requires participants to submit and serve all adjudicatory documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E–Filing, at least five (5) days prior to the filing deadline, the requestor/petitioner must contact the Office of the Secretary by e-mail at
Once a requestor/petitioner has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E–Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The Commission's related evaluation of the amendment, finding of exigent circumstances, state consultation, and final NSHC determination are contained in a safety evaluation dated February 4, 2010.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of amendment request and opportunity to request a hearing.
A request for a hearing must be filed by April 26, 2010.
Mike McCann, Senior Health Physicist, Materials Control, ISFSI, and Decommissioning Branch, Division of Nuclear Materials and Safety, Region III, U.S. Nuclear Regulatory Commission, 2443 Warrenville Road, Lisle, Illinois 60532; Telephone: (630) 829–9856; fax number: (630) 515–1259; or by e-mail at
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Byproduct Material License No. 24–13365–01 issued to Analytical Bio-Chemistry Laboratories, Inc. (the Licensee) pursuant to 10 CFR part 30. By application dated October 19, 2009, the Licensee requested authorization to decommission a sanitary lagoon, drain field and nearby out-door area (the Facility), which is part of the licensee's 56 acre site located at 7200 East ABC Lane, Columbia, Missouri. The licensee attached to the application for NRC review a decommissioning plan (DP) that describes the decommissioning actions to be employed (ADAMS Accession No. ML100120325).
The licensee's business activities include the conduct of research, development, and manufacturing of pharmaceuticals and agricultural chemicals. The licensee began operations at the site in 1968. The licensee was issued Byproduct Material License No. 24–13365–01 in 1972 for possession and use of sealed sources in electron capture detectors in gas chromatography instruments. The licensee's research and commercial activities involving the use of unsealed radioactive materials increased over time with the addition of other radionuclides. The facility is located at 7200 East ABC Lane in Columbia, Missouri adjacent to Interstate 70 approximately 3 miles northeast of the city of Columbia. The licensee's site is approximately 56 acres in size and is zoned as planned office, general industrial, and controlled industrial districts in central Boone County, Missouri.
The Facility was approved by the Missouri Department of Natural Resources on June 6, 1986, to serve the licensee's site facilities' sanitary needs. The Facility was a single 13,500 square foot (0.31 acre) surface lagoon. The Facility and its associated application area and drain field were constructed on the west side of the site. Through site operations, small amounts of carbon-14 and hydrogen-3 were discharged to the sanitary lagoon. This lagoon served the sanitary needs of the facility until March 2, 2004, when sewer discharge was diverted to the Boone County Regional Sewer District.
An NRC administrative review, documented in a letter to the Licensee dated January 11, 2010, (ML100120321) found the DP acceptable for detailed technical review.
If the NRC approves the DP, the approval will be documented in an amendment to NRC License No. 24–13365–01. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954 (AEA), as amended, and NRC's regulations. These findings will be documented in a Safety Evaluation Report and an Environmental Assessment and/or an Environmental Impact Statement. If this amendment is approved, the license will be amended to authorize a partial site release that allows unrestricted use of the Facility following completion of decommissioning activities and verification by the NRC that the radiological criteria for unrestricted use of a building or separate area has been met. The licensee will continue licensed operations within other approved locations at the remainder of the site.
Requirements for hearing requests and petitions for leave to intervene are found in 10 CFR 2.309, “Hearing
Any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition must provide the name, address, and telephone number of the petitioner and specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the AEA to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest.
A petition for leave to intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings the NRC must make to support the granting of a license amendment in response to the application. The petition must also include a concise statement of the alleged facts or expert opinions which support the position of the petitioner and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. Each contention must be one that, if proven, would entitle the petitioner to relief.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Non-timely petitions for leave to intervene and contentions, amended petitions, and supplemental petitions will not be entertained absent a determination by the Commission, the Licensing Board or a Presiding Officer that the petition should be granted and/or the contentions should be admitted based upon a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
A State, county, municipality, Federally-recognized Indian Tribe, or agencies thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(d)(2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by April 26, 2010. The petition must be filed in accordance with the filing instructions in section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that State and Federally-recognized Indian tribes do not need to address the standing requirements in 10 CFR 2.309(d)(1) if the Facility is located within its boundaries. The entities listed above could also seek to participate in a hearing as a nonparty pursuant to 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a party to this proceeding may request permission to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to such limits and conditions as may be imposed by the Licensing Board. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by April 26, 2010.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E–Filing rule (72 FR 49139, August 28, 2007). The E–Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E–Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E–Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through EIE, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E–Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E–Filing, may require a participant or party to use E–Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E–Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from February 23, 2010. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
For the Nuclear Regulatory Commission,
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from Title 10 of the
By letter dated February 19, 2009, as supplemented by letter dated December 22, 2009, the licensee submitted a license amendment request where, among other changes, the licensee requested the use of an alternate methodology for calculating the stress intensity factor K
The proposed action would exempt the licensee from certain requirements of Appendix G to 10 CFR Part 50 to allow the application of the methodology in CE NPSD–683–A, Revision 6, for the calculation of flaw stress intensity factors due to internal pressure loadings (K
The exemption is needed to allow the licensee to use an alternate methodology to meet the fracture toughness requirements for the reactor coolant pressure boundary. In the considering the exemption request, the staff has determined that, pursuant to 10 CFR 50.12(a)(2)(ii), the application of the regulation in the particular circumstances is not necessary to achieve the underlying purpose of the rule, based on the alternate methodology proposed by the licensee. The proposed action would revise the currently-approved methodology for P–T limit calculations to incorporate the methodology approved for use in CE NPSD–683–A, Revision 6. The topical report allows the use of an alternate methodology to calculate the flaw stress intensity factors due to internal pressure loadings (K
The NRC has completed its evaluation of the proposed action and concludes that the use of the alternate methodology described above would provide an adequate margin of safety against brittle failure of the reactor pressure vessels at PVNGS, Units 1, 2 and 3. The proposed change does not involve any replacement or modification of plant components and no changes are proposed in the operation of PVNGS. Therefore the staff concludes that the use of an alternate methodology as described in the licensee's request would not significantly affect plant safety and would not have a significant adverse affect on the probability of an accident occurring.
The proposed action will not result in any non-radiological impacts or radiological impacts. The proposed action does not result in changes to the operation of the plant and supporting facilities, land use, or water use, nor does it result in changes to the quality or quantity of non-radiological and radiological effluents. No impacts are expected to the air or ambient air quality. No impacts are expected to aquatic or terrestrial habitats or species, or to threatened, endangered, or protected species. No impacts are expected to historic and cultural resources, or to socioeconomic resources. Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
The details of the staff's safety evaluation will be provided in the exemption to 10 CFR 50, Appendix G, which will allow the use of the methodology in Topical Report CE NPSD–683–A, Revision 6, to calculate the flaw stress intensity factors due to internal pressure loadings (K
As an alternative to the proposed action, the staff considered denial of the proposed action (i.e., the “no-action” alternative). Denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
The action does not involve the use of any different resources than those previously considered in the Final Environmental Statement for the Palo Verde Nuclear Generating Station, Units 1, 2, and 3, NUREG–0841, dated February 1982.
In accordance with its stated policy, on February 12, 2010, the staff consulted with the Arizona State official, Mr. Aubrey Godwin of the Arizona Radiation Regulatory Agency, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letters dated February 19 and December 22, 2009 (Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML090641014 and ML10040069, respectively). Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
South Texas Project, Units 1 and 2 Environmental Assessment and Finding of No Significant Impact
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption, pursuant to Title 10 of the
The proposed action would exempt STP, Units 1 and 2, from the required implementation date of March 31, 2010, for certain new requirements of 10 CFR Part 73. Specifically, STP, Units 1 and 2, would be granted an exemption from being in full compliance with certain new requirements contained in 10 CFR 73.55 by the March 31, 2010, deadline. The licensee for STP, Units 1 and 2, has proposed an alternate full compliance implementation date of June 30, 2010, 3 months beyond the date required by 10 CFR Part 73. The proposed action, an extension of the schedule for completion of certain actions required by the revised 10 FR Part 73, does not involve any physical changes to the reactor, fuel, plant structures, support structures, water, or land at the STP, Units 1 and 2, site.
The proposed action is in accordance with the licensee's application dated November 18, 2009.
The proposed action is needed to provide the licensee with additional time required to perform the required upgrades to the STP, Units 1 and 2 security systems.
The NRC staff has completed its environmental assessment of the proposed exemption. The NRC staff has concluded that the proposed action to extend the compliance implementation deadline would not significantly affect plant safety and would not have a significant adverse effect on the probability or consequences of an accident.
The proposed action would not result in any increased radiological hazards beyond those previously analyzed in the environmental assessment and finding of no significant impact made by the Commission in promulgating its revisions to 10 CFR Part 73 as discussed in a
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to threatened, endangered, or protected species under the Endangered Species Act, or impacts to essential fish habitat covered by the Magnuson-Stevens Act are expected. There are no impacts to the air or ambient air quality.
There are no impacts to historical and cultural resources. There would be no impact to socioeconomic resources. Therefore, no changes to or different types of non-radiological environmental impacts are expected as a result of the proposed exemption.
Accordingly, the NRC staff concludes that there are no significant environmental impacts associated with the proposed action. In addition, in promulgating its revisions to 10 CFR Part 73, the Commission prepared an environmental assessment and published a finding of no significant impact (Part 73, Power Reactor Security Requirements, 74 FR 13926 (March 27, 2009)).
With its request to extend the compliance implementation deadline, the licensee has proposed compensatory measures to be taken in lieu of full compliance with the new requirements specified in 10 CFR Part 73. The licensee currently maintains a security system acceptable to the NRC. The proposed compensatory measures will continue to provide acceptable physical protection of the STP, Units 1 and 2, in lieu of the new requirements in 10 CFR Part 73. Therefore, the extension of the implementation date of the new requirements of 10 CFR Part 73 to June 30, 2010, would not have any significant environmental impacts.
The NRC staff's safety evaluation will be provided as part of a letter to the licensee approving the exemption to the regulation, if granted.
As an alternative to the proposed action, the NRC staff considered denial of the proposed actions (
The action does not involve the use of any different resources than those considered in the Final Environmental Statement for the STP, Units 1 and 2, NUREG–1172, dated August 1986.
In accordance with its stated policy, on February 1, 2010, the NRC staff consulted with the Texas State official, Ms. Alice Rogers of the Texas State Department of Health, regarding the environmental impact of the proposed action. The Texas State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated November 18, 2009. Portions of November 18, 2009, submittal contains security related information and, accordingly, are not available to the public. Other parts of the documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O–1F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site:
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption, pursuant to Title 10 of the
The proposed action would exempt PG&E from the required implementation date of March 31, 2010, for several new requirements of 10 CFR Part 73. Specifically, PG&E would be granted an exemption from being in full compliance with certain new requirements contained in 10 CFR 73.55 by the March 31, 2010, deadline. PG&E has proposed an alternate full compliance implementation date of June 30, 2011, approximately 15 months beyond the date required by 10 CFR Part 73. The proposed action, an extension of the schedule for completion of certain actions required by the revised 10 CFR Part 73, does not involve any physical changes to the reactor, fuel, plant structures, support structures, water, or land at the PG&E site.
The proposed action is in accordance with the licensee's application dated December 4, 2009.
The proposed action is needed to provide the licensee with additional time to perform the required upgrades to the PG&E security system to meet the new requirements in 10 CFR Part 73. Implementation of the new requirements will involve physical modifications to the existing plant security system.
The NRC has completed its environmental assessment of the proposed exemption. The staff has concluded that the proposed action to extend the implementation deadline would not significantly affect plant safety and would not have a significant adverse effect on the probability of an accident occurring.
The proposed action would not result in an increased radiological hazard beyond those previously analyzed in the environmental assessment and finding of no significant impact made by the Commission in promulgating its revisions to 10 CFR Part 73 as discussed in a
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to threatened, endangered, or protected species under the Endangered Species Act, or impacts to essential fish habitat covered by the Magnuson-Steven's Act are expected. There are no impacts to the air or ambient air quality. There are no impacts to historical and cultural resources.
There would be no impact to socioeconomic resources. Therefore, no changes to or different types of non-radiological environmental impacts are expected as a result of the proposed exemption.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action. In addition, in promulgating its revisions to 10 CFR Part 73, the Commission prepared an environmental assessment and published a finding of no significant impact [Part 73, Power Reactor Security Requirements, 74 FR 13926 (March 27, 2009)].
With its request to extend the implementation deadline, the licensee currently maintains a security system acceptable to the NRC and that will continue to provide acceptable physical protection of the DCPP in lieu of the new requirements in 10 CFR Part 73. Therefore, the extension of the implementation date of the new requirements of 10 CFR Part 73 to June 30, 2011, would not have any significant environmental impacts.
The NRC staff's safety evaluation will be provided in the exemption that will be issued as part of the letter to the licensee approving the exemption to the regulation, if granted.
As an alternative to the proposed actions, the NRC staff considered denial of the proposed action (
The action does not involve the use of any different resources than those considered in the Final Environmental Statement for the DCPP, dated May 1973, with Addendum dated May 1976.
In accordance with its stated policy, on January 20, 2010, the NRC staff consulted with the California State official, Mr. Stephen Hsu of the California Department of Public Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
Portions of the December 4, 2009, submittal contain security-related and safeguards information and, accordingly, is being withheld from the public. For further details with respect to the proposed action, see the redacted version of the December 4, 2009, letter submitted by the licensee on January 22, 2010. The non-proprietary, public version of this document may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O–1F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible electronically from the Agencywide Documents Access and
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption, pursuant to Title 10 of the
The proposed action would exempt NPPD from the required implementation date of March 31, 2010, for several new requirements of 10 CFR Part 73. Specifically, NPPD would be granted an exemption from being in full compliance with certain new requirements contained in 10 CFR 73.55 by the March 31, 2010, deadline. NPPD has proposed an alternate full compliance implementation date of August 31, 2010, 5 months beyond the date required by 10 CFR Part 73. The proposed action, an extension of the schedule for completion of certain actions required by the revised 10 CFR Part 73, does not involve any physical changes to the reactor, fuel, plant structures, support structures, water, or land at the NPPD site.
The proposed action is in accordance with the licensee's application dated December 22, 2009.
The proposed action is needed to provide the licensee with additional time to perform the required upgrades to the NPPD security system due to resource and logistical impacts of the fall 2009 refueling outage and other factors, including inclement weather.
The NRC has completed its environmental assessment of the proposed exemption. The staff has concluded that the proposed action to extend the implementation deadline would not significantly affect plant safety and would not have a significant adverse effect on the probability of an accident occurring.
The proposed action would not result in an increased radiological hazard beyond those previously analyzed in the environmental assessment and finding of no significant impact made by the Commission in promulgating its revisions to 10 CFR Part 73 as discussed in a
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to threatened, endangered, or protected species under the Endangered Species Act, or impacts to essential fish habitat covered by the Magnuson-Steven's Act are expected. There are no impacts to the air or ambient air quality.
There are no impacts to historical and cultural resources. There would be no impact to socioeconomic resources. Therefore, no changes to or different types of non-radiological environmental impacts are expected as a result of the proposed exemption.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action. In addition, in promulgating its revisions to 10 CFR Part 73, the Commission prepared an environmental assessment and published a finding of no significant impact [Part 73, Power Reactor Security Requirements, 74 FR 13926 (March 27, 2009)].
The NRC staff's safety evaluation will be provided in the exemption that will be issued as part of the letter to the licensee approving the exemption to the regulation, if granted.
As an alternative to the proposed actions, the NRC staff considered denial of the proposed action (
The action does not involve the use of any different resources than those considered in the Final Environmental Statement for the Cooper Nuclear Station dated February 1973.
In accordance with its stated policy, on January 5, 2010, the NRC staff consulted with the Nebraska State official, Ms. J. Schmitt of the Office of Radiological Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated December 22, 2009. Portions of the document contain security-related information and, accordingly, are not available to the public. Other parts of the document may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O–1F21, 11555 Rockville Pike (first floor),
For the Nuclear Regulatory Commission.
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on March 4–6, 2010, 11545 Rockville Pike, Rockville, Maryland. The date of this meeting was previously published in the
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) Public Law 92–463, and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agenda, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service for observing ACRS meetings should contact Mr. Theron Brown, ACRS Audio Visual Technician (301–415–8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
Weeks of February 22, March 1, 8, 15, 22, 29, 2010.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of March 8, 2010.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of March 22, 2010.
There are no meetings scheduled for the week of March 29, 2010.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
The Briefing on Regional Programs—Programs, Performance, and Future Plans previously scheduled on Tuesday, February 9, 2010, at 9:30 a.m. has been postponed.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an e-mail to
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, February 25, 2010 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Casey, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting scheduled for Thursday, February 25, 2010 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Electronic Game Card, Inc. (“EGMI”) because of questions regarding the accuracy of assertions by EGMI, and by others, in financial disclosures to investors concerning, among other things, the company's assets.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to modify the requirement for companies to provide prior notification to Nasdaq when releasing material information outside of Nasdaq market hours.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a) No change.
(b) Obligation to Make Public Disclosure.
(1) Except in unusual circumstances, a Nasdaq-listed Company shall make prompt disclosure to the public through any Regulation FD compliant method (or combination of methods) of disclosure of any material information that would reasonably be expected to affect the value of its securities or influence investors' decisions. The Company shall, prior to the release of the information, provide notice of such disclosure to Nasdaq's MarketWatch Department at least ten minutes prior to public announcement if the information involves any of the events set forth in IM–5250–1
(2)–(3) No change.
(c)–(f) No change.
Rule 5250(b)(1) requires that, except in unusual circumstances, Nasdaq Companies disclose promptly to the public through any Regulation FD compliant method (or combination of methods) of disclosure any material information that would reasonably be expected to affect the value of their securities or influence investors' decisions. Nasdaq Companies must notify Nasdaq at least ten minutes prior to the release to the public of material information that involves any of the events set forth below
Paragraph 2. No change.
Nasdaq Companies must notify Nasdaq's MarketWatch Department prior to the distribution of certain material news at least ten minutes prior to public announcement of the news
If a Nasdaq Company repeatedly fails to either notify Nasdaq at least ten minutes prior to the distribution of material news
Paragraphs 1–3. No change.
Companies are required to notify the MarketWatch Department of the release of material information included in the following list of events at least ten minutes prior to the release of such information to the public
(a)–(h) No change.
Regardless of the method of disclosure that a Company chooses to use, Companies are required to notify the MarketWatch Department of the release of material information that involves any of the events set forth above at least ten minutes prior to its release to the public
Paragraph 2. No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Pursuant to Rule 5250(b)(1) and IM–5250–1, a Nasdaq-listed company is required, except in unusual circumstances, to make prompt disclosure to the public through any Regulation FD compliant method (or combination of methods) of disclosure of any material information that would reasonably be expected to affect the value of its securities or influence investors' decisions. These rules also require the company to provide notice of such disclosure to Nasdaq's MarketWatch Department at least ten minutes prior to public announcement if the information involves any of the events set forth in IM–5250–1. Among other things, this prior notice allows the MarketWatch Department to assess whether it is appropriate to implement a trading halt to allow full dissemination of the news by the public and to maintain an orderly trading market.
Nasdaq proposes to amend Rule 5250(b)(1) and IM–5250–1 to distinguish notifications made outside of market hours, when Nasdaq would not need to implement a trading halt. As revised, when the material information is made public outside of Nasdaq market hours, Nasdaq companies would be required to provide notification of the information to MarketWatch by 6:50 a.m. ET, which is ten minutes prior to the start of Nasdaq market hours. No change would be made for disclosures made during Nasdaq market hours (7 a.m. to 8 p.m. ET), when Nasdaq companies must provide notification to MarketWatch at least ten minutes prior to the public release of the information.
Nasdaq believes the proposed change is appropriate as there is no regulatory benefit to receiving the pre-notifications outside of market hours. In addition, Nasdaq believes that the proposed change would limit a potential conflict between the existing rule and the requirements in certain foreign jurisdictions, which may prohibit providing Nasdaq with advance notice of material disclosures.
Nasdaq believes the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. In making this determination, the Commission notes that Nasdaq's proposed rule change is similar to and consistent with the NYSE's rule regarding pre-notification to the Exchange for release of material information,
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate the rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend ISE Rule 2210 regarding the trading hours for foreign currency options (“FX Options”) traded on the Exchange. The text of the proposed rule change is available on the Exchange's Web site
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend ISE Rule 2210 regarding the trading hours for FX Options traded on the Exchange. Currently, under ISE Rule 2210(a), FX Options may be traded on the Exchange between the hours of 9:30 a.m. and 4:15 p.m. Eastern time, except on the last day of trading during expiration week, in which case trading ceases at 12 p.m. Eastern time. ISE now proposes to open trading in FX Options at 7:30 a.m. Eastern time, two hours earlier than the current opening time. In support of this proposed rule change, ISE will ensure that quotes and trades are disseminated over the Options Price Reporting Authority during the time FX Options are open for trading on the Exchange. Further, the Exchange notes that FX Options are listed and traded only on ISE. As such, (1) FX Options are not fungible with foreign currency options listed by any other exchange, and (2) orders in FX Options will not trade at inferior prices, thus preserving intermarket protection against trade-throughs.
In support of this proposed rule change, the Exchange notes that there are several market centers that account for a significant portion of all foreign exchange transactions and which are active in the foreign exchange markets prior to the Exchange's current opening time. By opening trading in FX Options at 7:30 a.m. Eastern time, ISE hopes to attract new participants and liquidity from Western Europe, specifically the United Kingdom. According to the Bank for International Settlements' Triennial Central Bank Survey of Foreign Exchange and Derivatives Market Activity in 2007, trading activity in the United Kingdom accounts for approximately 34% of foreign exchange transactions. Although foreign exchange trading occurs 24 hours a day, trading activity at each market center is consolidated into approximately 8–10 hours per day. In the United Kingdom, specifically in London, the most active trading times correspond to between 2 a.m. Eastern time and 12 p.m. Eastern time. In the United States, specifically in New York, trading is most active between 8 a.m. Eastern time and 5 p.m. Eastern time. The overlap in trading hours between the two market centers results in a period of concentrated liquidity and is often considered a peak time for transactions in the foreign exchange market. That hypothesis is also supported by the fact that key economic statistics for North America are traditionally released prior to 9:30 a.m. Eastern time.
Foreign currency futures listed on the Chicago Mercantile Exchange (“CME”) and the Intercontinental Exchange (“ICE”) are available for trading virtually 24 hours a day. The CME also provides virtually an all day market for trading in options contracts on foreign currency futures.
The basis under the Securities Exchange Act of 1934 (“Exchange Act”) for this proposed rule change is found in Section 6(b)(5). Specifically, the Exchange believes the proposed rule change is consistent with Section 6(b)(5) requirements that the rules of an exchange be designed to promote just and equitable principles of trade, serve to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. In particular, permitting trading to begin earlier in the day will permit investors greater opportunity to participate in the market, thereby removing an impediment to trading.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
Use the Commission's Internet comment form (
Send an e-mail to
Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing a proposed rule change to apply retroactively to the period from July 24, 2009 through January 25, 2010 the correction made by SR–NASDAQ–2010–014 of a typographical error
In its filing with the Commission, NASDAQ included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASDAQ has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ recently submitted an immediately effective filing to correct a typographical error in Rule 7018.
In SR–NASDAQ–2009–072,
As noted above, however, the filing that introduced this error in Rule 7018 stated that it was not modifying any fees or credits, and in fact, was filed as a “stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule” under SEC Rule 19b–4(f)(1)
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) proposes to amend the CBOE and CBSX Fees Schedules relating to the CBSX Market Data Infrastructure Fee. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CBOE has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The Exchange charges CBSX market participants a monthly fee to recoup fees the Exchange pays a third party market data vendor and other parties to help establish facilities at the Exchange through which the vendor can provide CBSX participants with certain market data.
The Exchange proposes to amend the fee in a couple of respects. First, the Exchange proposes to amend the CBSX Fees Schedule to remove the current fee amount and replace it with a statement that the Exchange will pass-through to participants receiving the data the total costs incurred by the Exchange to provide the market data infrastructure. Each participant would continue to be assessed on a monthly basis an amount equal to the Exchange's total monthly cost divided by the number of participants receiving the data. The Exchange believes this change is reasonable and appropriate in that the Exchange pays several third party costs (such as for equipment upgrades and connectivity) and these costs can vary frequently. The Exchange represents that any fee passed through to participants pursuant to this filing will reflect only the actual costs incurred by the Exchange in providing the market data infrastructure. Due to certain fixed costs incurred by the Exchange, each participant receiving the data as of February 15, 2010 will be obligated to pay its share of the fee through June 30, 2010, even if such participant terminates its receipt of the data prior to June 30, 2010.
Second, the Exchange proposes to add the fee to the CBOE Fees Schedule (under “Miscellaneous Fees”) so that the fee would also apply to any CBOE member receiving the data that is not also a CBSX participant. Thus, if in addition to CBSX participants any CBOE member that is not also a CBSX participant receives the data, the fee would be divided by the number of CBOE members and CBSX participants receiving the data.
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (“Act”),
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of [sic] purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the waiver of all transaction fees for shares executed on the NYSE MatchPoint
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to extend the waiver of all transaction fees for shares executed on the MatchPoint system, which will be effective from February 1, 2010 through March 31, 2010. The NYSE 2010 Price List will reflect this extension of the fee waiver.
On January 7, 2009, the Exchange filed with the Securities and Exchange Commission (“Commission” or “SEC”) a proposed rule change to adopt a temporary equity transaction fee for shares executed on the NYSE MatchPoint system, effective until February 28, 2009.
The Exchange believes that an extension of the transaction fee waiver will continue to induce users to enter more single-sided volume
It is intended that new MatchPoint transaction fees will be in effect on or before April 1, 2010, after the transaction fee waiver terminates. The new transaction fees will also provide incentives for adding volume to the MatchPoint system.
The basis under the Securities Exchange Act of 1934 (the “Act”)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the shares of the following fund of the WisdomTree Trust (the “Trust”) under NYSE Arca Equities Rule 8.600: WisdomTree Real Return Fund (the “Fund”). The shares of the Fund are collectively referred to herein as the “Shares.” The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade the Shares of the Fund under NYSE Arca Equities Rule 8.600,
WisdomTree Asset Management, Inc. (“WisdomTree Asset Management”) is the investment adviser to the Fund (“Advisor”).
According to the Registration Statement, the Fund seeks to provide investors with total returns that exceed the rate of inflation over long-term investment horizons. The Fund's investment objective is non-fundamental and may be changed without shareholder approval. To achieve its objective, the Fund intends to invest in a portfolio of inflation-linked securities, such as U.S. Treasury Inflation Protected Securities (“TIPS”), and other investment grade fixed income securities. The Fund will have targeted exposure to commodities and commodity strategies. Using this approach, the Fund seeks (i) to take advantage of the potential inflation-protection benefits of inflation-linked bonds and commodity instruments and (ii) to provide income.
While the Fund intends to invest up to 70% or more of the value of its portfolio in TIPS, the Fund may invest in other types of inflation-linked fixed income securities. For example, the Fund may invest in investment grade, floating-rate fixed income securities linked to U.S. inflation rates that are issued by the U.S. government, government agencies or corporations. The Fund may invest in inflation-linked swaps. An inflation-linked swap is an agreement between two parties to exchange payments at a future date based on the difference between a fixed
The Fund may invest in securities with effective or final maturities of any length. The Fund will seek to keep the average effective duration of its portfolio between two and ten years. Effective duration is an indication of an investment's interest rate risk or how sensitive an investment or a fund is to changes in interest rates. Generally, a fund or instrument with a longer effective duration is more sensitive to interest rate fluctuations and therefore more volatile, than a fund with a shorter effective duration. The Fund may adjust its portfolio holdings or average effective duration based on actual or anticipated changes in interest rates or credit quality.
According to the Registration Statement, the Fund intends to have targeted exposure to commodities across a number of sectors, such as energy, precious metals and agriculture. While the Fund seeks exposure to commodity markets, it generally does not expect to invest in commodities directly in the spot market. The Fund intends to seek exposure to commodity markets primarily through its investments in the WisdomTree Real Return Investment Portfolio, Inc. (the “Subsidiary”), a wholly-owned subsidiary controlled by the Fund which is organized in the Cayman Islands. In addition, the Fund may invest a more limited portion of its assets directly in commodity-linked instruments. The Fund and the Subsidiary may invest in swaps on commodities or commodity indexes, and may also invest in commodity-based structured notes and exchange-traded commodity-based derivative products that provide commodity returns (collectively, “Commodity-Linked Instruments”). The Fund and Subsidiary may engage in commodity swaps or commodities index swaps in which fixed- or variable-rate payments on commodity returns or commodity index returns are exchanged.
The Fund intends to invest up to 25% of its assets in the Subsidiary. The Subsidiary intends to invest all of its assets in Commodity-Linked Instruments and/or fixed income securities that serve as collateral for its commodity exposure. The Subsidiary's investments will be consolidated into the Fund's financial statements and the Fund's and Subsidiary's holdings will be publicly available on a daily basis.
According to the Registration Statement, the Fund's use of the Subsidiary is designed to help the Fund achieve exposure to commodity returns in a manner consistent with the requirements of Federal tax laws applicable to regulated investment companies, such as the Fund. These requirements limit the exposure of the Fund to commodities and Commodity-Linked Instruments. The Subsidiary has the same investment objective as the Fund. Unlike the Fund, the Subsidiary is not restricted in the level of investments it may make in commodities and Commodity-Linked Instruments. The Subsidiary is otherwise subject to the same investment restrictions as the Fund, and will operate in the same manner as the Fund with regard to applicable compliance policies and procedures (other than investments in Commodity-Linked Instruments). Although the Subsidiary is not registered under the 1940 Act, WisdomTree Asset Management manages both the Fund and the Subsidiary and the Fund's Board of Trustees oversees the operation of the Fund and its investment in the Subsidiary. The Registration Statement states that, since the Subsidiary's investments are consolidated into the Fund's, the Fund's combined holdings must comply with the 1940 Act. The Fund is the sole shareholder of the Subsidiary and does not expect shares of the Subsidiary to be offered or sold to other investors.
The Fund and the Subsidiary will not invest in non-U.S. equity securities, except that the Fund will invest in shares issued by the Subsidiary.
According to the Registration Statement, the Fund is considered to be “non-diversified” and is not limited by the 1940 Act with regard to the percentage of its assets that may be invested in the securities of a single issuer. As a result, the Fund may invest more of its assets in the securities of a single issuer or a smaller number of issuers than if it were classified as a diversified fund. Therefore, the Fund may be more exposed to the risks associated with and developments affecting an individual issuer or a small number of issuers than a fund that invests more widely, which may have a greater impact on the Fund's volatility and performance.
The Fund does, however, intend to maintain the level of diversification necessary to qualify as a regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code of 1986, as amended. The Subchapter M diversification tests generally require that (i) a Fund invest no more than 25% of its total assets in securities (other than securities of the U.S. government or other RICs) of any one issuer or two or more issuers that are controlled by a Fund and that are engaged in the same, similar or related trades or businesses, and (ii) at least 50% of a Fund's total assets consist of cash and cash items, U.S. government securities, securities of other RICs and other securities, with investments in such other securities limited in respect of any one issuer to an amount not greater than 5% of the value of a Fund's total assets and 10% of the outstanding voting securities of such issuer. These tax requirements are generally applied at the end of each quarter of a Fund's taxable year.
The Fund may invest up to an aggregate amount of 15% of its net assets in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets.
The Fund may invest in deposits and other obligations of U.S. and non-U.S. banks and financial institutions; high-quality money market instruments; short-term obligations issued or guaranteed by the U.S. Treasury or the agencies or instrumentalities of the U.S. government; short-term securities issued or guaranteed by non-U.S. governments, agencies and instrumentalities; and sovereign debt obligations. The Fund may hold a significant portion of its assets in inflation indexed bonds and in floating rate and adjustable rate obligations, such as demand notes, bonds, and commercial paper. The Fund may hold corporate debt obligations with less than 397 calendar days remaining to maturity; mortgage backed and asset-backed securities. The Fund may enter into mortgage “dollar roll” transactions with selected banks and broker-dealers. The Fund may use derivative instruments as part of its investment strategies, may engage in “short sale” transactions; may hold commodity-linked derivative instruments; may invest in investments denominated in non-U.S. currencies, or in securities (such as foreign currency forward and foreign currency futures contracts) that provide exposure to such currencies, currency exchange rates or interest rates denominated in such currencies; may enter into swap agreements, including interest rate swaps and currency swaps; may enter into U.S. or foreign futures contracts and options and options on futures contracts; and may enter into swap agreements and reverse repurchase agreements. The Fund may invest in the securities of other investment companies (including exchange traded funds and money market funds) to the extent permitted by the 1940 Act. The Fund may invest in debt securities and other instruments of companies that are considered to be in the financial sector, including commercial banks, brokerage firms, diversified financial services, a variety of firms in all segments of the insurance industry (such as multi-line, property and casualty, and life insurance) and real estate related companies.
According to the Registration Statement, the Fund issues and redeems Shares on a continuous basis at net asset value (“NAV”)
Each business day prior to the opening of trading the Fund will publish the specific securities and designated amount of cash included in that day's basket for the Fund through the National Securities Clearing Corporation (“NSCC”) or other method of public dissemination. The Fund reserves the right to accept or pay out a basket of securities or cash that differs from the published basket. The prices at which creations and redemptions occur are based on the next calculation of NAV after an order is received in proper form.
Creations and redemptions must be made by an Authorized Participant or through a firm that is either a member of the Continuous Net Settlement System of the NSCC or a DTC participant, and in each case, must have executed an agreement with the Distributor with respect to creations and redemptions of Creation Unit Aggregations.
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
The Fund's Web site (
In addition, for the Fund, an estimated value, defined in NYSE Arca Equities Rule 8.600 as the “Portfolio Indicative Value,” that reflects an estimated intraday value of the Fund's portfolio, will be disseminated. The Portfolio Indicative Value will be based upon the current value for the components of the Disclosed Portfolio and will be updated and disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session on the
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
On a daily basis, the Adviser [sic] will disclose for each portfolio security or other financial instrument of the Fund the following information: ticker symbol (if applicable), name of security or financial instrument, number of shares or dollar value of financial instruments held in the portfolio, and percentage weighting of the security or financial instrument in the portfolio.
The Shares will be subject to NYSE Arca Equities Rule 8.600(d), which sets forth the initial and continued listing criteria applicable to Managed Fund Shares. The Exchange represents that, for initial and/or continued listing, the Shares must be in compliance with Rule 10A–3
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. Shares of the Funds will be halted if the “circuit breaker” parameters in NYSE Arca Equities Rule 7.12 are reached. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities comprising the Disclosed Portfolio and/or the financial instruments of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. Such rule provides that, if the Portfolio Indicative Value (as defined in Rule 8.600(c)(3)) of a series of Managed Fund Shares is not being disseminated as required, the Corporation may halt trading during the day in which the interruption to the dissemination of the Portfolio Indicative Value occurs. If the interruption to the dissemination of the Portfolio Indicative Value persists past the trading day in which it occurred, the Corporation will halt trading no later than the beginning of the trading day following the interruption. In addition, if the Exchange becomes aware that the net asset value or the Disclosed Portfolio with respect to a series of Managed Fund Shares is not disseminated to all market participants at the same time, it will halt trading in such series until such time as the net asset value or the Disclosed Portfolio is available to all market participants.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. The minimum trading increment for Shares on the Exchange will be $0.01.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Managed Fund Shares) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable Federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members of ISG.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4 p.m. Eastern time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend Rule 12602 of the Code of Arbitration Procedure for Customer Disputes (“Customer Code”) and Rule 13602 of the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) (together, “Codes”) to provide that a non-party witness may be represented by an attorney at an arbitration hearing while the witness is testifying.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning
FINRA is proposing to amend Rules 12602 and 13602 of the Codes to provide that a non-party witness has the right to be represented by an attorney at an arbitration proceeding held in a United States hearing location while the witness is testifying. The attorney would have to be in good standing and admitted to practice before the Supreme Court of the United States or the highest court of any State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States, unless State law prohibits such representation. Under the proposed rule change, the panel would determine the extent to which the attorney could participate at the hearing.
The Codes expressly allow a party to be represented at any stage in an arbitration proceeding.
While the proposed rule change would apply to all non-party witnesses, in many instances when a non-party is testifying at a FINRA arbitration hearing, the non-party witness is an associated person who handled the customer claimant's account, but was not named as a respondent in the case. Under the current Codes, the arbitrators determine whether an associated person can bring an attorney to a hearing. FINRA does not believe that arbitrators have been denying requests by non-party witnesses to be represented by counsel while testifying; nevertheless, to assure due process in its dispute resolution forum, FINRA believes that the Codes should expressly provide that a non-party witness is entitled to be represented by an attorney while testifying.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Proposed System of Records and Routine Uses.
In accordance with the Privacy Act (5 U.S.C. 552a(e)(4) and (e)(11)), we are issuing public notice of our intent to establish a new system of records and routine uses applicable to this system of records entitled, the
We filed a report of the
Interested persons may comment on this publication by writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, Room 3–A–6 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235–6401. All comments we receive will be available for public inspection at the above address.
Earlene Whitworth Hill, Social Insurance Specialist, Disclosure Policy Development and Services Division I, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, Room 3–A–6 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235–6401, telephone: (410) 965–1817, e-mail:
Our Office of Disability Adjudication and Review (ODAR) includes a nationwide field organization staffed with ALJs who conduct impartial hearings and make decisions on appeals filed by claimants and their advocates or representatives on their behalf. Claimants and their advocates or representatives may file a complaint against an ALJ if they believe the ALJ was biased or engaged in improper conduct. Persons may make complaints in writing to our Office of the Chief Administrative Law Judge and to our regional and hearing offices. We also receive complaints through our Appeals Council, agents at our National 800 Telephone Number Network, our Office of the Inspector General Hotline, and congressional offices on behalf of their constituents. We review, investigate, and respond to such complaints.
At present, we do not have a good mechanism to track complaints about ALJs from initiation to resolution. This weakness makes it difficult for us to identify and resolve service delivery issues, and also impairs customer service. This system of records will help us improve service to the public by creating a centrally managed, electronic method to collect, monitor, and retrieve information concerning complaints about ALJs.
The
• Provide us with information to manage and respond to complaints, which in turn will help us monitor and improve customer service and reduce manual work;
• Provide us with information to process, review, or investigate complaints filed;
• Provide us with information related to the complaint, including the name of the claimant and other identifying information, the name of the claimant's advocate or representative, if any, and information about the ALJ who allegedly committed misconduct; and
• Provide us with management information to document, monitor, and track complaints about ALJs, to identify patterns of improper ALJ behavior that may require further review and action, and to assist us in deterring recurring incidences of ALJ bias or misconduct.
We will collect and maintain information from complaints filed against ALJs in an electronic system covered by the
We will collect information about the claimant (or claimant's advocate or representative) filing the complaint such as name, Social Security number (SSN), date of birth, address, gender, race or ethnic background (if readily available), and relevant claims-related information. We will also collect information about the ALJ named in the complaint, such as name, ALJ assigned number, and tracking and control log numbers.
Since we will retrieve information from this system using names and other personal identifiers, the
We propose to establish the following routine uses of information that will be covered by the
1. To the Office of the President in response to an inquiry from that office made at the request of the subject of the record or a third party on that person's behalf.
We will disclose information under this routine use only when the Office of the President makes an inquiry relating to information contained in this system of records and indicates that it is acting on behalf of the person whose record is requested (
2. To a congressional office in response to an inquiry from that office made at the request of the subject of a
We will disclose information under this routine use only when a member of Congress, or member of his or her staff, makes an inquiry relating to information contained in this system of records and indicates that he or she is acting on behalf of the person whose record is requested.
3. To the Department of Justice (DOJ), a court, other tribunal, or another party before such court or tribunal when:
(a) The agency or any of our components; or
(b) Any agency employee in his or her official capacity; or
(c) Any agency employee in his or her individual capacity when DOJ (or the agency when we are authorized to do so) has agreed to represent the employee; or
(d) The United States or any agency thereof when we determine that the litigation is likely to affect our operations or any of our components, is party to litigation or has an interest in such litigation, and we determine that the use of such records by DOJ, a court, other tribunal, or another party before such court or tribunal is relevant and necessary to the litigation. In each case, however, we must determine that such disclosure is compatible with the purpose for which we collected the records.
We will disclose information under this routine use as necessary to enable DOJ to effectively defend us, our components, or our employees in litigation, when the use of information covered by this system of records is relevant and necessary to the litigation and compatible with the purpose of the information collection. We will also disclose information to ensure that courts, other tribunals, and parties before such courts or tribunals, have appropriate information when relevant and necessary.
4. To student volunteers, persons working under a personal services contract, and others who are not technically Federal employees, when they are performing work for us as authorized by law, and they need access to information in our records in order to perform their assigned agency duties.
We will disclose information under this routine use only when we use the services of student volunteers and participants in certain educational, training, employment, and community service programs when they need access to information covered by this system of records to perform their assigned agency duties.
5. To the Equal Employment Opportunity Commission (EEOC) when they request information in connection with an investigation into alleged or possible discriminatory practices in the Federal sector, examination of Federal affirmative employment programs, compliance by Federal agencies with the Uniform Guidelines on Employee Selection Procedures, or other functions vested in the Commission.
We will disclose information about our employees under this routine use to the EEOC, as necessary, to assist in reassessing requests for reasonable accommodations; to assist in investigations into alleged or possible discriminatory practices in the Federal sector; to combat and prevent fraud, waste, and abuse under the Rehabilitation Act of 1973; and to assist the Commission in carrying out its other functions.
6. To the Federal Labor Relations Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Federal Service Impasses Panel, or an arbitrator when they request information in connection with investigations of allegations of unfair practices or of other matters before an arbitrator or the Federal Service Impasses Panel.
We will disclose information about our employees under this routine use, as necessary, to the Federal Labor Relations Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Federal Service Impasses Panel, or an arbitrator, when all or part of the allegations involve the information covered by the
7. To the Office of Personnel Management, the Merit Systems Protection Board, or the Office of Special Counsel when they request information in connection with appeals, special studies of the civil service and other merit systems, review of those agencies' rules and regulations, investigation of alleged or possible prohibited personnel practices, and for other such functions of these agencies as may be authorized by law.
We will disclose information about our employees under this routine use, as necessary, to the Office of Personnel Management, the Merit Systems Protection Board, or to the Office of Special Counsel, when all or part of the allegations in the appeal or action involve the information covered by the
8. To Federal, State, and local law enforcement agencies and private security contractors, as appropriate, information necessary:
a. To enable them to ensure the safety of our employees and customers, the security of our workplace, and the operation of our facilities; or
b. To assist investigations or prosecutions with respect to activities that affect such safety, security, or activities that disrupt the operation of our facilities.
We will disclose information under this routine use to law enforcement agencies and private security contractors when they need information to respond to, investigate, or prevent activities that jeopardize the security and safety of the public, employees, or our workplaces, or that otherwise disrupt the operation of our facilities. We will disclose information to assist in prosecuting persons charged with violating a Federal, State, or local law in connection with such activities.
9. To contractors and other Federal agencies, as necessary, to assist us in efficiently administering our programs.
We will disclose information under this routine use only in situations where we enter into a contractual agreement or similar agreement with a third party to assist in accomplishing an agency function relating to information covered by the
10. To the appropriate Federal, State, and local agencies, entities, and persons when: (1) We suspect or confirm that the security or confidentiality of information in this system of records has been compromised; (2) we determine that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, risk of identity theft or fraud, or harm to the security or integrity of this system or our other systems or programs that rely upon the compromised information; and (3) we determine that disclosing the information to such agencies, entities, and persons is necessary to assist in our efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. We will use this routine use to respond only to those incidents involving an unintentional release of our records.
We will disclose information under this routine use specifically in connection with response and remediation efforts in the event of an unintentional release of agency information, otherwise known as a “data security breach.” This routine use will protect the interests of the people whose information is at risk by allowing us to take appropriate steps to facilitate a timely and effective response to a data breach. The routine use will also help us improve our ability to prevent, minimize, or remedy any harm that may result from a compromise of data covered by this system of records.
11. To a Federal, State, and local professional licensing board, at our initiative or at the request of the licensing board, when such records indicate a violation of ethical conduct by a current or former employee who is seeking to be licensed or is licensed before the professional board.
We will disclose information under this routine use to a Federal, State, or local licensing board, at our initiative, or at the request of the licensing board, regarding the facts surrounding a potential ethical violation by a current or former employee who is licensed or seeking to be licensed before a professional board.
12. To a Federal or State agency in response to its request, or at our initiative, in connection with decisions to hire an employee, issue a security clearance, conduct a security or suitability investigation of a person, classify a job, award a contract, or regarding the requesting agency's decision to issue a license, grant, or other benefit. We may disclose for lawful statutory administrative or investigative purposes to the extent that the information is relevant and necessary to the requesting agency's decision.
We will disclose information in response to a request, or at our initiative, in connection with any of the circumstances specified in the routine use above. The request pertaining to such circumstances must meet lawful statutory administrative or investigative purposes and be consistent with our authority for maintaining the record.
13. To officials of labor organizations recognized under 5 U.S.C. chapter 71, when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting conditions of employment.
We will disclose information about our employees under this routine use, to the officials above as necessary, when all or part of the information requested involves information covered by the
14. To the General Services Administration (GSA) and the National Archives and Records Administration (NARA) under 44 U.S.C. 2904 and 2906, as amended by the NARA Act, information that is not restricted from disclosure by Federal law, for their use in conducting records management studies.
We will disclose information under this routine use only when it is necessary for GSA and NARA to have access to the information covered by this system of records. The Administrator of GSA and the Archivist of NARA are authorized by Title 44 U.S.C. 2904, as amended, to promulgate standards, procedures, and guidelines regarding records management and to conduct records management studies. Title 44 U.S.C. 2906, as amended, provides that GSA and NARA are authorized to inspect Federal agencies' records for records management purposes and that agencies are to cooperate with GSA and NARA.
We can disclose information when the disclosure is required by law (20 CFR 401.120). We can also disclose information when the purpose is compatible with the purpose for which we collect the information and the disclosure is supported by a published routine use (20 CFR 401.150). The disclosures under routine uses numbers 1 through 13 will ensure that we efficiently perform our functions relating to the purpose and administration of the
We will maintain information covered by the
We annually provide all our employees and contractors with appropriate security awareness and training that includes reminders about the need to protect personally identifiable information and the criminal penalties that apply to unauthorized access to, or disclosure of, personally identifiable information.
We will maintain only information that is necessary to carry out our official functions under the Social Security Act and other applicable Federal statutes in the electronic system covered by the
60–0356.
Administrative Law Judge/Public Alleged Misconduct Complaints (ALJ/PAMC) System.
None.
All SSA Office of Disability Adjudication and Review (ODAR) regional offices and the Office of the Chief Administrative Law Judge in Falls Church, Virginia.
Administrative Law Judges (ALJ) accused of misconduct or bias in connection with processing a claimant's case and the claimant who was the subject of the alleged misconduct or bias. If the claimant's advocate or representative files a complaint that an ALJ is biased against him or her, it may also cover a claimant's advocate or representative.
Information derived from complaints filed against ALJs; the information we
Sections 205 and 1631(d)(1) of the Social Security Act, as amended.
We will use the information covered by the system of records to manage and monitor complaints filed against ALJs. The information will:
• Provide us with information to manage and respond to complaints, which in turn will help us monitor and improve customer service and reduce manual work;
• Provide us with information to process, review, or investigate complaints filed;
• Provide us with information related to the complaint, including the name of the claimant and other identifying information, the name of the claimant's advocate or representative, if any, and information about the ALJ who allegedly committed misconduct; and
• Provide us with management information to document, monitor, and track ALJ complaints, to identify patterns of improper ALJ behavior that may require further review and action, and to assist us in deterring recurring incidences of ALJ bias or misconduct.
Routine use disclosures are as indicated below.
1. To the Office of the President in response to an inquiry from that office made at the request of the subject of the record or a third party on that person's behalf.
2. To a congressional office in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf.
3. To the Department of Justice (DOJ), a court, other tribunal, or another party before such court or tribunal when:
(a) The agency or any of our components;
(b) Any agency employee in his or her official capacity;
(c) Any agency employee in his or her individual capacity when DOJ (or the agency when we are authorized to do so) has agreed to represent the employee; or
(d) The United States or any agency thereof when we determine that the litigation is likely to affect our operations or any of our components, is party to litigation or has an interest in such litigation, and we determine that the use of such records by DOJ, a court, other tribunal, or another party before such court or tribunal is relevant and necessary to the litigation. In each case, however, we must determine that such disclosure is compatible with the purpose for which we collected the records.
4. To student volunteers, persons working under a personal services contract, and others who are not technically Federal employees, when they need access to information in our records in order to perform their assigned agency duties.
5. To the Equal Employment Opportunity Commission (EEOC) when they request information in connection with an investigation into alleged or possible discriminatory practices in the Federal sector, examination of Federal affirmative employment programs, compliance by Federal agencies with the Uniform Guidelines on Employee Selection Procedures, or other functions vested in the Commission.
6. To the Federal Labor Relations Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Federal Service Impasses Panel, or an arbitrator when information is requested in connection with investigations of allegations of unfair practices or of other matters before an arbitrator or the Federal Service Impasses Panel.
7. To the Office of Personnel Management, the Merit Systems Protection Board, or the Office of Special Counsel when they request information in connection with appeals, special studies of the civil service and other merit systems, review of those agencies' rules and regulations, investigation of alleged or possible prohibited personnel practices, and for other such functions of these agencies as may be authorized by law.
8. To Federal, State, and local law enforcement agencies and private security contractors, as appropriate, information necessary:
a. To enable them to ensure the safety of our employees and customers, the security of our workplace, and the operation of our facilities; or
b. To assist investigations or prosecutions with respect to activities that affect such safety and security or activities that disrupt the operation of our facilities.
9. To contractors and other Federal agencies, as necessary, to assist us in efficiently administering our programs.
10. To the appropriate Federal, State, and local agencies, entities, and persons when: (1) We suspect or confirm that the security or confidentiality of information in this system of records has been compromised; (2) we determine that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, risk of identity theft or fraud, or harm to the security or integrity of this system or our other systems or programs that rely upon the compromised information; and (3) we determine that disclosing the information to such agencies, entities, and persons is necessary to assist in our efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. We will use this routine use to respond only to those incidents involving an unintentional release of our records.
11. To Federal, State, and local professional licensing boards, at our initiative or at the request of the licensing board, when such records indicate a violation of ethical conduct by a current or former employee who is seeking to be licensed or is licensed before the professional board.
12. To a Federal or State agency in response to its request, or at our initiation, in connection with decisions to hire an employee, issue a security clearance, conduct a security or suitability investigation of a person, classify a job, award a contract, or regarding the requesting agency's decision to issue a license, grant, or other benefit. We may disclose for lawful statutory administrative or investigative purpose to the extent that the information is relevant and necessary to the requesting agency's decision.
13. To officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting conditions of employment.
14. To the General Services Administration and the National Archives Records Administration (NARA) under 44 U.S.C. 2904 and 2906, as amended by the NARA Act, information that is not restricted from disclosure by Federal law for their use in conducting records management studies.
We will store records covered by the
We will retrieve information covered by the
• The name of the ALJ who is the subject of the complaint, the ALJ's assigned numerical identifier, and the hearing or regional office where the ALJ is stationed;
• The claimant's name, SSN, date of birth, address, gender, and race or ethnic background, if the information is available;
• The advocate's or representative's name, if any, and any other identifiable information pertaining to the complaint filed;
• Our assigned tracking numbers, and other complaint and claims-related information;
• The congressional office associated with the complaint, if any; and
• The Appeals Council's code.
We will keep paper records in locked cabinets or in other secure areas. We will safeguard the security of the information by requiring the use of access codes to enter the computer system that will maintain the data, and will store computerized records in secure storage areas accessible only to our authorized employees and contractors who require the information to perform their official duties.
We annually provide all our employees and contractors with appropriate security awareness and training that includes reminders about the need to protect personally identifiable information and the criminal penalties that apply to unauthorized access to, or disclosure of, personally identifiable information.
We will maintain records at all agency ODAR regional offices and the Office of the Chief Administrative Law Judge in Falls Church, Virginia. We will delete or destroy records seven years after the date of the Office of the Chief Administrative Law Judge's finding regarding the complaint, unless a special situation occurs. This seven-year requirement, which can be found in schedule N1–47–01, is consistent with the amount of time that we maintain most disability claim files.
Special Situation—The following examples are situations in which we will maintain information beyond the scheduled period for destruction:
• Fraud, waste, abuse, or misuse—We will not destroy information where we identify possible fraud, waste, abuse, or misuse or information involving investigations of fraud, waste, abuse, or misuse, until the Office of the Inspector General provides approval to dispose of such information.
• Disciplinary action—We will not destroy information related to ALJ disciplinary action until the Office of the Chief Administrative Law Judge provides approval to dispose of such information.
Director, Division of Quality Services, Office of the Chief Administrative Law Judge, Office of Disability Adjudication and Review, Social Security Administration, 5107 Leesburg Pike, Suite 1608, Falls Church, Virginia 22041.
Persons can determine if this system contains a record about them by writing to the system manager at the above address and providing their name, SSN, or other information in this system of records that will identify them. Persons requesting notification by mail must include a notarized statement to us to verify their identity or must certify in the request that they are the person they claim to be and that they understand that the knowing and willful request for, or acquisition of, a record pertaining to another person under false pretenses is a criminal offense.
Persons requesting notification of records in person must provide the same information, as well as provide an identity document, preferably with a photograph, such as a driver's license. Persons lacking identification documents sufficient to establish their identity must certify in writing that they are the person they claim to be and that they understand that the knowing and willful request for, or acquisition of, a record pertaining to another person under false pretenses is a criminal offense.
Persons requesting notification by telephone must verify their identity by providing identifying information that parallels the information in the record about which they are requesting notification. If we determine that the identifying information the person provides by telephone is insufficient, we will require the person to submit a request in writing or in person. If a person requests information by telephone on behalf of another person, the subject person must be on the telephone with the requesting person and us in the same phone call. We will establish the subject person's identity (his or her name, SSN, address, date of birth, and place of birth, along with one other piece of information such as mother's maiden name) and ask for his or her consent to provide information to the requesting person. These procedures are in accordance with our regulations at 20 CFR 401.40 and 401.45.
Same as notification procedures. Persons should also reasonably specify the record contents they are seeking. These procedures are in accordance with our regulations at 20 CFR 401.40(c).
Same as notification procedures. Persons should also reasonably identify the record, specify the information they are contesting, and state the corrective action sought and the reasons for the correction with supporting justification showing how the record is incomplete, untimely, inaccurate, or irrelevant. These procedures are in accordance with our regulations (20 CFR 401.65(a)).
We obtain records covered by the
• Complaint filed by the claimant or his or her advocate or representative, if any;
• Information we receive from a congressional office regarding a claimant and a particular ALJ;
• Documentation that we develop during our review or investigation of a complaint; and
• Appeals Council.
None.
The U.S. Advisory Commission on Public Diplomacy has rescheduled its public meeting to March 15, 2010 from 9 a.m. to 11 a.m. in the conference room of the International Foundation for Electoral Systems (IFES) located at 1850 K Street, NW., Fifth Floor, Washington, DC 20006. This will replace the previously scheduled February 11 meeting (canceled due to inclement weather) at the same location.
The Commissioners will discuss public diplomacy issues, including interagency collaboration in advancing U.S. government public diplomacy efforts.
The Commission is a bipartisan panel created by Congress in 1948 to assess public diplomacy policies and programs of the U.S. government and of publicly funded nongovernmental organizations. The Commission reports its findings and recommendations to the President, the Congress, the Secretary of State, and the American people.
The public may attend this meeting as seating capacity allows. To attend this meeting and for further information, please contact Carl Chan at (202) 632–2823; e-mail:
The Shipping Coordinating Committee (SHC) will conduct an open meeting at 9:30 a.m. on Tuesday March 9th, 2010, in Room 2415 of the United States Coast Guard Headquarters Building, 2100 Second Street, SW., Washington, DC 20593–0001. The primary purpose of the meeting is to prepare for the sixtieth Session of the International Maritime Organization (IMO) Marine Environmental Protection Committee to be held at the IMO headquarters in London, United Kingdom, from March 22 to March 26th, 2010.
The primary matters to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process, those who plan to attend should contact the meeting coordinator, LCDR Brian Moore, by e-mail at
However, parking in the vicinity of the building is extremely limited. Additional information regarding this and other IMO SHC public meetings may be found at:
Prior notification and a valid government-issued photo ID (such as driver's license, passport, U. S. government or military ID) are required for entrance into the building. Members of the public planning to attend must notify Margaret Morrissey, Office of the Historian (202–663–3529) no later than February 25, 2010 to provide date of birth, valid government-issued photo identification number and type (such as driver's license number/State, passport number/country, or US government ID number/agency or military ID number/branch), and relevant telephone numbers. If you cannot provide one of the specified forms of ID, please consult with Margaret Morrissey for acceptable alternative forms of picture identification. In addition, any requests for reasonable accommodation should be made No later than February 23, 2010. Requests for reasonable accommodation received after that time will be considered, but might be impossible to fulfill.
The Committee will meet in open session from 1:30 p.m. through 2:30 p.m. on Monday, March 1, 2010, in the Department of State, 2201 “C” Street NW., Washington, DC, in Conference
In accordance with 41 CFR 102–3.150(b), the Department finds exceptional circumstances for giving less than 15 calendar days notice. The meeting must be held on March 1–2 due to the availability of the members of the Advisory Committee; however, publication of the notice was delayed because of unforeseen and exceptional weather emergencies that necessitated closing Federal offices or curtailing government activities for a significant period of time in Washington DC, including at the Department of State and the Office of the
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on February 1, 2010, the Socialist Republic of Vietnam (“Vietnam”) requested consultations with the United States under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before March 15, 2010 to be assured of timely consideration by USTR.
Public comments should be submitted electronically to
J. Daniel Stirk, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395–9617.
USTR is providing notice that consultations have been requested pursuant to the WTO
On February 1, 2010, Vietnam requested consultations regarding a number of antidumping administrative reviews and new shipper reviews conducted by the Department of Commerce on certain frozen warmwater shrimp from Vietnam, referring in particular to the use of what it describes as “zeroing” in those reviews. Vietnam challenges the determinations by the Department of Commerce in (1)
Vietnam alleges that these laws, regulations, administrative procedures, practices, and methodologies are, as such and as applied in the determinations by the Department of Commerce and actions by U.S. Customs and Border Protection in the shrimp administrative reviews and new shipper reviews, inconsistent with Articles I, II, VI:1, and VI:2 of the General Agreement on Tariffs and Trade 1994; Articles 1, 2.1, 2.4, 2.4.2, 6.8, 6.10, 9.1, 9.3, 9.4, 11.2, 11.3, 18.1, and 18.4, and Annex II of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement); Article XVI:4 of the WTO Agreement; and Vietnam's Protocol of Accession to the WTO.
Vietnam alleges that the United States acted inconsistently with the WTO Agreement obligations identified above by applying so-called “zeroing” in the determination of the margins of dumping in the reviews identified above, by repeatedly and consistently failing to provide most Vietnamese respondents seeking a review an opportunity to demonstrate the absence of dumping by being permitted to participate in a review, and by requiring companies to demonstrate their independence from government control and applying an adverse facts available rate to companies failing to do so in all reviews.
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information contained in a comment submitted by that person be treated as business confidential information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Business confidential information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at (202) 395–3640. A non-confidential summary of the confidential information must be submitted to
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
Any comment containing confidential information must be submitted by fax to Sandy McKinzy at (202) 395–3640. A non-confidential summary of the confidential information must be submitted to
USTR will maintain a docket on this dispute settlement proceeding accessible to the public. The public file will include non-confidential comments received by USTR from the public with respect to the dispute; if a dispute settlement panel is convened or in the event of an appeal from such a panel, the U.S. submissions, any non-confidential submissions, or non-confidential summaries of submissions, received from other participants in the dispute; the report of the panel; and, if applicable, the report of the Appellate Body.
Comments will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except confidential business information exempt from public inspection in accordance with 15 CFR 2006.15 or information determined by USTR to be confidential in accordance with 19 U.S.C. 2155(g)(2). Comments open to public inspection may be viewed on the
Department of Transportation.
Notice of Order to Show Cause (Order 2010–2–7) Docket OST–2009–0188.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Rugby
Persons wishing to file objections should do so no later than February 26, 2010.
Objections and answers to objections should be filed in Docket DOT–OST–2009–0188 and addressed to Docket Operations, (M–30, Room W12–140), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Catherine O'Toole, Air Carrier Fitness Division (X–56, Room W86–489), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366–9721.
On February 1, 2010, the City of Chicago, IL (the City), filed an application under 49 U.S.C. 10903, requesting that the Surface Transportation Board (Board) authorize the third-party or adverse abandonment of two railroad lines in the City owned by the Chicago Terminal Railroad (CTR), totaling 1.625 miles: (1) a portion of the Kingsbury Branch from its southern terminus at the intersection of Kingsbury, Division, and Halstead Streets, to, but not including, the point at which the Goose Island Branch diverges from the Kingsbury Branch at or near Willow Street, a distance of approximately 6 city blocks (.75 mile) (the Kingsbury Segment); and (2) a portion of the Lakewood Avenue Line between the southwest right-of-way line of Clybourn Avenue and the Line's northern terminus at Diversey Parkway, a distance of approximately 7 city blocks (.875 mile) (the Lakewood Segment).
According to the City, these segments are not required for rail service, and their abandonment would benefit the City by improving safety and facilitating the reconstruction of the streets where the track is located.
In a decision served in this proceeding on July 10, 2009, the City was granted exemptions from several statutory provisions as well as waivers of certain Board regulations at 49 CFR 1152 that were not relevant to its adverse abandonment application or that sought information not available to it. Specifically, the City was granted waiver of certain requirements pertaining to the notice of intent prescribed at 49 CFR 1152.21; waivers of and exemptions from requirements in 49 CFR 1152.20(a)(2)(i) and (a)(3), and 49 U.S.C. 10903(a)(3)(D) and (B) that the notice be served on significant users and posted, except to the extent necessary to require the City to mail a copy of its notice to four shippers located on contiguous lines; waiver of the requirement in 49 CFR 1152.20(a)(2)(xii) that the notice be served on certain labor organizations; waiver of and exemption from the requirements pertaining to the System Diagram Map in 49 CFR 1152.10 to 1152.14, 1152.24(e)(1), 1152.22(a)(5), and 49 U.S.C. 10903(c)(2); waiver of the requirements of 49 CFR 1152.22(b)–(d), which require a description of the physical condition of the line, estimated deferred maintenance and rehabilitation costs, a description of service performed on the line during the prior year, and computation of the revenues and avoidable costs attributable to the line; certain requirements in 49 CFR 1152.22(i) pertaining to the draft
The City states that there is no documentation in its possession indicating that the lines contain Federally granted rights-of-way and that it will make any such documentation relating to this abandonment available promptly to those requesting it. The City's entire case for adverse abandonment was filed with the application.
The interests of railroad employees, if there are any employees on the lines, will be protected by the conditions set forth in
Any interested person may file written comments concerning the proposed abandonment or protests (including the protestant's entire opposition case), by March 18, 2010. Persons who may oppose the proposed adverse abandonment but who do not wish to participate fully in the process by submitting verified statements of witnesses containing detailed evidence should file comments. Persons opposing the proposed adverse abandonment who wish to participate actively and fully in the process should file a protest, observing the filing, service, and content requirements in 49 CFR 1152.25. Because this is an adverse abandonment proceeding, OFAs and public use requests are not appropriate and will not be entertained. The City's reply is due by April 2, 2010.
The Board has not yet had occasion to decide whether the issuance of a certificate of interim trail use in an adverse abandonment would be consistent with the grant of such an application. Accordingly, any request for a trail use condition under 16 U.S.C. 1247(d) (49 CFR 1152.29) must be filed by March 18, 2010, and should address that issue. Each trail use request must be accompanied by a $250 filing fee. See 49 CFR 1002.2(f)(27).
All filings in response to this notice must refer to STB Docket No. AB–1036 and must be sent to: (1) Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001; (2) counsel for applicant—Thomas F. McFarland, 208 South LaSalle Street, Suite 1890, Chicago, IL 60604–1112; and (3) counsel for CTR—John D. Heffner, 1750 K Street, NW., Suite 200, Washington, DC 20006.
Filings may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should comply with the instructions found on the Board's
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by the Board's Section of Environmental Analysis (SEA) will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Any other persons who would like to obtain a copy of the EA (or EIS) may contact SEA by phone at the number listed below. EAs in these abandonment proceedings normally will be made available within 33 days of the filing of the application. The deadline for submission of comments on the EA will generally be within 30 days of its service. The comments received will be addressed in the Board's decision. A supplemental EA or EIS may be issued where appropriate.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245–0238 or refer to the full abandonment/discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to SEA at (202) 245–0305. (Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.)
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Railroad Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before March 25, 2010.
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave., SE., Mail Stop 25, Washington, DC 20590 (
The Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501–3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On December 16, 2009, FRA published a 60-day notice in the
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507 (b)–(c); 5 CFR 1320.12(d);
The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The revised requirements are being submitted for clearance by OMB as required by the PRA.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the
44 U.S.C. 3501–3520.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that Volvo Trucks North America (Volvo) has applied for an exemption from the Federal requirement for a driver of commercial motor vehicles (CMVs) to hold a commercial driver's license (CDL). Volvo requests that the exemption cover one Swedish field-test engineer who will test-drive CMVs for Volvo within the United States. The Volvo employee holds a valid Swedish CDL. Volvo states the exemption is needed to support a Volvo field test to meet future clean air standards, to test-drive Volvo prototype vehicles to verify results in “real world” environments, and, if necessary, to deliver the vehicles in the United States. Volvo believes the knowledge and skills tests and training program that Swedish drivers undergo to obtain a Swedish CDL ensures the exemption would provide a level of safety that is equivalent to, or greater than, the level of safety obtained by complying with the U.S. requirements for a CDL.
Comments must be received on or before March 25, 2010.
You may submit comments identified by Federal Docket Management System Number FMCSA–2006–25756 by any of the following methods:
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Mr. Robert Schultz, FMCSA Driver and Carrier Operations Division; Office of Bus and Truck Standards and Operations;
Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105–178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. Under its regulations, FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Volvo has applied for an exemption from the CDL rules, specifically 49 CFR 383.23 that prescribes licensing requirements for drivers operating CMVs in interstate or intrastate commerce. Volvo requests the exemption because this driver-employee is a citizen and resident of Sweden, and therefore cannot apply for a CDL in any of the United States. A copy of the application is in Docket No. FMCSA–2006–25756. The exemption would allow one driver to operate CMVs in interstate commerce as part of a team of drivers who will support a Volvo field
This driver holds a valid Swedish CDL, and as explained by Volvo in previous exemption requests, drivers applying for a Swedish-issued CDL must undergo a training program and pass knowledge and skills tests. Volvo also stated in prior exemption requests that the knowledge and skills tests and training program that Swedish drivers undergo to obtain a Swedish CDL ensure the exemption provides a level of safety that is equivalent to, or greater than, the level of safety obtained by complying with the U.S. requirement for a CDL.
FMCSA has previously determined the process for obtaining a Swedish-issued CDL is comparable to, or as effective as, the Federal requirements of Part 383, and adequately assesses the driver's ability to operate CMVs in the U.S. In the past 2 years, FMCSA has published several notices of similar Volvo requests. An FMCSA notice of a similar nature was published on January 5, 2009, granting a comparable exemption to Volvo for a Swedish CDL driver permitting operation of CMVs in the U.S. (74 FR 333).
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Volvo's application for an exemption from the CDL requirements of 49 CFR 383.23. The Agency will consider all comments received by close of business on March 25, 2010. Comments will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt twenty-four individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective February 23, 2010. The exemptions expire on February 23, 2012.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001, fmcsamedical@dot.gov, FMCSA, Room W64–224, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
You may see all the comments online through the Federal Document Management System (FDMS) at:
On December 22, 2009, FMCSA published a notice of receipt of Federal diabetes exemption applications from twenty-four individuals and requested comments from the public (74 FR 68092). The public comment period closed on January 21, 2010 and one comment was received.
FMCSA has evaluated the eligibility of the twenty-four applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current standard for diabetes in 1970 because several risk studies indicated that diabetic drivers had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441)
These twenty-four applicants have had ITDM over a range of 1 to 42 years. These applicants report no hypoglycemic reaction that resulted in loss of consciousness or seizure, that required the assistance of another person, or resulted in impaired cognitive function without warning symptoms in the past 5 years (with one year of stability following any such episode). In each case, an endocrinologist has verified that the driver has demonstrated willingness to properly monitor and manage his/her diabetes, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision standard at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the December 22, 2009,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received one comment in this proceeding. The comment was considered and discussed below.
The Pennsylvania Department of Transportation expressed that it had reviewed the driving records for Joseph I. Kulp, Sr., and was in favor of granting a Federal diabetes exemption to him.
Based upon its evaluation of the twenty-four exemption applications, FMCSA exempts, Daniel W. Boldra, Simon P. Bollin, Patrick J. Bukolt, Leonel L. Cantu, Jr., William J. Cobb, Jr., Wallace E. Conover, Daniel C. Druffel, Gregory J. Godley, Troy A. Gortmaker, Charles M. Griswold, Kenneth M. Ham, Justin R. Henneinke, William R. Huntley, Ricky G. Kile, Joseph I. Kulp, Sr., Paul J. Failla, Eric D. Larson, Kevin R. Mooney, Daniel D. Neale, Richard D. Preisser, Brian A. Schlieckau, Richard L. Sulzberger, Clayton F. Tapscott, Dirk VanStralen and Henry L. Waskow, from the ITDM standard in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 5 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective March 7, 2010. Comments must be received on or before March 25, 2010.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–1999–5748; FMCSA–1999–6156, using any of the following methods.
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Each submission must include the Agency name and the docket number for this Notice. Note that DOT posts all comments received without change to
Dr. Mary D. Gunnels, Director, Medical Programs, (202)-366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 5 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 5 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are: Dennis J. Lessard, Harry R. Littlejohn, James D. Simon, Robert J. Townsley, and Jeffrey G. Wuensch.
These exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provides a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 5 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (64 FR 40404; 64 FR 66962; 67 FR 10475; 69 FR 8260; 71 FR 6824; 73 FR 7360; 64 FR 54948; 65 FR 159). Each of these 5 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by March 25, 2010.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 5 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 15 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level
This decision is effective March 5, 2010. Comments must be received on or before March 25, 2010.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–2003–16241; FMCSA–2003–16564; FMCSA–2005–22194; FMCSA–2007–27897, using any of the following methods.
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Each submission must include the Agency name and the docket number for this Notice. Note that DOT posts all comments received without change to
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 15 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 15 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
These exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provides a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 15 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (68 FR 61857; 68 FR 75715; 71 FR 644; 73 FR 19928; 68 FR 74699; 69 FR 10503; 71 FR 6829; 70 FR 57353; 70 FR 72689; 73 FR 222; 72 FR 39879; 72 FR 52419). Each of these 15 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by March 25, 2010.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 15
Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 27 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The comment period ended on January 6, 2010 (74 FR 64124).
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 27 renewal applications, FMCSA renews the Federal vision exemptions for Grady L. Black, Jr., Anthony Brandano, Stanley E. Elliott, Elmer E. Gockley, Glenn T. Hehner, Wayne H. Holt, Edward E. Hooker, Vladimir M. Kats, Alfred Keehn, Martin D. Keough, Randall B. Laminack, Norman R. Lamy, Robert W. Lantis, James A. Lenhart, Jerry J. Lord, Raymond P. Madron, Ronald S. Mallory, Eldon Miles, Jack E. Potts, Jr., Neal A. Richard, John E. Rogstad, Robert E. Sanders, Steven R. Smith, Robert L. Thies, Rene R. Trachsel, Kendle F. Waggle, Jr. and DeWayne Washington.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if:
(1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 10 renewal applications, FMCSA renews the Federal vision exemptions for Woodrow E. Bohley, Kenneth E. Bross, Russell W. Foster, Kevin Jacoby, Richard L. Loeffelholz, Herman C. Mash, Frank T. Miller, Robert G. Rascicot, Jon H. Wurtele and Walter M. Yohn, Jr.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if:
(1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 27 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202)-366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The comment period ended on January 11, 2010 (74 FR 65845).
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 27 renewal applications, FMCSA renews the Federal vision exemptions for Thomas E. Anderson, Garry A. Baker, Bruce W. Barrett, Richard D. Becotte, Wayne Burnett, Theodore W. Cozat, Alex G. Dlugolenski, Karen Y. Duvall, Nigel L. Farmer, Gordon R. Fritz, John A. Graham, Jimmy D. Gregory, Donald W. Holt, Larry Lentz, Boleslaw Makowski, Joseph W. Meacham, Charles M. Moore, Gary T. Murray, Anthony D. Ovitt, John R. Parsons, III, Martin Postma, Steven S. Reinsvold, Michael J. Richard, Glenn T. Riley, George E. Todd, Gary S. Warren and Bradley A. Weiser.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 19 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 19 renewal applications, FMCSA renews the Federal vision exemptions for Norman E. Braden, Henry L. Chastain, Thomas R. Crocker, Clinton D. Edwards, Gerald W. Fox, Ronald K. Fultz, Richard L. Gandee, John L. Hynes, Richard H. Kind, Robert S. Larrance, John D. McCormick, Thomas C. Meadows, David A. Morris, Leigh E. Moseman, Richard P. Stanley, Paul D. Stoddard, Robert L. Tankersley, Jr., Scott A. Tetter and Benny R. Toothman.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before March 25, 2010 to be assured of consideration.
The Department of Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13 on or after the date of publication of this notice. A copy of this submission may be obtained by calling the Treasury Department Office Clearance Officers listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before March 25, 2010 to be assured of consideration.
Notice and request for comments.
The U.S. Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Community Development Financial Institutions (CDFI) Fund, Department of the Treasury, is soliciting comments concerning the Financial Education and Counseling (FEC) Pilot Program Application.
Written comments should be received on or before April 26, 2010 to be assured of consideration.
Direct all comments to Jodie Harris, Associate Program Manager, at the Community Development Financial Institutions Fund, U.S. Department of the Treasury, 601 13th Street, NW., Suite 200 South, Washington, DC 20005, by e-mail to
The FEC Pilot Program Application may be obtained from the FEC page of the CDFI Fund's Web site at
Pub. L. 110–289.
Internal Revenue Service (IRS), Treasury.
Notice of determination of necessity for renewal of the Art Advisory Panel.
It is in the public interest to continue the existence of the Art Advisory Panel. The current charter of the Art Advisory panel will be renewed for a period of two years.
Joseph E. Bothwell, C:AP:P&V:ART, 1099 14th Street, NW., Room 4200E Washington, DC 20005, Telephone No. (202) 435–5611 (not a toll free number).
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. App. (2000), the Commissioner of Internal Revenue announces the renewal of the following advisory committee:
In order for the Panel to perform this function, Panel records and discussions must include tax return information. Therefore, the Panel meetings will be closed to the public since all portions of the meetings will concern matters that are exempted from disclosure under the provisions of section 552b(c)(3), (4), (6) and (7) of Title 5 of the U.S. Code. This determination, which is in accordance with section 10(d) of the Federal Advisory Committee Act, is necessary to protect the confidentiality of tax returns and return information as required by section 6103 of the Internal Revenue code.
Authority for this Panel will expire two years from the date the Charter is approved by the Assistant Secretary for Management and Chief Financial Officer and filed with the appropriate congressional committees unless, prior to the expiration of its Charter, the Panel is renewed.
The Commissioner of Internal Revenue has determined that this document is not a major rule as defined in Executive Order 12291 and that a regulatory impact analysis therefore is not required. Neither does this document constitute a rule subject to the Regulatory Flexibility Act (5 U.S.C. Chapter 6).
(a) six members appointed by the President, not more than four of whom shall be from the same political party;
(b) three members selected by the Majority Leader of the Senate, all of whom shall be current Members of the Senate;
(c) three members selected by the Speaker of the House of Representatives, all of whom shall be current Members of the House of Representatives;
(d) three members selected by the Minority Leader of the Senate, all of whom shall be current Members of the Senate; and
(e) three members selected by the Minority Leader of the House of Representatives, all of whom shall be current Members of the House of Representatives.
(b) The issuance of a final report of the Commission shall require the approval of not less than 14 of the 18 members of the Commission.
(b) The Commission shall have a staff headed by an Executive Director.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
On June 1, 2006, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration issued an Order to Show Cause to Jeri Hassman, M.D. (Respondent), of Tucson, Arizona. The Show Cause Order proposed the denial of Respondent's application for a new DEA Certificate of Registration as a practitioner, authorizing her to dispense controlled substances in schedules II through V, on the grounds that the Respondent had “been convicted of a felony under the Controlled Substances Act, [had] materially falsified [her] application, and ha[d] committed such other acts as would render [her] registration under 21 U.S.C. 823 inconsistent with the public interest.” ALJ Ex. 1, at 1 (citing 21 U.S.C. 824(a)(1)(2) and (4), 824(a) and 823).
More specifically, the Show Cause Order alleged that on November 1, 2002, DEA had immediately suspended Respondent's DEA registration on the ground that she “regularly engaged in the practice of prescribing excessive amounts of controlled substances * * * to patients for no legitimate medical purpose.”
Next, the Show Cause Order alleged that Respondent “prescribed excessive quantities of controlled substances to patients, including frequent early refills” to a number of other patients.
The Order to Show Cause also alleged that Respondent was “made aware of possible diversion incidents but continued to prescribe controlled substances for patients who were engaged in diversion.”
The Show Cause Order further alleged that on January 29, 2004, Respondent pled guilty to “four felony violations of 18 U.S.C. 3 involving controlled substances: Accessory After the Fact to Possession of Controlled Substances by Misrepresentation, Fraud, Forgery, Deception or Subterfuge, 21 U.S.C. 843(a)(3).”
Next, the Show Cause Order alleged that on March 10, 2004, Respondent “entered into a Consent Agreement with the Arizona Medical Board (the Board), in which the Board found that [Respondent] failed in many ways to properly care for [her] patients, including the prescribing of excessive amounts of controlled substances.”
The Board also found that [Respondent] failed to conduct physical examinations, failed to obtain adequate patient histories and failed to obtain prior medical records. The Board also found that [her] patient notes often did not provide sufficient information to support the diagnoses, justify the treatments, accurately document the results, or indicate advice and cautionary warnings provided to the patients.
* * * Under the Consent Agreement the Board found [Respondent] guilty of unprofessional conduct and placed [Respondent's] Arizona medical license on probation for two years from the effective date of the Consent Agreement.
Finally, the Show Cause Order alleged that Respondent materially falsified her application, when, on January 28, 2005, Respondent applied for her DEA registration, she marked “no” to question 4(d), which “asked, in pertinent part, whether [Respondent] had ever had a State professional license revoked, suspended or placed upon probation.”
Respondent timely requested a hearing on the allegations, ALJ Ex. 2, and the matter was placed on the docket of the Agency's Administrative Law Judges (ALJ). Following pre-hearing procedures, a hearing was held on January 22–26, 2007 and February 27 to March 2, 2007, in Tucson, Arizona. Moreover, on March 13, 2007, the ALJ conducted a transcribed telephone conference at which Respondent gave her closing argument. Thereafter, both parties filed post-hearing briefs.
On October 9, 2008 the ALJ issued her Opinion and Recommended Decision (ALJ). With respect to factor one (the recommendation of the State licensing board), the ALJ noted that, while Respondent has twice been placed on probation and either censured or reprimanded, she currently holds an active, unrestricted medical license, and that this factor weighs in favor of her continued registration. ALJ at 147–48.
With respect to factor two (Respondent's experience in dispensing controlled substances) and factor four (Respondent's compliance with applicable laws relating to controlled substances), the ALJ concluded that the Government had established that Respondent issued prescriptions to two persons (H.T. and R.T.) which lacked a legitimate medical purpose. ALJ at 150. The ALJ reasoned, however, that these were “only two patients out of more than 900 whom Respondent was treating at that time,” and thus the Government had not shown that “Respondent's overall medical practices [were] consistently lacking in legitimate purpose.”
The ALJ specifically rejected the evidence of the Government's Expert with respect to twenty-three other patients, noting that various physicians who testified on behalf of Respondent had disagreed with the conclusions of the Government's Expert.
In support of her conclusion, the ALJ cited various areas in which she maintained “that there was no clear consensus in the medical community regarding which practices were required to meet the standard of care during 2001 and 2002.”
The ALJ also rejected the Government's contention that Respondent's falsification of H.T.'s medical record (who performed multiple undercover visits and wore a recording device) justified the denial of her application.
Finally, the ALJ rejected the Government's contention that Respondent had materially falsified her application because she answered “no” to the question whether her State license had ever been sanctioned.
The ALJ further found that Respondent had been convicted of four counts of the felony offense of “Accessory After the Fact to Possession of Controlled Substances by Misrepresentation, Fraud, Forgery Deception or Subterfuge,” and that the convictions could be considered as either an offense “under Federal * * * laws relating to the * * * dispensing of controlled substances,” 21 U.S.C. 823(f)(4), or as “[s]uch other conduct which may threaten the public health and safety.”
The ALJ further found that Respondent had “engaged in extensive remedial training,” that she has “improved skills now available to her, including the use of risk assessment tools and [the] collection of extensive addiction histories on each patient,” and that she would continue to consult with another pain management expert.
On November 3, 2008, the Government filed its exceptions to the ALJ's decision; and on November 28, 2008, Respondent submitted her response to the Government's exceptions. On December 22, 2008, the ALJ forwarded the record to me for final agency action.
Having considered the entire record in this matter, including the ALJ's decision and the parties' briefs, I adopt the ALJ's conclusion of law with respect to the allegations of material falsification. I also agree with the ALJ that Respondent's prescriptions for H.T. lacked a legitimate medical purpose. I reject, however, the ALJ's conclusions with respect to factors two and four.
The ALJ's failure to acknowledge that the Government established a
First, it is inconsistent with Agency precedent, which holds that proof of as few as two acts of diversion satisfies the Government's
Second, the ALJ's reasoning ignores longstanding precedent that the Agency's authority to revoke a registration or deny an application is not limited to those instances in which a practitioner intentionally diverts. Rather, a practitioner who ignores the warning signs that her patients are either personally abusing or diverting to others, commits acts inconsistent with the public interest even if her conduct is merely reckless or negligent.
While I acknowledge that Respondent has undertaken some measures to improve her practice, I am compelled to reject the ALJ's findings that she has willingly “admit[ted] her past mistakes,” and “accepted responsibility for her actions.” ALJ at 162. As explained more fully below, with respect to the prescriptions she issued to H.T., Respondent continues to deny that she did anything wrong. Moreover, in her testimony, Respondent maintained that there is nothing wrong with persons using a controlled substance that has not been prescribed to them but to family members and that she did not know what the term “early refill” meant even though this was one of the central issues in this case. Accordingly, I conclude that Respondent has not rebutted the Government's
Respondent graduated from New York University Medical School in 1981. Tr. 1346. She has been board-certified in physical medicine and rehabilitation since 1988, and she has practiced medicine in the State of Arizona since 1986.
Respondent formerly held DEA registration BH1192359. ALJ Ex. 1, at 1. In August 2001, the Arizona Medical Board initiated an investigation of Respondent in response to two complaints from health care plans and one complaint from a pharmacy concerning Respondent's prescribing of controlled substances. GX 73, at 4. In July 2001, in response to complaints received from Tucson area pharmacists about Respondent's prescribing of controlled substances, DEA also initiated an investigation. GX 70, at 3. On May 16, 2002, DEA, along with law enforcement officers from other agencies, executed a search warrant at Respondent's registered location, Calmwood Medical in Tucson, Arizona.
On March 26, 2003, a Federal grand jury indicted Respondent, charging her with numerous violations of Federal law.
On March 10, 2004, following the entry of the plea agreement on January 29, 2004, Respondent entered into a Consent Agreement For Decree of Censure And Probation with the Arizona Medical Board (“the Board”).
The Board also found that in prescribing controlled substance medications, “Respondent [often] failed to maintain adequate records on the patients.”
Respondent submitted a letter from the Arizona Medical Board, dated December 23, 2004, indicating that she was in compliance with the terms of the order and that Respondent “has the Board's support to pursue her DEA reinstatement.” RX 53. The letter, however, also stated that “at no time [had Respondent] attempted to divert medications for non-medical purposes.”
The Consent Agreement also had required Respondent to complete ten hours of Continuing Medical Education (CME) in “the principles and practices of pain management or addiction medicine” before applying for a new DEA registration. GX 73, at 7. Respondent completed twelve hours of the required CME by April 2004. RX 53. “Since January 2004, she has also acquired 51.25 hours in a wide range of topics relating to pain management.”
Respondent applied for her DEA Certificate of Registration on January 28, 2005. ALJ Ex. 1, at 6.
Both parties put on extensive testimony relevant to the issue of whether Respondent's prescriptions were issued in the usual course of professional practice and were for a legitimate medical purpose.
In her report, Dr. Weinstein criticized “Dr. Hare's judgment of [Respondent's] pain management practices [as] appear[ing] to be based at least in part upon * * * assumptions that are erroneous as stated,” and than listed what she attributed as being his assumptions.
Dr. Weinstein also opined “that the prescriptions by [Respondent] were written in the usual course of professional practice and for legitimate medical purposes.”
In her decision, the ALJ concluded “that there was no clear consensus in the medical community regarding what practices were required to meet the standard of care during 2001 and 2002.” ALJ at 151. The ALJ's finding paints with too broad a brush. While it is true that there were some issues on which the parties' experts disagreed (
Respondent also disputed whether her prescribing practices should be evaluated under the standard of care applicable to a pain management specialist rather than the standard applicable to a physiatrist. Resp. Br. at 195. In her brief, Respondent apparently contends that the standard of care applicable to a physiatrist did not require her to obtain other provider's medical records or to obtain addiction histories on her patients prior to prescribing controlled substances.
Dr. Hare testified that at the initial visit, he asks the patient to characterize the pain and rate it on a scale of 1 to 10. Tr. 155. Dr. Hare also obtains the patient's medical history and “drug history”; as part of the latter, Dr. Hare gathers information on the patient's history of substance abuse including the use of both prescription and illicit drugs.
Dr. Hare then performs a physical examination focusing on the area of the body where the pain is occurring, but which also involves a more general examination. Tr. 152–53. The examination includes “a neurologic examination, an examination for strength, an examination for reflexes, an examination for tenderness, changes in sensitivity of the skin, tenderness in muscles, a whole range of different things, again depending on the nature of what the pain complaint is.”
Dr. Schneider (Respondent's expert) testified that in her practice, she will not treat a patient absent “old records.” Tr. 854. Dr. Schneider explained that the day before the initial visit, her office calls “to remind” patients that if they do not bring records with them, their physician will be called at the visit and asked to fax the records. Tr. 854–55. However, she noted that Respondent, as a physiatrist, would often have the first visit after an injury so that there would not be prior records of treatment of a particular injury and so “it's less essential to start out on day one with old records.” Tr. 855.
Dr. Schneider likewise testified as to the importance of obtaining a patient's substance abuse history. According to Dr. Schneider, a patient who has a history of substance abuse can still be prescribed opioids for chronic pain, but the history is a “relative contraindication” for such treatment. Tr. 881. A physician thus needs to “get a careful history and * * * have much more stringent monitoring,” but, depending on “the nature of the previous substance abuse, on how long it's been since the person last abused the substance and what kind of treatment they had for it,” a physician could still safely prescribe controlled substances. Tr. 881–82.
Dr. Schneider testified that her initial appointment usually takes 45 minutes. Tr. 863–64. In that time, she goes through “the four As.” Tr. 864. The first “A” is
Dr. Schneider also testified that it is medically appropriate for a physician to prescribe based on a “focused physical exam.” Tr. 870. According to Dr. Schneider, when a physician sees “somebody for a particular problem, and this is not just in pain, but this is in any field, you limit your exam to that part.”
It is unclear, however, whether the ALJ was referring to Dr. Hare's testimony regarding the need for the initial exam or for follow-up exams when patients report new symptoms. If the ALJ's comment was referring to whether a patient should be physically examined at the initial visit, even Dr. Schneider indicated that the exam is part of the standard of medical practice. To the extent the ALJ was referring to the need for a physician to perform a physical exam on a subsequent visit when a patient reports new symptoms, obviously the necessity of performing a further physical exam depends upon the patient's symptoms and complaint. Accordingly, whether an exam was required to meet the accepted standard of medical practice cannot be evaluated outside of the context of a specific patient.
At the first visit, the physician should create a treatment plan.
It was undisputed, however, that “the appropriateness of prescribing [controlled substance] medications * * * depends on the level of medical documentation.”
Both Dr. Hare and Dr. Schneider testified that when any medication has been prescribed, there will be follow-up visits at which the physician questions the patient about whether there has been improvement in his pain level and functionality, whether there have been side effects, and the continuing benefits of taking the medication.
Moreover, both parties' expert were in agreement that when a patient is currently not on opioids they should be started at a low dose and titrated up slowly to achieve pain relief while minimizing the side effects such as nausea and sedation. Tr. 971–72;
Dr. Hare noted that in the event that the medication is increased, the usual increase is in the amount of 50 percent of the prior dosage.
Both Drs. Hare and Schneider testified as to the importance of setting boundaries with patients who are receiving controlled substances through the use of written agreements. Tr. 161. As Dr. Schneider testified: “I have all my patients sign an agreement [which] lays down the rules and it says that they're [the patients] not to make any changes in their medications without first consulting me.”
I understand that if I break this Agreement, my doctor will stop prescribing these pain-control medicines.
In this case, my doctor will taper off the medicine over a period of several days, as necessary, to avoid withdrawal symptoms. Also, a drug-dependence treatment program may be recommended.
I will communicate fully with my doctor about the character and intensity of my pain, the effect of pain on my daily life, and how well the medicine is helping to relieve the pain.
I will not use any illegal controlled substances, including marijuana, cocaine, etc.
I will not share, sell or trade my medication with anyone.
I will not attempt to obtain any controlled substances, including opioid pain medicines, controlled stimulants, or antianxiety medications from any other doctor.
I will safeguard my pain medicine from loss or theft. Lost or stolen medicines will only be replaced at the doctor's discretion.
* * *
I agree to use ____ Pharmacy, located at ______, Telephone number ______, for filling prescriptions for all my pain medicine.
* * *
I agree that I will submit to a blood or urine test if requested by my doctor to determine my compliance with my program of pain control medicine.
I agree that I will use my medicine at a rate no greater than the prescribed rate and that use of my medicine at a greater rate will result in my being without medication for a period of time.
I will bring all unused medicine to every office visit.
GX 72, at 3a–3b.
Both Drs. Hare and Schneider testified that they require their patients to agree to obtain their medications only from themselves and not from other physicians.
Dr. Schneider further testified that if a patient is giving drugs to a family member, she counsels them that this is a felony offense and she is “certainly not going to replace a pill that [a patient] ha[s] one less of because [she] gave it to a family member.”
With respect to requests for early refills, Dr. Hare testified that “we try to come up with a plan that's going to meet the patient's needs until the time of the next visit,” including “a reasonable type of medicine,” and “a reasonable amount of medication.”
To similar effect, Dr. Schneider testified that when a patient ask for early refills, she discusses with the patient why the refill is needed and documents this in the patient record.
Dr. Schneider testified that when an anonymous phone call is received which indicates that a patient is either selling or abusing a drug, “[y]ou have to look into it * * * You have to pursue all these angles.”
Dr. Schneider further testified that there are “many sets of tools on the Internet to help pain specialists assess their patients for a history of addiction and for addiction issues and on how to monitor them and how to follow them.”
Dr. Schneider also contended that in 2001–2002, urine drugs screens were difficult to interpret, in part because of the difference between opioids (which are semi-synthetic or synthetic) and opiates (which are derivatives of morphine), and that the opioids would not show up on a standard urine drug screen and that the physician had to specifically request that the lab test for them. Tr. 892. Putting aside whether a competent physician should have known the difference between opioids and opiates and how to properly screen for them, in her article she also noted that urine drugs screens were useful in determining whether a patient is abusing illicit drugs. Were it the case that Respondent required her patients to undergo urine drug screens and mistakenly failed to request the correct test, it would be a relevant consideration. However, Respondent rarely required her patients to undergo urine drug screens.
Dr. Schneider testified that it is important for a doctor to communicate with other doctors. Tr. 853. Dr. Schneider sends a copy of her notes on “every visit” to the primary care physician.
At the request of the DEA Investigators, Dr. Hare reviewed the medical records of Respondent's patients.
• Respondent “failed to adequately evaluate” patients by not obtaining an adequate “pain history” and by not “obtaining[ing] information from previous treatment such as records of treating physicians and the previous medications used.” GX 46, at 1. These would “have allowed [Respondent] to determine if there had been problems with medications or patient compliance.”
• Despite the fact that “[t]he information in [Respondent's] records was insufficient to make a proper diagnosis,” Respondent “prescribed Controlled Substances.”
• Respondent “did not properly track the use of medications.”
• Respondent switched from one controlled substance to another, “based on patient request, not on what was reasonable therapeutically.”
On cross-examination, Respondent admitted that she failed to take addiction histories. Tr. 2344. However, when asked whether she routinely failed to obtain prior medical records, she stated that “there is no obligation or rule that you have to get medical records.”
Respondent testified that she always did an evaluation on new injury cases, that there was always a physical examination, and that it was always documented.
Respondent also stated that she did not believe in reprimanding patients when she found out that they were giving their controlled substances to another person.
On September 11, 2000, J.N., who was then forty-three years old and who undergone a cervical fusion in 1994, started treating with Respondent. GX 9, at 1. She “had been sexually assaulted and suffered [a] cervical fracture and needed emergency surgery.”
There is no indication in J.N.'s patient record that Respondent inquired about any history of substance abuse at the initial visit.
On September 15, Respondent noted that J.N. “is better on the OxyContin and Oxycodone. She feels less pain,” yet Respondent increased the OxyContin prescription to 60 (160 mg.) tablets, with one tablet to be taken every eight hours, (a twenty-day supply), which was a four-fold increase in the dosage over the initial prescription.
J.N. returned on October 5 and reported that she was “much better than she has been because of the MS Contin,” and Respondent wrote prescriptions for MS Contin at the same dosing and also MSIR (morphine sulfate immediate release) “30 mg 6qh PRN breakthrough pain #120,” to “recheck in one month.”
J.N.'s patient record includes a Discharge Summary from University Medical Center in Tucson, Arizona, which was faxed to Respondent on January 16, 2001. Notably, the first page states that JN had a “history of IV heroin abuse”.
The Discharge Summary listed five medical problems J.N. had including “Chronic pain/narcotic addiction.”
While the patient record indicates that Respondent was notified on
J.N.'s record contains no indication that Respondent attempted to monitor her use of controlled substances through drug screens and pill counts.
On subsequent visits, Respondent primarily prescribed 120 tablets of Dilaudid 4 mg. (QID—one tablet four times a day), 180 tablets of MS Contin 200 mg. (two tablets every eight hours), Xanax 2 mg. (BID –one tablet twice a day), and Restoril (temazepam) (two tablets at bed time).
J.N. died of an overdose on June 18, 2001. According to a police report, “several syringes were found at the scene,” as well as various drugs including hydromorphone and morphine sulfate.
The Medical Examiner determined that the cause of J.N.'s death was “acute intoxication due to the combined effects of opiates, cyclobenzaprine, and amitriptyline.” GX 8, at 2. Respondent disputed the Medical Examiner's conclusion. One of her experts (Dr. Schneider) maintained that it was not “black and white that a morphine overdose was her cause of death,” and indicated (in response to Respondent's question whether her opinion would change if J.N. had been on the same dose of extended release morphine for the previous ten months), that unless J.N. had “suddenly taken a lot more” of the drug, she would question whether J.N.'s death was caused by a morphine overdose. Tr. 921–22. Dr. Schneider was not asked, however, whether her opinion would be different if J.N. had taken the drug intravenously.
Relatedly, another of Respondent's experts (Dr. O'Connor) testified that J.N.'s taking of the cyclobenzaprine and amitriptyline (neither of which was prescribed by Respondent) would have “certainly” caused her to have a heart attack.
Certainly in [an] opioid-naïve patient, if they took * * * Tylenol with codeine, and then they took some cyclobenzaprine or flexeril on top of that * * * they might get more sleepy. The same goes for amitriptyline or tricyclics. In an opioid-tolerant patient, no.
In any event, it is not necessary to resolve the factual dispute. Even if J.N's intravenous use of either Dilaudid or MS Contin did not contribute to her death—it just being a coincidence that syringes and crushed medication were found in the vicinity of her body—the evidence nonetheless clearly established that she was abusing drugs, that Respondent had reason to know that she was abusing drugs, and that Respondent failed to properly supervise her use of controlled substances.
With respect to the discharge summary, which clearly indicated that J.N. was abusing drugs, Respondent testified that she failed to read the entire hospital discharge summary because it “was a lot of pages.” Tr. 2367. According to Respondent, she “looked at the beginning” and “looked at the end” of the document but that the reference to J.N.'s heroin abuse was “buried in” the report.
The discharge summary was, however, only five pages in length (and the fifth page did not contain any medical information).
In her testimony, Respondent also maintained that that she was unaware that J.N. had crushed and injected her medication until she inferred it from a question DI Llenas asked her the day of the search warrant in May 2002. Tr. 2377. Yet other evidence indicated that J.N. had no veins and that it was difficult to draw blood from her, something which Respondent apparently never noticed.
With respect to J.N.'s initial visit, Dr. Hare concluded that Respondent “failed to obtain [an] adequate history * * * and [that] she did not obtain records from * * * the neurologist, by whom the patient had been evaluated,” that she conducted a “minimal and inadequate physical examination,” and that “the evaluation was inadequate to allow proper diagnosis and therefore the prescribing of controlled substances.” GX 46, at 4. As to J.N.'s second visit, Dr. Hare's review of her patient record noted that her “already large dose of
Dr. Hare further noted that on January 11, 2001, the patient record “indicate[d] that the patient's [niece] died and that the patient was quite distressed.”
Dr. Hare also observed that Respondent did not notice signs of abuse, did not acknowledge the Discharge Summary's information about J.N.'s current abuse and history of substance abuse, and failed to treat J.N. for depression or give a psychiatric referral.
With respect to J.N. (as well as three other patients N.F., W.F., and C.O.), Dr. Schneider observed in her report that:
All had evidence of “aberrant drug-related behaviors” which should have been pursued but weren't, and all received early refills without adequate documentation. These charts certainly showed problems which indicated that [Respondent] needed additional education about obtaining an addiction history, careful monitoring, and review of the “big picture.”
W.F. first visited Respondent in September 2001. At that time he was a disabled 44-year-old veteran. GX 13, at 1. W.F. had been in a severe jeep accident in 1973 while in the Marine Corps, fracturing his pelvis, femur, right wrist and left mandible.
At the first visit, W.F. brought in an impairment rating from the Veteran's Administration (VA) establishing that he was disabled.
W.F.'s patient file includes several letters which advised Respondent that he had a history of substance abuse. The first letter, which was dated January 8, 2002, was written by Dr. H.G., a psychiatrist with Cope Behavioral Health. GX 13, at 13. Therein, Dr. H.G. explained that W.F. was “currently under court ordered treatment by the Psychiatric Security Review Board which mandates that all [of] his medications are to be prescribed by either psychiatrists at Cope * * * or by the VA.”
On January 24, 2002, Dr. H.G. sent another letter to Respondent.
Finally, on January 28, 2002, J.G., a case manager at Cope Behavioral Health, indicated that Cope had “received a phone call this afternoon from a family member of [W.F.], who is concerned that [W.F.] might be abusing his pain meds.”
The patient record contains some indication that on January 29, 2002, Respondent discussed addiction issues with W.F., as Respondent wrote: “[p]atient insists that the medications help with the pain, and he cannot function without the medications.”
On February 24, 2002, W.F. was found dead. The Medical Examiner's report concluded that W.F. “died of undetermined cause. Possibilities include seizure related and drug intoxication.” GX 11, at 2. A toxicology report found that W.F. had a temazepam level of 1148 ng/ml;
Dr. Hare observed that at the initial visit, Respondent did not obtain an adequate medical history and did not inquire about substance abuse issues. GX 46, at 3. Also, “the physical examination was minimal and inadequate to characterize various pain complaints.”
On cross-examination, Respondent testified that she had heeded the psychiatrist's warning about the past heroin addiction and also his “judgment” that pain medications were appropriate.
This is a fundamental mischaracterization of the evidence as there is no indication in W.F.'s file that Respondent had a plan to manage his use of controlled substances. Moreover, Dr. H.G.'s letter merely stated that because W.F. could not see the VA for another three months, he was “in agreement that he should see you until his appointment.” GX 13, at 15. Moreover, Dr. H.G. and his staff repeatedly cautioned Respondent about W.F.'s narcotics abuse history.
The ALJ credited Respondent's testimony that oxycodone is a short-acting medication and that half of it is gone after two hours. ALJ at 82 (citing Tr. 2165). The ALJ also credited Respondent's testimony that it was “quite possible that a patient could take a level of less than five,” and that this “doesn't mean that a person is not taking his or her oxycodone.”
W.F. was one of those patients about whom Dr. Schneider concluded that there was “evidence of `aberrant drug-related behaviors', which should have been pursued but weren't.” RX K–1, at 6. Dr. Schneider further noted W.F. had “received early refills without adequate documentation and explanations,” and that Respondent's charts indicated that Respondent “needed additional education about obtaining an addiction history, careful monitoring and review of the big picture.”
M.D. and S.R., who were both patients of Respondent, were unmarried but lived together. M.D. first visited Respondent on May 21, 2001, when he complained of having “fallen off a bicycle” and of a “back and leg injury.” GX 17, at 1. M.D. further related that another physician had prescribed to him OxyContin 80 mg. (at a dosing of one tablet every twelve hours), Oxyfast, and methadone, but that the physician had left the office and that he had been off the drugs for several months.
Respondent's physical exam noted that M.D. was a “lethargic male in no acute distress with antalgic limp, favoring left lower extremity,” “pain with range of motion of the left ankle,” “tenderness over bilateral thoracic and lumbar paraspinals,” and “decreased lumbar range of motion associated with pain.”
Later the same day, Respondent documented having received a phone call (apparently from a pharmacy) reporting that M.D. was “known to forge prescriptions and was arrested.”
On June 8, 2001, M.D. returned to Respondent seeking a new OxyContin prescription.
There are no further visits recorded in M.D.'s patient record.
S.R. first saw Respondent on August 3, 2001, complaining of abdominal and pelvic pain. GX 15, at 1. S.R. reported that she had a history of interstitial cystitis and active hepatitis C, but apparently she did not bring records about either condition with her.
Respondent's physical exam indicated that S.R. was “in moderate distress,” that she had “pain with ambulation and limp,” and had “tenderness over [her] abdomen.”
S.R. returned seventeen days later, reported that she was out of Dilaudid and OxyContin, and asked for stronger medication. GX 15, at 1–2. Respondent found that S.R. had “pain with ambulation and limp” and “tenderness over [her] abdomen.”
On September 4, 2001, S.R. again saw Respondent. Respondent noted that S.R.'s urologist had “diagnosed interstitial cystitis,” and that she needed to “obtain records from Dr. [M].”
On September 18, S.R. complained of “continued pain” and wanted a higher dose of OxyContin even though she was “more comfortable.”
On October 2, Respondent discontinued OxyContin in favor of MS Contin, 100 mg. “q8h #100,” which was “less expensive,” and also wrote a
On October 8, Respondent received the phone call described above reporting that M.D. had been admitted in a coma seven days earlier.
On November 2, S.R. returned “complaining of abdominal pain.”
On November 19, S.R. returned to obtain more “prescriptions, and [was] very irate that they weren't ready.”
On December 4, the patient record indicates that S.R. “HA[d] CALLED FOR THE PAST 3 DAYS REQUESTING RX—EVERYONE HAS EXPLAINED TO HER THAT UNTIL MEDICAL RECORDS ARE RECEIVED TO CONFIRM HER CONDITION RX WILL NOT BE WRITTEN PER [Respondent].”
Dr. Hare did not review M.D.'s patient file, but he did review S.R.'s. Dr. Hare found that Respondent performed only a “minimal” physical examination and did not insist on getting documentation of the diagnosed interstitial cystitis and hepatitis until she had treated S.R. for several months. GX 46A, at 13. He indicated that Respondent's “evaluation of the patient was insufficient to justify the prescribing of controlled substances.”
J.R. (GX 24) had been convicted of distributing marijuana. Tr. 1995. Respondent maintained, however, that he had turned his life around and was proud of that.
Respondent maintained that J.R. needed to take “a very high dose of OxyContin” in order to work, and that without the medication, the migraine headaches were so bad he could not function. Tr. 1996–97. Respondent testified that she thought J.R. was a legitimate patient.
The ALJ also credited the testimony of Dr. O'Connor that she saw J.R. “when he picked up his prescribed medications at Wilmot Pharmacy” and he “was functional, his words were never slurred, and he appeared `fine.' ” ALJ at 106. There is, however, no evidence in the record that Dr. O'Connor ever worked at Wilmot Pharmacy,
At J.R.'s first visit recorded in the patient file, August 25, 1999, Respondent noted that he suffered “chronic severe migraine headaches,” and that he “has been on opioids with good relief.”
On October 20, J.R. again visited Respondent. Respondent wrote prescriptions for Oxycodone IR “2 tabs q8h #180” (a thirty-day supply), Percodan #200, OxyContin 40 mg. “4 tabs q8h #360” (a thirty-day supply), and Methadone 10 mg. “QID #60.”
On December 13, Respondent wrote the same prescriptions for 360 OxyContin 40 mg., 60 Methadone 10 mg., 180 Oxycodone IR, and 200 Percodan.
On January 4, 2000, Respondent wrote that J.R. “continues on Oxycodone IR and OxyContin around the clock for excellent control of migraine headaches.”
On January 21 (seventeen days later), J.R. returned and received two prescriptions for 360 OxyContin 40 mg. (two thirty-day supplies; “[o]ne prescription to be mailed to PAP, and other one to be filled locally”), and prescriptions for Methadone, Percodan and Oxycodone IR (again a thirty-day supply of the latter for PAP).
After just another fifteen days, on February 22, 2000, J.R. reported “a severe headache on Sunday, February 20.”
Twenty days later, on March 13, J.R. returned with another report of a “severe headache,” having taken “extra of the OxyContin and Oxycodone IR, and also methadone.”
Eight days later, on March 22, J.R. returned and reported that he would be going to “a rally in California,” and that he needed “extra medications for control of migraine headaches.”
On April 12 (twenty-one days later), J.R. again reported a severe headache and that he was taking “extra medications.”
On May 2 (twenty days later), the patient record states that J.R. “needs to increase his OxyContin because he had a severe headache for 3 days.”
On May 8 (six days later), Respondent wrote two prescriptions for OxyContin: one for 270 tablets of 80 mg. strength for PAP (a thirty-day supply based on her dosing instruction of 3 tabs q8h) and one for 450 tablets of 40 mg. strength (also a thirty-day supply). Moreover, Respondent wrote prescriptions for 360 Oxycodone IR (2 tabs q8h, a sixty-day supply) for PAP, as well as a 180 Oxycodone IR (2 tabs q8h, a thirty-day supply).
On May 15, (a week later), Respondent wrote additional prescriptions which were to be filled by PAP: 270 tablets of OxyContin 80 mg. and 360 tablets of Oxycodone IR “to remail.”
On May 31, Respondent wrote prescriptions for Percodan “q4h PRN #200,” Methadone 10 mg. “QID #120” (a thirty-day supply), OxyContin 40 mg. “5 tabs q8h #540 (a thirty-six day supply) and Oxycodone IR ”4 tabs q8h #360” (a thirty-day supply).
On June 9, when J.R. complained “of worse headaches,” Respondent concluded that “we need to increase the OxyContin dose again” because he “doesn't tolerate any lower dose of OxyContin.”
This pattern of early prescribing and not explaining seemingly duplicative dosages continues in the treatment of this patient through its conclusion in April 2002. Notwithstanding the large quantities of drugs she was prescribing to J.R., there is no indication in the medical record that Respondent ever required him to undergo blood or urine tests to determine whether he was actually taking the drugs. Nor did she require him to bring in his medications for pill counts.
Subsequent to Respondent's treatment of J.R., his next doctor (Dr. H.) wanted to reduce the amount of controlled substances that he was prescribed, as Dr. H. suspected diversion. GX 70, at 35–36. Dr. H. also told a DI that a third doctor who later treated J.R was surprised that, when J.R. reported running out of medication, he was not experiencing withdrawal symptoms.
Respondent asserted that Dr. H. had given contradictory statements by saying that he was “positive [J.R.] is diverting and selling all of those medications, and not taking them, and yet he is exhibiting signs of withdrawal.” Tr. 1994. The record indicates, however, that Dr. H. had been told by the third physician that J.R. was not “exhibiting any signs of withdrawal.” GX 70, at 36. According to Respondent, J.R. ultimately self-declared as a heroin addict in order to get methadone. Tr. 2001.
Regarding J.R., Dr. Hare observed that while Respondent had previously treated him at another clinic, there were no records from the clinic “indicating evaluation to confirm the diagnosis of migraine headache or to further characterize his headaches,” and that there were no “records from other physicians or record of treatment with” non-opioid medications even though migraines “typically respond to a number of non-controlled substance medications” which should have been tried first. GX 46, at 13.
Relatedly, Dr. Schneider testified that in treating a migraine headache of a recurring nature, a CAT scan should be ordered even though it will probably be “completely normal.” Tr. 872. There is, however, no evidence in the patient record that Respondent ordered a CAT scan for J.R.
Dr. Hare further noted that Respondent was giving J. R. “duplicate prescriptions for OxyContin, one to fill immediately and one to send to the Patient Assistance Program, and yet Respondent did not seem aware that she was giving him twice the amount of medication.”
N.F. had previously been identified by two faxnets issued to Tucson area pharmacies by the Arizona State Board of Pharmacy as having allegedly engaged in doctor shopping and calling in fraudulent prescriptions for Lortab (hydrocodone). GX 35; Tr. 287–89. The faxnets were dated May 8, 2000, and April 13, 2001. GX 35, at 1–2.
In February 2003, a DEA Investigator interviewed N.F., who admitted to being addicted and to having gone initially to Respondent to “feed her addiction.” GX 70, at 38. N.F. told the Investigator that a pharmacist had called Respondent in N.F.'s presence and told Respondent that he did not want to fill a prescription Respondent had written because he believed N.F. had a drug problem.
N.F.'s first visit with Respondent was on November 13, 2000, after the first faxnet, which alleged that N.F. was engaged in doctor shopping.
According to N.F.'s patient file, later that day, “Rachel from Albertson's * * * called regarding multiple doctors prescribing Vicodin ES for” her.
I credit N.F.'s interview because the patient file corroborates her story regarding the pharmacist who called Respondent and reported that she was obtaining Vicodin prescriptions from multiple doctors. GX 34, at 2. I also expressly reject the ALJ's finding that there is no evidence that Respondent was aware of N.F.'s addiction during the course of treating her as it is clear that Respondent had reason to know of N.F.'s potential addiction on the same day as the initial visit when the pharmacist told her that she was a doctor shopper. As for the ALJ's reasoning that N.F.'s statement is not credible because she “fail[ed] to tell Respondent of her addiction,” one would hardly expect a person who seeks drugs to abuse them to tell a doctor the real reason she wanted the drugs.
On December 8, Respondent increased the Lortab prescription to forty tablets with two refills.
Thereafter, N.F. began a pattern of seeking early refills. On January 2, Respondent issued N.F. a prescription for forty Lortab with three refills (with the same dosing).
From early on in Respondent's treatment of her, N.F. displayed a pattern of requesting early refills, which Respondent did not appear to notice as she always wrote the prescriptions as requested. For instance, on January 16, 2001, Respondent wrote a prescription for “Lortab 7.5/500 1–2 q6h PRN #40 with 3 refills,” which should have lasted at least twenty days.
However, N.F. returned on February 7, complaining of recent headaches and pain in both her neck and back. Respondent again issued her a prescription for “Lortab 10/500 #40 with 3 refills.”
On April 25, Respondent switched N.F. from Lortab to Percocet (a drug combining oxycodone and acetaminophen), and approximately two weeks later added Percodan, a drug combining oxycodone with aspirin.
On June 11, N.F. visited Respondent. According to N.F.'s file, she had “suffered [a] burn” in her “right thoracic area,” but did not “remember burning herself.”
An entry in N.F.'s patient record for September 19, 2001, indicates that she was to move to Illinois at the end of the week and that she could not fill the Roxicodone prescription because of its cost.
Two days later, N.F. returned. N.F. told Respondent that she was not “moving until next Friday,” and “would like to get Roxicodone.”
On October 2, N.F. was “back here to pick up her truck.”
A note dated October 5 indicates that “[p]atient's brother to pick up prescription for Roxicodone 30 mg q4h PRN 100.”
On October 15, N.F. was back in town “to testify for the state” and reported that “[s]he ha[d] moved to Joliet.”
On October 17, N.F. was back to see Respondent and underwent therapy.
According to DI Llenas' Declaration, N.F. told her that “for approximately one month” she had told Respondent “that she was moving to Illinois.” GX 70, at 39. During that time, individuals “pos[ing] as family members” would go to Respondent's office to obtain refill prescriptions for N.F.
On October 17, 2001, in addition to the Roxicodone 15 mg. that N.F. was already taking (“2–3 tabs q4h PRN #100”), Respondent prescribed 30 Vicodin for “dental pain.”
On October 19 (two days later), Respondent issued N.F. a prescription for 200 tablets of Roxicodone 15 mg. (1–2 q4h).
On October 29 (three days later), Respondent gave N.F. another prescription for 100 tablets of Roxicodone 30 mg. q4h. GX 34, at 20. While the prescription should have lasted sixteen days, on November 1, Respondent gave N.F another prescription (to be filled the next day), for 100 tablets of Roxicodone 30 mg. q4h.
While this prescription should have lasted eight days, on November 7 (two days later) Respondent issued N.F. another prescription for 100 tablets of Roxicodone 30 mg. 1–2 q4h PRN.
On November 14, N.F., who apparently had not moved to Illinois after all—although at no point does it appear that Respondent questioned her about this—returned to Respondent and reported that she “had a motor vehicle accident at 6:30 this morning” with “increased neck pain.”
On November 19, N.F. reported that she had lost her prescription.
On November 21 (two days later), N.F. needed more “medications before * * * the weekend.”
Dr. Hare noted further incidents of suspicious behavior on the part of N.F. For example, on January 24, 2002, N.F. reported that she had taken her children roller skating and had “increased soreness ever since.”
Dr. Hare again found that Respondent “inadequately evaluated” the patient and that N.F.'s “condition did not warrant [c]ontrolled [s]ubstance prescriptions.” GX 46, at 12. In addition, Dr. Hare opined that N.F. “was placed on excessive medication and took more than prescribed and [with] no clear
Respondent's expert, Dr. Schneider, included N.F. as one of the patients for which there was “evidence of `aberrant drug-related behaviors' which should have been pursued but weren't.” RX K–1, at 6. As explained above, N.F.'s chart was among those that “showed problems which indicated that [Respondent] needed additional education about obtaining addiction history, careful monitoring, and review of the `big picture.' ”
Indeed, the patient record indicates that Respondent made absolutely no attempt to monitor N.F. even though she received information as early as the day of N.F.'s first visit that she was a doctor shopper.
C.O. first treated with Respondent on March 5, 1999, complaining of neck and lower back pain from an industrial injury. GX 36, at 1. He was 28 years old.
According to C.O.'s medical record, several weeks before he started treating with Respondent, C.O. had been in an industrial accident during which the brakes on a man-lift failed and the lift hit the ground hard.
At the first visit, C.O. complained of severe pain in both his back and neck, with a pins-and-needles sensation in his right leg, including his foot, and a dull aching in his back.
On March 10, Respondent noted that C.O. was “complaining of severe neck pain and low back pain”; the next day, she noted that he was “taking 1 ½ of the Lortab 7.5.”
On March 17, C.O. returned to Respondent's practice and was seen by a Family Nurse Practitioner (F.N.P.).
On March 19, C.O. returned and saw Respondent.
On March 22, C.O. returned and complained of continued pain between his shoulder blades.
C.O. returned on March 26 (five days later), saw the F.N.P., and reported that his back pain was worse.
On April 9, C.O. saw the F.N.P. and complained that the “pain medication is not working anymore,” that his neck, shoulder, and the base of his spine were stiff, and that his back felt tight.
On April 12, C.O. saw Respondent and complained of continued pain in his neck and back.
On July 12, Respondent gave C.O. another prescription for OxyContin 20 mg.
On July 26, however, C.O. complained of severe pain. Respondent gave him a new prescription for 130 tablets of OxyContin and increased the dosing to three tablets, three times a day.
On August 23, Respondent gave C.O. a new prescription which increased the strength of the OxyContin to 40 mg., but which reduced the dosing to two tablets every eight hours.
Respondent continued to prescribe OxyContin 40 mg. (3 q8h) until October 22, when she decided to discontinue the drug and instead prescribed 200 tablets of MS Contin 60 mg. (3 q8h).
On November 19, C.O. saw Respondent and reported that the MS Contin did not help with the pain, that he was taking nine tablets a day, and that the pain was “getting worse.”
On December 10, C.O. again saw Respondent and complained of various pains. In the note, Respondent indicated that C.O. “would like to increase the OxyContin to 4 tabs q8h.”
On December 27, C.O. again saw Respondent. While the note for the visit indicated that C.O. “ha[d] been sick with the flu,” it did not document that C.O. complained of any pain.
On January 21, Respondent again saw C.O. and stated that “this dose of 160 mg.” every eight hours worked and that while he had some stiffness, he was able to “handle the pain as long as he takes the OxyContin.”
Three days later, Respondent noted that C.O.'s insurance had “denied coverage for any medications” and that he had undergone “an independent medical examination by [another physician] in early December.”
Respondent continued to treat C.O. through June 29, 2001, and generally prescribed the same drugs (OxyContin 40 mg., Lortab 10/500,
At C.O.'s next visit (October 10), he reported having injured his back and neck on the ship.
On October 31, C.O. returned to Respondent and told her that he would be going on a ship “in a few days and be gone for almost 13 weeks.”
Five days later (on November 8), C.O. had still not gone on the ship.
On December 22, C.O. returned to Respondent seeking another prescription for OxyContin.
Notwithstanding that C.O. had previously told Respondent that he would be working on a cruise ship until late January, there is no indication that Respondent questioned him as to why he was back so soon.
On December 27, C.O. returned to Respondent seeking more OxyContin. GX 36, at 30. Respondent decided to taper C.O. down on the OxyContin to three tablets every twelve hours (for a total of 240 mg. of oxycodone) and wrote him prescriptions for sixteen and eight tablets.
On February 5, 2001, C.O. complained that he could not afford OxyContin and would like more Lortab and Soma.
On February 14, Respondent gave him a prescription for 100 tablets of Roxicodone 30 mg., but the dosing instructions were not, however, recorded in C.O.'s record.
By February 20, however, Respondent was prescribing two tablets of Roxicodone 30 mg. every 3 hours, for a total dosage of 480 mg. of oxycodone a day; this was the same daily amount of oxycodone as Respondent had been dosing on December 22.
Respondent issued additional prescriptions for Roxicodone 30 mg. on March 9 (50 tablets) and 13 (three 50-tablet prescriptions), although she reduced the dosing to one to two tablets every four hours for a maximum daily dose of 360 mg. of oxycodone.
Respondent issued additional Roxicodone prescriptions and by April 17, was back to prescribing 480 mg. of oxycodone a day.
Respondent continued to prescribe Roxicodone to C.O. and noted on May 11, that he was taking “approximately 16 Roxicodone per day.”
Respondent issued additional prescriptions for 100 tablets of Roxicodone on June 18, 25 and 29.
Following this entry Respondent wrote a two-page plus narrative of how she had treated C.O.
If [C.O.] did in fact become “addicted” to either Roxicodone or Soma, it was not because I neglected to try to avoid that. He had a true injury, he was truly in pain and he truly required the medication to function. In rare instances, patients become “addicted” to medications that were prescribed appropriately. I do not know if this is the case with [C.O.], since I have had not follow up information on him since June 2001.
[C.O.] suffered no harm or injury as a result of the medications.
With respect to C.O., Dr. Hare concluded that Respondent's evaluation was inadequate “to justify prescribing [c]ontrolled [s]ubstances,” and that while Respondent had developed “an acceptable treatment plan in 07/99 * * * to wean the patient from medications, * * * the medications were continued and increased.” GX 46, at 13. Dr. Hare further noted that Respondent “exerted little control over the prescriptions,” that “[t]he patient self-escalated drug doses, and then [Respondent] increased the prescription to match his use.”
In her report, Dr. Schneider likewise concluded that C.O.'s chart “had evidence of aberrant drug-related behaviors which should have been pursued but weren't.” RX K–1, at 6 (int. quotations omitted). Dr. Schneider further noted that C.O. had “received early refills without adequate documentation and explanation,” and
On February 20, 2001, N.S., an eighteen-year-old college student, first presented at Respondent's practice. GX 57, at 1. N.S. complained of lower back pain, “especially since going to [the] University of Arizona,” and rated his pain level as “4” on a scale of 0 to 10. GX 57, at 1 & 5. N.S. denied that the “pain radiat[ed] to both lower extremities,” “denie[d] numbness and tingling or weakness of both lower extremities,” and denied “bowel and bladder problems.”
Respondent performed a physical exam. She found that N.S. “has normal ambulation without pain,” that he was “able to walk on heels and on toes without pain and hop on either foot without pain.”
Respondent diagnosed that N.S. had a “history of episodes of low back pain,” with a “[r]ecent increase in low back pain secondary to poor mattress and poor positioning.”
Two days later, N.S. complained that the OxyContin was not working.
Four days later, N.S. complained that he still had low back pain and now claimed that his pain level was a six.
On March 6, N.S. reported that the OxyContin
The last entry in N.S.'s medical record is dated March 19, 2001, and reports that N.S.'s father called and said that NS “was too sedated at home and obviously took too many.”
In an interview with a DEA Investigator, N.S. admitted that he had gone to Respondent “in order to obtain OxyContin prescriptions.” GX 70, at 39. N.S. also told the Investigator that “[h]is primary purpose was drug seeking,” and that “his back pain was only secondary.”
N.S.'s father confirmed to the DI that he had called Respondent and expressed his concern about his son's being overly medicated and having “nod[ded] out in a conversation.”
Dr. Hare concluded that Respondent had “reasonably evaluated” N.S. GX 46, at 15. He also concluded the plan of care was reasonable “with the exception of the medication [she] prescribed.”
Dr. Hare also noted that while N.S. “had denied taking previous medications[,]” he “rapidly self-escalated the medications to a large amount.”
Finally, Dr. Hare observed that N.S.'s “minimal response to a rather large initial dose would raise serious questions about opioid responsiveness of the pain problem.”
In her testimony, Respondent acknowledged that N.S.'s father had called her and expressed his concern that his son was taking excessive medication. Tr. 2173. Respondent did not respond to any of Dr. Hare's observations regarding the medical appropriateness of her prescribing OxyContin to N.S.
F.L. and B.L. were father and son. The records in evidence document Respondent's treatment of F.L. between August 16, 1999 and March 30, 2001, shortly before his death on April 17 due to complications from diabetes.
In addition to having diabetes, F.L. was a recovering alcoholic. Tr. 2123. He had chronic pancreatitis and a lumbar spine condition; his diabetes had led to a below-the-knee amputation of one of his legs.
In October 2000, Respondent also commenced to treat B.L. (F.L.'s son) in October 2000 for Attention Deficit Disorder and an eating disorder. GX 50, at 1–2. Respondent prescribed several controlled substances including Ritalin and Dexedrine (both stimulants) to him.
On April 23, 2001 (six days after F.L.'s death), B.L. visited Respondent.
In her plea agreement, Respondent admitted that during B.L.'s April 23 office visit, she had prescribed to him 200 tablets of Dexedrine 10 mg. and that after B.L. “informed [her] that he had accepted delivery of a prescription for his recently deceased father, FL, another patient of [hers,] in order to possess the prescribed controlled substance * * * OxyContin 40 mg.” GX 6A, at 7. Moreover, in the agreement, Respondent admitted that she “upon learning this information from * * * B.L., [she] did knowingly * * * fail to rescind the prescriptions for Dexedrine for B.L.”
The incident involving B.L. was the second of the four counts of Accessory After the Fact to Possession of Controlled Substances by Misrepresentation, Fraud, Forgery, Deception or Subterfuge” to which Respondent pled guilty.
Respondent did not document her discussion with B.L. regarding his father's OxyContin in his medical record. GX 50, at 4–5; Tr. 2360. While Respondent admitted that this was a shortcoming, she claimed she did not document the “diversion” because she lacked information to conclude that a diversion had taken place. Tr. 2359–60. I find, however, that Respondent's admission as part of the plea agreement precludes the relitigation of the issue of whether she knew that B.L. had obtained the OxyContin tablets dispensed pursuant to his father's prescription.
W.O. and J.O. were husband and wife. Respondent began treating W.O. in September 2000 for neck and low back pain from two motor vehicle accidents, one in June 2000 and the second in August 2000. GX 53, at 1. She began treating J.O. in October 2000 for neck and low back pain from a motor vehicle accident of September 2000. GX 51, at 1. At the initial visit of each, Respondent prescribed Percocet. GX 51, at 2; GX 53, at 2. Respondent also prescribed OxyContin and Soma to both J.O. and W.O. at numerous visits.
On November 13, 2000, J.O. saw Respondent and reported that their house had been burgled and that all of her and W.O.'s medications had been stolen. GX 51, at 4. J.O., however, brought a police report with her.
As for Percocet, on October 3, Respondent issued W.O. a prescription for 300 Percocet “to fill October 20.”
On November 13, 2000, Respondent also saw W.O., performed a physical exam on him, and gave him a prescription for 100 tablets of Percocet. GX 53, at 5. Later that day, she wrote a replacement prescription for 100 Percocet in W.O.'s name, (which she apparently gave to J.O.) based on J.O.'s report that their medications had been stolen.
Thereafter, on November 17, Respondent gave W.O. a prescription for 21 tablets of OxyContin 40 mg (q8h—a week's supply), and 60 tablets of oxycodone (1–2 q4h).
On May 14, 2001, Respondent switched W.O. from OxyContin to Dilaudid because of the former's cost, GX 53, at 17; on May 18, 2001, she did the same for J.O. GX 51, at 17. At their respective visits, Respondent wrote W.O. prescriptions for Dilaudid 8 mg. “2 tabs QID # 100” and 300 Percocet; she wrote J.O. prescriptions for Dilaudid 4 mg. “4 tabs QID #200,” as well as for 100 Roxicodone (1–2 q3h) and 200 Percocet. GX 53, at 17; GX 51, at 17. Moreover, on June 25 and 26, Respondent started prescribing methadone 10 mg, with four tablets to be taken four times a day, to both J.O. and W.O.
On November 9, Respondent wrote J.O. a prescription for 200 Percocet q4h PRN, which was to be filled on November 14 (along with prescriptions for Dilaudid and Methadone). GX 51, at 20. However, on November 15, 2001, W.O. (J.O.'s husband) came to Respondent's office to pick up a replacement prescription for the November 9 prescription, which had been altered.
On November 21, J.O. went back to Respondent and asked for a replacement prescription for the Percocet.
The notation for this visit also states that Respondent had “received anonymous call that [J.O.] selling Percocet.”
On March 4, 2002, J.O. brought to Respondent a consent agreement she had entered into with the State Nursing Board.
On March 12, J.O. appeared “need[ing] half of [the] methadone prescription because she gave [W.O] half of them.”
On April 16, Respondent wrote a letter to the Arizona State Board of Nursing, listing J.O.'s medications. GX 51, at 24. Notwithstanding the report she had previously received that J.O. was selling her medication, the incident with the torn prescription, and J.O.'s having admitted to giving half of a methadone prescription to W.O., Respondent wrote that she was “aware of [the] history of this nurse's diversion of drugs in the past, but there is no evidence of continuation of this behavior.”
With respect to her prescribing to W.O. and J.O., Respondent testified that after receiving the phone call which reported that J.O. was selling Percocet, she stopped prescribing the drug to her and prescribed methadone to her, which she maintained has a low risk of abuse and diversion, Tr. 2162, notwithstanding its inclusion on schedule II, which indicates that it “has a high potential for abuse.” 21 U.S.C. 812(b)(2)(A). She also maintained that she had stopped treating W.O. after she received the phone call from G.A. Tr. 2162. While Respondent testified that J.O. had told her she was going to get a divorce,
There is likewise no evidence that Respondent attempted to monitor J.O. through such measures as pill counts and drug screens after receiving the report that she was selling her controlled substances. Moreover, the medical record contains no documentation that Respondent counseled J.O. as to the illegality of her giving her methadone to W.O.
P.H. started seeing Respondent in January 1999 for low back pain, which she had suffered for six years after her “dog knocked her off the couch while she was sleeping.” GX 55, at 1. A.B., who lived with P.H., first saw Respondent on November 27, 2000, complaining of right leg pain.
Respondent initially treated P.H. with Percocet and a non-controlled muscle relaxant (first Skelaxin, then Flexeril, and then Robaxin), as well as physical therapy. GX 55, at 2 & 5. On April 7, 1999, P.H. saw Respondent and told her
Throughout the first six months that Respondent treated P.H., she prescribed Percocet and muscle relaxants.
On May 12, 2000, a pharmacist called Respondent and told her that two days earlier P.H. had filled a prescription for 42 Percocet which had been issued by Dr. K., her primary care physician
Once again, there is no indication that Respondent contacted Dr. K. to coordinate their prescribing. Moreover, on October 10, Respondent changed the prescription from 250 tablets of Percocet to 90 tablets of OxyContin 20 mg., one tablet to be taken every eight hours.
P.H. returned nine days later and Respondent noted that she had “severe tenderness over [her] lumbar muscle area.”
On November 9, P.H. again saw Respondent.
Respondent issued additional prescriptions for 200 Percocet on December 11, and January 9, and for 200 oxycodone 5 mg. (with the same dosing of 2–3q4h) on December 11, January 9, and January 22.
On February 28, Respondent gave P.H. additional prescriptions for both 200 Percocet and 100 Roxicodone 30 mg., and on March 8, she gave P.H. an additional prescription for Roxicodone 30 mg.
On March 27, P.H. was complaining of severe pain, that her hips were “locked up,” that it was “the third time in less than 2 weeks that she had bad pain,” and that “the Roxicodone isn't working.”
On April 2, Respondent gave P.H. another prescription for 100 Roxicodone 30 mg. with the same dosing.
On May 15, P.H. again saw Respondent and indicated that she had an appointment to see a dermatologist, Dr. H., in two weeks for a condition (bulbous pemphigoid) which had been diagnosed by a physician at an emergency room.
Throughout June and July, Respondent continued to prescribe approximately 900 mgs. per day of Roxicodone. GX 55, at 18–19. She also gave P.H. prescriptions for 200 Percocet on June 4, June 18, July 2, and July 18.
Respondent initially treated A.B. for right leg pain with oxycodone (dosage strength not indicated) and Percocet, as well as Zanaflex, a non-controlled drug. GX 56, at 1–2. Respondent's initial evaluation indicated that A.B. was already taking Percocet and Robaxin (a non-controlled drug),
On January 9, 2001, Respondent added OxyContin 10 mg. and prescribed 60 tablets, with one tablet to be taken every twelve hours (and which should have lasted 30 days). GX 56, at 2–3. She also gave A.B. prescriptions for 200 Oxycodone 5 mg. and 100 Percocet.
On February 6, A.B. returned.
On February 21, A.B. apparently called Respondent and reported that she had undergone a lumbar laminectomy a week earlier, that she was in severe pain, and had only been given 20 Percocet for post-operative pain.
On March 9, Respondent gave A.B. additional prescriptions for 60 OxyContin 40 mg. and 200 oxycodone 5 mg.
On March 20, A.B returned.
In April, Respondent received a note (apparently from the surgeon who performed the laminectomy) that A.B. was complaining that the symptoms she had before her back surgery had returned.
At the June 4 visit, Respondent noted that A.B. “complains of problems with sleeping, and would like to take 2 OxyContin at night instead of 1.”
At M.H.'s initial visit on July 23, 2001, Respondent diagnosed her as having shingles and gave her prescriptions for 60 tablets of both OxyContin 20 mg. (q12h) and Percocet (1–2 q4h). GX 54, at 1. On July 27, M.H. returned to Respondent and reported that her “[i]nsurance wouldn't cover OxyContin or MS Contin.”
On July 30, 2001, a local pharmacist called Respondent and told her that the day before A.B. had picked up an OxyContin prescription for M.H. and paid cash for the drugs. GX 56, at 7. The pharmacist observed A.B. walk past M.H.'s car to a silver sports car and place the unopened bag through the window of the sports car.
The pharmacist further told Respondent that A.B. had come to the pharmacy the day after the incident to pick up a prescription.
M.H. returned to Respondent's office on August 10. GX 54, at 2. According to the note for the visit, M.H. explained that it was P.H. and not A.B. who had passed the OxyContin to the silver car and that the drugs had been for M.H.'s nephew, who she claimed had pain.
On August 3, P.H., who Respondent was treating for both knee and back pain with Percocet and Roxicodone, saw Respondent. GX 55, at 20. According to the progress note, P.H. “ha[d] given Percocet to her mother and sister and wants more Percocet.”
On August 5, both P.H. and A.B. were in an auto accident. GX 55, at 20; GX 56, at 8. On August 17, P.H. again saw Respondent, who again concluded that she had a knee injury and low back pain. GX 55, at 20. Respondent again prescribed Percocet (200 tablets, 1–2
On August 23, P.H.'s file contains a note indicating that Respondent had again spoken with the pharmacist who reported the July 29 diversion incident.
On August 27, P.H. again saw Respondent and was accompanied by A.B.
Respondent testified that although she did not notate it in any file, A.B. and P.H. were present when she counseled M.H. about the diversion. Tr. 2355. The ALJ did not credit this testimony. Nor do I. As found above, Respondent counseled M.H. about the incident on August 10th. A.B., however, had been in a motor vehicle accident on August 5th, and according to the August 17 entry in her patient file, A.B. was then “at Healthsouth Rehabilitation [I]nstitute with `brain swelling.' ” GX 56, at 8. A.B. was not discharged until August 23rd.
Following the incidents, Respondent continued to treat P.H. for injuries she incurred during the August 5 motor vehicle accident. On October 29, Respondent concluded that P.H. had reached maximum medical improvement with respect to the injuries she incurred in the accident and ceased treating her for them. GX 55, at 25. Respondent, however, continued to treat her for low back pain, phlebitis in her left calf (a condition which she diagnosed on Oct. 15), and bulbous pemphigoid.
On December 21, Respondent noted in P.H.'s record: “faxed refill request from Bashas' [pharmacy] for Vicodin prescribed by Dr. H. [P.H.'s dermatologist] denied.”
Respondent also introduced two letters into evidence from a Dr. Kaplan, the primary care physician for A.B. and P.H., apparently to show that he approved of Respondent's prescribing to them. Tr. 2131; RX B & C. Respondent further indicated that Dr. Kaplan had to authorize her prescriptions for the insurance plan that the two were on. Tr. 2131.
Dr. Kaplan's letter regarding P.H. simply says that he “was aware that she was receiving chronic high dose narcotic analgesic therapy for chronic pain from” Respondent. RX C. The letter does not, however, say that Respondent's prescribing to P.H. was medically appropriate.
In contrast to the letter he wrote about P.H., Dr. Kaplan stated that A.B. “has been receiving appropriate analgesic medications from [Respondent] during 2001 and 2002.” RX B. While Dr. Kaplan stated that his chart notes confirmed that he had been aware that Respondent had been treating A.B. since early 2001, he did not claim that he had reviewed the entire course of Respondent's prescribing to A.B.
In a letter dated October 22, 2002, Respondent's own expert, Dr. Schneider, who was mentoring Respondent, noted that P.H. “has an addiction history” and instructed Respondent to “[f]ind out to what was she addicted and how recent.” RX D–6, at 2. Dr. Schneider also noted that P.H. “attends COPE,” and instructed Respondent to find out “if they know about her opioid treatment.”
Dr. Hare reviewed the patient files of P.H. and A.B. GX 46A, at 8–12. With respect to P.H., Dr. Hare observed that she was “a patient with multiple complain[t]s which were not adequately evaluated by [Respondent] and yet she continued to prescribe increasing amounts of controlled substances, particularly opioids with no apparent improvement in the patient's condition.”
With respect to A.B., Dr. Hare observed that she “presented as a patient with many problems which were not properly diagnos[ed] and evaluated by” Respondent.
H T. was the patient name for an FBI informant who started treating with Respondent at her prior clinic in May 1998. GX 71, at 16. Initially, H.T. was treated for continuing lower back pain with physiotherapy and other methods; Respondent did not, however, prescribe controlled substances to him.
After a lengthy absence, H.T. returned to Respondent's office in February 2002 and met with C.M., a chiropractor who worked with Respondent. GX 60. H.T. mentioned that he had been living in Montana and doing roofing work, and that “a couple of times when [he] was roofin[g], [he] had a little twinge” or “twitch back there.”
H.T. returned on March 4.
The patient record indicates that a physical examination was performed, but there is no such indication in the transcript from that visit.
On March 11, H.T. returned to Respondent. GX 62. During the visit, H.T. told Respondent that he had “just tested positive” for Hepatitis C and wanted to change to pure oxycodone from Percocet, which contains acetaminophen. GX 62, at 4. H.T. told Respondent that changing the prescription to pure oxycodone would make him “pretty happy.”
Three days later, on March 14, H.T. returned to Respondent. Respondent asked him to rate his back pain, and suggested “three, four, five, six?” GX 63, at 3. H.T. replied: “ya know, the Doc always sa-, helps me, He puts em down so he can get the insurance company payin[g].”
H.T. asked Respondent for 120 oxycodone, stating that he was going to be gone all of the next week and maybe for a part of the week after that.
Respondent then asked whether H.T. wanted to stick with the fives because they “are the cheapest.”
According to H.T.'s patient record, Respondent wrote a prescription for 100 tablets of Roxicodone 15 mg. GX 71, at 8. The patient record also indicates that Respondent performed a physical exam.
On March 25, H.T. went back to see Respondent. GX 64. According to the transcript, Respondent asked H.T. why he needed to see her because it had not been two weeks since the last visit.
Respondent then asked H.T. if he wanted to try the ten milligram OxyContin; H.T. replied: “Ten? He had forties.”
After discussing how H.T. was paying for his drugs, H.T. asked Respondent “How many you gonna give me?”
According to the progress note prepared by Respondent for this visit, Respondent performed a physical exam which showed that H.T. “has pain with lumbar range of motion and stiffness with lumbar range of motion.”
On April 4 (ten days later), H.T. returned to Respondent's office. GX 65. After making small talk about their respective ages, Respondent asked H.T.
Respondent then noted that she had given H.T. a month's supply at the previous visit and asked him if he was “takin[g] more of it then.”
Respondent then asked H.T. if he “want[ed] [a] stronger pill” or if he wanted her “to write that you take more of em.”
Respondent then asked H.T.: “what's your number today?”
In the progress note for this visit, Respondent indicated that H.T. had “continued low back pain,” and that she had performed a physical exam, which “show[ed] that he has pain [and stiffness] with lumbar range of motion.”
On April 11, one week later, H.T. again saw Respondent and requested a refill prescription, indicating that he would be going out of town for two weeks. GX 66, at 5. As the previous prescriptions would last for 30 days and only one week had passed, H.T. did not need another prescription if he was only going to be gone two weeks. After some small talk, Respondent asked H.T. “do you want the OxyContin?”; H.T. answered: “Yeah.”
Respondent eventually agreed, however, to write H.T. a prescription for twenty-milligram strength and asked him if he “want[ed] ninety?”
On April 23, H.T. returned to Respondent and again sought more OxyContin. GX 67, at 6–7. After discussing with H.T. whether he was on the forty or eighty-milligram strength tablets, Respondent asked him if he had signed a pain management agreement at the last visit.
Respondent and H.T. then discussed how many tablets she had given him at some of the previous visits.
Respondent then told H.T.: “They're watchin' me, Hal.”
Following a discussion of what to put in his medical record, (
Later in the conversation, Respondent asked H.T. to make his drugs “last a little more” and added: “[u]ntil my investigation is over.”
Respondent then suggested that H.T. try Celebrex, an anti-inflammatory which is not a controlled substance.
When Respondent said that she couldn't because she had recently given him 90 tablets, H.T. complained that “I only got a few of those left.”
On April 29, H.T. again saw Respondent. GX 68. H.T. told Respondent he did not fill the Celebrex and asked: “What do I need an anti-inflammatory for?”
Respondent then asked H.T. “if you're not using `em for pain what're ya using `em for?”
While Respondent again maintained that she could not keep filling the prescriptions for the reasons H.T. wanted the drugs, she then told him that she could not do it because she was being “watched like a hawk now because * * * everybody thinks I'm writing too many prescriptions for people.”
Respondent then suggested that she “could cut down the dose” and asked H.T.: “You want a small dose?”
H.T. then asked Respondent for a prescription to last until May 11.
When H.T. reminded Respondent that she had told him that he would be able to get a new prescription “this week,” Respondent replied: “you * * * unfortunately told me why you were taking `em. Has nothing to do with your back pain and that's the only reason you should be taking `em.”
On May 15, H.T. again saw Respondent. GX 69. H.T. told Respondent that he `love[d] those pills” and added that while she had told him “to wait till the eleventh,” he had “been so good” and that it was then “past the eleventh.”
H.T. then offered to be a character witness for Respondent in the board investigation.
Following a discussion of whether H.T. was going to the pharmacy that he said he would use in the pain agreement, H.T. suggested that he fill his prescriptions in Mexico.
The entry in H.T.'s patient record for this visit indicated that Respondent performed a physical exam and found that he had “pain” and “stiffness with lumbar range of motion.” GX 71, at 11. Respondent also indicated that she had performed a “neurological exam of both lower extremities [which] showed normal motor strength, sensation and deep tendon reflexes.”
In her Response to the Government's Exceptions, Respondent also contended that H.T.'s loud laughter would have drowned out evidence of the physical examinations she claims to have performed. Response to Exceptions at 2. Respondent also maintained that “after four years of these physical exams, there are necessarily fewer specific directions to the patient,” and that H.T. knew the routine for her focused physical examination and did not have to be told what to do.
Respondent's arguments are not persuasive. As for her contention that he knew her routine after so many years of exams, the record establishes that on March 4, 2002 (the date she started prescribing controlled substances to him), she had not physically examined him since March 8, 2000, a period of nearly two years.
Moreover, the transcripts of H.T.'s various visits do not contain even a trace of the prompting that a physician would use in performing a physical exam. As for Respondent's further contention that H.T.'s laughter drowned out her directions when she performed an exam, the instances of laughter (and by whom) were noted in the transcripts and were quite limited. Finally, while Respondent maintains that “[t]he actual audio tape contains lots of loud laughing by H.T.,” she did not identify specific examples of this in her briefs. I thus conclude that Respondent failed to physically examine H.T. on March 4, 14, and 25, April 4 and 23, and May 15, 2002. I further find that Respondent falsified H.T.'s medical record for these six visits by indicating that she had performed a physical exam when she did not.
Dr. Hare concluded that “the history and the physical were inadequate to allow prescribing of a control [sic] substance.”
The gist of Respondent's testimony with respect to H.T. was that she was duped. For example, Respondent testified that H.T. “was always a very loud, obnoxious patient,” that he “was a three-time convicted felon who somehow made a deal with the FBI to become * * * [a] `mole,'” and that he carried a “Tri-Care insurance card, which identified him as E–8, enlisted man 8, which is a pretty high rank for an enlisted person.” Tr. 2068. According to the Respondent, “[d]octors being human, we give some credibility to a person based on their credentials.” Tr. 2068–69.
Continuing this theme, Respondent complained that H.T. presented “a true * * * a seemingly true insurance card” such that the insurance company would have received payments “[s]o there was no question, to us, that he was telling the truth * * * about who he was.” Tr. 2071. She also testified that his visits followed September 11, 2001, and that there “was certainly a new-found respect for the military after 9/11” such that she “afforded him some deference.” Tr. 2072.
Respondent further claimed that “we kept thinking that he was coming because he had back pain” and that “all of our documentation and our conversations with him were assuming that he was having back pain.”
Moreover, Respondent testified that at the visit when H.T. asked for Percocet, he did not present any “significant change” in his condition and that his “physical exam was never very significant.”
Respondent testified that “in retrospect” she “should have been suspicious because he's laughing” as they talked.
The transcripts of H.T.'s visits make plain that Respondent's testimony is self-serving and disingenuous. For example, at the March 4, 2002 visit when H.T. returned and requested Percocet, he indicated that he had had “a sore back” only “sometimes,” and that was when he was working. He also made clear that he had “been feeling really good” and denied that the pain went down his leg. Moreover, he asked for a specific drug—Percocet 10/325. Finally, when Respondent counseled him about the risk of taking too many tablets because of the drug's acetaminophen content, which she characterized as “a bad thing,” she then added that “the other stuff [the oxycodone] is a fun thing.” Moreover, Respondent did not physically examine him even though she had not seen him in nearly two years. In short, Respondent knew that H.T. was not seeking the Percocet to treat a legitimate pain complaint.
At subsequent visits, H.T. made additional comments which made clear that he was engaged in drug-seeking. For example, at the March 11 visit, H.T. told Respondent that changing his prescription to oxycodone would make him “pretty happy,” and when Respondent asked if he wanted 60 tablets, H.T. told her that he “would love” to get 60. Moreover, H.T. told Respondent that he was eating the oxycodone 5 mg. tablets “like candy” and “M & Ms.” Moreover, Respondent did not perform a physical exam even though she indicated that she had in H.T.'s record.
At the March 25 visit, H.T. told her that he was there to beg her to give him some OxyContin 40s. And when Respondent commented that it was o.k. that H.T. was taking six fifteen-milligram Roxicodone tablets a day because it was for his back, H.T. laughed and added that his back felt great but that he liked the drugs.
Throughout these visits, H.T. also presented a pattern of seeking additional drugs, as well as more powerful drugs, well before the previously issued prescriptions would have run out. Moreover, after she gave H.T. a prescription for another 90 tablets of OxyContin 40 mg. (merely a week after a previous prescription for the same strength and quantity, which should have lasted thirty days based on the dosing instruction), H.T. told her
When H.T. sought more OxyContin at the next visit (April 23), H.T. did not claim that he was in pain and told her that he never made up any stories about losing the drugs and that he was telling the truth and just wanted to get “a few more.” Moreover, Respondent told H.T. that she could not write another prescription so soon because the State Board was investigating her. Furthermore, later in this visit H.T. told Respondent that he did not have pain (“the only pain in my life is the ache in my heart when I'm around you visions of loveliness that work here”).
At the next visit, H.T. once again made clear that his “pain level is non-existent.” When Respondent questioned H.T. further as to why he wanted the drugs, H.T. made plain that he was seeking the drugs to abuse them and not to treat pain. Respondent further told H.T. that she could not give him a new prescription until at least a month had passed from the previous prescription and that he should wait until the investigation was over.
Finally, at the last visit, H.T. once again made clear that he was seeking the drugs to abuse them and not to treat pain. Moreover, he also told Respondent that he had tried to buy OxyContin on the street in Mexico and even cited the price per milligram. Respondent nonetheless gave him another prescription for 90 tablets of OxyContin 40 mg.
It is thus clear that Respondent knew that H.T. was not seeking the drugs to treat a legitimate pain condition, but rather to abuse them. Respondent was in no sense duped by H.T. as to his reason for seeking the drugs; indeed, she clearly knew that he was seeking the drugs for an illicit purpose.
Respondent treated K.Q. as early as 1992, but her patient record in evidence starts in 1997.
K.Q. was on disability and had been in two prior motor vehicle accidents.
In her medical history, Respondent noted that K.Q. was taking Lorcet, a schedule III controlled substance which contains hydrocodone; Xanax, a schedule IV controlled substance; as well as two non-controlled drugs, Prozac and Mevacor.
Respondent performed a physical examination and diagnosed K.Q. as having chronic low back pain and muscle spasm, with a temporary exacerbation of pain, cervical pain, and muscle tenderness.
K.Q. underwent physical therapy the same day, as well as on the next two days.
On October 27, more than seven months after her last visit, K.Q. reappeared.
After a physical examination, Respondent diagnosed K.Q. as having chronic low back pain and myofascial pain. Respondent then prescribed 60 OxyContin 20 mg. BID, 90 Xanax 1 mg. TID, and 30 Duracet 10 TID.
Later that day, the pharmacy called to tell Respondent that “[t]here is no medication Duracet.”
On November 17, K.Q. returned and again complained of “severe low back pain” and a “shooting pain” in her right leg.
Twelve days later, on November 29, Respondent phoned in a prescription for thirty Vicodin when KQ reported that her “purse was stolen.”
On December 8, K.Q. returned and complained of severe low back pain, neck pain, and headaches.
On December 23, K.Q. needed a three-month prescription for OxyContin and Xanax “to mail away for.”
About one month later, on January 20, 1998, K.Q. returned, complained of severe low back pain, and indicated that she had “taken slightly more of OxyContin.”
On February 2, Respondent discontinued the OxyContin and placed K.Q. on Duragesic patches.
On March 2, after a brief trial of the Duragesic patches, K.Q. complained that patches did not work well and “want[ed] back on the OxyContin.”
Sixteen days later, on March 18, K.Q. returned and “complain[ed] of severe pain for past 2 weeks” and reported that she had been “taking extra medications, including extra Valium and OxyContin.”
On March 27, K.Q. complained that she had not voided or had a bowel movement in three days.
On April 14, K.Q. wanted to try a medication other than OxyContin because she thought it caused nausea, vomiting and headaches.
K.Q. next visited on May 1, and reported that she was taking up to 120 mg. methadone per day, one and one-half times the prescribed daily dose.
On May 20 (nineteen days later), Respondent again wrote K.Q. a prescription for 120 tablets of Valium 10 mg. “QID.”
On June 5, K.Q. reported that while she was taking the recommended dosage of four tablets, four times a day, she had only ten Methadone tablets remaining.
On June 19 (two weeks later), K.Q., who had recently twisted her ankle, wanted to switch off of methadone.
Respondent performed a physical exam and found that K.Q.'s right ankle had slight swelling and that she had “severe numbness of [her] right lateral thigh and lateral calf.”
Three days later, K.Q. told Respondent that “they only filled 100 of the MS Contin.”
On July 10, K.Q. returned to Respondent and told her that her left knee had gone out thirteen days earlier.
Less than two weeks later, on July 23, K.Q. complained that she had had “a bad last few weeks and request[ed] increasing her MS Contin.”
The following day, K.Q. saw Respondent and complained of severe knee pain.
On August 6, K.Q. called Respondent and complained of “severe headaches and pain” and requested an “increase in her MS Contin and [a] change to Xanax.”
On the latter date (Aug. 27), Respondent also wrote K.Q. a prescription for 120 Valium (TID and HS) with one refill.
On October 5, K.Q. indicated that she had “been taking extra MS Contin for her headaches.”
Nine days later, on October 14, K.Q. reported taking the MS Contin “every 6 hours instead of every 8” and that she had “only 4 tabs left.”
Respondent's response to this information was to give K.Q. a prescription for 600 tablets of MS Contin 100 mg. and to increase the dosing to ten tablets every eight hours. GX 58, at 21. Moreover, while the previous Valium prescription (which Respondent wrote on September 25), should have lasted another eleven days, Respondent wrote K.Q. another prescription for 120 tablets (QID), increasing the dosing from four to six tablets per day.
Two weeks later, K.Q. was back and complaining of “severe headaches,” “vomiting up the medications,” and severe knee pain because she had “hit her left knee against the dashboard.”
On November 5, K.Q. was back and told Respondent that she had received only 400 tablets of MS Contin.
On November 18, K.Q. returned and complained that the methadone did not “help as much as the MS Contin” and made her more tired.
On January 11, 1999, Respondent gave K.Q. two additional prescriptions for 300 tablets of extended release morphine 100 mg. (with the same dosing), as well as a trial 100 milligrams of morphine elixir for headaches.
Respondent issued K.Q. additional prescriptions for extended release morphine on January 26 and February 3, and for 60 OxyContin on the latter date.
On March 18, Respondent wrote K.Q. two more prescriptions for 300 MS Contin 100 mg., as well as 100 tablets of OxyContin 40 mg. (one tablet every twelve hours).
Respondent continued to prescribe both MS Contin and morphine elixir to K.Q. over the ensuing months, along with additional prescriptions for either Xanax or Valium.
On August 19, Respondent wrote an additional Valium prescription for 100 tablets (two tablets, three times a day) with three refills.
On December 21, Respondent wrote K.Q. a prescription for 180 tablets of Valium 10 mg. (2 tabs TID), with three refills.
On February 16, notwithstanding that the January 7 prescription and refills should have lasted four months, Respondent gave K.Q. another prescription for 180 tablets of Valium at the same dosing with the three refills.
On October 7, K.Q. reported that she was “[d]oing better” and “without side effects,”
Nine days later, K.Q. complained of severe headaches and Respondent gave her more prescriptions for 300 tablets of MS Contin 100 mg., as well as for 100 tablets of immediate-release morphine 30 mg., one tablet every two hours as needed for breakthrough pain.
In early February, K.Q. told Respondent that her insurance would not cover the MS Contin.
At her next visit (March 13), K.Q. reported that she was taking eight tablets, three times a day, which was a fifty-percent increase over the prescribed daily dosing.
This basic pattern of prescribing methadone, Valium, and immediate-release morphine continued until June 19 when K.Q. told Respondent that “she is going to discontinue MS Contin and wants Percocet.”
Over the next four months, Respondent continued to prescribe methadone, Percocet, and Valium to K.Q.
Moreover, on October 30, Respondent prescribed (in addition to the Percocet and methadone) 20 tablets of Demerol (meperidine), another schedule II opiate.
Two days later on November 1, K.Q. was admitted to St. Mary's Hospital behavioral health unit “for [a] psychotic episode” and was “manic, rambling, labile, tearful and with auditory hallucinations.”
Relatedly, the discharge summary noted that K.Q. had been referred by Catalina because she “had been progressively becoming agitated, over talkative, confused, disorganize[ed] [in] thought, rambling in her speech, and unable to sleep.”
The discharge summary stated that K.Q. had “denie[d] previous psychiatric hospitalization except for one time that she was admitted at the Westchester when she had attempted to quit narcotics back in 1997.”
The report further noted that while she was hospitalized, K.Q. engaged in “some medication seeking behavior.”
As to this incident, Respondent testified that “the staff believ[ing] [K.Q.] was overmedicated” was not mentioned in the phone call from the unit or in the hospital's record. Tr. 2106. Apparently, the statement at the bottom of the first page of the discharge summary “that the patient has been self medicating and this is contributing to her mood transient problems” and the diagnosis that her dramatic mood swings were “probably secondary * * * to opioids on extreme high doses” did not express the staff's belief with sufficient clarity. RX Z, at 1 & 5.
Respondent also maintained that the hospital maintained K.Q. on her pain medications. Tr. 2106;
On November 13, K.Q. went back to see Respondent. GX 58, at 53. While the progress note contains a brief discussion of her stay in the hospital, there is no indication that Respondent asked her about “the cause of the hospitalization even though the symptoms [she] experienced could have been caused by excessive medication or withdrawal from medication.” GX 46A, at 7. At the visit, Respondent prescribed Demerol (20 tablets), Percocet (100 tablets) and methadone 10 mg. (200 tablets) (when a prescription for 100 methadone 40mg. could not be filled). GX 58, at 53.
Respondent prescribed these three drugs on November 21 and 29, as well as on December 6; on December 12, she wrote for 100 Percocet and more Demerol.
On January 15, Respondent noted that she had talked with K.Q.'s parents “regarding [her] overuse of medications and * * * sedation.”
On January 18, Respondent prescribed 30 tablets of Dilaudid (QID), another schedule II drug, a seven-day supply based on the dosing.
Respondent continued to prescribe methadone, Roxicodone, Dilaudid, Valium, and Xanax
On October 9, K.Q. returned and reported that four days earlier she had been in an automobile accident in which her car's “[a]irbags deployed.”
Three days later, Respondent gave K.Q. another prescription for 200 methadone 10 mg., with the same dosing, even though the previous prescription should have lasted until October 17.
On November 6 and 19, Respondent wrote K.Q. additional prescriptions for 200 and 100 tablets of MSIR 30 mg. (q3h), respectively.
On December 20, 2001, another of Respondent's patients, who performed security at the apartment complex where K.Q. lived, told Respondent that K.Q. “is selling her meds to people in her apartment complex.”
In summarizing his findings regarding Respondent's treatment of K.Q., Dr. Hare observed that K.Q.:
GX 46A, at 7–8.
Pursuant to the consent agreement she entered into with the Arizona Medical Board, Respondent took ten hours of Continuing Medical Education (CME) in the principle and practice of pain management or addiction medicine. RX 53, GX 73. Respondent also took an additional 51.25 hours of CME in a range of topics related to pain management. RX 53.
In 2002, in response to the State's Board investigation, Respondent also entered an arrangement under which Dr. Schneider mentored her. Tr. 808. More specifically, over a period of several months, Dr. Schneider met with Respondent on a weekly basis to review the medical records of those patients she had seen that week and to whom she had prescribed opioids.
Respondent testified that in the event she was granted a new registration, she would limit her practice to musculoskeletal pain and would use opioid risk assessment tools and addiction histories to evaluate her patients.
At the hearing, Respondent also submitted a list of 29 patients she had fired.
Moreover, substantial portions of Respondent's testimony undercut her claim that she has reformed. For example, while Respondent testified that she was not saying “that each and every prescriptions I ever write is 100 percent perfect,” that “my medical records are perfect or fully comprehensive,” and that “there wasn't room for improvement on my part,” as noted above, she emphatically denied having done anything wrong with respect to any of the prescriptions she issued to H.T. Tr. 2305–06. Relatedly, she also denied that she falsified H.T.'s medical records.
Moreover, her testimony regarding several other issues raises serious questions as to what she has learned from this experience. With respect to patient S.R., who admitted to taking her deceased husband's controlled substance medications, Respondent testified that she “did not see that it would cause any potential harm to” her.
There's just continuing medical care, and to me, it seems no harm to the patient, I might add. I've never seen an example where bad came, any harmful outcome, but I see it time and time again, dozens of times.
Later, Respondent added:
Our party line as a physician is don't take anyone else's prescriptions, period, whether it's controlled or not controlled. Of course, I know at issue here is only controlled, and then controlled has an extra layer on top of it, meaning it's a felony to do it. But really as a physician, from a medical standpoint, it refers to all prescriptions.
The party line is don't use anyone else's prescriptions, don't use expired medications, et cetera, et cetera, but the fact is people do use each other's prescription medications, and almost always there's no harm because people know * * * They know what they are taking. People develop, certainly develop, an area of knowledge about their medications.
Moreover, when asked by the Government whether she had “often issued early refills on prescriptions without documenting the reason why?,” Respondent answered:
The record speaks for itself there, and there are many reasons why a prescription is not filled on, for instance, the thirtieth day on a 30-day supply. The definition [of] early refill, if a persons says, well, if you go to the pharmacy on day 29, that's considered an early refill, so the definition of early refill is questionable and not clear and not well-agreed upon. So it would be difficult for me to answer that question unless you are defining for me terms such as that.
Relatedly, when asked a follow-up question as to whether she had a definition of the term “early refill,” Respondent answered:
No, not really. It was a DEA term, early refill. With physicians, there never was any lesson about early refills in medical school. That's not anything that was covered, so no, I have no definition.
Respondent also disagreed that she had “ignored the fact that some of [her] patients had addiction histories.”
Section 303(f) of the Controlled Substances Act (CSA) provides that “[t]he Attorney General may deny an application for [a practitioner's] registration if he determines that the issuance of such registration would be inconsistent with the public interest.” 21 U.S.C. 823(f). In making the public interest determination, the Act requires the consideration of the following factors:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
“[T]hese factors are * * * considered in the disjunctive.”
Having considered all of the factors, I conclude that the Government has made out a
While Respondent has twice been sanctioned by the Arizona Medical Board for unprofessional conduct including the improper prescribing of controlled substances, it is undisputed that she currently holds an active State license. The Agency has long held, however, that a practitioner's reinstatement by a State board “is not dispositive” because “DEA maintains a separate oversight responsibility with respect to the handling of controlled substances and has a statutory obligation to make its independent determination as to whether the granting of [a registration] would be in the public interest.”
Respondent also relies on a letter from a Senior Compliance Officer with the Arizona Board which states that she “has the Board's support to pursue her DEA reinstatement.” RX 53;
Under a longstanding DEA regulation, a prescription for a controlled substance is not “effective” unless it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). This regulation further provides that “[a]n order purporting to be a prescription issued not in the usual course of professional treatment * * * is not a prescription within the meaning and intent of [21 U.S.C. 829] and * * * the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.”
While many cases under the public interest standard involve practitioners who violated the prescription requirement and did so intentionally, the Agency's authority to deny an application (or to revoke an existing registration) is not limited to those instances in which a practitioner intentionally diverts a controlled substance.
The ALJ concluded that the Government had proved that Respondent's prescriptions to H.T. were “not issued for a legitimate medical purpose.” ALJ at 150. I agree and note that, at no time during any of his visits with Respondent occurring between February and April 2002, did H.T. complain that he was in pain. On six occasions, however, Respondent gave H.T. prescriptions for schedule II narcotics including Percocet 10, Roxicodone (oxycodone) in both five-
Substantial evidence also supports the conclusion that Respondent knew that H.T. was not seeking the drugs to relieve pain but to abuse them. Respondent did not perform a physical exam of H.T. at any of the visits at which she issued the prescriptions, yet falsified H.T.'s medical records to indicate that she had done so. Moreover, in addition to his failure to ever complain of being in pain, H.T. made numerous statements which made clear that he was seeking the drugs to abuse them.
These included,
Finally, Respondent made numerous statements which show that she knew H.T. was seeking the prescriptions for non-medical reasons. These included,
As the evidence makes plain, Respondent issued H.T. six prescriptions for schedule II controlled substances which were outside of the usual course of professional practice and lacked a legitimate medical purpose. 21 CFR 1306.04(a). Moreover, Respondent clearly knew that H.T. was not seeking the drugs to treat pain, but rather to abuse them.
The ALJ concluded, however, that H.T. (and R.T.
Respondent gave K.Q. numerous prescriptions for both schedule II narcotics as well as schedule IV benzodiazepines. Many of these prescriptions were issued well before previous prescriptions for either the same or similar drugs would have run out if K.Q. had taken them in accordance with Respondent's dosing instructions.
For example, on December 31, 1998, Respondent gave K.Q. a prescription for 100 Valium with two refills. Based on the dosing of two tablets, three times per day, the prescription should have lasted 50 days if taken as prescribed. Yet on January 11, 1999 (just eleven days later), Respondent issued K.Q. prescriptions for 100 Xanax with one refill.
Moreover, as discussed in footnote 79, on August 19, 1999, Respondent wrote K.Q. a prescription for 100 tablets of Valium with three refills and thus authorized the dispensing of 400 tablets. Based on the dosing of two tablets, three times a day, the prescription with refills should have lasted approximately 66 days. Yet on September 3 (only fifteen days later), Respondent wrote K.Q. another prescription for 100 tablets of Valium with three refills and the previous dosing. Ten days later, Respondent wrote K.Q. a prescription for 120 tablets of Xanax with two refills and a dosing of two tablets, two times a day. Respondent did not indicate why she was switching from Valium to Xanax. While Respondent changed the dosing of the Xanax to two tablets, three times a day after being contacted by a pharmacist, even at this increased dosing the prescriptions with refills should have lasted 60 days. Yet on October 25, Respondent was back to prescribing Valium and issued K.Q. a prescription for 100 tablets (dosing at two tablets, three times per day) with three refills.
Here again, the prescriptions should have lasted approximately 66 days if taken as prescribed. Yet on December 1 (thirty-six days later), Respondent was back to prescribing 100 Xanax (two tablets, three times a day) with two refills. Not even three weeks later, however, Respondent returned to prescribing 180 tablets of Valium (two tablets, three times a day) with three refills. Again, Respondent provided no explanation for why she had changed drugs.
On January 7, Respondent gave K.Q. a prescription for another 180 tablets of Valium with the same dosing and three refills after the latter claimed that she had not filled the December 21 prescription. Respondent did not, however, inquire as to what had happened to the previous prescription. Moreover, even if K.Q. was not obtaining drugs pursuant to the December 21 prescription, the January 7 prescription should have lasted four months or until early May. Yet on February 16, Respondent gave K.Q. another prescription for 180 Valium at the same dosing with three refills (which should have lasted until the middle of June), and on April 25, Respondent gave K.Q. an additional prescription for 180 tablets with the same dosing and three refills (which ignoring all the previous prescriptions should have lasted until late August). This was followed by a May 12 prescription for 180 Valium at the same dosing, and a July 14 prescription for 100 tablets with a lowered dosing (of 1–2 tablets twice a day) but also with three refills.
Given Respondent's repeated issuance of these prescriptions, frequently months before the previous prescriptions would have run out, her prescribings cannot be attributed to negligence in failing to check K.Q.'s record. Rather, the frequency of the prescribings supports the conclusion that Respondent was deliberately ignorant as to why K.Q. was seeking the prescriptions and thus can be charged with knowledge that the prescriptions were not for a legitimate medical purpose.
Furthermore, Respondent had other reasons to know that K.Q. was engaged in drug-seeking behavior. At the first visit, K.Q. reported that she was being treated by two other physicians, one of whom was prescribing Percocet to her, and that she was also taking Lorcet and Xanax. Respondent gave her a prescription for twenty Percocet and yet did nothing to contact these other
K.Q. engaged in other scams to obtain drugs, including claiming that she had missed an appointment with another physician (who was prescribing OxyContin to her and either Xanax or Valium) and that the physician was out-of-town. Respondent did not, however, even bother to pick up the phone and call the doctor to determine if this was true. Respondent then prescribed OxyContin, Xanax and “Duracet,” the same drugs which K.Q. had told her she was currently taking only to be told by the pharmacy that there was no such drug as Duracet. Moreover, at the next visit, K.Q. told her that she was taking “a muscle relaxant called Durect” even though Respondent had not prescribed a muscle relaxant to her. Yet this did not prompt Respondent to investigate further.
This was followed not even two weeks later by a phone call from K.Q. reporting that her purse (which contained Vicodin) had been stolen. Respondent dutifully called in a prescription for 30 Vicodin even though Respondent had not prescribed this drug to K.Q. Nor did she question K.Q. as to who the source of the Vicodin was. Moreover, two months later, K.Q. claimed that she had not mailed away a prescription Respondent had issued to her at her last visit for a three-month's supply of OxyContin, even though the last prescription before the three-month one was for a thirty-day supply, had been issued six weeks earlier, and K.Q. had reported that she taking more than the recommended dosing.
Respondent thus had ample reason to know early on in her treatment of K.Q. that the latter was engaging in drug-seeking behavior. Moreover, on various occasions throughout her treatment, K.Q. reported that she had self-escalated the dosing of various narcotics. Typically, Respondent did not question K.Q. as to whether it was necessary to do so to address her pain. Notably, much of K.Q.'s problematic behavior had occurred prior to Respondent's issuance of the Xanax and Valium prescriptions discussed above.
During another period of her prescribing, Respondent gave K.Q. nine prescriptions at approximately weekly intervals for 100 tablets of Percocet, a drug which contains a minimum of 325 mg. of acetaminophen no matter what strength of oxycodone it contains. If K.Q. had consumed 100 tablets every week, she would have been taking approximately fourteen tablets and consuming 4643 mgs. of acetaminophen, an amount well in excess of the recommended daily maximum of 4000 mgs. because of its potential to cause liver toxicity. Respondent did not, however, direct that K.Q. undergo liver function tests.
Moreover, after K.Q. was hospitalized for a psychotic episode, Respondent received reports which indicated that she had seen not only Respondent and another doctor, but was also going to pain clinics and did not want to elaborate further. The discharge summary also stated that K.Q. was “self medicating” and was engaging in “some medication seeking behavior.” Even after receiving this information, as well as a subsequent phone call from K.Q.'s parents reporting that she was overusing her medications, Respondent continued to prescribe to her and did nothing to monitor her use of the drugs. Respondent also gave her early refills on various drugs including methadone, MSIR, and Xanax (including a prescription which was issued for 60 tablets with two refills only nine days after giving her a prescription for 90 Xanax (q8h) with three refills). She also prescribed additional drugs (such as Dilaudid) and increased the dosing of various drugs (including increasing the dosing of Dilaudid four-fold at a single visit) without any medical justification. While Respondent eventually terminated K.Q. (more than a year after her hospitalization) after being told by another patient that she was selling her medications, it is clear that many of the controlled substance prescriptions which Respondent issued to K.Q. lacked a legitimate medical purpose and were issued outside of the usual course of professional practice. 21 CFR 1306.04(a); GX 46A, at 8.
Respondent also issued numerous prescriptions to J.R., who had previously been convicted for distributing marijuana, for schedule II drugs including methadone, 360 tablets of OxyContin 40 mg., 180 tablets of Oxycodone IR, and 200 tablets of Percodan. The medical purpose for the prescriptions was initially to treat J.R.'s migraine headaches; subsequently J.R. also complained of lower back pain.
While at the first visit in the patient file (8/25/99), Respondent issued prescriptions for OxyContin and Oxycodone IR
On October 20, Respondent issued additional prescriptions for thirty-day supplies of OxyContin 40 mg. (360 tabs) and Oxycodone IR (180 tabs), which were re-issued eight days early on November 11. While the latter prescriptions were to be sent to a Patient Assistance Program (PAP), Respondent added a separate prescription for 100 OxyContin to be filled locally while J.R. waited for the PAP prescription to arrive. Respondent wrote additional prescriptions for 360 Oxycontin 40 mg. and 180 Oxycodone IR (and 200 Percodan) on December 13 and January 4 of the following year.
Only seventeen days after the latter prescription, on January 21, Respondent gave J.R. two more prescriptions, each of which was for 360 tablets of OxyContin 40, one to be filled locally and one to be filled by the PAP. On both February 7 (again after only seventeen days) and February 22 (after only fifteen days), Respondent issued J.R. two more prescriptions (one to be filled locally, the other by the PAP), each for 360 tablets of OxyContin 40 mg. Thus, during February alone, Respondent gave prescriptions which authorized the dispensing of 1440 tablets, which was four times the quantity required based on her dosing instruction. At the visits, Respondent also issued additional prescriptions for 180 Oxycodone and 200 Percodan, which were invariably early, typically by nearly two weeks.
On March 13, based on J.R.'s report of a severe headache, Respondent wrote two prescriptions for both 450 tablets of OxyContin 40 mg. and 360 Oxycodone IR and increased the dosing of both drugs (including doubling the dosing of the Oxycodone IR). Moreover, the next day, Respondent wrote J.R. further
Respondent's pattern of early and duplicative prescribing did not end there. On April 12, Respondent wrote J.R. two more prescriptions for 450 OxyContin 40 mg. and 360 Oxycodone IR. While these drugs should have lasted until the middle of June, on May 2 (twenty days later), Respondent gave J.R. a prescription for 270 OxyContin 80 mg. and noted that the next day, she would write additional prescriptions for OxyContin and Oxycodone IR.
Six days later, Respondent wrote J.R. two more prescriptions for OxyContin: one for 270 tablets of 80-mg. strength for the PAP and one for 450 tablets of 40-mg. strength presumably to be filled locally; both of the prescriptions were for a thirty-day supply. Moreover, Respondent wrote prescriptions for 360 Oxycodone IR for the PAP (a sixty-day supply) and 180 Oxycodone IR (a thirty-day supply). Yet on May 15, Respondent wrote two more prescriptions (purportedly to be re-mailed) which were to be filled by the PAP—one for 270 tablets of OxyContin 80 mg. and one for 360 tablets of Oxycodone IR. This was followed two days later by prescriptions for 126 tablets of OxyContin 40 mg. (a further one-week supply) and 84 tablets of Oxycodone IR. Finally, on May 31, Respondent wrote J.R. prescriptions for 540 tablets of OxyContin 40 mg. (a thirty-six day supply based on the dosing), and 360 tablets of Oxycodone IR (a thirty-day supply based on the dosing).
Accordingly, in this month alone, Respondent gave J.R. prescriptions authorizing the dispensing of 1080 tablets of OxyContin 80 mg. and approximately 1116 tablets of OxyContin 40 mg. While Respondent's dosing instructions varied between a total of 600 and 720 milligrams a day, even using the larger figure, a single 270 tablet prescription of 80 mg. strength was enough to provide J.R. with a thirty-day supply. Yet Respondent gave J.R. prescriptions for 80-milligram tablets totaling four times this amount (120-days supply) and the prescriptions for 40-milligram tablets provided another sixty-two day supply.
Similarly, during this month, Respondent gave J.R. multiple prescriptions for Oxycodone IR which likely totaled 1700 dosage units.
In her brief, Respondent cites a written report from her pharmacy expert to contend that her prescribings to J.R. complied with the prescription requirement. Resp. Br. at 132 (quoting RX 33, at 6). More specifically, Respondent's expert noted that “patient assistance programs are riddled with problems and delays, and it is common practice for physicians to write the patient extra medications to avoid the more significant problem of the patient going without medications.” RX 33, at 6. Continuing, the expert asserted that Respondent “did the medically responsible thing by writing enough to ensure that [J.R.] would not run out of medications, and she accounted for all of the medications she prescribed, and they were all part of his overall dose.”
I reject these arguments for several reasons. First, J.R. repeatedly came in at intervals well short of thirty days and thus there was little risk that he would run out of medication. Second, even assuming that it is medically appropriate for a physician to initially issue two prescriptions to a patient, when, due to legitimate financial or insurance considerations, that patient must use a PAP, a physician who issues multiple prescriptions still has the duty to ensure that the issuance of the prescriptions in this manner does not create an undue risk of diversion and abuse by accounting for her previous prescriptions. Put another away, before she issues additional prescriptions, the physician must ensure that the new prescriptions are in fact then necessary to treat a legitimate medical condition.
Moreover, the evidence does not support her expert's contention that she “accounted for all of the medications she prescribed, and they were all part of his overall dose.”
With respect to other patients, even Respondent's expert (Dr. Schneider) observed that they had engaged in “ `aberrant drug-related behaviors,' `which should have been pursued but weren't,' ” including “early refills without adequate documentation and explanations.” RX K–1, at 6. These patients included J.N., N.F., W.F., and C.O.
With respect to J.N., the evidence establishes that Respondent did not ask her about her substance abuse history even though both Drs. Hare and Schneider agreed that a physician needs to do “a careful history.” Tr. 881. Moreover, at the first visit, Respondent prescribed Xanax to J.N. even though she had not diagnosed her as having anxiety. At the next visit, which was only four days later, Respondent increased the dosing of the OxyContin four-fold even though J.N. had reported less pain. Moreover, this increase in dosing far exceeded what both Drs. Hare and O'Connor testified to as the acceptable titration rate (50 to 100 percent). At the same visit, Respondent also increased four-fold the dosing of J.N.'s Xanax even though she made no findings as to why the drug was medically necessary.
Two months later, J.N. was hospitalized. While in the hospital, J.N. admitted that she had a “history of IV heroin abuse” and that she had started using the drug a week earlier. Moreover, a urine toxicology screen found that J.N. was “positive for opiates, barbiturates, benzodiazepines, and marijuana,” and the discharge summary stated that she was pre-occupied with her pain medications. (In addition, J.N.'s boyfriend told investigators that she did not have veins, a classic sign of IV drug
The information regarding J.N.'s admission of IV heroin abuse and the positive urine screens for both illicit drugs (marijuana) and drugs Respondent had not prescribed to her (barbiturates) was contained in the discharge summary which Respondent eventually received. According to Respondent, she did not notice this information because the summary “was a lot of pages” to read (even though the medical information was limited to four pages), and the reference to J.N.'s IV heroin abuse was “buried in” the report (even though it was printed on the bottom of the first page). Relatedly, Respondent offered no credible explanation as to why she had not noticed the condition of J.N.'s veins.
Examined in isolation, Respondent's failure to read the discharge summary might be viewed as simply evidence of medical malpractice. However, after J.N.'s release from the hospital she sought numerous early refills of both Dilaudid and MS Contin, with some being sought and obtained as early as eight or nine days before previous prescriptions should have run out. Again, however, Respondent did not notice. The evidence taken as a whole (including the failure to take J.N.'s substance abuse history, the increase in OxyContin dosing at a rate far in excess of the acceptable titration rate, the increase in Xanax dosing without any indication as to why it was medically necessary, the failure to contact other physicians who were treating her to coordinate prescribing, and the early refills), supports the conclusion that many of Respondent's prescriptions for J.N. were issued outside of the “usual course of * * * professional practice” and lacked a “legitimate medical purpose.” 21 CFR 1306.04(a).
In a written submission, Respondent's pharmacy expert opined that people refill prescriptions early for such legitimate reasons as “vacations,” not “run[ning] out * * * over the weekend,” “because it is much more convenient to pick it up then, and because they are undermedicated.” RX 33, at 4. Respondent's expert also maintains that “just because a chronic pain patient is receiving their medication early does not necessarily mean that they have taken all of their medication.”
As for the last contention, while that may be true, even Dr. Schneider has written that “[f]requent requests for early refills” are a “sign[ ] of possible drug addiction.” RX 36, at 3. Moreover, Respondent never requested that J.N. bring in her prescriptions for a pill count. Furthermore, with respect to J.N.'s early refills, one does not need to refill a prescription eight days (or even five days) early to avoid running out on a weekend. Nor is there any indication that Respondent issued any of the early refills because J.N. was going on vacation. Finally, while it is acknowledged that a patient may run out of medications because the prescribed quantity and dosing are not adequate to address a patient's pain, Respondent made no such contention with respect to J.N., who, of course, was abusing drugs by injecting them.
As for N.F., on the date of her first visit, Respondent was told by a pharmacist that N.F. was a doctor shopper. While Respondent cancelled the refills she had authorized, four days later Respondent gave her another prescription for Vicodin with two refills. Thereafter, N.F. began seeking early refills, with many of them being sought more than a week early. Respondent repeatedly complied with N.F.'s requests for drugs, escalated the strength and dosing of the prescriptions, and ignored numerous warning signs that N.F. was addicted.
For example, at one visit, N.F. reported that she had burned herself but did not remember how she had done so. Later on, N.F. told Respondent that she was moving to Illinois. Yet even after telling Respondent this, N.F. continued to return multiple times each month for the next seven months. While N.F. initially told Respondent such stories as she was back to pick up her truck, or that she was in town to testify for the State but that she had moved, Respondent apparently never questioned N.F. as to why she was still coming in months later. During this period, Respondent also wrote N.F. prescriptions and allowed N.F.'s purported family members to pick up the prescriptions. In the month of October alone, Respondent wrote prescriptions on October 2 (100 Roxicodone 30 mg. q4h—a sixteen-day supply), October 5 (same Rx), October 9 (30 Roxicodone 30 mg.—another five-day supply), October 15 (200 Roxicodone 5 mg. 2–3 q4h—an eleven-day supply), October 17 (100 Roxicodone 15 mg. 2–3 q4h—a five-day supply), October 19 (200 Roxicodone 15 mg. 1–2 q4h—a sixteen-day supply), October 24 (200 Roxicodone 5 mg. 3–4 q4h—an eight-day supply), October 26 (50 Roxicodone 30 mg.
This pattern continued in the ensuing months with N.F. engaging in additional scams, such as claiming that she had lost her prescription and that her neighbors had beaten her up and stolen her drugs. Moreover, during the October 17 visit, N.F. complained of dental pain and Respondent issued her an additional prescription for 30 tablets of Vicodin. Notably, she did not refer N.F. to a dentist who could properly diagnose and treat her condition. Nor did Respondent explain why a Vicodin prescription was necessary given the Roxicodone prescriptions.
While Dr. Schneider opined that N.F.'s chart showed that Respondent needed additional education about “careful monitoring” of patients and reviewing “the big picture,” this ignores that Respondent knew from the date of N.F.'s first visit that she had engaged in drug-seeking behavior. Respondent therefore cannot credibly claim that she was duped by N.F. Moreover, even ignoring the early refills N.F. sought and obtained for the Vicodin prescriptions in the first months of her seeking drugs from Respondent, the size and frequency in relation to the dosing instructions of the subsequent Roxicodone prescriptions amply demonstrated that N.F. was engaged in drug-seeking behavior and that the prescriptions were not for a legitimate medical purpose and violated the CSA. 21 CFR 1306.04(a). Moreover, the size and frequency of the prescriptions support the further conclusion that Respondent was deliberately ignorant as to the likely purpose of the prescriptions.
W.F. was treated by Respondent for only approximately five months before his death. At the initial visit, W.F. brought in an impairment rating from the Veterans Administration, and yet Respondent did not contact the VA to obtain W.F.'s treatment records. She also did not inquire with W.F. regarding his past substance abuse before prescribing various narcotics to him including Percocet, OxyContin, and Dilaudid.
Respondent, however, was subsequently informed on two occasions by a psychiatrist who was treating W.F. that the latter had a history of narcotic addiction problems. Respondent was also notified by a case manager who worked at the psychiatrist's practice that the practice had received a phone call from a family member expressing concern that W.F. might be abusing his pain medicines. While Respondent indicated in his medical record that she had discussed
With respect to C.O., who was also identified by Respondent's Expert as a patient who had engaged in aberrant drug-related behavior, the Government's Expert acknowledged that Respondent's initial physical exam was adequate. However, Respondent again failed to inquire as to his past substance abuse.
C.O. rapidly escalated his use of drugs and engaged in drug-seeking behavior; once again, Respondent did nothing to control him. For example at the first visit, Respondent gave him a prescription for 40 Lortab 7.5/500 with two refills, a prescription which thus authorized the dispensing of 120 tablets and which, based on the maximum daily dose of acetaminophen of 4000 mg., should have lasted fifteen days. Five days later, Respondent, however, gave him another prescription for 40 Lortab 10/500 with two refills. A week later when C.O. saw a nurse practitioner, he reported that he was out of medication and needed more even though he had at least two refills left. C.O. swore, however, that he did not have any refills. Two days later, C.O. told Respondent that he was taking up to twelve Lortab per day.
Three days later, Respondent performed a physical exam finding no obvious pain with ambulation but noted generalized tenderness and that he complained of mid-back pain with range of motion of his shoulders. Respondent changed his prescription to 30 OxyContin 20 mg., with one tablet every eight hours. Four days later, C.O. returned, saw the nurse practitioner and claimed his back pain was worse. His speech was slurred, and he indicated that he had recently taken twice the prescribed dose. Upon finding nothing abnormal in her physical exam, the Nurse Practitioner spoke with Respondent about refilling C.O.'s OxyContin prescription; Respondent then wrote C.O. a new prescription for 60 tablets and doubled the dosing and apparently did so without even seeing C.O. C.O. repeatedly escalated his use of OxyContin (although Respondent briefly reduced his dose, only to increase it again).
Subsequently, C.O. claimed that he had gotten a job on a cruise ship and that he would be going on the ship in a few days for thirteen weeks. While Respondent gave him prescriptions for 60 OxyContin 40 mg. and 360 Lortab 10/500 with three refills, he was back three days later (at which visit he obtained another prescription for 60 OxyContin 40 mg.) and again only five days later, at which visit he obtained four additional OxyContin prescriptions (for 372, 280, 144 and 92 tablets) and one prescription for 350 Lortab, with no refills.
After only six weeks (and six weeks before the thirteen-week period on the ship would have ended), C.O. returned, showed very slurred speech, and sought another prescription for OxyContin because he had run out. While Respondent referred him to get a drug test, there is no indication that he complied. Respondent also did not question C.O. as to why he was back so soon from the ship. C.O. had, however, filled prescriptions at Tucson pharmacies on multiple occasions during the period in which he claimed that he would be on the cruise ship.
While Respondent decided to taper down C.O.'s OxyContin, she continued to prescribe Lortab and eventually started prescribing Roxicodone to him. Notably, while Respondent briefly reduced the dosing of Roxicodone to 240 mg. per day, fifteen days later she was back to prescribing 480 mg. a day, which was the same dose as the OxyContin she had previously prescribed. Moreover, at one of these visits, Respondent had given him a prescription for 100 Lortab (10/500) with five refills, which thus authorized the dispensing of 600 tablets. While this prescription should have lasted at least 75 days, after only six weeks Respondent gave C.O. another Lortab prescription for the same quantity and refills. C.O. used up (whether by taking or selling is irrelevant) this prescription and the refills in a month's time. Although Respondent then temporarily stopped prescribing Lortab to him (because of its acetaminophen content), she continued to prescribe Roxicodone to C.O. Approximately two months later, C.O. entered drug treatment.
Here again, early on in the course of C.O.'s seeing Respondent, there was evidence that he had rapidly self-escalated his use, had sought early refills, and engaged in other scams to obtain more drugs. When Respondent referred him for a drug test, there is no evidence that he complied or that she even sought to determine whether he had gone for the test. Moreover, after C.O. had represented that he was going to be away for thirteen weeks, Respondent did not question him as to why he was back to see her after only six weeks and continued prescribing to him. Later, she refilled his Lortab prescription approximately six weeks early, and, even though C.O. used up this prescription in a month's time, she continued to prescribe to him. As Dr. Hare noted, Respondent did little to supervise and control C.O.'s use of controlled substances. Accordingly, even if it was medically appropriate initially to prescribe controlled substances to C.O., it is clear that many of the prescriptions she wrote were not issued for a legitimate medical purpose and thus violated the CSA.
N.S. was an eighteen-year-old college student who complained of lower-back pain since enrolling at the University of Arizona. Even though N.S. rated his pain as only a four on a scale of one to ten, Respondent's physical exam found that he had a normal neurological exam and could perform a variety of movements without pain, with the exception of his incurring minimal low back pain with lumbar flexion, and Respondent had concluded that the cause of his back pain was a “poor mattress and poor positioning,” at N.S.'s first visit, Respondent gave him a prescription for OxyContin 20 mg. (with one tablet to be taken every twelve hours). Moreover, two days later, N.S. returned and told Respondent that he had doubled up on the dose but that hadn't worked. Respondent then told him to take three tablets at a time. This was followed four days later by Respondent's issuance of a prescription for 180 tablets of OxyContin 20 mg., as well as 50 tablets of oxycodone 5 mg. (one tablet every four hours) after he asked for something for breakthrough pain.
Approximately a week later, Respondent gave N.S. an additional prescription for 50 tablets of Roxicodone which increased the strength from five to fifteen milligrams and the dosing to one tablet every three
With respect to N.S., Dr. Hare observed that, while Respondent had reasonably evaluated N.S., her findings did not support prescribing opioids “and certainly not * * * in the aggressive doses she prescribed.” GX 46, at 15. Dr. Hare further observed that N.S. had rapidly self-escalated his dosing “to a large amount,” and the fact that he tolerated these doses suggested that he was either “not opioid-naïve, or [that] he was not taking the medication.”
Respondent also prescribed to both M.D. and S.R., who lived together. At his first visit, M.D. complained that he had fallen off a bicycle and injured his back and leg. He also reported that another physician had previously prescribed to him OxyContin 80 mg., Oxyfast and methadone, but that he had been off these medications for several months because the prescribing physician had “left the office.” Respondent did not attempt to contact the office of M.D.'s previous physician to determine whether his statement was true and/or to obtain his treatment records. Nor did she obtain a pain rating and indeed, during the physical found that he was not in acute distress.
Following a physical exam, Respondent issued M.D. prescriptions for 60 OxyContin 80 mg. (q12h) (the second strongest formulation of the drug), 30 oxycodone 5 mg., and Oxyfast. Later that day, a pharmacist called and told Respondent that M.D. was known to forge prescriptions and had been arrested; Respondent told the pharmacist not to fill the prescriptions. M.D., however, had managed to get the OxyContin filled at another pharmacy. At M.D.'s next visit, he again sought OxyContin. Respondent did, however, question Respondent about the incident at the pharmacy and as to why he had gone to a different pharmacy than the one he had put on his pain contract. Respondent then refused to give him a new prescription, and, after that, M.D. did not go back to her.
Subsequently, Respondent received a phone call reporting that a week earlier, M.D. had been admitted to a local hospital in a coma and, upon his admission, had in his possession a prescription vial which contained methadone 40 mg. tablets; the vial's label indicated that it had originally contained Dilaudid which Respondent had prescribed to S.R.
Respondent had first treated S.R. approximately nine weeks earlier when she complained of abdominal and pelvic pain and reported that she had a history of cystitis and active hepatitis C. S.R. also indicated that another physician had prescribed Xanax and Vicodin for her and that she was taking her late husband's leftover OxyContin and Dilaudid. Respondent's physical exam was limited to noting that she had pain with ambulation, that she limped, and that she had tenderness over her abdomen. As the Government's expert noted, Respondent's physical exam was minimal, she did not obtain records from other physicians who had treated S.R. before prescribing, and her evaluation was inadequate to justify prescribing the controlled substances which she did (OxyContin, Dilaudid, and Xanax). Apparently, Respondent did not find troubling S.R.'s use of drugs which had not been prescribed to her (OxyContin and Dilaudid).
Two weeks later, Respondent gave S.R. new prescriptions for all three drugs even though the original Xanax prescription (90 tablets TID PRN) should have lasted thirty days and S.R. was to come in for a recheck in two weeks. Moreover, the Xanax prescriptions she issued on this date provided for 90 tablets with two refills (a total of 270 tablets—a ninety-day supply if taken as directed). Yet six weeks later, S.R. claimed that her Xanax had gotten wet and that the pills had dissolved and could not be taken. Even if the story was true, S.R. should still have had a refill for 90 tablets left. Respondent nonetheless gave her a new prescription for 100 tablets of Xanax with two refills.
Respondent subsequently counseled S.R. about the incident involving M.D., and S.R. denied that he could have gotten her medications. Moreover, after S.R. failed to go to another doctor on a referral, Respondent refused to write any more prescriptions for her until she obtained more documentation of her condition.
While Respondent's conduct in prescribing to M.D. and S.R. was not as egregious as her prescribing to the patients discussed above, I nonetheless conclude that the prescriptions were issued outside of the usual course of professional practice and lacked a legitimate medical purpose. While Dr. Hare did not offer an opinion specific to M.D., both parties' experts were in agreement that when a patient is not currently on opioids, they should be started at a low dose and titrated up gradually to achieve pain relief while minimizing adverse side effects. At his first visit, M.D. admitted that he had not been on opioids for several months. Yet Respondent started him out with a daily dose of 160 mg. of OxyContin plus other drugs, which was the same dose that M.D.'s previous doctor had supposedly prescribed although whether this was in fact the case is unknown because Respondent never even attempted to contact this physician. While M.D. claimed to have back and leg injuries, Respondent did not even obtain pain ratings from him. While I note that Respondent told the pharmacy not to fill his prescriptions upon being informed that he was known to forge prescriptions, the prescriptions should never have been written in the first place.
As for S.R., Respondent did not find it troubling that she was taking two powerful and highly abused narcotics—Dilaudid and OxyContin—for which she did not have prescriptions. Not only was Respondent's physical examination minimal, she did not obtain records from other treating physicians including the one who supposedly had prescribed Xanax and Vicodin to S.R. before she prescribed Dilaudid, Oxycontin, and Xanax for her. Indeed, it appears that her diagnosis was based largely on S.R.'s representation as to her condition. Respondent also gave S.R. early refills. While Respondent eventually refused to write more prescriptions for her, it should not have taken three months to conclude that S.R. was seeking drugs to abuse them.
Respondent also prescribed to W.O. and J.O., a married couple, each of whom claimed to have been injured in various (but different) motor vehicle accidents. As found above, Respondent issued both persons numerous prescriptions for schedule II drugs including OxyContin, Roxicodone and Percocet well before previously issued prescriptions would have run out, with some prescriptions being issued only
Moreover, W.O. and J.O. engaged in other problematic behavior including J.O.'s claiming that their house had been burglarized and that all of their medications had been stolen, W.O.'s attempt to alter a Percocet prescription issued to J.O. by tearing out the fill date, J.O.'s reported selling of Percocet, and J.O.'s giving 300 tablets of methadone to W.O. although she had previously told Respondent that she had left W.O. Finally, during the course of treating J.O., Respondent received information from the State Nursing Board that J.O. had been subjected to disciplinary proceedings because she had abused medications and taken some from a nursing home where she worked; Respondent received this information before J.O. gave W.O. half of her methadone prescription. Yet Respondent continued to prescribe to her for several months thereafter. Finally, notwithstanding the various reports she had received, Respondent falsely wrote the State Nursing Board that there was “no evidence” that J.O. was continuing to divert drugs.
Accordingly, even if Respondent's initial prescriptions to J.O. and W.O. were issued in the usual course of professional practice and for a legitimate medical purpose, it is clear that many of the subsequent prescriptions she issued to J.O. and W.O. did not comply with the prescription requirement. Moreover, whether Respondent's conduct in writing the letter to the State Board is considered under factor two (the experience factor) or under factor five (such other conduct which may threaten public health and safety), it does not reflect well on her candor.
Respondent also ignored evidence of problematic behavior engaged in by P.H., M.H. (P.H.'s mother) and A.B. (who lived with P.H.). For example, several months after Respondent started treating P.H., the latter reported that her Percocet had been stolen two weeks earlier and that she had only Darvocet N100 to take following the theft. Respondent had not, however, prescribed this drug to P.H., yet Respondent did not question her as to how she had obtained this drug. Several months later, P.H. complained that the OxyContin she was taking made her nauseous. P.H.'s medical record contained no indication that Respondent had previously prescribed OxyContin to P.H. Yet Respondent did not question P.H. as to how she had gotten this drug.
Eight months after this incident, Respondent was called by a pharmacist and told that P.H. had filled a prescription for Percocet (which Respondent was then prescribing to her) which had been issued by another doctor. While Respondent questioned P.H. about the incident, she did not contact the other doctor to discuss the extent to which P.H. was obtaining other prescriptions and to coordinate their prescribing. Five months later, Respondent received another phone call from a pharmacist and was told that P.H. was obtaining 84 Vicodin tablets every two weeks from the same doctor who had prescribed Percocet to her. Again, however, there is no indication that Respondent contacted this doctor.
Subsequently, P.H. was diagnosed by an emergency room physician as having a skin condition and told Respondent that she had an appointment to see a dermatologist in two weeks. According to the Government's Expert, the condition did not justify “anything other than mild analgesics,” yet Respondent nearly doubled the dosing of Roxicodone from 480 mg. to 900 mg. a day. Moreover, there is no evidence that Respondent ever contacted the dermatologist to coordinate any prescribing that might be necessary to treat the condition. Furthermore, during this period, Respondent issued Percocet prescriptions to P.H. in amounts and at a frequency that would be toxic if P.H. was actually taking the drug according to Respondent's own evidence regarding the maximum daily dose. P.H. was subsequently identified by her own mother (M.H.) as the person who had passed the OxyContin which had been prescribed to M.H. to the latter's nephew during the July 29, 2001 diversion incident.
At A.B.'s initial visit, she reported that she was taking Percocet and a non-controlled drug. Here again, Respondent did not contact the physician who had prescribed the drugs to her. Moreover, while A.B. reported that an MRI had shown that she had a herniated disk, there is no evidence that Respondent attempted to obtain the MRI report. Shortly thereafter, A.B. began to seek early refills which Respondent typically approved without any documentation of her questioning A.B. as to why she needed the refills, which in some instances were as many as seventeen days (on a thirty-day Rx) early.
It is acknowledged that a patient may seek an early refill because a previous prescription does not adequately address legitimate pain. But as Respondent's own records indicate (and as Dr. Schneider testified), it is the physician—and not the patient—who is responsible for deciding whether a change in the dose is medically necessary.
At M.H.'s first visit, Respondent diagnosed her with shingles and gave her a prescription for 60 tablets of OxyContin 20 mg. While four days later M.H. returned and told Respondent that her insurance wouldn't cover the drug, Respondent did not ask her to return or destroy the prescription. Two days later, either P.H. or A.B. picked up the prescription and passed it to M.H.'s nephew who was in another car. While Respondent counseled M.H. about the incident at a subsequent visit (which was a criminal act), there is no credible evidence that she ever discussed the incident with P.H. and A.B. Moreover, while three weeks later the same pharmacist who reported the July 29 incident again told Respondent that he believed P.H. and A.B. were selling their drugs, once again there is no indication that Respondent questioned either P.H. or A.B. after receiving this additional report. Respondent, however, continued to prescribe to them and instituted no measures such as pill counts and drug screens to monitor them.
Following the incident, Respondent continued to prescribe Percocet and Roxicodone to P.H. Several months later, Respondent again received information suggesting that P.H. had either obtained or was attempting to obtain Vicodin from another physician (P.H.'s dermatologist). Yet the same day she received this information, Respondent again prescribed 200 tablets of Percocet and 500 tablets of Roxicodone and did not question P.H. about whether she was obtaining additional controlled substance prescriptions from other doctors. Nor did she contact the other physician. Subsequently, Respondent added Dilaudid and continued to prescribe the other drugs to her as well. Respondent did not have P.H. sign a pain contract
Here again, even assuming that these three patients initially presented with legitimate medical conditions which required treatment with controlled substances and that Respondent had a legitimate medical purpose in prescribing to them, Respondent nonetheless violated the prescription requirement because she failed to properly supervise her patients in their use of controlled substances.
As the forgoing demonstrates, in numerous instances beyond those identified by the ALJ, Respondent issued prescriptions which violated the CSA's prescription requirement. With respect to several of the patients, Respondent did so either knowing or having reason to know that the prescriptions were not being sought for a legitimate medical purpose.
This conduct was more than enough to establish the Government's
The ALJ's reasoning that the Government had only shown that Respondent's prescribing to “two patients out of more than 900” lacked a legitimate medical purpose, and that her “overall medical practices are not consistently lacking in legitimate purpose,” ALJ at 150, is thus erroneous. More disturbingly, this reasoning has been previously—and expressly—rejected by the Agency.
I therefore conclude that the evidence relevant to Respondent's experience in dispensing controlled substances and her record of compliance with applicable laws related to controlled substances establishes
Respondent also prescribed controlled substances to F.L. and B.L., who were father and son. As found above, F.L., who suffered from chronic pancreatitis, lower back pain and diabetes (which led to the amputation of one of his lower legs) was receiving approximately 7000 dosage units a month of schedule II drugs including OxyContin 40 mg., OxyIR, Percocet and Percodan, and was obtaining some of the drugs through the Purdue Frederick (who manufactured both OxyContin and Oxy IR) Patient Assistance Program. At the last visit before his death, Respondent issued him prescriptions for 1320 tablets of OxyContin 40 mg. and 4800 Oxycodone IR, which were to be filled through the PAP program.
Six days after F.L.'s death, B.L., who was obtaining Dexedrine—a schedule II amphetamine and stimulant, presumably for fatigue and to prevent weight gain,
In this proceeding, Respondent vigorously contested whether she committed any crime in failing to report B.L.'s diverting of the prescription to law enforcement authorities. In this regard, Respondent put forward evidence that there is no requirement that a physician report a patient's act of diversion to the authorities.
Under longstanding Agency precedent, where, as here, “the Government has proved that a registrant has committed acts inconsistent with the public interest, a registrant must “present sufficient mitigating evidence to assure the Administrator that [she] can be entrusted with the responsibility carried by such a registration.”
Relatedly, a respondent's lack of candor is an important and typically dispositive consideration in determining whether she has accepted responsibility for her misconduct.
Finally, to rebut the Government's
In her recommended decision, the ALJ asserted that Respondent “took full responsibility for her actions and the consequences that followed those actions.” ALJ at 155. Not so. Indeed, with respect to her most egregious misconduct as established on this record—her six prescribings of various schedule II narcotics to H.T., knowing that he was not seeking the drugs to treat a legitimate medical condition but rather to abuse them—Respondent denied any failing on her part and maintained that she was duped. Relatedly, Respondent also denied that she had falsified H.T.'s medical records (which she did on six occasions) to indicate that she had done a physical exam when she had not.
With respect to her falsification of H.T.'s patient record, the ALJ explained that although this “does not reflect well upon Respondent's propensity for truthfulness, * * * a single instance does not rise to the level of the pervasive pattern of falsification that was present in” another DEA proceeding,
The ALJ's reasoning ignores that Respondent falsified H.T.'s record six different times in order to provide a justification for prescribing controlled substances. Thus, Respondent's acts of falsification were, in fact, even more extensive than that engaged in by Krishna-Iyer, who was shown to have falsified patient records on three separate occasions. Whether a practitioner's falsifications involve a single patient multiple times or multiple patients a single time is irrelevant.
Moreover, throughout this proceeding, Respondent has continued to deny that she falsified H.T.'s records. In her brief, she contends that she performed physical exams but that the transcripts do not reflect them because H.T. “was quite familiar with the routine of bending over to touch his toes, allowing me to palpate his lumbar muscles, sitting on the exam table and lifting his legs, having me test his ankle strength and allowing me to lift his leg in a straight leg raising test” and that after all of the exams she had performed on him (when she had not examined him in nearly two years), “there are necessarily fewer specific directions to the patient” (in fact, there were no directions to H.T. related to any of the above parts of the exam). Respondent's Resp. to Gov.'s Exc. at 2. As found above, Respondent's contention is patently absurd and disingenuous. Given the scope of the falsifications, it buttresses the conclusion that Respondent has failed to accept responsibility for her misconduct.
Nor is this the only evidence that supports the conclusion that Respondent has failed to accept responsibility. With respect to patient J.N., whose admission of IV heroin abuse and positive-drug-test results for various illicit drugs were contained in a discharge summary, Respondent offered nothing but excuses for failing to read the report.
In other instances, Respondent did not even address the propriety of her prescribings to other patients even though the prescribings were clearly at issue. For example, on the first day she prescribed to N.F., a patient who engaged in a variety of obvious scams including claiming that she had moved to Illinois, Respondent was told by a pharmacist that N.F. was a doctor shopper. Yet in her testimony, Respondent did not even address why she prescribed to her.
While one of Respondent's generic arguments is that she was duped by her patients,
As the forgoing demonstrates, Respondent has failed to accept responsibility for many of her most egregious acts of misconduct. As I recently explained, even where the Government's proof establishes that a practitioner has committed only a few acts of diversion—and in this case the record demonstrates that Respondent committed numerous acts inconsistent with the public interest—an applicant/registrant is not entitled to be registered absent a substantial showing that she has accepted responsibility.
Here, however, the record establishes that Respondent committed not merely a few, but rather numerous acts that were inconsistent with the public interest and that she has not accepted responsibility for her misconduct. Of further note, while Respondent was clearly aware that the State Board was investigating her, she nonetheless prescribed more Oxycontin to H.T. and falsified his
Finally, while Respondent maintains that she has undergone extensive remedial training including CME and working with a mentor to improve her record-keeping and management of patients, her testimony suggests that she has learned little from the experience. For example, even though Respondent's mentor had specifically identified various patients as having “received early refills without adequate documentation and explanation,” RX K–1, at 6, Respondent testified that she could not answer the question as to whether she had issued early refills without documenting the reason why, because the definition of the term is “not clear and not well agreed upon.” Tr. 2345. Even more disturbing is her testimony that it is not harmful for a patient to use a controlled substance (in the case of this patient, no less than OxyContin) which had not been prescribed to them but to a family member. Amplifying her views, Respondent claimed that this is “just continuing medical care” and causes “no harm to the patient” because people “develop an area of knowledge about their medications.”
As I have noted in other cases,
Moreover, according to the Substance Abuse and Mental Health Services Administration's (SAMHSA) 2007 National Survey on Drug Use and Health, more than half (56.5%) of “individuals aged 12 or older who used prescription opioid pain relievers nonmedically in the past year * * * acquired these drugs from a friend or relative for free.” U.S. Dept. of Justice,
Intra-family diversion is thus an important contributor to the diversion and abuse of controlled substances. It is manifest that notwithstanding her remedial efforts, Respondent still does not comprehend the seriousness of this problem. Because Respondent has utterly failed to demonstrate that she can be entrusted with a new registration, I am compelled to reject the ALJ's conclusion that granting her application would be consistent with the public interest. Respondent's application will therefore be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of Jeri B. Hassman, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective March 25, 2010.