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Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is amending its regulations to correct the date by which producers must register their farm with FDA, reflect a change in the address and telephone number for requesting copies of Form No. 3733, and reflect a change in the address to which producers must send their CD-ROM. This action is editorial in nature and is intended to improve the accuracy of the agency's regulations.
Effective on April 13, 2010.
John Sheehan, Center for Food Safety and Applied Nutrition (HFS-315), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1488.
FDA is amending its regulations in 21 CFR part 118 to correct the following information: (1) The date by which egg producers must register their farm with FDA, (2) the address and telephone number for requesting copies of Form 3733, and (3) the address to which egg producers must send their CD-ROM. Publication of this document constitutes final action on this change under the Administrative Procedure Act (5 U.S.C. 553). Notice and public procedures are unnecessary because FDA is merely updating nonsubstantive content.
Eggs and egg products, Incorporation by reference, Recordkeeping requirements, Safety.
21 U.S.C. 321, 331-334, 342, 371, 381, 393; 42 U.S.C. 243, 264, 271.
(a) Shell egg producers covered under § 118.1(a) are required to register their farms with FDA within 30 days of becoming an egg producer or, if already an egg producer, by each farm's applicable compliance date.
(b) * * *
(2) * * *
(i) You must register using FDA Form No. 3733. You may obtain a copy of this form by writing to the U.S. Food and Drug Administration, 5600 Fishers Lane (HFS-681), Rockville, MD 20857, or by requesting the form by phone at 1-800-216-7331 or 301-575-0156.
(3) * * *
(vi) You must mail the CD-ROM to the U.S. Food and Drug Administration, 5600 Fishers Lane (HFS-681), Rockville, MD 20857.
Federal Bureau of Investigation (FBI), Justice.
Final rule.
This Final Rule sets out the Director of the FBI's authority to establish and collect fees for providing fingerprint-based and name-based Criminal History Record Information (CHRI) checks and other identification services submitted by authorized users for noncriminal justice purposes, including employment and licensing. The FBI may set such fees at a level to include an amount to establish a fund to defray expenses for the automation of fingerprint identification and criminal justice information services and associated costs. It further provides that future fee adjustments will be made by notice published in the
This final rule is effective May 13, 2010.
FBI Criminal Justice Information Services Division, 1000 Custer Hollow Road, Module E-3, Clarksburg, West Virginia 26306, Attention: Christopher L. Enourato.
On June 19, 2008, the FBI published a Notice of Proposed Rulemaking (NPRM) setting forth the FBI's statutory authority to establish and collect fees for noncriminal justice fingerprint-based and name-based CHRI checks and other identification services performed by the CJIS Division.
The NPRM explained the methodology used to calculate the FBI's revised fees, provided a proposed fee schedule, and advised that the current fees would be published concurrently with this Final Rule as a Notice in the
The FBI has collected user fees for fingerprint-based CHRI checks since 1982, when the authority to establish and collect fees to process fingerprint-based CHRI checks for noncriminal justice purposes, such as employment and licensing, was set out in Public Law (Pub. L.) 97-257. This statutory authority was renewed annually by subsequent appropriations legislation. Under Public Law 101-162, the FBI was also authorized to establish and collect fees for name-based checks and to set the fees at a level to include an amount to defray expenses for the automation of fingerprint identification and associated costs. Congress, in Public Law 101-515, subsequently authorized the FBI to establish and collect these fees on a continuing basis. This authority was further expanded by Public Law 104-99 with insertion of the term “criminal justice information services” so the FBI was authorized to use the collected fees to “defray expenses for the automation of fingerprint identification and criminal justice information services and associated costs.”
Public Law 101-515 links the user fees charged for processing fingerprint identification records and name checks to the cost of providing these services. This authority also permits the FBI to establish user fees at a level to include an amount “to defray expenses for the automation of fingerprint identification and criminal justice information services and associated costs.”
In the absence of express statutory authority, Federal agencies are authorized to establish fees by the Independent Offices Appropriation Act of 1952, 31 U.S.C. 9701, which is implemented by specific guidelines in Office of Management and Budget (OMB) Circular A-25. Since the FBI has specific statutory authority to establish and collect fees under Public Law 101-515, the FBI is not required to follow strictly the mandates of OMB Circular A-25. In establishing the fees set out in this rule, the FBI referred to OMB Circular A-25 for guidance in calculating fees based on costs. For example, in calculating the fees, OMB Circular A-25's definition of full cost “as all direct and indirect costs to any part of the Federal Government of providing a good, resource, or service” was used to include direct and indirect personnel costs, physical overhead, and other indirect costs such as material costs, utilities, travel, and equipment.
Congress, in the Volunteers for Children Act (VCA), 42 U.S.C. 5119a, limited the fee that can be charged to a volunteer to $18, or the actual cost of providing the service, whichever is less. The statutory term “actual cost” does not appear in OMB Circular A-25, which uses the term full cost, defined as all direct and indirect costs of providing a service. Thus, the FBI defined the actual cost as the full cost of providing this service, when calculating the fee for checks of volunteers under the VCA.
The FBI hired a contractor, BearingPoint, Inc., 1676 International Drive, McLean, Virginia 22102 (BearingPoint), to conduct an independent analysis of pertinent costs and to recommend a revised fee schedule for the fingerprint-based and name-based CHRI checks conducted by the CJIS Division. Referencing OMB Circular A-25; the Statement of Federal Financial Accounting Standards (SFFAS-4): Managerial Cost Accounting Concepts and Standards for the Federal Government; and other relevant financial management directives, BearingPoint developed a cost accounting methodology and related cost models based upon the concepts and principles of activity-based costing (ABC).
ABC is a business management process that provides information about the relationships between inputs (costs) and outputs (products or services) by quantifying how work is performed (activities). The ABC model used to calculate the user fees was developed using commercially available ABC software and followed generally accepted cost accounting procedures for cost assignment and unit cost calculation. Organizational resources were assigned to activities, and then the activities were assigned to services based upon reported patterns of consumption. BearingPoint identified the total resources associated with the fingerprint-based and name-based CHRI check services and assigned these costs to the services using relevant cost drivers. The cost drivers were selected primarily for their strong cause-effect linkages between the resources and the activities and services that consumed them. BearingPoint worked extensively with FBI staff, including programmatic subject matter experts and statistical experts, to gather the information necessary to devise the cost accounting methodology and to construct a representative ABC model. BearingPoint developed its cost accounting methodology in six steps for the non-automation portion of the fee.
1. Operational labor costs were reviewed and assigned to activities and then to services.
2. Support labor costs were reviewed and assigned to activities and then to services.
3. Nonlabor costs, including unfunded personnel and judgment fund costs, were reviewed and assigned to activities and then to services.
4. Cost estimates were made for FY 2008, when the revised user fees are expected to be implemented.
5. Transaction volumes and trends were analyzed to predict appropriate transaction volumes for FY 2008.
6. Finally, using the projected FY 2008 costs and the projected FY 2008 transaction volumes, the projected unit costs for each service were calculated. The recommended user fees were based on these projected unit costs.
As explained above, under Public Law 101-515, the FBI is also authorized to charge an additional amount for the automation of fingerprint identification and criminal justice information services and associated costs. A similar process was used to develop this portion of the fee. It was determined that the most appropriate basis for the calculation of this portion of the fee was the capital investment and anticipated depreciation costs for automated fingerprint identification and other criminal justice information service capabilities and enhancements to certain automated systems. The costs for these automation efforts were obtained from the FBI's asset management and financial management systems and records, and program planning documentation. By employing this methodology, users paying the fee will pay for services based on the cost of the automation which is already in place at the time their request is processed. While the funds collected will be used to develop future capabilities, the cost basis of the fee will be the automation in place. The projected FY 2008 volumes were then used to calculate the unit costs for this portion of the fee.
Once the unit costs were calculated, BearingPoint generated the revised fee schedule. The FBI then independently reviewed the BearingPoint recommendations, compared them to current fee calculations and plans for future services, and determined that the revised schedules were both objectively reasonable and in consonance with the underlying legal authorities.
The fee calculation was made by gathering the labor and nonlabor costs of those divisions of the FBI that directly or indirectly support the provision of the fingerprint-based and name-based CHRI check services, and then using various drivers to assign those costs to the identified activities. The activities were then assigned to the specific fingerprint-based and name-based CHRI check services or to a general category for all other costs. The ABC model examined in detail only those costs which were related to the fingerprint-based and name-based CHRI check services. These services included both the criminal justice and law enforcement and the noncriminal justice identification services performed by the CJIS Division of the FBI. The discussion below is limited to those costs in the ABC model which were assigned to the fingerprint-based and name-based CHRI check services that are supported by the user fees. In other words, even though the ABC model calculated unit costs for various criminal justice fingerprint-based CHRI check services, these costs will not be discussed in this regulation since they are funded with appropriations and not with user fees.
The costs for providing the fee-supported fingerprint-based and name-based CHRI check services include the personnel costs for both direct and indirect support, as well as nonlabor costs such as travel, training, rent, equipment, utilities, printing, contract support, and supplies. In addition, depreciation for existing nonautomation assets was included per OMB Circular A-25 guidance. Finally, portions of the FBI's costs for workers compensation, unemployment compensation, and the judgment fund, used to pay judgments against the United States where appropriations have not otherwise been provided, were included.
These costs were derived from the FBI's financial systems and audited financial statements. The FY 2008 predicted costs were obtained by recalculating the depreciation and adding an inflation factor for labor and other nonlabor expenses. The OMB pay raise and inflation factors provided in OMB Circular A-11, Preparation, Submission, and Execution of an Agency Budget, were used. The costs associated with providing the services do not include any of the automation costs which instead were captured in the capital investment and depreciation costs for the automation portion of the fee described below.
The automation costs are divided into those which support fingerprint identification services currently in operation and those which support other criminal justice information services. Both types of automation costs are authorized by Public Law 101-515. The FBI chose to separate these costs to facilitate calculation of the cost of providing fingerprint-based CHRI checks for volunteers, since the VCA limits the fee to the actual cost or $18.00, whichever is less. The FBI is interpreting the actual cost of providing the service to include only the costs for the automation of fingerprint services currently in operation; the actual cost does not include the costs for the automation of other criminal justice information services.
The costs for the automation of the fingerprint identification services include depreciation costs for the fingerprint identification infrastructure and the costs for developing a disaster recovery capability which would allow the FBI's essential fingerprint identification services to continue in all circumstances as required by OMB Circular A-130, Management of Federal Information Resources (OMB Circular A-130).
The costs for the automation of other criminal justice information services are based on the depreciation of assets already in place and the costs of enhancements which have passed through the approval gates for the planning stages of system development under the FBI's life cycle management directive. These enhancements include the Next Generation Identification program, which will increase the speed, capacity, and functionality of the FBI's fingerprint identification process, and the Biometric Interoperability Program which will provide two-way access to information in other major fingerprint databases such as the Department of Homeland Security's database of nonimmigrant visitors to the United States. The costs also include the automation of certain aspects of the National Crime Information Center (NCIC), the Law Enforcement National Data Exchange (N-DEx) program, and the Uniform Crime Reporting (UCR) program.
There is one additional component of cost which was considered when determining the fees. Federal agencies, certain State agencies, and approved nongovernmental entities that submit fingerprint-based CHRI checks function as
The FBI employs this centralized billing methodology to collect payment for more than 9.8 million fingerprint-based CHRI checks each year. Under the fee schedule proposed in this rule, the FBI will continue the practice of allowing approved CBSPs to retain a portion (currently $2.00) of the fee for fingerprint-based CHRI checks for performing this centralized billing service. In order to allow the CBSPs to retain this portion of the fee, it is necessary to include this cost when determining the full costs which the fee must cover. At this time, this cost is calculated by multiplying the amount the CBSPs are allowed to retain by the volume of billed transactions. The centralized billing process will be subject to further analysis and, consequently, may be revised in the future.
The FBI utilized categories or fee classes to set the charges for fingerprint-based CHRI checks. Fee classes are determined by the:
• Type of transaction—manual, electronic, or electronic submission with manual response, or
• Volunteer status under the VCA.
The name-based CHRI checks are available only to authorized Federal agencies for purposes specifically authorized by statute,
If the FBI offers a new service or otherwise requires a new fee class in the future, the charge for this new fee class will be based upon the closest existing fee class until such time as a new fee class can be established. Authorized users will be advised of the new service or new fee class by CJIS Information Letter or other CJIS communication. The FBI will calculate a fee for the new fee class using the methodology discussed in the NPRM and will publish a revised fee schedule as a notice in the
Comments on the proposed rule were received from two individuals and one professional association.
The comments from the professional association and an individual were fully supportive of the proposed rule. The letter from the professional association stated, “We appreciate the importance of maintaining rigorous personnel security practices, and believe the FBI's support of non-criminal CHRI checks, whether fingerprint or name-based, is necessary to the success of these programs.” The final comment, from an individual, concerned the need for increased regulation of hazardous materials transportation, rather than the NPRM. After reviewing the comments, the FBI has determined that no changes to the proposed rule are necessary.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify, in lieu of preparing an analysis, that the proposed rulemaking is not expected to have significant economic impact on a substantial number of small entities. Small entities are defined by the RFA to include small businesses, small organizations, and small governmental jurisdictions.
The fees for providing fingerprint-based and name-based CHRI background checks for noncriminal justice purposes normally are imposed upon the individual subject of the background check, rather than upon small entities. In addition, under the new fee schedule that became effective October 1, 2007, the fee imposed on nonfederal users submitting electronic fingerprint-based CHRI dropped nearly 20 percent per request. This lower fee is applicable to more than 90 percent of the total nonfederal fingerprint-based checks. However, the fee for manual searches was increased, reflecting comparatively higher processing costs for those services. As a result of these different fees, the FBI expects that users will seek the lower costs associated with providing electronic fingerprint submissions.
State and Federal agencies and certain private entities serve as CBSPs, or entities that collect and submit an individual's fingerprints to the FBI and remit the fee charged to the individual. There are no small businesses, organizations or governmental jurisdictions currently providing billing services as CBSPs.
With regard to name-based CHRI checks, there is no direct or indirect impact on small entities, as only Federal agencies are authorized to request name-based CHRI background checks, and Federal agencies do not fall within the definition of a “small entity.” Accordingly, the Director of the FBI hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The FBI has determined that this rule is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, section 3(f) and accordingly this rule has been reviewed by the OMB.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule 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. The fees for providing fingerprint-based and name-based CHRI background checks for noncriminal justice purposes are imposed upon the individual subject of the background check, rather than on the State. Some States serve as CBSPs by collecting and submitting an individual's fingerprints to the FBI and remitting the fee charged to the individual. The proposed rule does not alter the amount the FBI allows CBSPs to retain for providing these services, but merely makes small adjustments to the fee schedule already in place. The proposed rule does not alter any of the policy set out at 28 CFR part 20, or 28 CFR parts 901-906. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This rule does not contain a mandate that will result in the expenditure by State, local, and Tribal governments (in the aggregate) or by the private sector of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. While CBSPs may need to adjust their internal automated systems and processes, the change in fee amount is a foreseeable and expected eventuality and therefore, it is expected that these internal systems and processes were created with the capability of adjusting to changed fees without great cost or effort. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This final rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the U.S. economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets.
After careful consideration, the Department does not believe that any change to the rule is necessary based on these comments. Accordingly, pursuant to the authority set forth in Public Law 101-515, as amended by Public Law 104-99, set out in the notes to 28 U.S.C. 534, part 20 of chapter I of Title 28 of the CFR is amended as follows.
Classified information, Crime, Intergovernmental relations, Investigations, Law enforcement, Privacy.
28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42 U.S.C. 3711,
(e) The FBI may routinely establish and collect fees for noncriminal justice fingerprint-based and other identification services as authorized by Federal law. These fees apply to Federal, State and any other authorized entities requesting fingerprint identification records and name checks for noncriminal justice purposes.
(1) The Director of the FBI shall review the amount of the fee periodically, but not less than every four years, to determine the current cost of processing fingerprint identification records and name checks for noncriminal justice purposes.
(2) Fee amounts and any revisions thereto shall be determined by current costs, using a method of analysis consistent with widely accepted accounting principles and practices, and calculated in accordance with the provisions of 31 U.S.C. 9701 and other Federal law as applicable.
(3) Fee amounts and any revisions thereto shall be published as a notice in the
Coast Guard, DHS.
Final rule.
The Coast Guard is disestablishing the permanent safety zone at Trunkline LNG in Lake Charles, LA and replacing it with a security zone with new boundaries. The Coast Guard is also establishing two additional permanent security zones on the waters of the Calcasieu River for the mooring basins at Cameron LNG in Hackberry, LA and PPG Industries in Lake Charles, LA. The Coast Guard is also disestablishing the Calcasieu River ship channel moving safety zone and replacing it with a moving security zone. The revised moving security zone extends channel edge to channel edge on the Calcasieu Channel and shoreline to shoreline on the Calcasieu River, 2 miles ahead and 1 mile astern of certain designated vessels while in transit on the Calcasieu Channel or Calcasieu River. Meeting, crossing or overtaking situations are not permitted within the security zone unless specifically authorized by the Captain of the Port. The moving security zone may commence at any point while certain vessels are transiting the Calcasieu Channel or Calcasieu River on U.S. territorial waters (12 nautical miles) in the Captain of the Port (COTP) Port Arthur zone. These security zones are needed to protect vessels, waterfront facilities, the public, and other surrounding areas from destruction, loss, or injury caused by sabotage, subversive acts, accidents, or other actions of a similar nature. Unless exempted under this rule, entry into or movement within these security zones is prohibited without permission from the Captain of the Port or a designated representative.
This rule is effective May 13, 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-2009-0317 and are available online by going to
If you have questions on this rule, call or e-mail Mr. Scott Whalen, Marine Safety Unit Port Arthur, TX, telephone (409) 719-5086, or e-mail
On September 8, 2009, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Calcasieu River and Ship Channel, LA” in the
Heightened awareness of potential terrorist acts requires enhanced security of our ports, harbors, and vessels.
This rule establishes new, distinct security zones on the waters of the Calcasieu River. These zones will protect waterfront facilities, persons, and vessels from subversive or terrorist acts. This rule also eliminates the moving safety zone for non-gas free LNGs transiting the Calcasieu Channel and Calcasieu River and adds a distinct moving security zone that may commence at any point while certain vessels are transiting the Calcasieu Channel or Calcasieu River on U.S. territorial waters in the Captain of the Port, Port Arthur zone. Due to the potential for terrorist attacks, this rule allows the Captain of the Port to create moving security zones around certain vessels as deemed necessary, on a case-by-case basis. By limiting access to these areas, the Coast Guard is reducing potential methods of attack on these vessels, and potential use of the vessels to launch attacks on waterfront facilities and adjacent population centers located within the Captain of the Port zone. Vessels having a need to enter these security zones must obtain express permission from the Captain of the Port, Port Arthur or a designated representative prior to entry.
These zones are in an area concentrated with commercial facilities considered critical to national security. This rule does not restrict access to vessels engaged, or assisting in commerce with waterfront facilities within fixed security zones, vessels operated by port authorities, vessels operated by waterfront facilities within the fixed security zones, and vessels operated by federal, state, county or municipal agencies. By limiting access to these areas the Coast Guard is reducing potential methods of attack on vessels, waterfront facilities, and adjacent population centers located within the zones. Vessels not exempted under the provisions of this regulation and desiring to enter these zones are required to obtain permission from the Captain of the Port, Port Arthur or a designated representative prior to entry.
The Coast Guard received two comments concerning the NPRM. One commenter recommended that the boundaries of the proposed security zone at PPG Industries (PPG) be extended to include the transfer dock located at the southern end of PPG
Another commenter recommended adding language specifying the agency responsible for enforcement of this security zone. The Coast Guard is the agency responsible for enforcement of this security zone. The proposed language expressly states that permission of the Captain of the Port, Port Arthur must be obtained to enter the security zone and future memoranda of agreements may allow state or local agencies to assist the Coast Guard in enforcing this security zone.
The Coast Guard is making a change to the language of the NPRM to provide the public with a visual cue that the moving safety zone is in effect. Specifically, the final rule states that “Coast Guard patrol assets will be on scene with flashing blue lights energized when the moving security zones are in effect.”
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The basis of this finding is that the fixed security zones are not part of the navigable waterway or a commercial fishing ground and do not impede commercial traffic on the Calcasieu Waterway. The moving security zone is limited in nature and will not create undue delay to vessel traffic in or around the Calcasieu River and Ship Channel.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (1) The rules for fixed security zones do not interfere with regular vessel traffic within the Calcasieu Ship Channel, Calcasieu River or the Intracoastal Waterway; (2) the rule for moving security zones are of limited duration and vessels may be allowed to pass through the zone with the permission of the Captain of the Port or his representative.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect 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 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
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus 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 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 figure 2-1, paragraph (34)(
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(i)
(ii)
(iii)
(2) The following areas are moving security zones: All waters within the Captain of the Port, Port Arthur zone commencing at U.S. territorial waters and extending channel edge to channel edge on the Calcasieu Channel and shoreline to shoreline on the Calcasieu River, 2 miles ahead and 1 mile astern of certain designated vessels while in transit. Meeting, crossing or overtaking situations are not permitted within the security zone unless specifically authorized by the Captain of the Port. Coast Guard patrol assets will be on scene with flashing blue lights energized when the moving security zones are in effect.
(b)
(i) Commercial vessels operating at waterfront facilities within these zones;
(ii) Commercial vessels transiting directly to or from waterfront facilities within these zones;
(iii) Vessels providing direct operational or logistical support to commercial vessels within these zones;
(iv) Vessels operated by the appropriate port authority or by facilities located within these zones; and
(v) Vessels operated by federal, state, county, or municipal agencies.
(2) Entry into or remaining in moving zones described in paragraph (a)(2) of this section is prohibited for all vessels except:
(i) Moored vessels or vessels anchored in a designated anchorage area. A moored or an anchored vessel in a security zone described in paragraph (a)(2) of this section must remain moored or anchored unless it obtains permission from the Captain of the Port to do otherwise;
(ii) Commercial vessels operating at waterfront facilities located within the zone;
(iii) Vessels providing direct operational support to commercial vessels within a moving security zone;
(iv) Vessels operated by federal, state, county, or municipal agencies.
(3) Other persons or vessels requiring entry into security zones described in this section must request permission from the Captain of the Port, Port Arthur or designated representatives.
(4) To request permission as required by these regulations, contact Marine Safety Unit Lake Charles at (337) 491-7800 or the on scene patrol vessel.
(5) All persons and vessels within a security zone described in this section must comply with the instructions of the Captain of the Port, Port Arthur, designated on-scene U.S. Coast Guard patrol personnel or other designated representatives. On-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard. Designated representatives include federal, state, local and municipal law enforcement agencies.
(c)
Environmental Protection Agency (EPA).
Direct final rule.
Indiana requested on December 31, 2008, that EPA approve as
This direct final rule will be effective June 14, 2010, unless EPA receives adverse comments by May 13, 2010. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0118, by one of the following methods:
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•
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•
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Matt Rau, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Indiana has requested a revision to its SIP that would authorize an alternative monitoring plan contained in a State Commissioner's Order for Unit 7 at IPL's Harding Street Station, located in Indianapolis (Marion County), Indiana. Indiana submitted its request to EPA on December 31, 2008. The alternative monitoring plan allows IPL to use a particulate matter CEMS in place of a COMS to demonstrate compliance with applicable PM limits.
IPL has installed a wet scrubber control device to control sulfur dioxide at its Harding Street Station Unit 7. The scrubber adds moisture to the exhaust gas, which condenses as the gas stream cools. According to Indiana Department of Environmental Management (IDEM), the condensation causes unreliable readings from the COMS on Unit 7. COMS measures opacity optically, so it cannot distinguish between light impairment caused by particulate and light impairment caused by moisture. The scrubber also removes some PM, so that placing the COMS prior to the exhaust entering the scrubber would also incorrectly measure those emissions from Unit 7.
IDEM has requested EPA approval of the alternative monitoring requirements under 326 IAC 3-5-1(c)(2)(A)(iii) of the SIP, which EPA approved on December 28, 2009 (74 FR 68541). This provision authorizes IDEM to approve an alternative monitoring requirement for fossil fuel-fired steam generators when IDEM determines that “installation of an opacity monitoring system would not provide accurate determinations of emissions as a result of interference from condensed uncombined water.” The PM CEMS will be placed after the scrubber. A PM CEMS with proper calibration should provide accurate PM emission readings, even with moisture from the scrubber in the exhaust stream. Indiana certified the Harding Street Station's PM CEMS on June 22, 2009.
The alternative monitoring plan for the Harding Street Station was adopted by Indiana on October 31, 2008, in Commissioner's Order #2008-02. It is not effective, however, until EPA approves the plan as a SIP revision.
Indiana notified the public of an opportunity to request a public hearing on this action on November 12, 2008. It did not receive any comments or requests for a public hearing.
Under the alternative monitoring plan approved by Indiana in Commissioner's Order #2008-02, IPL will continuously monitor PM emissions in place of opacity. The visible emissions exiting the stack are primarily composed of PM. Visible emissions observations under 40 CFR Part 60, Appendix A, Method 9 may be taken in the atmosphere after
The PM CEMS will be calibrated to provide accurate measurements even with moisture in the stack. The PM CEMS provides the particulate emissions from the facility. Knowing the emissions from the facility, IPL will be able to make adjustments or control device repairs should the emissions rise too high. This facility will average the PM CEMS data at time intervals specified in its Title V permit. IPL is also required to monitor other pollutants and their operating parameters. The alternate monitoring requirement removes the need to operate the COMS, but does not remove the opacity limits at the facility under SIP rules 326 IAC 5-1. Visible emissions observations in accordance with Method 9 can still be made to determine whether the opacity limits are being met.
PM interferes with lung function when inhaled. Exposure to PM can cause heart and lung disease. It also aggravates asthma. Airborne particulate is also a source of haze, which reduces visibility. PM deposited on the ground and in the water harms the environment by changing the nutrient and chemical balance.
This action only changes the PM monitoring requirements for Unit 7 at the Harding Street Station. All other applicable air pollution control requirements remain in place. No changes in any emissions from the Harding Street Station are expected as a result of this action.
EPA is approving the alternative monitoring plan in Commissioner's Order #2008-02 into the Indiana SIP. The alternative monitoring plan for IPL's Harding Street Station is to use a PM CEMS on Unit 7 in place of a COMS. This action is consistent with Indiana SIP rule 326 IAC 3-5-1(c)(2)(A)(iii) because moisture in the facility's exhaust stream could cause inaccurate opacity readings from a COMS.
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 14, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(194) On December 31, 2008, Indiana submitted a Commissioner's Order that provided an alternative monitoring plan for Indianapolis Power and Light—Harding Street Generating Station in Marion County that is being incorporated into its SIP. The alternative monitoring requirements allow the use of a particulate matter continuous emissions monitoring system in place of a continuous opacity monitor.
(i)
U.S. Department of Health and Human Services.
Final rule.
The Department is issuing a final rule establishing the organizational integrity requirements for Federal funding recipients under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act). This rule requires that funding announcements and agreements with funding recipients include a clause that states that the recipient is opposed to prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children. This rule also modifies the requirements for recipient-affiliate separation and eliminates the requirement for an additional certification by funding recipients.
This rule is effective May 13, 2010.
John Monahan, Office of Global Health Affairs, Hubert H. Humphrey Building, Room 639H, 200 Independence Avenue, SW., Washington, DC 20201, Tel: 202-690-6174, E-mail:
Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”) in May 2003. Public Law 108-25 [22 U.S.C. 7601-7682]. The Leadership Act contains limitations on the use of funds provided to carry out HIV/AIDS activities under the Act. Subsection 7631(f) prohibits the use of Leadership Act HIV/AIDS funds “to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” Subsection 7631(f) was amended in 2004 to exempt certain public international organizations. Consolidated Appropriations Act of 2004, Public Law 108-199, Div. D, Title II (2004).
The United States government is opposed to prostitution and sex trafficking. In enacting the Leadership Act, Congress specifically found “Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices. The sex industry, the trafficking of individuals into such industry, and sexual violence are additional causes of and factors in the spread of the HIV/AIDS epidemic.” Leadership Act § 2(23) Public Law 108-25. Congressional hearings at the time of the Act showed a high incidence of HIV among prostitutes and that prostitution fueled the demand for sex trafficking. Accordingly, Congress unambiguously called for the elimination of prostitution and sex-trafficking as part of the United States' fight against HIV/AIDS.
Section 301(f) [22 U.S.C. 7631(f)] of the Leadership Act requires that funding recipients have a policy explicitly opposing prostitution and sex trafficking. Additionally, recipients of Leadership Act funds cannot engage in activities that are inconsistent with their opposition to prostitution and sex trafficking.
Congress did not dictate the means by which the Department would implement the policy and the Congressional intent of the Act was not to overburden applicants with unnecessary requirements. For example, during legislative debate on the Leadership Act, in response to a question from Senator Leahy on the Senate floor regarding section 301(f), Senator Frist stated that “a statement in the contract or grant agreement between the U.S. Government and such organization that the organization is opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women * * * would satisfy the intent of the provision.” 149 CONG. REC. S6,457 (daily ed. May 15, 2003) (statement of Sen. Frist).
The Leadership Act was challenged on constitutional grounds in two separate lawsuits after its enactment. In a case filed in the U.S. District Court for the District of Columbia, plaintiffs claimed the anti-prostitution provision compelled speech when the organization had no policy either opposing or supporting prostitution.
A second case was filed in the U.S. District Court for the Southern District of New York, which granted an injunction against the Government on the basis that the statute was unconstitutional because it did not leave open “adequate alternative channels for communication.”
Prior to and concurrent with the litigation, the Department took a number of steps to implement the prostitution policy requirement under the statute. By December 2003, HHS had begun including a requirement in all of its grant and cooperative agreement funding announcements that all recipients under the Leadership Act of HIV/AIDS funds have a policy explicitly opposing prostitution and sex trafficking. On July 23, 2007, HHS published “Organizational Integrity Guidance” in the
On November 23, 2009, the Department again issued a notice of proposed rulemaking to modify the final rule of January 20, 2009. 74 FR 61096 (11/23/2009). The proposed amendment to the present rule modifies the criteria for evaluating the separation between recipients and affiliated organizations, while complying with the statutory requirement regarding opposition to prostitution and sex trafficking. It is essential to the Leadership Act that recipients of funds who implement HIV/AIDS programs and activities do not create confusion as to the U.S. Government's message opposing prostitution and sex trafficking by undertaking activities or advocating positions that conflict with this policy. However, as noted above, the Department has determined that the Congressional intent of the Leadership Act can be effectuated through the application of standards that allow more flexibility for funding recipients than the present guidelines.
The Department received twenty-seven comments in response to the proposed rule, including one comment filed after the close of the comment period which was also considered. Comments came from individuals and organizations both opposed to and in favor of changes to the previous rule. Several comments were not responsive to the proposed rule and therefore are not addressed. Several commenters stated the policy requirement was inconsistent with the Leadership Act or improperly conflated prostitution with sex trafficking. However, the final rule is consistent with section 301(f) of the Act which requires organizations receiving funds to have a policy opposing “prostitution and sex trafficking.” Other comments are discussed under applicable headings.
This section provides that the policy requirement applies to all funding recipients not exempted by the Leadership Act. Currently, those organizations exempted are the Global Fund to Fight AIDS, Tuberculosis, and Malaria, the World Health Organization, the International AIDS Vaccine Initiative and any other United Nations agency.
This section also states what is required of HIV/AIDS funding recipients under the Leadership Act. The Department shall include in any HIV/AIDS public funding announcement under the Leadership Act the requirement that recipients agree that they are opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children. This statement will also be included in any Leadership Act HIV/AIDS funding instrument entered into with the recipient. As explained, the Department believes this statement is consistent with the anti-prostitution provision and the Congressional intent behind it, as well as other goals of the Act.
The Department will work with the Department of State and with other agencies implementing the Leadership Act to ensure consistent application of its requirements.
This section defines terms used in this rule. It retains several terms from the previous iteration of the rule such as “commercial sex act” and “prostitution.” However, given the regulation now requires the anti-prostitution statement only in the announcement and the awarding instrument to the “recipient,” it deletes the terms “prime recipient” and “subrecipient.” A definition of “recipient” that mirrors the former “prime recipient,” directly funded entity, is included. While the section deletes the definition of subrecipient, any organization receiving Leadership Act HIV/AIDS funds must comply with the statutory requirements.
Several commenters objected to the lack of definition for a number of terms such as “affiliate,” “restricted activities,” and “to the extent practicable.” As explained below, the Department's commitment to a case-by-case approach in this area will allow flexibility based on the circumstances presented. Some organizations may be better able to separate themselves from an affiliate “in the circumstances.” Conditions in some countries may make it difficult for organizations to meet certain factors relevant to determining whether sufficient separation exists. Therefore, any attempt to strictly prescribe the degree of separation would undermine the purpose of the regulation.
Similarly, the Department does not define the term “affiliated organizations.” In common usage, “affiliate” means “to bring into close connection as a member or branch.”
As noted by multiple comments, the proposed rule did not define “restricted activities.” Several comments expressed concerns that organizations that work with the victims of prostitution and sex trafficking would stop providing services that could prevent HIV/AIDS because of their fear that the Government would determine the activities were “restricted activities,” and revoke Federal funding. Several comments also sought approval of particular hypotheticals. The Department does not believe it should provide opinions on hypothetical scenarios because information may be incomplete. While the Department does not define restricted activities in the rule, working with other agencies implementing the Leadership Act, the U.S. Government intends to provide broad information on types of activities that illustrate what would be covered.
This section sets forth the separation requirements for funding recipients who wish to affiliate with organizations that do not have a policy opposing prostitution and sex trafficking. Specifically, the final rule no longer requires that an affiliate be a legally separate entity. As stated in the November 23, 2009, NPRM, separate legal incorporation in each of the host countries where a recipient might work could prove complicated. Additionally, the inherent difficulty of the Department analyzing multiple foreign legal requirements makes this factor unworkable as a determinative criterion.
The rule also allows greater flexibility for funding recipients to demonstrate organizational separation from entities which do not have a policy opposing sex trafficking and prostitution. As noted in the NPRM, these changes include changing separate personnel requirements to allocation of personnel requirements, and the deletion of separate management and governance requirements.
Many commenters believe that the proposed rule, even with modification, unlawfully compels speech in violation of the First Amendment, and therefore cannot be enforced against domestic entities. The Department disagrees. As explained above, the DC Circuit Court of Appeals upheld the Leadership Act against constitutional claims even prior to the promulgation of implementing regulations. The court in that case specifically relied on the fact that entities were free to set up affiliates which “would qualify for government funds as long as the two organizations' activities were kept sufficiently separate.”
The goal in implementing the revised rule on the prostitution policy provision is to ensure that the Government's position opposing prostitution and sex trafficking is not undermined while allowing Leadership Act funding recipients greater flexibility in finding alternative channels for protected expression in diverse areas for diverse populations. Given the numerous factual situations that may arise, the Department has deliberately adopted a case-by-case approach in this area, recognizing that circumstances in some countries may make it difficult for organizations to satisfy some of the factors demonstrating objective integrity and independence. The Department also plans to work with recipients to address individual questions regarding the separation criteria, and to help remedy violations before taking enforcement action. We believe these steps will ensure recipients have adequate channels for engaging in protected speech while still adhering to the requirement of the Leadership Act that recipient organizations be opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children.
Several commenters also objected to the Department's listing of only five factors relevant to the integrity analysis when the regulation allows that other unlisted factors may be taken into account. Again, the relevant inquiry will not be the presence or absence of any particular factor, but the “totality of circumstances,” under which the recipient organization is shown to be sufficiently separate from an affiliate organization that does not have a policy opposing prostitution. The court decisions previously discussed all upheld similar regulations where the Government specifically stated the factors were “not limited to” those set forth in regulation.
Several commenters expressed concern that the extent of restricted activities by the affiliated organization would be a factor considered by the Department. Given that the purpose of affiliate separation requirements is to determine when an affiliated organization is so closely tied to the funding recipient that a reasonable observer would attribute its activities to the funding recipient, the Department agrees that the extent of restricted activities by a separate entity should not be considered, and therefore has deleted that part of Subsection 89.3(b)(4).
Several commenters believed the proposed rule should mirror the Department's non-discrimination regulations for faith based organizations. Under these regulations, the commenters insist, “religious activities” require only time or space separation. However, the faith based regulations rely on different statutory and constitutional foundations. The faith based regulations allow religious and non-religious organizations to compete equally in applying for Federal funds as long as time, place and other restrictions on religious activities are met consistent with the Establishment Clause of the U.S. Constitution. By contrast, the Leadership Act requires all funding recipients, regardless of the character of their organization, to have a policy against prostitution and sex trafficking. The Leadership Act requires that HIV/AIDS funding recipients act consistently with their opposition to prostitution and sex trafficking. This requirement necessitates greater separation between funding recipients and organizations that engage in activities inconsistent with an opposition to prostitution and sex trafficking, than the faith based regulations require between governmental programs operated by a faith based organization and its religious activities. The Department believes this rule best meets the goals of the Leadership Act's anti-prostitution provision without infringing upon the constitutional rights of recipients.
As proposed, former section 89.3 requiring annual certification of compliance with the anti-prostitution provision by both recipients and sub-recipients has been deleted. The Department does not believe such procedures are necessary for compliance
Those commenting on this deletion suggested the lack of certification would make the Leadership Act unenforceable, adding that the negligible cost of certification is far outweighed by its benefits. The Department disagrees. The Department is not hampered in its monitoring or enforcement by the lack of certification, and may still conduct audits of discretionary grant programs whenever they are warranted to ensure compliance with program requirements. Nothing in the Leadership Act requires certification by recipients or prevents enforcement when those requirements are not met. Given the cost to the public of administering the certification and the negligible benefit to the Department, deleting the requirement comports with the goals of the Paperwork Reduction Act to “minimize the paperwork burden * * * from the collection of information by and for the Federal Government.” 35 U.S.C. 3501.
As explained in the NPRM to this final rule, this rule is a “significant regulatory action” under Executive Order 12866, section 3(f)(4), because it raises novel legal or policy issues that arise out of legal mandates and the President's priorities, and accordingly, the Office of Management and Budget has reviewed it.
This rule modifies a previously issued final rule on the same subject, published on December 24, 2008, in the
Therefore, the rule should relieve regulated entities by the amounts specified in the December 24, 2008, final rule. We are republishing the impact table from the December 24, 2008, final rule. The burden estimate was $7,337 calculated by assuming an additional half hour of clerical work to prepare documentation on behalf of 555 grantees at an hourly rate of $ 26.44.
Administrative practice and procedure, Federal aid programs, Grants programs, Grants administration.
Section 301(f) of the Leadership Act, Pub. L. 108-25, as amended (22 U.S.C. 7631(f)) and 5 U.S.C. 301.
(a) This regulation applies to all recipients unless they are exempted from the policy requirement by the Leadership Act or other statute.
(b) The Department of Health and Human Services (HHS) components shall include in the public announcement of the availability of the grant, cooperative agreement, contract, or other funding instrument involving Leadership Act HIV/AIDS funds the requirement that recipients agree that they are opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children. This requirement shall also be included in the award documents for any grant, cooperative agreement or other funding instrument involving Leadership Act HIV/AIDS funds entered into with the recipient.
For the purposes of this part:
A recipient must have objective integrity and independence from any affiliated organization that engages in activities inconsistent with the recipient's opposition to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children (“restricted activities”). A recipient will be found to have objective integrity and independence from such an organization if:
(a) The affiliated organization receives no transfer of Leadership Act HIV/AIDS funds, and Leadership Act HIV/AIDS
(b) The recipient is, to the extent practicable in the circumstances, separate from the affiliated organization. Mere bookkeeping separation of Leadership Act HIV/AIDS funds from other funds is not sufficient. HHS will determine, on a case-by-case basis and based on the totality of the facts, whether sufficient separation exists. The presence or absence of any one or more factors relating to legal, physical, and financial separation will not be determinative. Factors relevant to this determination shall include, but not be limited to, the following:
(1) Whether the organization is a legally separate entity;
(2) The existence of separate personnel or other allocation of personnel that maintains adequate separation of the activities of the affiliated organization from the recipient;
(3) The existence of separate accounting and timekeeping records;
(4) The degree of separation of the recipient's facilities from facilities in which restricted activities occur; and
(5) The extent to which signs and other forms of identification that distinguish the recipient from the affiliated organization are present.
Fish and Wildlife Service, Interior.
Final rule.
The U.S. Fish and Wildlife Service (Service or we) establishes migratory bird subsistence harvest regulations in Alaska for the 2010 season. These regulations enable the continuation of customary and traditional subsistence uses of migratory birds in Alaska and prescribe regional information on when and where the harvesting of birds may occur. These regulations were developed under a co-management process involving the Service, the Alaska Department of Fish and Game, and Alaska Native representatives. This rulemaking is necessary because the regulations governing the subsistence harvest of migratory birds in Alaska are subject to annual review. This rulemaking establishes region-specific regulations that go into effect April 13, 2010 and expire August 31, 2010.
The amendments to subpart D of 50 CFR part 92 are effective April 13, 2010, through August 31, 2010.
Fred Armstrong, (907) 786-3887, or Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Mail Stop 201, Anchorage, AK 99503.
This rulemaking is necessary because, by law, the migratory bird harvest season is closed unless opened by the Secretary of the Interior, and the regulations governing subsistence harvest of migratory birds in Alaska are subject to public review and annual approval. This rule establishes regulations for the taking of migratory birds for subsistence uses in Alaska during the spring and summer of 2010. This rule lists migratory bird season openings and closures in Alaska by region.
Background information, including past events leading to this rulemaking, accomplishments since the Migratory Bird Treaties with Canada and Mexico were amended, and a history addressing conservation issues can be found in the following
These documents, which are all final rules setting forth the annual harvest regulations, are available at
The U.S. Fish and Wildlife Service (Service or we) establishes migratory bird subsistence harvest regulations in Alaska for the 2010 season. These regulations enable the continuation of customary and traditional subsistence uses of migratory birds in Alaska and prescribe regional information on when and where the harvesting of birds may occur. These regulations were developed under a co-management process involving the Service, the Alaska Department of Fish and Game, and Alaska Native representatives.
We opened the process to establish regulations for the 2010 spring and summer subsistence harvest of migratory birds in Alaska in a proposed rule published in the
The Alaska Migratory Bird Co-management Council (Co-management Council) held a meeting in April 2009 to develop recommendations for changes that would take effect during the 2010 harvest season. These recommendations were presented first to the Flyway Councils and then to the Service Regulations Committee at the committee's meeting on July 29 and 30, 2009.
Eligibility to harvest under the regulations established in 2003 was limited to permanent residents, regardless of race, in villages located within the Alaska Peninsula, Kodiak Archipelago, the Aleutian Islands, and in areas north and west of the Alaska Range (50 CFR 92.5). These geographical restrictions opened the initial subsistence migratory bird harvest to about 13 percent of Alaska residents. High populated areas such as Anchorage, the Matanuska-Susitna and Fairbanks North Star boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast Alaska were excluded from eligible subsistence harvest areas.
Based on petitions requesting inclusion in the harvest, in 2004, we added 13 additional communities based on criteria set forth in 50 CFR 92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper Center,
In 2007, we enacted the Alaska Department of Fish and Game's request to expand the Fairbanks North Star Borough excluded area to include the Central Interior area. This action excluded the following communities from participation in this harvest: Big Delta/Fort Greely, Healy, McKinley Park/Village and Ferry, with a combined population of 2,812. These removed communities reduced the percentage of the State population included in the subsistence harvest to 13 percent.
We have monitored subsistence harvest for the past 25 years through the use of annual household surveys in the most heavily used subsistence harvest areas, such as the Yukon-Kuskokwim Delta. In recent years, more intensive surveys combined with outreach efforts focused on species identification have been added to improve the accuracy of information gathered from regions still reporting some subsistence harvest of listed or candidate species.
Spectacled eiders (
The Service has dual goals and responsibilities for authorizing a subsistence harvest while protecting migratory birds and threatened species. Although these goals continue to be challenging, they are not irreconcilable, providing sufficient recognition is given to the need to protect threatened species, measures to remedy documented threats are implemented, and the subsistence community and other conservation partners commit to working together. With these dual goals in mind, the Service, working with partners, developed measures in 2009 to further reduce the potential for shooting mortality or injury of closed species. These conservation measures included: (1) Increased waterfowl hunter outreach and community awareness partnering with the Migratory Bird Task Force; (2) continued enforcement of the migratory bird regulations that are protective of listed eiders; and (3) in-season Service verification of the harvest to detect Steller's eider mortality.
This rule is focused on the North Slope from Barrow through Point Hope because listed spectacled and Steller's eiders from the listed Alaska breeding population, are known to breed and migrate there. These regulations address several eider management needs by restricting hunting to times of day with sufficient daylight to improve a hunter's ability to distinguish between species and minimize shooting species closed for harvest; clarifying for subsistence users that Service law enforcement personnel have authority to verify species of birds possessed by hunters; clarifying that it is illegal to possess any bird closed to harvest; and describing how the Service's existing authority of emergency closure would be implemented, if necessary, to protect Steller's eiders. These regulations, implemented in accordance with conservation measures, are considered the principal means by which the threat from shooting mortality of threatened eiders will be reduced. In addition, the emergency closure authority provides another level of assurance if an unexpected amount of Steller's eider shooting mortality occurs.
In-season, real-time harvest survey information obtained by the local community is desirable at Point Hope, Point Lay, Wainwright, and Barrow. The North Slope Borough has offered to assist with collection of this information, including traveling to hunters in the field and providing photo documentation of some portion of the harvest. In-season harvest monitoring information will be used to independently evaluate harvest survey reports, as well as evaluate the efficacy of regulations, conservation measures, and outreach efforts.
On the North Slope in 2009, no Steller's eider harvest was reported, and no Steller's eiders were found shot during in-season verification of the subsistence harvest. Based on these successes, the Service will continue the same regulations for the 2010 season. The 2009 conservation measures will also be continued, although there will be some modification of the amount of effort and emphasis each will receive. Specifically, as local communities develop greater responsibility for taking actions to ensure Steller's and spectacled eider conservation and recovery, and hunters demonstrate greater compliance with hunting regulations, the Service's Office of Law Enforcement plans to decrease its presence in Barrow.
The longstanding general emergency closure provision at 50 CFR 92.21 specifies that the harvest may be closed or temporarily suspended upon finding that a continuation of the regulation allowing the harvest would pose an imminent threat to the conservation of any migratory bird population. With regard to Steller's eiders, the regulation at 50 CFR 92.32, carried over from last year, clarifies that we will take action under 50 CFR 92.21 as is necessary to prevent further take of Steller's eiders, and that action could include temporary or long-term closures of the harvest in all or a portion of the geographic area open to harvest. If mortality of threatened eiders occurs, we will evaluate each mortality event by criteria such as cause, quantity, sex, age, location, and date. We will consult with the Co-management Council when we are considering an emergency closure. If we determine that an emergency closure is necessary, we will design it to minimize its impact on the subsistence harvest.
Yellow-billed loon (
Consistent with the request of the North Slope Borough Fish and Game Management Committee and the recommendation of the Co-management Council, this rule continues into 2010 the provisions originally established in 2005 to allow subsistence use of yellow-
Section 7 of the Endangered Species Act (16 U.S.C. 1536) requires the Secretary of the Interior to “review other programs administered by him and utilize such programs in furtherance of the purposes of the Act” and to “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat * * *.” We conducted an intra-agency consultation with the Service's Fairbanks Field Office on this harvest as it will be managed in accordance with this final rule and the conservation measures. The consultation was completed with an April 2, 2010, biological opinion that concluded the final rule and conservation measures are not likely to jeopardize the continued existence of Steller's eider, spectacled eider, yellow-billed loon, or Kittlitz's murrelet, or result in the destruction or adverse modification of designated critical habitat for Steller's eider or spectacled eider.
We are removing the provision that opened a season from May 15 to June 30 for harvesting Aleutian (
On November 20, 2009, we published in the
In mid-December 2009, we received a request to extend the public comment period and hold a public hearing in Barrow, Alaska. Based on this request, we held a public meeting to record public comments on the proposed regulations on January 12, 2010, at the Inupiat Heritage Center, 5421 North Star St., Barrow. We also reopened the public comment period until February 18, 2010, by publishing a document in the January 25, 2010,
One of the goals of the Protocol amending the Canada Treaty is to allow a traditional subsistence hunt while also improving conservation of migratory birds through effective regulation of this hunt. Although the Protocol sanctions a traditional subsistence hunt, the Parties did not intend to cause significant increases in the take of migratory birds, relative to their continental population sizes. If at some point the subsistence harvest regulations result in significantly increased harvest, management strategies would be implemented to ensure maintenance of continental populations.
The Subsistence Division (AS 16.05.340(17)(B)) of the Alaska Department of Fish and Game (Department) has the responsibility to evaluate the impact of State and Federal laws and regulations on subsistence hunting and, when corrective action is indicated, make recommendations to the Department, who in turn make recommendations to the Alaska Board of Game regarding amendment and repeal of regulations affecting subsistence hunting.
The Alaska Board of Game (AS 16.05.130(b)(2)-(4)) can establish regulations to exempt the requirement to purchase a waterfowl conservation tag (duck stamp) for waterfowl hunting in areas of the State not likely to benefit from the following programs: (1) The acquisition of wetlands important for waterfowl and public use of waterfowl, (2) waterfowl related projects approved by the State commissioner, and (3) the administration of the waterfowl conservation program.
Yellow-billed loons remain an important part of the Inupiaq culture.
The determination of shooting hours for the individual communities used data provided by the Naval Meteorology and Oceanography Command (NMOC). Tables illustrating civil twilight times by date and location were used to determine the dates when shooting hour restrictions would begin in August. These restrictions were initiated on the dates when periods of “complete darkness” begin to occur. For consistency in managing bird hunting, the beginning and ending times of shooting hours in these subsistence regulations parallel those found in 50 CFR 20.102, which applies for all migratory bird hunting on the North Slope after September 1st of each year. These times are based on NMOC tables for sunrise and sunset. The Service
We derive our authority to issue these regulations from the Migratory Bird Treaty Act of 1918, 16 U.S.C. 712(1), which authorizes the Secretary of the Interior, in accordance with the treaties with Canada, Mexico, Japan, and Russia, to “issue such regulations as may be necessary to assure that the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and maintenance of stocks of migratory birds.”
The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million or more. It will legalize and regulate a traditional subsistence activity. It will not result in a substantial increase in subsistence harvest or a significant change in harvesting patterns. The commodities being regulated under this rule are migratory birds. This rule deals with legalizing the subsistence harvest of migratory birds and, as such, does not involve commodities traded in the marketplace. A small economic benefit from this rule derives from the sale of equipment and ammunition to carry out subsistence hunting. Most, if not all, businesses that sell hunting equipment in rural Alaska would qualify as small businesses. We have no reason to believe that this rule will lead to a disproportionate distribution of benefits.
(b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This rule does not deal with traded commodities and, therefore, does not have an impact on prices for consumers.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule deals with the harvesting of wildlife for personal consumption. It does not regulate the marketplace in any way to generate effects on the economy or the ability of businesses to compete.
We have determined and certified under the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in Executive Order 12630, this rule does not have significant takings implications. This rule is not specific to particular land ownership, but applies to the harvesting of migratory bird resources throughout Alaska. A takings implication assessment is not required.
Under the criteria in Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. We discuss effects of this rule on the State of Alaska in the Unfunded Mandates Reform Act section above. We worked with the State of Alaska to develop these regulations. Therefore, a Federalism Assessment is not required.
The Department, in promulgating this rule, has determined that it will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
Because eligibility to hunt under these regulations is not limited to tribal members, but rather extends to all indigenous inhabitants of the subsistence harvest areas, we are not required to engage in formal consultation with tribes. However, in keeping with the spirit of the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), and Executive Order 13175 (65 FR 67249; November 6, 2000), concerning consultation and coordination with Indian Tribal Governments, we conducted meetings with the affected tribes and tribal nonprofit organizations to discuss the changes in the regulations and determine possible effects on tribes or trust resources, and have determined that there are no significant effects. The rule will legally recognize the subsistence harvest of migratory birds and their eggs for indigenous inhabitants including tribal members. In 1998, we began a public involvement process to determine how to structure management bodies in order to provide the most effective and efficient involvement of subsistence users. We began by publishing in the
On March 28, 2000, we published in the
This rule has been examined under the Paperwork Reduction Act of 1995 and does not contain any new collections of information that require Office of Management and Budget approval. OMB has approved our collection of information associated with the voluntary annual household surveys used to determine levels of subsistence take. The OMB control number is 1018-0124, which expires March 31, 2010. 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 annual regulations and options were considered in the environmental assessment, “Managing Migratory Bird Subsistence Hunting in Alaska: Hunting Regulations for the 2010 Spring/Summer Harvest,” October 9, 2009. Copies are available from the person listed under
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This is not a significant regulatory action under this Executive Order; it would allow only for traditional subsistence harvest and would improve conservation of migratory birds by allowing effective regulation of this harvest. Further, this rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action under Executive Order 13211, and no Statement of Energy Effects is required.
The Administrative Procedure Act (5 U.S.C. 553(d)) requires an agency to publish a final rule in most cases at least 30 days before the rule is to become effective. The Act also allows publication less than 30 days before the effective date if the agency finds that there is a good cause for doing so. (5 U.S.C. 553(d)(3)) The Department of the Interior finds that good cause exists for making this rule effective upon publication because:
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Subsistence, Treaties, Wildlife.
16 U.S.C. 703-712.
The 2010 season dates for the eligible subsistence harvest areas are as follows:
(a)
(1) Northern Unit (Pribilof Islands):
(i) Season: April 2-June 30.
(ii) Closure: July 1-August 31.
(2) Central Unit (Aleut Region's eastern boundary on the Alaska Peninsula westward to and including Unalaska Island):
(i) Season: April 2-June 15 and July 16-August 31.
(ii) Closure: June 16-July 15.
(iii) Special Black Brant Season Closure: August 16-August 31, only in Izembek and Moffet lagoons.
(iv) Special Tundra Swan Closure: All hunting and egg gathering closed in units 9(D) and 10.
(3) Western Unit (Umnak Island west to and including Attu Island):
(i) Season: April 2-July 15 and August 16-August 31.
(ii) Closure: July 16-August 15.
(b)
(1) Season: April 2-August 31.
(2) Closure: 30-day closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with local subsistence users, field biologists, and the Association of Village Council President's Waterfowl Conservation Committee. This 30-day period will occur between June 1 and August 15 of each year. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations and posted in village post offices and stores.
(3) Special Black Brant and Cackling Goose Season Hunting Closure: From the period when egg laying begins until young birds are fledged. Closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with field biologists and the Association of Village Council President's Waterfowl Conservation Committee. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations and posted in village post offices and stores.
(c)
(1) Season: April 2-June 14 and July 16-August 31 (general season); April 2-July 15 for seabird egg gathering only.
(2) Closure: June 15-July 15 (general season); July 16-August 31 (seabird egg gathering).
(d)
(1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
(i) Season: April 15-June 14 and July 16-August 31.
(ii) Closure: June 15-July 15.
(2) Remainder of the region:
(i) Season: April 2-June 14 and July 16-August 31 for waterfowl; April 2-July 19 and August 21-August 31 for all other birds.
(ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for all other birds.
(e)
(1) Season: April 2-June 30 and July 31-August 31 for seabirds; April 2-June 20 and July 22-August 31 for all other birds.
(2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all other birds.
(f)
(1) Season: April 2-June 9 and August 15-August 31 (hunting in general); waterfowl egg gathering May 20-June 9 only; seabird egg gathering May 20-July 12 only; hunting molting/non-nesting waterfowl July 1-July 31 only.
(2) Closure: June 10-August 14, except for the taking of seabird eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) of this section.
(g)
(1) Southern Unit (Southwestern North Slope regional boundary east to Peard Bay, everything west of the longitude line 158°30′ W and south of the latitude line 70°45′ N to the west bank of the Ikpikpuk River, and everything south of the latitude line 69°45′ N between the west bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
(i) Season: April 2-June 29 and July 30-August 31 for seabirds; April 2-June 19 and July 20-August 31 for all other birds.
(ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for all other birds.
(iii) Special Black Brant Hunting Opening: From June 20-July 5. The open area would consist of the coastline, from mean high water line outward to include open water, from Nokotlek Point east to longitude line 158°30′ W. This includes Peard Bay, Kugrua Bay, and Wainwright Inlet, but not the Kuk and Kugrua river drainages.
(2) Northern Unit (At Peard Bay, everything east of the longitude line 158°30′ W and north of the latitude line 70°45′ N to west bank of the Ikpikpuk River, and everything north of the latitude line 69°45′ N between the west bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
(i) Season: April 6-June 6 and July 7-August 31 for king and common eiders; April 2-June 15 and July 16-August 31 for all other birds.
(ii) Closure: June 7-July 6 for king and common eiders; June 16-July 15 for all other birds.
(3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
(i) Season: April 2-June 19 and July 20-August 31.
(ii) Closure: June 20-July 19.
(4) All Units: Yellow-billed loons. Annually, up to 20 yellow-billed loons total for the region may be inadvertently entangled in subsistence fishing nets in the North Slope Region and kept for subsistence use. Individuals must report each yellow-billed loon inadvertently entangled while subsistence gill net fishing to the North Slope Borough Department of Wildlife Management by the end of the season.
(5) North Coastal Zone (Cape Thompson north to Point Hope and east along the Arctic Ocean coastline around Point Barrow to Ross Point, including Iko Bay, and 5 miles inland).
(i) Migratory bird hunting is permitted from one-half hour before sunrise until sunset, during August.
(ii) No person may at any time, by any means, or in any manner, possess or have in custody any migratory bird or part thereof, taken in violation of subpart C and D of this part.
(iii) Upon request from a Service law enforcement officer, hunters taking, attempting to take, or transporting migratory birds taken during the subsistence harvest season must present them to the officer for species identification.
(h)
(1) Season: April 2-June 14 and July 16-August 31; egg gathering May 1-June 14 only.
(2) Closure: June 15-July 15.
(i)
(1) Season: April 15-May 26 and June 27-August 31.
(2) Closure: May 27-June 26.
(3) The Copper River Basin communities listed above also documented traditional use harvesting birds in Unit 12, making them eligible to hunt in this unit using the seasons specified in paragraph (h) of this section.
(j)
(1) Prince William Sound Area (Harvest area: Unit 6 [D]), (Eligible Chugach communities: Chenega Bay, Tatitlek).
(i) Season: April 2-May 31 and July 1-August 31.
(ii) Closure: June 1-30.
(2) Kachemak Bay Area (Harvest area: Unit 15[C] South of a line connecting the tip of Homer Spit to the mouth of Fox River) (Eligible Chugach Communities: Port Graham, Nanwalek).
(i) Season: April 2-May 31 and July 1-August 31.
(ii) Closure: June 1-30.
(k)
(1) Season: April 2-May 31—That portion of Unit 16(B) south of the Skwentna River and west of the Yentna River, and August 1-31—That portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the Triumvirate Glacier.
(2) Closure: June 1-July 31.
(l)
(1) Community of Hoonah (Harvest area: National Forest lands in Icy Strait and Cross Sound, including Middle Pass Rock near the Inian Islands, Table Rock in Cross Sound, and other traditional locations on the coast of Yakobi Island. The land and waters of Glacier Bay National Park remain closed to all subsistence harvesting (50 CFR 100.3(a)).
(i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
(ii) Closure: July 1-August 31.
(2) Communities of Craig and Hydaburg (Harvest area: Small islands and adjacent shoreline of western Prince of Wales Island from Point Baker to Cape Chacon, but also including Coronation and Warren islands).
(i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
(ii) Closure: July 1-August 31.
(3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point Riou), and coastal lands and islands bordering the Gulf of Alaska from Point Manby southeast to Dry Bay).
(i) Season: Glaucous-winged gull egg gathering: May 15-June 30.
(ii) Closure: July 1-August 31.
Upon finding that continuation of these subsistence regulations would pose an imminent threat to the conservation of threatened Steller's eiders (
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
This supplemental NPRM revises an earlier proposed airworthiness directive (AD), for McCauley Propeller Systems model 4HFR34C653/L106FA propellers. That proposed AD would have required a onetime fluorescent penetrant inspection (FPI) and eddy current inspection (ECI) of the propeller hub for cracks. That proposed AD resulted from reports of 3 hubs found cracked during propeller overhaul. This supplemental NPRM would require the same inspections. This supplemental NPRM results from reports of 7 additional hubs found cracked during propeller overhaul, totaling 10 cracked hubs. We are proposing this supplemental AD to prevent failure of the propeller hub, which could cause blade separation, damage to the airplane, and loss of control of the airplane.
We must receive any comments on this proposed AD by June 14, 2010.
Use one of the following addresses to comment on this proposed AD.
•
•
•
•
You can get the service information identified in this proposed AD from McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 67277-7704; phone (800) 621-7767.
Jeff Janusz, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Wichita, KS 67209; e-mail:
We invite you to send us any written relevant data, views, or arguments regarding this proposal. 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
On September 24, 2007, we issued a proposal to amend part 39 of the Code of Federal Regulations (14 CFR part 39) to add an AD, for McCauley Propeller Systems model 4HFR34C653/L106FA propellers. The proposed AD published as an NPRM in the
Since we issued that NPRM, we received reports of 7 additional hubs found cracked during propeller overhaul. That brings the total of hubs that have had cracks located in the hub socket region, in the area of the outer bearing race press-fit surfaces, to 10. To date, the cause of these cracks appears to be fretting damage between the outer bearing race and the hub surface. This condition, if not corrected, could result in failure of the propeller hub, which could cause blade separation, damage to the airplane, and loss of control of the airplane.
Also since we issued that NPRM, we eliminated the reporting requirement to McCauley Propeller Systems.
We provided the public the opportunity to participate in the development of that proposed AD. We have considered the comment received on the original NPRM.
One commenter, a private citizen, recommends that the proposed AD also set a time limit on when inspections should take place. The commenter recommends an hour limit, and a year-old limit. We infer that the commenter is asking for a calendar time limit as well as the proposed operating hour time-since-new limit, to ensure the
We do not agree. The hub failure mechanism appears to be fretting damage which results in crack formation and subsequent growth. Propellers that are not operating do not accumulate fretting damage. Therefore, we cannot justify the use of calendar time. We did not change the proposed AD.
We have reviewed and approved the technical contents of McCauley Propeller Systems Alert Service Bulletin (ASB) No. ASB254, dated August 20, 2007. That ASB describes procedures for a onetime FPI and ECI of propeller hubs for cracks.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require a onetime FPI and ECI of propeller hubs for cracks. The proposed AD would require you to use the service information described previously to perform these actions.
These actions are interim actions and we may take further rulemaking actions in the future.
We estimate that this supplemental proposed AD would affect 128 propellers installed on airplanes of U.S. registry. We also estimate that it would take about 41.5 work-hours per propeller to perform the proposed actions, and that the average labor rate is $85 per work-hour. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $451,520.
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.
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. Would 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. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation, Incorporation by reference, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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 airworthiness directive:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by June 14, 2010.
(b) None.
(c) This AD applies to McCauley Propeller Systems model 4HFR34C653/L106FA propellers.
(d) This AD results from reports of 10 hubs found cracked during propeller overhaul. We are issuing this AD to prevent failure of the propeller hub, which could cause blade separation, damage to the airplane, and 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 propeller hubs with 6,000 or more operating hours time-since-new (TSN) on the effective date of this AD, perform the procedures in paragraphs (h) through (k) of this AD within 100 operating hours time-in-service (TIS) after the effective date of this AD.
(g) For propeller hubs with fewer than 6,000 operating hours TSN on the effective date of this AD, perform the procedures in paragraphs (h) through (k) of this AD before the propeller hub reaches 6,100 operating hours TSN.
(h) Remove and disassemble the propeller, and etch the propeller hub, using paragraphs 1.A. through 2.D. of the Accomplishment Instructions of McCauley Propeller Systems Alert Service Bulletin No. ASB254, dated August 20, 2007.
(i) Perform a onetime fluorescent penetrant inspection (FPI) of the propeller hub, using paragraphs 3.A. through 3.G. of the Accomplishment Instructions of McCauley Propeller Systems Alert Service Bulletin No. ASB254, dated August 20, 2007.
(j) For hubs that pass the FPI, perform a onetime eddy current inspection of the propeller hub, using paragraphs 4.A. through 4.F. of the Accomplishment Instructions of McCauley Propeller Systems Alert Service Bulletin No. ASB254, dated August 20, 2007.
(k) Remove cracked hubs from service and any other propeller parts found cracked.
(l) If you performed the onetime inspection of the propeller hub using McCauley Propeller Systems Service Bulletin No. SB238A, or Alert Service Bulletin ASB254, both dated August 20, 2007, before the effective date of this AD, you have satisfied the inspection requirements of this AD.
(m) These actions are interim actions and we may take further rulemaking actions in the future.
(n) 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.
(o) Under 14 CFR part 39.23, we are limiting the special flight permits for this AD as follows:
(1) The propeller must have no signs of external oil leakage from the hub; and
(2) The propeller has no current reports of abnormal operation or vibration.
(p) McCauley Propeller Systems, Service Bulletin No. ASB254, dated August 20, 2007, pertains to the subject of this AD. Contact McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 67277-7704; phone (800) 621-7767, for a copy of this service information.
(q) Contact Jeff Janusz, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Wichita, KS 67209; e-mail:
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a regulated navigation area across the entire width of the Galveston Channel in the vicinity of Sector Field Office (SFO) Galveston. This regulated navigation area would require vessels to navigate at no wake speeds within this area. Vessel transits at greater than minimum safe speed and causing wake in this area would be prohibited unless specifically authorized by the Captain of the Port Houston-Galveston or a designated representative. This regulated navigation area is needed to protect the Coast Guard Sector Field Office (SFO) Galveston vessels, break wall, and piers from further damage associated with excessive wake and to protect ongoing base construction.
Comments and related material must reach the Coast Guard on or before May 13, 2010.
You may submit comments identified by Coast Guard docket number USCG-2009-0931 using any one of the following methods:
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•
•
•
To avoid duplication, please use only one of these four methods.
Lieutenant junior grade Margaret Brown, Coast Guard Sector Houston-Galveston, telephone (713) 678-9001, or 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-2009-0931), 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 all 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 notice regarding our public dockets in the January 17, 2008, issue of the
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
The Coast Guard proposes to establish a regulated navigation area in Galveston Channel to protect the surrounding areas from the harmful effects of excessive wake. This regulated navigation area would require vessels to navigate at minimum safe speeds which produce no wake within the area of the Coast Guard SFO Galveston, Texas. Vessel transits at greater than minimum safe speed and causing wake in this area would be prohibited unless specifically authorized by the Captain of the Port Houston-Galveston or a designated representative. This regulated navigation area is needed to protect the Coast Guard vessels, break wall, and piers from further damage associated with excessive wake and to protect ongoing base construction.
The Coast Guard proposes to establish a regulated navigation area in Galveston Channel within the area from Latitude 29°20′19″ N, Longitude 094°46′36″ W, east to Latitude 29°20′06″ N, Longitude 094°46′15″ W, south to Latitude 29°19′4″ N, Longitude 094°46′27″ W, west to Latitude 29°19′51″ N, Longitude 094°46′45″ W, and north to Latitude 29°20′19″ N, Longitude 094°46′36″ W. Vessel transits at greater than minimum safe speed in this area would be prohibited unless specifically authorized by the Captain of the Port Houston-Galveston (COTP) or a designated representative.
Vessels can contact the COTP through Vessel Traffic Service Houston/Galveston on VHF Channel 5A, by telephone at (713) 671-5103, or by facsimile at (713) 671-5159.
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 Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The basis of this finding is that the proposed regulated navigation area covers a small area and vessels are allowed to travel through it at a minimum safe speed so as not to delay vessel traffic in and around the Port of Galveston.
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.
This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reason: The extent of the proposed regulated navigation area is limited in size and would not create undue delay to vessel traffic in and around the Port of Galveston.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (
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 junior grade Margaret Brown at (713) 678-9001. 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.
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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect 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
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 would 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 0023.1 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. A preliminary environmental analysis checklist supporting this preliminary determination is available in the docket where indicated under
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 new § 165.827 to read as follows:
(a)
(b)
(2) Vessels may proceed at greater than a minimum safe speed with permission of the Captain of the Port Houston-Galveston or a designated representative.
(3) To request permission as required by these regulations, contact the Sector Houston-Galveston Command Center by telephone at (713) 671-5113.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a temporary safety zone on the Atlantic Ocean in the vicinity of Ocean City, Maryland to support the Ocean City Air Show. This action is intended to restrict vessel traffic movement on the Atlantic Ocean to protect mariners and the public from the hazards associated with air show events.
Comments and related material must be received by the Coast Guard on or before May 13, 2010.
You may submit comments identified by docket number USCG-2010-0153 using any one of the following methods:
(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 or e-mail 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-2010-0153), 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, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
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 LT Tiffany Duffy at the telephone number or e-mail address indicated under the
On June 4, 5, and 6, 2010 Ocean City, Maryland will host an air show event on the Atlantic Ocean between Talbot Street and 33rd Street in Ocean City, MD. In recent years, there have been unfortunate instances of jets and planes crashing during performances at air shows. Along with the jet or plane crash, there is typically a wide area of scattered debris that also damages property and could cause significant injury or death to mariners observing the air shows. Due to the need to protect mariners and the public transiting the Atlantic Ocean immediately below the air show from hazards associated with the air show, the Coast Guard proposes establishing a temporary safety zone, restricting access to the area for public safety purposes.
The Coast Guard proposes establishing a temporary safety zone on specified waters of the Atlantic Ocean bound by the following coordinates: 38°-21′-38″ N / 075°-04′-04″ W, 38°-21′-27″ N / 075°-03′-29″ W, 38°-19′-35″ N / 075°-04′-19″ W, 38°-19'-45″ N / 075°-04′-54″ W (NAD 1983), in the vicinity of Ocean City, Maryland. The safety zone forms a box, beginning 500 feet seaward from the shoreline out 2000 feet and extends 6000 feet from Talbot St. to 33rd St. The NE corner, SE corner, NW corner, and SW corner will be marked with buoys in accordance with (IAW) Coast Guard District 5. This safety zone is proposed in the interest of public safety during the Ocean City Air Show and will be enforced daily from 10 a.m. to 4 p.m. on June 4, 5, and 6, 2010. Access to the safety zone will be restricted during the specified date and times. Except for vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the safety zone.
The Coast Guard expects the temporary final rule will be effective less than 30 days after publication in the
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 Order. The Office of Management and Budget has not reviewed it under that Order. Although this proposed regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
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 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. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor on the Atlantic Ocean in the vicinity of Ocean City, MD from 10 a.m. to 4 p.m. on June 4 through June 6, 2010.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration. (ii) Before the effective period of June 4, 2010 to June 6, 2010, maritime advisories will be issued allowing mariners to adjust their plans accordingly.
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 (
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 LT Tiffany Duffy, Chief Waterways Management Division, Sector Hampton Roads, Coast Guard; telephone 757-668-5580, e-mail
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 (adjusted for inflation) 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 cause 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 that 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 environmental impact statement is required. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
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 (165.65Mhz)and channel 16 (156.8 Mhz).
(d)
Architectural and Transportation Barriers Compliance Board.
Notice of hearing.
The Architectural and Transportation Barriers Compliance Board (Access Board) will hold a public hearing on its refresh of accessibility criteria for information and communication technologies covered by the Rehabilitation Act (section 508) and the Telecommunications Act (section 255). The hearing will focus on a draft of updated standards and guidelines made available for public comment on March 22. As part of this rulemaking, the Board proposes to supplement its Americans with Disabilities Act Accessibility Guidelines to address access to self-service machines such as point-of-sales machines and ticketing kiosks.
The hearing will be on May 12, 2010 from 9 a.m. until 12 p.m.
The hearing will be held at the Embassy Suites, DC Convention Center, 900 10th Street, NW., Washington, DC 20001.
Tim Creagan, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. Telephone number: 202-272-0016 (voice); 202-272-0082 (TTY). Electronic mail address:
On March 22, 2010, the Access Board published an advance notice of proposed rulemaking in the
The Board is responsible for developing and keeping up to date standards for electronic and information technology covered by section 508 of the Rehabilitation Act. Section 508 requires access to electronic and information technology developed, procured, maintained, or used by Federal agencies and departments to the extent that it does not impose an undue burden. The Board's section 508 standards, which were originally published in 2000 and are part of the Federal government's procurement regulations, provide technical and functional performance criteria for technologies covered by the law. Section 508 requires the Board to periodically review and amend the standards to reflect technological advances or changes in electronic and information technology.
The Board is updating its Telecommunications Act Accessibility Guidelines jointly with its refresh of the section 508 standards to harmonize both documents and to facilitate compliance. Section 255 of the Telecommunications Act requires telecommunications equipment and customer premises equipment to be accessible to and usable by individuals with disabilities when it is readily achievable to do so.
The Board is also proposing to amend the Americans with Disabilities Act Accessibility Guidelines (ADAAG) to address access to self-service machines used for ticketing, check-in or check-out, seat selection, boarding passes, or ordering food in restaurants and cafeterias.
The draft standards and guidelines are available for public comment until June 21, 2010. The Board will hold a hearing in Washington, DC that will provide the public an opportunity to comment on the draft rule. This hearing will take place during the Access Board's regularly scheduled Board meeting on May 12, 2010 from 9 a.m. until 12 p.m. at the Embassy Suites, DC Convention Center, 900 10th Street, NW., Washington, DC 20001. The Board previously held a hearing on the draft rule in San Diego, CA on March 25, 2010 in conjunction with the 25th Annual International Technology and Persons with Disabilities Conference.
The hearing location is accessible to individuals with disabilities. Sign language interpreters and real-time captioning will be provided. For the comfort of other participants, persons attending the hearing are requested to refrain from using perfume, cologne, and other fragrances. To pre-register to testify, please contact Kathy Johnson at (202) 272-0041, (202) 272-0082 (TTY), or
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to Indiana's State Implementation Plan alternative monitoring requirements for Indianapolis Power and Light Company (IPL) at its Harding Street Generating Station. On December 31, 2008, Indiana requested approval of alternative monitoring requirements that allow the use of a particulate matter continuous emissions monitoring system in place of a continuous opacity monitor.
Comments must be received on or before May 13, 2010.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0118, by one of the following methods:
•
•
•
•
•
Please see the direct final rule which is located in the Rules section of this
Matt Rau, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
In the Final Rules section of this
In
On page 17062, proposed rule document 2010-7547 was inadvertently published in the Rules section of the issue of April 5, 2010, beginning on page 17062. It should have appeared in the Proposed Rules section.
Forest Service, USDA.
Notice of land transfer.
Public Law 108-190 provides for the transfer of approximately 157 acres of National Forest System lands to the administrative jurisdiction of the National Park Service, to be thereafter permanently incorporated in and administered by the Secretary of the Interior as part of the Montezuma Castle National Monument.
This notice becomes effective April 13, 2010.
Louisa Herrera, National Title Program Manager, (202) 205-1255, Lands and Realty Management.
Section 3 of Public Law 108-190 (117 Stat. 2867), authorized the federal acquisition by the Secretary of Agriculture of approximately 157 acres of land depicted on a map dated May 2002, and entitled “Montezuma Castle Contiguous Lands”. Upon acquisition, section 5(e) of Public Law 108-190 provides that the land “shall be transferred to the administrative jurisdiction of the National Park Service, and shall be thereafter permanently incorporated in, and administered by the Secretary of the Interior as part of, the Montezuma Castle National Monument.” (117 Stat. 2870). The Montezuma Castle Contiguous Lands have been acquired for the United States by the Forest Service by deed dated December 6, 2007, and recorded December 10, 2007, in the land records of Yavapai County at Book 4560, Page 216. The lands are described as follows:
The area described contains 156.25 acres, Yavapai County, Arizona.
The Department of Commerce 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).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or
International Trade Administration, Department of Commerce.
Notice.
Mission recruitment will be conducted in an open and public manner, including publication in the
Recruitment for the mission will begin immediately and conclude no later than Friday, April 16, 2010. The U.S. Department of Commerce will review all applications immediately after the deadline. We will inform applicants of selection decisions as soon as possible after Friday 16, 2010. Applications received after the deadline will be considered only if space and scheduling constraints permit.
National Institute of Standards and Technology (NIST), Commerce.
Notice.
The National Institute of Standards and Technology (NIST) announces that the NIST Center for Neutron Research (NCNR) Comprehensive Grants Program is soliciting applications for financial assistance for Fiscal Year (FY) 2010. The NIST Center for Neutron Research (NCNR) Comprehensive Grants Program is seeking proposals for significant research involving Neutron Research and Spectroscopy specifically aimed at assisting visiting researchers at the NIST Center for Neutron Research, developing new instrumentation for Neutron Research, conducting collaborative research with NIST scientists, and to conduct other outreach and educational activities that advance the use of neutrons by U.S. university and industrial scientists.
All applications must be received no later than 5 p.m. Eastern Daylight Savings Time on Friday, May 7, 2010. Please see “Application Submission Information” for more information.
Paper copies of full proposals must be submitted to the address below. Paper submissions require an original and two copies: Tanya Burke, NIST Center for Neutron Research; National Institute of Standards and Technology; 100 Bureau Drive, Stop 6100; Gaithersburg, Maryland 20899-6100. Electronic submissions of full proposals must be submitted to:
Tanya Burke, NIST Center for Neutron Research, National Institute of Standards and Technology, 100 Bureau Drive, Stop 6100, Gaithersburg, Maryland 20899-6100. Tel (301) 975-4711, E-Mail:
Electronic access: Applications are strongly encouraged to read the Federal Funding Opportunity (FFO) available at
15 U.S.C. § 272(b) and (c), 15 U.S.C. § 278g-1(a), (b), 15 U.S.C. § 7501(b)
The mission of the NIST Center for Neutron Research is to assure the availability of neutron measurement capabilities to meet the needs of U.S. researchers from industry, academia and other government agencies. The primary program objectives of the NIST Center for Neutron Research (NCNR) Comprehensive Grants Program are:
1. To advance, through cooperative efforts with one or more recipients, research consistent with the mission of NIST, and NCNR specifically. See
2. To encourage significant research involving Neutron Research and Spectroscopy specifically aimed at assisting visiting researchers at the NIST Center for Neutron Research.
3. To develop new instrumentation for Neutron Research.
4. To conduct collaborative research with NIST scientists and to conduct other outreach and educational activities that advance the use of neutrons by U.S. academic and industrial scientists.
The NCNR intends this financial assistance program to address all of these objectives through one or more Cooperative Agreements. An eligible applicant is not prohibited from including any collaborating subrecipients in its application.
Additional information about the NCNR can be found at:
Additional information about the NIST Center for Neutron Research (NCNR) Comprehensive Grants Program NCNR may be found in the Federal Funding Opportunity (FFO) announcement for this program.
The funding instrument used in this program will be a Cooperative Agreement.
Proposals will be considered for Cooperative Agreements with durations of up to five years, funded in one year increments, subject to the availability of funds, satisfactory progress, and the continuing relevance to the objectives of the NIST Center for Neutron Research. The anticipated level of funding is up to $2,000,000 per year and one or more awards may be approved. Between one and three awards are likely. Projects are expected to start by October 1, 2010.
NIST will determine whether to fund one award for the full amount; to divide available funds into multiple awards of any size, and negotiate scopes of work and budgets as appropriate; or not to select any proposal for funding, upon completing the selection process described below.
The applications will be evaluated and scored on the basis of the following evaluation criteria:
1. Qualifications and experience of the Principal Investigator in neutron scattering research, as demonstrated by extensive publications and invited lectures in condensed matter physics, chemistry, material science, macromolecular science or related fields (10%)
2. Qualifications and experience of the Applicant's proposed staff in neutron scattering research or in related scientific or engineering areas that are key to the activities contained in the proposal, as demonstrated by resumes of staff proposed for this program (30%).
3. Quality of the proposed research and development plan and its potential impact on neutron scattering science, particularly in the areas of macromolecular science, condensed matter physics, and chemistry (20%).
4. Quality of the plan in terms of providing research assistance to U.S. neutron researchers using the NCNR facilities, including related training, education, and outreach (30%).
5. Quality of the plan to integrate the applicant's staff effectively into the activities of the NCNR facility, including establishing robust communications between the university and the NCNR (10%).
a. Availability of Federal funds;
b. Balance/distribution of funds to ensure research opportunities for all types of NCNR scientific research areas described in the Funding Opportunity Description section of this Notice; and
c. Applicant's prior award performance.
Therefore, the highest scoring proposals may not necessarily be selected for an award. If an award is made to an applicant that deviates from the scores of the reviewers, the Selecting Official will justify the selection in writing based on selection factors described above.
All timely submitted applications received in response to this announcement will be reviewed to determine whether they are complete and responsive to the scope of the stated objectives of the Program. Incomplete or non-responsive applications will not be reviewed for technical merit. NIST will retain one copy of each incomplete or non-responsive application for three years for record keeping purposes. The remaining copies will be destroyed.
Each complete and responsive application will be reviewed by at least four independent, objective NIST employees, who are knowledgeable in the subject matter of this announcement and its objectives and who are able to conduct a review based on the evaluation criteria for the Program as described in this notice. The reviewers will reach a consensus score resulting in a rank order of applications and make recommendations for funding to the Selecting Official. In making final selections, the Selecting Official (Director, NCNR) will select funding recipients based upon the rank order of the proposals, but may select out of rank order based on one or more of the Selection Factors. The final award of Cooperative Agreements will be made by the NIST Grants Officer in Gaithersburg, Maryland, based on compliance with application requirements as published in this notice, compliance with applicable legal and regulatory requirements, and whether the recommended applicants are determined to be responsible. Unsatisfactory performance on any previous Federal award may result in an application not being considered for funding. Applicants may be asked to modify objectives, work plans, or budgets, and provide supplemental information required by the agency prior to award. The decision of the Grants Officer is final.
Timely submission of an application, whether submitted electronically or in paper format, is the responsibility of the applicant.
Applications must be received on time, as the review process is expected to begin shortly after the deadline.
Any use of NIST-owned intellectual property by a proposer is at the sole discretion of NIST and will be negotiated on a case-by-case basis if a project is deemed meritorious. The applicant should indicate within the
If any invention made in whole or in part by a NIST employee arises in the course of an award made pursuant to this notice, the United States government may retain its ownership rights in any such invention. Licensing or other disposition of NIST's rights in such invention will be determined solely by NIST, and include the possibility of NIST putting NIST's rights in the intellectual property into the public domain.
If an applicant proposes use of NIST facilities, the statement of work should include a statement of this intention and a description of the facilities. Any use of NIST facilities must be approved by appropriate NIST management and is at the sole discretion of NIST. Prior to beginning the merit review process, NIST will verify the availability of the facilities and approval of the proposed usage. Any unapproved facility use will be stricken from the proposal prior to the merit review. Examples of some facilities that may be available for collaborations are listed on the NIST Technology Services Web site,
President Obama has issued Executive Order No. 13,505 (74 FR 10667, March 9, 2009), revoking previous Executive Orders and Presidential statements regarding the use of human embryonic stem cells in research. On July 30, 2009, President Obama issued a memorandum directing that agencies that support and conduct stem cell research adopt the “National Institutes of Health Guidelines for Human Stem Cell Research” (NIH Guidelines), which became effective on July 7, 2009, “to the fullest extent practicable in light of legal authorities and obligations.” On September 21, 2009, the Department of Commerce submitted to the Office of Management and Budget a statement of compliance with the NIH Guidelines. In accordance with the President's memorandum, the NIH Guidelines, and the Department of Commerce statement of compliance, NIST will support and conduct research using only human embryonic stem cell lines that have been approved by NIH in accordance with the NIH Guidelines and will review such research in accordance with the Common Rule, as appropriate. NIST will not support or conduct any type of research that the NIH Guidelines prohibit NIH from funding. NIST will follow any additional polices or guidance issued by the Administration on this topic.
Research Projects Involving Vertebrate Animals: Any proposal that includes research involving vertebrate animals must be in compliance with the National Research Council's “Guide for the Care and Use of Laboratory Animals” which can be obtained from National Academy Press, 2101 Constitution Avenue, NW., Washington, DC 20055. In addition, such proposals must meet the requirements of the Animal Welfare Act (7 U.S.C. 2131
NIST plans to make awards by September 30, 2010.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Whereas, the Foreign-Trade Zones Act provides for “* * * the establishment * * * of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;
Whereas, the Board's regulations (15 CFR Part 400) provide for the establishment of special-purpose subzones when existing zone facilities cannot serve the specific use involved, and when the activity results in a significant public benefit and is in the public interest;
Whereas, the Port Authority of New York and New Jersey, grantee of Foreign-Trade Zone 49, has made application to the Board for authority to establish a special-purpose subzone at the warehouse and distribution facility of The Swatch Group (U.S.) Inc., located in Secaucus, New Jersey (FTZ Docket 34-2009, filed 8/7/09);
Whereas, notice inviting public comment has been given in the
Whereas, the Board adopts the findings and recommendation of the examiner's report, and finds that the requirements of the FTZ Act and Board's regulations are satisfied, and that the proposal is in the public interest;
Now, therefore, the Board hereby grants authority for subzone status for activity related to watch and jewelry warehousing and distribution at the facility of The Swatch Group (U.S.) Inc., located in Secaucus, New Jersey (Subzone 49L), as described in the application and
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 Wednesday, April 28, 2010 from 3 p.m. to 5 p.m. Eastern Daylight Time (EDT). The primary purpose of this meeting is to review the Committee's draft report to the NIST Director. The draft report will be posted on the NEHRP Web site at
The ACEHR will hold a meeting on Wednesday, April 28, 2010, from 3 p.m. until 5 p.m. Eastern Daylight Time (EDT). The meeting will be open to the public. Interested parties may participate in the meeting from their remote location.
Questions regarding the meeting should be sent to National Earthquake Hazards Reduction Program Director, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8630, Gaithersburg, Maryland 20899-8630. For instructions on how to participate in the meeting, please see the
Dr. Jack Hayes, National Earthquake Hazards Reduction Program Director, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8630, Gaithersburg, Maryland 20899-8630. 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.
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 Wednesday, April 28, 2010, from 3 p.m. until 5 p.m. Eastern Daylight Time (EDT). There will be no central meeting location. The public is invited to participate in the meeting by calling in from remote locations. The primary purpose of this meeting is to review the Committee's draft report to the NIST Director. The draft report will be posted on the NEHRP Web site at
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request detailed instructions on how to dial in from a remote location to participate in the meeting. Approximately fifteen minutes will be reserved from 4:45 p.m.-5 p.m. Eastern Daylight Time (EDT) 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
All participants of the meeting are required to pre-register to be admitted. Anyone wishing to participate must register by close of business Wednesday, April 21, 2010, in order to be admitted. Please submit your name, time of participation, e-mail address, and phone number to Tina Faecke. At the time of registration, participants will be provided with detailed instructions on how to dial in from a remote location in order to participate. Non-U.S. citizens must also submit their country of citizenship, title, employer/sponsor, and address with their registration. Tina Faecke's e-mail address is
National Institute of Standards and Technology, Department of Commerce.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that there will be a joint meeting of the Panel of Judges and the Board of Overseers of the Malcolm Baldrige National Quality Award on June 16, 2010. The Panel of Judges and the Board of Overseers are each composed of twelve members prominent in the fields of quality, innovation, and performance management and appointed by the Secretary of Commerce, assembled to advise the Secretary of Commerce on the conduct of the Baldrige Award. The purpose of this meeting is to discuss and review information received from the National Institute of Standards and Technology and from the Chair of the Judges Panel of the Malcolm Baldrige National Quality Award. The agenda will include: Baldrige Program (BNQP) Update, Baldrige Fellows Program Discussion, Baldrige Program Changes in 2010 and 2011, and Implementation of the Strategic Plan Actions.
The meeting will convene June 16, 2010, at 8:30 a.m. and adjourn at 3 p.m. on June 16, 2010.
The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room A, Gaithersburg, Maryland 20899. All visitors to the National Institute of Standards and Technology site will have to pre-register to be admitted. Please submit your name, time of arrival, e-mail address and phone number to Diane Harrison no later than Monday, June 14, 2010, and she will provide you with instructions for admittance. Ms. Harrison's e-mail address is
Dr. Harry Hertz, Director, Baldrige National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that there will be a meeting of the Panel of Judges of the Malcolm Baldrige National Quality Award on June 15, 2010. The Panel of Judges is composed of twelve members prominent in the fields of quality, innovation, and performance management and appointed by the Secretary of Commerce, assembled to advise the Secretary of Commerce on the conduct of the Baldrige Award. The purpose of this meeting is to discuss and review information received from the National Institute of Standards and Technology and from the Chair of the Judges Panel of the Malcolm Baldrige National Quality Award. The agenda will include: Review of the 2009 Judging Process, Baldrige Program and Judging Process Changes in 2010.
The meeting will convene June 15, 2010, at 8:30 a.m. and adjourn at 3 p.m. on June 15, 2010. The entire meeting will be closed.
The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room A, Gaithersburg, Maryland 20899.
Dr. Harry Hertz, Director, Baldrige National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on December 3, 2009, that the meeting of the Judges Panel will be closed pursuant to Section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, as amended by Section 5(c) of the Government in the Sunshine Act, Public Law 94-409. The meeting, which involves examination of Award applicant data from U.S. companies and other organizations and a discussion of these data as compared to the Award criteria in order to recommend Award recipients, may be closed to the public in accordance with Section 552b(c)(4) of Title 5, United States Code, because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, in response to requests from Allied Tube and Conduit Corporation (Allied Tube) and Wheatland Tube Company(Wheatland) (collectively, petitioners). This review covers the period March 1, 2008 through February 28, 2009. We preliminarily determine that U.S. sales of subject merchandise have been made by Saha Thai Steel Pipe (Public) Company, Ltd. (Saha Thai) below normal value (NV). If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties based on the difference between the export price (EP) and the NV. We are also rescinding the administrative review of Pacific Pipe Company Limited (Pacific Pipe). We will instruct CBP to assess antidumping duties on entries of this merchandise produced by Pacific Pipe at the cash deposit rate required at the time of entry. Interested parties are invited to comment on these preliminary results.
April 13, 2010.
Jacqueline Arrowsmith, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, 14
On March 11, 1986, the Department published in the
On May 5, 2009, Pacific Pipe reported that it did not have any shipments or sales of subject merchandise for the last five months of the POR, from October 1, 2008 to February 28, 2009. The Department subsequently completed a new shipper review for Pacific Pipe covering the period March 1, 2008 through September 30, 2008.
On June 3, 2009, we sent questionnaires to Saha Thai and Pacific Pipe. We received timely responses to our questionnaire from Saha Thai on July 13, 2009 and July 27, 2009. We sent supplemental questionnaires to Saha Thai on September 17, 2009 and December 9, 2009. We received timely responses to our supplemental questionnaires on October 6, 2009, October 19, 2009, January 5, 2010, and January 14, 2010.
On November 25, 2009, we published a
The products covered by this antidumping order are certain welded carbon steel pipes and tubes from Thailand. The subject merchandise has an outside diameter of 0.375 inches or more, but not exceeding 16 inches. These products, which are commonly referred to in the industry as “standard pipe” or “structural tubing” are hereinafter designated as “pipes and tubes.” The merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085 and 7306.30.5090. Although the HTSUS subheadings are provided for the convenience and purposes of CBP, our written description of the scope is dispositive.
Section 351.213(d)(3) of the Department's regulations stipulates that the Secretary may rescind an administrative review of a producer if there were no entries, exports, or sales of the subject merchandise by that producer during the period covered by the review. Pacific Pipe, in a letter dated May 5, 2009, reported that it did not make any shipments or sales of subject merchandise for the last five months of the POR, from October 1, 2008 to February 28, 2009. The one shipment that Pacific Pipe did make during the first seven months of the POR, March 1, 2008 through September 30, 2008, was concurrently under review in a new shipper review.
Record evidence establishes that there were no entries of subject merchandise produced by Pacific Pipe from October 1, 2008 through February 29, 2009, the final five months of this POR. Further, the sale and entry made by Pacific Pipe during the period from March 1, 2008 through September 30, 2008 was the subject of a new shipper review.
Saha Thai reported contract date as the date of sale for U.S. sales. The Department considers invoice date to be the presumptive date of sale.
We preliminarily determine that contract date (or amended contract date) is the appropriate date of sale for U.S. sales in this administrative review because it better represents the date upon which the final material terms of sale were established. This is consistent with the most recently completed administrative reviews of this order.
In the home market, the date of invoice is when the material terms of sale are established. Therefore, we are using the invoice date as the date of sale for home market sales.
In accordance with section 772(a) of the Tariff Act of 1930, as amended (the Act), export price is the price at which the subject merchandise is first sold (or agreed to be sold) by the producer or exporter of subject merchandise outside of the United States to an unaffiliated purchaser prior to the date of importation. We classified all of Saha Thai's sales to its U.S. customers as EP sales because, as in previous administrative reviews of this order, we found that Saha Thai is not affiliated with its distributors, which are the first purchasers in the United States.
In accordance with section 772(c)(2) of the Act, we made deductions from the gross unit price for foreign inland freight, foreign brokerage and handling, foreign inland insurance, foreign warehousing, ocean freight, lighterage charges, U.S. brokerage and handling charges, and U.S. duties.
Section 772(c)(1)(B) of the Act states that EP should be increased by the amount of any import duties “imposed by the country of exportation which have been rebated, or which have not been collected by reason, of the exportation of the subject merchandise to the United States. . . .” Saha Thai claimed an adjustment to EP for the duties exempted on its imports of inputs (hot-rolled steel coil and zinc) into a bonded warehouse. In determining whether an adjustment should be made to EP for this exemption, we look for a reasonable link between the duties imposed and those rebated or exempted. We do not require that the imported input be traced directly from importation through exportation. We do require, however, that the company meet our “two-pronged” test in order for this addition to be made to EP. The first element is that the import duty and its rebate or exemption be directly linked to, and dependent upon, one another; the second element is that the company must demonstrate that there were sufficient imports of the imported material to account for the duty drawback or exemption granted for the export of the manufactured product.
Saha Thai has provided information that demonstrates that it meets both prongs of our “two-pronged” test. Therefore, for these preliminary results, we are making an upward adjustment to export price for these duty exemptions.
The Department's normal practice is to calculate an annual weighted-average cost for the POR.
In prior cases, the Department established 25 percent as the threshold (between the high and low quarter COM) for determining that the changes in COM are significant enough to warrant a departure from our standard annual costing approach.
Consistent with past precedent, if the Department finds changes in costs to be significant in a given period of review, the Department subsequently evaluates whether there is evidence of linkage between the cost changes and the sales prices during the POR. The Department's definition of linkage does not require direct traceability between specific sales and their specific production costs, but rather relies on whether there are elements that would indicate a reasonable correlation between the underlying costs and the final sales prices levied by the company.
Because we have found significant cost changes in COM as well as reasonable linkage between costs and sales prices, we have preliminarily determined that a quarterly costing approach would lead to more appropriate comparisons in our antidumping duty calculation for Saha Thai.
In accordance with section 773(a)(1) of the Act, to determine whether there was sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared Saha Thai's volume of home market sales of foreign like product to the volume of U.S. sales of subject merchandise. Pursuant to section 773(a)(1) of the Act and section 351.404(b) of the Department's regulations, because the volume of Saha Thai's home market sales of foreign like product was greater than five percent of the volume of U.S. sales of the subject merchandise during the POR, we determine that the home market is viable. Therefore, we used home market sales as the basis for NV in accordance with section 773(a)(1).
The Department's practice with respect to the use of home market sales to affiliated parties for NV is to determine whether such sales are at arm's-length prices. To examine whether home market sales were made at arm's length, we compared the starting price of sales to affiliated customers to the starting price of sales to unaffiliated customers, net of all movement charges, direct selling expenses, discounts and packing. We made this comparison on a quarterly basis consistent with our preliminary decision to use a quarterly costing approach. Where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the same or comparable merchandise to the unaffiliated parties, we determined that the sales made to the affiliated parties were at arm's length.
For each affiliated reseller, we requested Saha Thai to report the first sale to an unaffiliated customer. When the sale to the affiliated reseller did not pass the arm's-length test and was therefore excluded from the normal value calculation, we included the sale by the affiliated reseller to the first unaffiliated customer in our margin analysis.
We found that Saha Thai made sales below the COP in the most recently completed segment of this proceeding in which Saha Thai was examined, and such sales were disregarded. Thus, in accordance with section 773(b)(2)(A)(ii) of the Act, there are reasonable grounds to believe or suspect that Saha Thai made sales of the subject merchandise in its comparison market at prices below the COP in the current review period. Pursuant to section 773(b)(1) of the Act, we initiated a COP investigation of sales by Saha Thai. For our complete analysis,
In accordance with section 773(b)(3) of the Act, we calculated Saha Thai's COP based on the sum of its costs of materials and conversion for foreign like product, plus an amount for home market SG&A expenses, interest expenses and packing costs.
a. We have adjusted Saha Thai's cost of carbon steel hot-rolled coils obtained from an affiliated supplier to reflect the higher of transfer or market price in accordance with section 773(f)(2) of the
b. We revised Saha Thai's general and administrative (G&A) expenses to reflect a rate calculated on non-consolidated producer-specific financial statements, rather than the consolidated financial statements.
c. We adjusted the cost of goods sold denominators used in the G&A and financial expense rates to reflect transactions disregarded adjustments and to include the cost of services.
d. We revised Saha Thai's reported duty exemptions on hot-rolled coil and zinc inputs to apply the adjustments as a ratio of the exempted duty amounts to total purchases of the respective input.
For more detail on these adjustments, refer to Preliminary Cost Calculation Memorandum.
In accordance with section 773(b) of the Act, we compared the quarterly COP to the home market sales price (less any applicable movement charges and discounts) by quarter, of the foreign like product on a product-specific basis in order to determine whether home market sales had been made at prices below COP.
In determining whether to disregard sales below COP, we examined, in accordance with sections 773(b)(1)(A) and whether such sales were made in substantial quantities, and whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. As noted in section 773(b)(1)(D) of the Act, prices are considered to provide for recovery of costs if such prices are above the weighted average per-unit COP for the period of investigation or review. In the instant case, we have relied on a quarterly costing approach. Similar to that used by the Department in cases of high-inflation (
Where less than 20 percent of the respondent's home market sales of a given model were at prices below the COP, we did not disregard any below-cost sales of that model because we determined that the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of the respondent's home market sales of a given model were at prices less than the COP, we disregarded the below-cost sales because: (1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and (2) based on our comparison of prices to the indexed weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
Our cost test for Saha Thai revealed that, for home market sales of certain models, less than 20 percent of the sales of those models were at prices below the COP. Therefore, we retained all such sales in our analysis and used them as the basis for determining NV. Our cost test also indicated that for home market sales of other models, more than 20 percent were sold at prices below the COP within an extended period of time and were at prices which would not permit the recovery of all costs within a reasonable period of time. Thus, in accordance with section 773(b)(1) of the Act, we excluded these below-cost sales from our analysis and used the remaining above-cost sales as the basis for determining NV.
To calculate Saha Thai's home market net price, we deducted discounts and movement expenses, which included inland freight and warehousing where appropriate. Pursuant to section 773(a)(6)(C)(iii) of the Act and section 351.410(c) of the Department's regulations, we made a circumstance of sale adjustment for home market and U.S. credit expenses, as well as U.S. bank charges. In addition, pursuant to section 773(a)(6)(A) of the Act, we deducted home market packing costs and added U.S. packing costs. In addition, where applicable, we made adjustments for differences in costs attributable to physical characteristics pursuant to section 773(a)(6)(C)(ii) of the Act and section 351.410 of the Department's regulations.
Pursuant to section 773(a)(1)(B)(i) of the Act, to the extent practicable, NV is normally the price in the home market that is at the same level of trade (LOT) as the EP. The NV LOT is that of the starting-price sale in the comparison market, or when NV is based on CV, that of the sales from which we derive SG&A and profit. For EP, the U.S. LOT is the level of the starting-price sale, which is usually from exporter to importer. To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing and selling functions along the chain of distribution between the producer and unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects the price comparability, as manifested in a pattern of consistent price differences between sales at different levels of trade in the country in which NV is determined, we make an LOT adjustment under section 773(a)(7)(A) of the Act and under section 351.410(c) of the Department's regulations.
For the U.S. market, Saha Thai reported only one LOT for its EP sales. For its home market sales, Saha Thai reported that its sales to unaffiliated customers were at the same level of trade as its U.S. sales. However, Saha Thai reported that, if the Department used the downstream sales of any of its affiliated resellers, these sales were made at a distinct level of trade, and Saha Thai's home market would consist of two levels of trade.
For Saha Thai's sales made through affiliated resellers, we consider the relevant functions to be the selling functions of both the producer and the reseller (
Saha Thai provided information about the marketing and selling functions performed by the affiliated resellers for its sales to unaffiliated customers. This information is sufficient to conduct an analysis of whether Saha Thai's sales in the home market were made at more than one LOT. For those affiliated resellers whose sales did not pass the arm's length test, we have analyzed the information that Saha Thai provided regarding the marketing and selling
Based on the facts and our analysis, we have concluded that Saha Thai's home market sales were made at two distinct levels of trade: sales directly from Saha Thai to its unaffiliated customers and sales from Saha Thai through its affiliated resellers to unaffiliated customers.
Saha Thai reported that its U.S. sales are made at only one level of trade, to unaffiliated resellers in the United States. For the U.S. market, we also examined the information reported by Saha Thai with respect to the selling and marketing functions, the freight functions, technical services/warranties functions, and inventory management functions performed by Saha Thai for sales to its unaffiliated resellers. We examined the selling functions and the level of intensity at which Saha Thai performs these selling functions as described in its narrative response and Exhibit 9 of Saha Thai's July 13, 2009 Section questionnaire response and Exhibit 8 of Saha Thai's October 19, 2009 supplemental questionnaire response. Information about the specific selling functions we examined, the intensity at which Saha Thai performs those selling functions for its U.S. sales (to unaffiliated resellers) and our analyses is business proprietary, and is detailed in the “Level of Trade” section in the
Based on the facts and our analyses, we preliminarily determine that all U.S. sales are made at one LOT. Furthermore, we find that the U.S. sales are at the same LOT as Saha Thai's home market sales to unaffiliated customers. For our complete analysis,
While we have preliminarily determined that there are two distinct levels of trade in the home market (LOT 1 and LOT 2) and that the LOT in the U.S. market matches LOT 1 in the home market, we must consider whether an LOT adjustment is warranted for those U.S. sales for which there is not a match in the home market at LOT 1. In accordance with section 773(a)(7)(A)(ii) of the Act, such an adjustment is warranted when the difference in LOT is demonstrated to affect price comparability, based on a pattern of consistent price differences, on both a CONNUM and a quantity basis, between sales at different levels of trade in the home market (the basis for NV). However, our decision to apply the quarterly cost methodology and to perform quarterly price-to-price comparisons, raises a novel issue with respect to the LOT analysis of pattern of price differences and any possible LOT adjustment based on that analysis. Therefore, we request parties comment on whether the application of the quarterly cost methodology necessarily requires an evaluation on a quarterly basis of the pattern of price differences and how any such differences should be analyzed for purposes of determining whether there is a pattern of price differences. In addition, we invite parties to comment on whether, if a pattern of price differences is found to exist, any LOT adjustment should be done on a yearly basis or on a quarterly basis. These comments should be submitted no later than ten days from the date of publication of this notice in the
We made currency conversions pursuant to section 351.415 of the Department's regulations based on rates certified by the Federal Reserve.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries in accordance with section 351.212 of the Department's regulations. The Department intends to issue assessment instructions for Saha Thai directly to CBP 15 days after the date of publication of the final results of this administrative review.
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for any intermediate company involved in the transaction. For a full discussion of this clarification,
The following cash deposit rates will be effective with respect to all shipments of subject merchandise entered, or withdrawn from warehouse for consumption, on or after the publication date of the final results, as provided for by section 751(a)(1) of the Act: (1) for Saha Thai, the cash deposit rate will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and (4) if neither the exporter nor the manufacturer of the subject merchandise is a firm covered by this review, a prior review, or the LTFV investigation, the cash deposit rate shall be the “all other” rate established in the LTFV investigated, which is 15.67 percent. These deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.
Pursuant to section 351.224(b) of the Department's regulations, the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to section 351.309 of the Department's regulations, interested parties may submit written comments in response to those preliminary results.
Also, pursuant to section 351.310(c) of the Department's regulations, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location.
The Department will publish the final results of the administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, no later than 120 days after publication of the preliminary results, unless extended.
This notice serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request by the petitioners and two producers/exporters of the subject merchandise, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain orange juice (OJ) from Brazil of those two producers/exporters of the subject merchandise to the United States. This is the third period of review (POR), covering March 1, 2008, through February 28, 2009.
We have preliminarily determined that sales to the United States have been made below normal value (NV). If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries.
Elizabeth Eastwood or Hector Rodriguez, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3874 or (202) 482-0629, respectively.
In March 2006, the Department published in the
In accordance with 19 CFR 351.213(b)(2), in March 2009, the Department received requests to conduct an administrative review of the antidumping duty order on OJ from Brazil from two producers/exporters of the subject merchandise, Fischer S.A. Comercio, Industria, and Agricultura (Fischer) and Sucocitrico Cutrale, S.A. (Cutrale). In Cutrale's request for an administrative review, Cutrale also requested revocation of the antidumping duty order with respect to its sales of subject merchandise, pursuant to 19 CFR 351.222(b).
In accordance with 19 CFR 351.213(b)(1), also in March 2009, the petitioners (Florida Citrus Mutual, A. Duda & Sons, Citrus World Inc., and Southern Gardens Citrus Processing Corporation), requested that the Department conduct an administrative review for Cutrale and Fischer. In April 2009, the Department initiated an administrative review for each of these companies.
In June 2009, we received responses to section A of the questionnaire (
In June, August, and September 2009, we issued four supplemental sales questionnaires to Fischer, three supplemental questionnaires to Cutrale and one cost questionnaire and supplemental each to Cutrale and Fischer. We received responses to these supplemental questionnaires from July through October 2009.
In September and October 2009, the Department verified the U.S. sales data reported by Fischer's U.S. affiliate, Citrosuco North America Inc. (CNA), and the COP/CV data reported by Fischer, respectively.
On October 28, 2009, the Department extended the deadline for the preliminary results in this review until no later than March 31, 2010.
In November and December 2009, the Department verified Cutrale's and Fischer's sales information in Brazil and the U.S. sales data reported by Cutrale's U.S. affiliate, Citrus Products Inc (CPI). Also, in November, we issued and
In January 2010, the Department verified Cutrale's COP/CV data reported by Cutrale. In February 2010, as explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. Thus, all deadlines in this segment of the proceeding have been extended by seven days. The revised deadline for the preliminary results of this review is now April 7, 2010.
In March 2010, at the request of the Department, Cutrale and Fischer submitted revised U.S. and home market sales databases. Also in March 2010, the Department requested that Cutrale report U.S. sales data related to exports of subject merchandise produced by unaffiliated Brazilian producers. In April 2010, Cutrale informed the Department that it did not have any such sales to unaffiliated customers in the United States during the POR.
The scope of this order includes certain orange juice for transport and/or further manufacturing, produced in two different forms: (1) Frozen orange juice in a highly concentrated form, sometimes referred to as frozen concentrated orange juice for manufacture (FCOJM); and (2) pasteurized single-strength orange juice which has not been concentrated, referred to as not-from-concentrate (NFC). At the time of the filing of the petition, there was an existing antidumping duty order on frozen concentrated orange juice (FCOJ) from Brazil.
Excluded from the scope of the order are reconstituted orange juice and frozen concentrated orange juice for retail (FCOJR). Reconstituted orange juice is produced through further manufacture of FCOJM, by adding water, oils and essences to the orange juice concentrate. FCOJR is concentrated orange juice, typically at 42 Brix, in a frozen state, packed in retail-sized containers ready for sale to consumers. FCOJR, a finished consumer product, is produced through further manufacture of FCOJM, a bulk manufacturer's product.
The subject merchandise is currently classifiable under subheadings 2009.11.00, 2009.12.25, 2009.12.45, and 2009.19.00 of the Harmonized Tariff Schedule of the United States (HTSUS). These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive. Rather, the written description of the scope of the order is dispositive.
The Department may revoke, in whole or in part, an antidumping duty order upon completion of a review under section 751 of the Tariff Act of 1930, as amended (the Act). While Congress has not specified the procedures that the Department must follow in revoking an order, the Department has developed a procedure for revocation that is described in 19 CFR 351.222. This regulation requires,
On March 31, 2009, Cutrale requested revocation of the antidumping duty order with respect to its sales of subject merchandise, pursuant to 19 CFR 351.222(b). This request was accompanied by certification that: (1) Cutrale sold the subject merchandise at not less than NV during the current POR and will not sell the merchandise at less than NV in the future; and (2) it sold subject merchandise to the United States in commercial quantities for a period of at least three consecutive years. Cutrale also agreed to immediate reinstatement of the antidumping duty order, as long as any exporter or producer is subject to the order, if the Department concludes that, subsequent to the revocation, it sold the subject merchandise at less than NV.
After analyzing Cutrale's request for revocation, we preliminarily find that it does not meet all of the criteria under 19 CFR 351.222(b). In this case, our preliminary margin calculation shows that Cutrale sold the subject merchandise at less than NV during the current review period.
To determine whether sales of OJ by Cutrale and Fischer to the United States were made at less than NV, we compared constructed export price (CEP) to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, we compared the CEPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
In accordance with section 771(16) of the Act, we considered all products produced by Cutrale and Fischer covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of OJ to sales of OJ in the home market within the contemporaneous window period, which extends from three months prior to the month of the first U.S. sale until two months after the last U.S. sale. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order of importance: Product type and organic designation. Where there were no sales of identical or similar merchandise, we made product comparisons using CV, as discussed in the “Calculation of Normal Value Based on Constructed Value” section below.
For all U.S. sales made by Cutrale and Fischer, we used the CEP methodology specified in section 772(b) of the Act because the subject merchandise was sold for the account of these respondents by their U.S. subsidiaries in the United States to unaffiliated purchasers.
In accordance with section 772(b) of the Act, we calculated CEP for those sales where the merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. In this case, we are treating all of Cutrale's U.S. sales as CEP sales because they were made in the United States by Cutrale's U.S. affiliate, CPI, on behalf of Cutrale, within the meaning of section 772(b) of the Act.
We based CEP on the packed delivered prices to unaffiliated purchasers in the United States. For sales made pursuant to futures contracts, we adjusted the reported gross unit price (
In addition, we made deductions for movement expenses, in accordance with section 772(c)(2)(A) of the Act. These included, where appropriate, foreign inland freight; foreign warehousing expenses; foreign brokerage and handling expenses; ocean freight; U.S. brokerage and handling (offset by customer-specific reimbursements); U.S. customs duties, harbor maintenance fees and merchandise processing fees (offset by U.S. duty drawback and customs duty reimbursements); U.S. inland freight expenses (
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by Cutrale and its U.S. affiliate on their sales of the subject merchandise in the United States and the profit associated with those sales.
For further discussion of the changes made to Cutrale's reported U.S. sales data, see the April 7, 2010, memorandum from Blaine Wiltse, Analyst, to the File, entitled “Calculation Adjustments for Sucocitrico Cutrale Ltda. for the Preliminary Results” (Cutrale Sales Calculation Memo).
In accordance with section 772(b) of the Act, we calculated CEP for those sales where the merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. In this case, we are treating all of Fischer's U.S. sales as CEP sales because they were made in the United States by Fischer's U.S. affiliate, CNA, on behalf of Fischer, within the meaning of section 772(b) of the Act.
We based CEP on the packed delivered prices to unaffiliated purchasers in the United States. Where appropriate, we made adjustments for billing adjustments and rebates. We made deductions for movement expenses, in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight expenses; foreign warehousing expenses; foreign brokerage and handling expenses; ocean freight expenses; bunker fuel surcharges; marine insurance expenses; U.S. brokerage and handling expenses; U.S. customs duties, harbor maintenance fees and merchandise processing fees (offset by U.S. duty drawback and customs duty reimbursements); U.S. inland freight expenses (
In accordance with sections 772(d)(1) and (2) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
We made no adjustment to the price for CEP profit, pursuant to section 772(d)(3) of the Act, because Fischer incurred a loss during the POR and it is the Department's practice to not use “negative profit” rates in its calculations.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.
We determined that the aggregate volume of home market sales of the foreign like product for both respondents was sufficient to permit a proper comparison with its U.S. sales of the subject merchandise.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the export price (EP) or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is at a more advanced stage of distribution than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
Cutrale reported that it made CEP sales through one channel of distribution in the United States (
Selling activities can be generally grouped into four selling function categories for analysis: (1) Sales and marketing; (2) freight and delivery; (3) inventory maintenance and warehousing; and (4) warranty and technical support.
With respect to the home market, Cutrale reported that it made sales through one channel of distribution (
Finally, we compared the CEP LOT to the home market LOT and found that the selling functions performed for U.S. and home market customers do not differ significantly. Specifically, we found that the differences were limited to the following activities: (1) Visits with customers in the home market but not to/from CPI; (2) Cutrale performed limited advertising in the home market (such as the sponsorship of a local soccer team in Brazil and advertising related to the company's fortieth anniversary); and (3) Cutrale input orders into the company's computer system for home market sales (vs. the shipment of merchandise from a quarterly shipping schedule for U.S. sales).
According to 19 CFR 351.412(c)(2), the Department will determine that sales are made at different levels of trade if they are made at different marketing stages (or their equivalent). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stage of marketing. Therefore, because we determine that substantial differences in Cutrale's selling activities do not exist across markets, we determine that sales to the U.S. and home markets during the POR were made at the same LOT. As a result, neither an LOT adjustment nor a CEP offset is warranted for Cutrale. This determination is consistent with findings in previous reviews.
Fischer reported that it made CEP sales through one channel of distribution in the United States (
With respect to the home market, Fischer reported that it made sales through one channel of distribution and that the selling activities it performed did not vary by the type of customer. We examined the selling activities performed for home market sales, and found that Fischer performed the following selling functions: Customer contact and price negotiation; order processing; arranging for freight; cold storage and inventory maintenance; sales and marketing support; and technical assistance. Accordingly, based on the selling function categories listed above, we find that Fischer performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and warranty and technical support for home market sales. Because all home market sales are made through a single distribution channel, we preliminarily determine that there is one LOT in the home market for Fischer.
Finally, we compared the CEP LOT to the home market LOT and found that the selling functions performed for U.S. and home market customers do not differ significantly. Therefore, we determine that sales to the U.S. and home markets during the POR were made at the same LOT, and as a result, neither a LOT adjustment nor a CEP offset is warranted for Fischer.
We found that both Cutrale and Fischer made sales below the COP in the 2005-2007 administrative review, the most recently completed segment of this proceeding as of the date of initiation of this review, and such sales were disregarded.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COPs based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses (
The Department relied on the COP data submitted by each respondent in its most recently submitted cost database for the COP calculation, except in the following instances:
a.
i. In accordance with the transactions disregarded rule (
ii. We adjusted Cutrale's reported COM to remove ICMS taxes from the by-product revenue;
iii. We revised Cutrale's general and administrative expense rate to include the net loss on routine disposals of fixed assets in the numerator and reduce the cost of goods sold (COGS), used as the denominator, by the by-product revenue; and
iv. We revised Cutrale's financial expense rate to reduce the COGS, used as the denominator, by packing expenses and the by-product revenue.
b.
i. We adjusted Fischer's COM to reflect market price for the sale of certain by-products to an affiliated party;
ii. We revised Fischer's G&A calculation to include “other” operating expenses related to provisions and disposal of fixed assets; and
iii. We adjusted Fischer's financial ratio numerator to include long-term interest expense from an affiliated party
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sales prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, direct and indirect selling expenses and packing expenses. We revised Cutrale's selling expenses as discussed below under the “Calculation of Normal Value Based on Comparison Market Prices” section.
In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act: (1) Whether, within an extended period of time, such sales were made in substantial quantities; and (2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. Where less than 20 percent of the respondent's home market sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales when: (1) They were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and (2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain products, more than 20 percent of Cutrale's and Fischer's home market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales from our analysis. We used the remaining sales as the basis for determining NV for Cutrale, in accordance with section 773(b)(1) of the Act. However, because all of Fischer's home market sales failed the cost test, we based NV on CV for this company.
For Cutrale, we calculated NV based on ex-factory prices to unaffiliated customers. We adjusted the reported prices to account for the difference between the standard and actual brix levels at which the foreign like product was sold, using facts available under section 776(a) of the Act. As facts available, we used the highest actual brix level observed at verification for any reported home market sale. We find that facts available is warranted in this instance because to date Cutrale failed to provide useable data related to its actual brix levels. Nonetheless, we have afforded Cutrale a final opportunity to provide the necessary information, and we will consider this information, if submitted in a timely manner for the final results in this review.
We made adjustments, where appropriate, to the starting price for billing adjustments, in accordance with 19 CFR 351.401(c). We also made adjustments, where appropriate, to the starting price for Brazilian taxes, in accordance with section 773(a)(6)(B)(iii) of the Act. We made deductions to the starting price for foreign warehousing expenses (offset by warehousing revenue) in accordance with section 773(a)(6)(B)(ii) of the Act. We capped warehousing revenue by the amount of warehousing expenses incurred on home market sales, in accordance with our practice.
We deducted home market packing costs and added U.S. packing costs, where appropriate, in accordance with sections 773(a)(6)(A) and (B) of the Act.
Finally, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison market sales, NV may be based on CV. Accordingly, because Fischer made no home market sales in the ordinary course of trade, we based NV for Fischer on CV.
Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for selling, general, and administrative (SG&A) expenses, profit, and U.S. packing costs. We calculated the cost of materials, fabrication and G&A financial expenses based on the methodology described in the “Cost of Production Analysis” section, above. Because Fischer did not have home market sales in the ordinary course of trade, the Department cannot determine profit under section 773(e)(2)(A) of the Act, which requires sales by the respondent in question in the ordinary course of trade in a comparison market. Likewise, because Fischer does not have sales of any product in the same general category of products as the subject merchandise, we are unable to apply alternative (i) of section 773(e)(2)(B) of the Act. Moreover, because the only respondent in this administrative review other than Fischer is Cutrale, we are unable to apply alternative (ii) of section 773(e)(2)(B) of the Act (
Therefore, we calculated Fischer's CV profit and selling expenses based on alternative (iii) of this section, in accordance with section 773(e)(2)(B)(iii) of the Act. As a result, we calculated Fischer's CV profit and selling expenses using its own data for home market
For comparisons to CEP, we deducted home market direct selling expenses from CV.
We made currency conversions into U.S. dollars, in accordance with section 773A of the Act and 19 CFR 351.415, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period March 1, 2008, through February 28, 2009, as follows:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room 1870, within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
We will calculate importer-specific
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on brass sheet and strip (BSS) from Germany. For the period of review (POR) March 1, 2008, through February 28, 2009, we have preliminarily determined that U.S. sales have not been made below normal value (NV). If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.
Dennis McClure or George McMahon, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone: (202) 482-5973 or (202) 482-1167, respectively.
The Department published in the
On May 5, 2008, the Department published a notice of opportunity to request an administrative review of this order for the POR.
On May 7, 2009, the Department issued an antidumping duty questionnaire to Wieland. We received Wieland's response to Section A of the Department's questionnaire on June 11, 2009 (Section AQR), Sections B-C on July 1, 2009 (Section B-C QR), and Section D on July 21, 2009 (Section DQR). The Department received comments from the Petitioners
After reviewing the Sections A through D responses from Wieland, the Department issued supplemental questionnaires to Wieland. The Department issued additional supplemental questions, after reviewing Wieland's supplemental questionnaire responses. On November 18, 2009, the Department issued an extension of the deadline for the preliminary results of this antidumping duty administrative review from December 1, 2009, until March 31, 2010.
In letters to the Department dated March 4, 2010, and March 12, 2010, the Petitioners state that Wieland was the importer of record for the U.S. sale made during the POR and, therefore, Wieland is liable for any antidumping duties assessed. Pursuant to Wieland's role as the importer, the Petitioners allege that Wieland has put itself in a position to make payment or reimbursement of any antidumping duties related to its U.S. sale. As such, the Petitioners assert that the transaction in question is subject to a reduction in the export price, pursuant to 19 CFR 351.402(f).
The Department has considered the facts of the instant review. Consistent with the Department's practice with respect to this issue, we do not find that Wieland's sale to the United States during the POR is subject to 19 CFR 351.402(f). Our decision as to reimbursement is based upon our interpretation of this regulation, which is that two separate corporate entities must exist to invoke the reimbursement regulation.
The scope of this order covers shipments of brass sheet and strip, other than leaded and tinned, from Germany. The chemical composition of the covered products is currently defined in the Copper Development Association (C.D.A.) 200 Series or the Unified Numbering System (U.N.S.) C2000; this review does not cover products the chemical compositions of which are defined by other C.D.A. or U.N.S. series. In physical dimensions, the products covered by this review have a solid rectangular cross section over 0.006 inches (0.15 millimeters) through 0.188 inches (4.8 millimeters) in finished thickness or gauge, regardless of width. Coiled, wound-on-reels (traverse wound), and cut-to-length products are included. The merchandise is currently classified under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7409.21.00 and 7409.29.00. Although the HTSUS item numbers are provided for convenience and customs purposes, the Department's written description of the scope of this order remains dispositive.
The period of review is March 1, 2008, through February 28, 2009.
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), we intend to verify the information relied upon prior to the final results of the instant review. Our verification results will be outlined in the public version of our verification report, which will be on file in the Department's Central Records Unit (CRU), Room 1117 of the Main Commerce Building.
In accordance with section 771(16) of the Act, we considered all products produced by the respondent that are covered by the description contained in the “Scope of the Order” section above and were sold in the home market during the POR, to be the foreign like product for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the most similar foreign like product on the basis of the characteristics listed in Appendix V of the initial antidumping questionnaire we provided to Wieland.
For purposes of the preliminary results, where appropriate, we have calculated the adjustment for differences in merchandise based on the difference in the variable cost of manufacturing (VCOM) between each U.S. model and the most similar home market model selected for comparison.
To determine whether sales of subject merchandise to the United States were made at less than NV, we compared the export price (EP) to the NV, as described in the “Export Price” and “Normal Value” sections of this notice. During the POR, Wieland had only one shipment of BSS to the United States.
In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to the individual U.S. transaction price. In order to lessen the potential distortion to sales prices which result from significantly changing costs, we are using a quarterly costing approach; we have not made price-to-price comparisons outside of a quarter.
For the price to the United States, we used EP, in accordance with section 772(a) of the Act. We calculated EP when the merchandise was sold by the producer or exporter outside of the United States directly to the first unaffiliated purchaser in the United States prior to importation. We based EP on the reported delivery term to the first unaffiliated customer in, or for exportation to, the United States.
In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including inland freight from plant or warehouse to port of exportation, foreign brokerage, handling and loading charges, international freight, insurance, U.S. inland freight expenses, other transportation expenses for cargo scanning and port charges, and U.S. duties.
As stated at 19 CFR 351.401(i), the Department will use the respondent's invoice date as the date of sale unless another date better reflects the date upon which the exporter or producer establishes the essential terms of sale. Wieland reported the order confirmation date as the date of sale for the U.S. market and the earlier of fabrication order confirmation date, shipment date, or invoice date as the sale date in the home market, claiming that these dates reflect the date on which the material terms of sale were finalized.
We have examined the information on the record and preliminarily find that the invoice date better reflects the date upon which the producer established its material terms of sale in both the U.S. and home markets. Specifically, Wieland reported that its “written general terms of delivery, applicable to both domestic and export sales, provide that Wieland is entitled to make excess or short deliveries up to 10 percent of the agreed weights or units. However, Wieland has unwritten understandings/established practices with certain customers allowing for greater variations without prior approval.”
In accordance with section 773(a)(1)(C) of the Act, to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared Wieland's volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B) of the Act and 19 CFR 351.404(b), because Wieland's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable.
Sales to affiliated customers in the home market not made at arm's length were excluded from our analysis. To test whether these sales were made at arm's length, we compared the starting prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, discounts, and packing. In accordance with the Department's practice, if the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise identical or most similar to that sold to the affiliated party, we consider the sales to be at arm's-length prices.
The Department's normal practice is to calculate an annual weighted-average cost for the entire POR.
In these circumstances, in determining whether to deviate from our normal methodology, the Department has evaluated the case-specific record evidence using two primary factors: (1) the change in the cost of manufacturing (COM) recognized by the respondent during the POR must be deemed significant; and, (2) the record evidence must show that sales during the shorter averaging periods could be reasonably linked with the cost of production (COP) or CV during the same shorter averaging periods.
Record evidence indicates that Wieland experienced significant changes in the total COM during the POR and that the change in COM is primarily attributable to the price volatility for copper and zinc, major inputs consumed in the production of the merchandise under consideration. The record indicates that copper and zinc prices have decreased dramatically throughout the POR. Specifically, the record data show that the percentage difference between the high and low quarterly costs for brass products exceeded 25 percent during the POR. As a result, we have determined for the preliminary results that the changes in COM for Wieland are significant.
If the Department finds cost changes to be significant in a given administrative review or investigation, the Department subsequently evaluates whether there is evidence of linkage between the cost changes and the sales prices for the given POI/POR. Our definition of linkage does not require direct traceability between specific sales and their specific production cost, but rather relies on whether there are elements which would indicate a reasonable correlation between the underlying costs and the final sales prices levied by the company. These correlative elements may be measured and defined in a number of ways depending on the associated industry, and the overall production and sales processes.
In the instant case, Wieland's sales process is effectively the sale of two separate products: commodity metal (
We find that, because both the metal costs and prices charged for the metal are reasonably linked to the market prices promulgated by the LME, there is a reasonable link between the underlying costs and sales prices.
In light of the two factors discussed above, we have preliminarily determined that a quarterly costing approach with respect to Wieland would lead to more accurate comparisons in our antidumping duty calculations. Thus, we used quarterly indexed annual average direct material costs and annual weighted-average fabrication costs in the COP and CV calculations.
Because we found that Wieland did not act to the best of its ability in providing information to the Department in the most recently completed administrative review in which it participated, we applied total adverse facts available which included a finding on that basis that Wieland's sales were made below cost. Therefore, the Department disregarded sales below the COP in the last completed review in which Wieland participated.
Therefore, the Department finds reasonable grounds to believe or suspect, pursuant to section 773(b)(2)(A)(ii) of the Act, that sales of the foreign like product under consideration for the determination of NV in this review may have been made at prices below COP. Thus, pursuant to section 773(b)(1) of the Act, we examined whether sales from Wieland in the home market were made at prices below the COP.
We compared sales of the foreign like product in the home market with model-specific COP figures. In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, plus selling, general and administrative (SG&A) expenses, financial expenses and all costs and expenses incidental to placing the foreign like product in packed condition and ready for shipment.
In our sales-below-cost analysis, we relied on home market sales and COP information provided by Wieland in its questionnaire responses, except where noted below.
As discussed above, we used quarterly indexed annual average direct material costs and annual weighted-average conversion costs in the COP and CV calculations.
Wieland explains that it offers three types of sales: single date (release)
Wieland asserts that, because the LME metal price is a full pass through to the customer, and is treated as such by Wieland both in its sales and cost accounting, the Department should make a circumstance of sale (COS) adjustment which adjusts for the price difference resulting from differences in metal fixation dates between U.S. and home market sales. More specifically, Wieland proposes that the Department adjust all U.S. and Home Market sales prices by the LME metal price for the alloy on the metal fixation date associated with the specific sale. In its letter dated June 25, 2009, at 14, the Petitioners state that the Department has never, to the best of its knowledge, adjusted metal pricing components as a circumstance of sale. The Petitioners state that if Wieland believes that changes in the prices of copper and zinc during the POR were (1) Very significant, (2) related to long-term changes and (3) that in and of themselves, (
The Department does not find that a COS adjustment is warranted in the instant review, because it is the Department's practice to limit such adjustments to direct selling expenses. However, the Department preliminarily finds that, based on the sales pricing structure reported by Wieland and the volatility experienced in commodity metal prices in this particular POR, the date of sale methodology and transaction-to-average price comparisons may not adequately account for the volatility in metal prices which occurred during the POR. Therefore, for these preliminary results, we are accounting for the volatility in commodity metal prices by ensuring that the home market sales selected for comparison purposes will first be matched based on the invoice date as the date of sale, and secondly, will have a metal fixation date in the same month as the metal fixation date of the U.S. sale. Absent a metal fixation date in the same month, we will make comparisons based on the same quarter of the POR as the metal fixation date reported for Wieland's U.S. sale. Absent such a match, we will use CV as the basis for comparison to Wieland's U.S. sale. We find that by limiting the comparisons to sales made within the same quarter of the POR and the same month for the metal fixation date, we reasonably account for the volatility experienced by Wieland during the POR associated with its split date pricing structure, thereby, preventing potential distortions in the Department's transaction-to-average price comparison methodology.
Before making any comparisons to NV, we conducted a quarterly COP analysis of Wieland pursuant to section 773(b) of the Act to determine whether Wieland comparison market sales were made at prices below the COP. We calculated the COP based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for SG&A expenses and packing, in accordance with section 773(b)(3) of the Act.
As required under section 773(b)(2) of the Act, we compared the quarterly weighted-average COP to the per-unit price of the comparison market sales of the foreign like product based on the metal fixation date to determine whether these sales had been made at prices below the COP within an extended period of time in substantial quantities, and whether such prices were sufficient to permit the recovery of all costs within a reasonable period of time. We determined the net comparison market prices for the below-cost test by subtracting from the gross unit price any applicable movement charges, discounts, rebates, direct and indirect selling expenses (also subtracted from the COP), and packing expenses.
Where less than 20 percent of the respondent's home market sales of a given model were at prices below the COP, we did not disregard any below-cost sales of that model because we determined that the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of the respondent's home market sales of a given model were at prices less than the COP, we disregarded the below-cost sales because: (1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and (2) based on our comparison of prices to the indexed POR weighted-average COPs, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
Therefore, for Wieland, we disregarded below-cost sales of a given product of 20 percent or more and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We calculated NV based on the reported delivery terms to comparison market customers. We made deductions from the starting price, when appropriate, for handling, loading, inland freight, warehousing, inland insurance, discounts, and rebates. In accordance with sections 773(a)(6)(A) and (B) of the Act, we added U.S. packing costs and deducted comparison market packing, respectively. In addition, we made circumstance-of-sale adjustments for direct expenses, including imputed credit expenses, in accordance with section 773(a)(6)(C)(iii) of the Act. Where appropriate, we added other revenue and applied billing adjustments to the gross unit price.
When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacture (VCOM) for the foreign like product and subject merchandise, using weighted-average costs.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Wieland reported that its U.S. sale and home market sales were made at the same LOT. Wieland has two channels of distribution for U.S. sales: (1) manufacture to order and ship directly to customer, and (2) sales through Wieland Metals, Inc. The one sale occurring during the POR was made through channel (1) to an end-user. Wieland reported that during the POR, it sold subject merchandise through one channel of distribution in both the U.S. and home market, which is direct to the customer, to one customer category in the United States and three customer categories in the home market, consisting of OEM/end users, broker/distributors, and service center/slitting center.
Our analysis of the selling activities for Wieland shows that there is overlap in these activities for channels of distribution and customer categories. Wieland performs similar selling activities for all customer categories and channels of distribution. Wieland reports that its sales functions are basic services provided for all sales. For example, every sale involves packing, order processing, the salesperson's time, and logistics support. Furthermore, Wieland states that its selling functions do not vary by type of customer.
In the U.S. market, Wieland reported that its sale was made through one channel of distribution to one customer category, and therefore, at one LOT. The Department has determined that Wieland's home market sales were made at one LOT and at the same stage of marketing as the U.S. sales LOT. Therefore, the Department will not make an LOT adjustment for Wieland's sale to the United States.
For purposes of these preliminary results, we made currency conversions in accordance with section 773A(a) of the Act, based on the official exchange rates published by the Federal Reserve Bank.
As a result of our review, we preliminarily determine that the following weighted-average percentage margin exists for the period March 1, 2008, through February 28, 2009, for Wieland:
The Department will disclose the calculations performed for these preliminary results within five days of the date of publication of this notice to the parties of this proceeding, in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Pursuant to section 751(3)(A) of the Act and 19 CFR 351.213(h), the Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, or at a hearing, if requested, within 120 days of publication of these preliminary results.
Pursuant to 19 CFR 351.212(b), the Department calculated an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these preliminary results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification,
To calculate the cash deposit rate for Wieland, we divided its total dumping margin by the total net value of its sales during the review period. The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of BSS from Germany entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for companies subject to this review will be the rate established in the final results of this review, except if the rate is less than 0.5 percent and, therefore,
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and increase the subsequent assessment of the antidumping duties by the amount of antidumping duties reimbursed.
These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting an administrative review of the countervailing duty order on certain pasta from Italy for the period January 1, 2008, through December 31, 2008. We preliminarily find that Pastificio Lucio Garofalo S.p.A. (“Garofalo”) received countervailable subsidies and that F.lli De Cecco di Filippo Fara San Martino S.p.A. (“De Cecco Pastificio”)/Molino e Pastificio De Cecco S.p.A. (“De Cecco Pescara”), members of the De Cecco group of companies, received
Andrew McAllister or Anna Flaaten, AD/CVD Operations, Office 1, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1174 and (202) 482-5156, respectively.
On July 24, 1996, the Department published a countervailing duty order on certain pasta (“pasta” or “subject merchandise”) from Italy.
On October 9, 2009, the Department selected De Cecco Pastificio and Garofalo as mandatory respondents.
On November 10, 2009, we issued countervailing duty questionnaires to the Commission of the European Union (“EU”), the Government of Italy (“GOI”), De Cecco Pastificio and Garofalo. We received responses to our questionnaires in December 2009. We issued supplemental questionnaires to De Cecco Pastificio, Garofalo, and the GOI in January and March 2010, and we received responses to our supplemental questionnaires in February, March, and April 2010.
As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. Thus, all deadlines in this segment of the proceeding have been extended by seven days. The revised deadline for the preliminary results of this review is now June 7, 2010.
The POR for which we are measuring subsidies is January 1, 2008, through December 31, 2008.
Imports covered by the order are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by the scope of the order is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.
Excluded from the scope of the order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Instituto Mediterraneo Di Certificazione, Bioagricoop S.r.l., QC&I International Services, Ecocert Italila, Consorzio per il Controllo dei Prodotti Biologici, Associazione Italiana per l'Agricoltura Biologica, or Codex S.r.l. In addition, based on publicly available information, the Department has determined that, as of August 4, 2004, imports of organic pasta from Italy that are accompanied by
The merchandise subject to review is currently classifiable under items 1901.90.90.95 and 1902.19.20 of the
The Department has issued the following scope rulings to date:
(1) On August 25, 1997, the Department issued a scope ruling finding that multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the antidumping and countervailing duty orders.
(2) On July 30, 1998, the Department issued a scope ruling finding that multipacks consisting of six one-pound packages of pasta that are shrink-wrapped into a single package are within the scope of the antidumping and countervailing duty orders.
(3) On May 24, 1999, the Department issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing or labeled up to (and including) five pounds four ounces is within the scope of the antidumping and countervailing duty orders.
(4) On April 27, 2000, the Department self-initiated an anti-circumvention inquiry to determine whether Pastificio Fratelli Pagani S.p.A.'s importation of pasta in bulk and subsequent repackaging in the United States into packages of five pounds or less constitutes circumvention with respect to the antidumping and countervailing duty orders on pasta from Italy pursuant to section 781(a) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.225(b).
Pursuant to 19 CFR 351.524(b), benefits from non-recurring subsidies are allocated over a period corresponding to the average useful life (“AUL”) of the renewable physical assets used to produce the subject merchandise. The Department's regulations create a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's Class Life Asset Depreciation Range System (“IRS Tables”).
Pursuant to 19 CFR 351.525(b)(6), the Department will attribute subsidies received by certain companies to the combined sales of those companies.
In the instant review, De Cecco Pastificio has responded on behalf of itself and three other members of the De Cecco group of companies: De Cecco Pescara, Centrale Elettrica F.lli De Cecco S.r.L. (“Centrale”), and Consorzio Elettrico Imprese De Cecco (“C.E.I.D.”).
De Cecco Pastificio manufactures pasta for sale in Italy, to third-country markets, and to the United States.
Effective January 1, 1999, Molino F.lli De Cecco di Filippo S.p.A. (“De Cecco Molino”), another member of the De Cecco group on whose behalf De Cecco Pastificio responded in the fourth administrative review, was merged with De Cecco Pastificio and ceased to be a separate entity.
Finally, De Cecco Pastificio has reported it purchased electricity from C.E.I.D. that was produced by Centrale. Centrale is majority owned by members of the De Cecco family.
Garofalo has reported and we confirm that Garofalo has no affiliates for which cross-ownership exists.
Pursuant to 19 CFR 351.505(a), the Department will use the actual cost of comparable borrowing by a company as a loan benchmark, when available. According to 19 CFR 351.505(a)(2), a comparable commercial loan is defined as one that, when compared to the government-provided loan in question, has similarities in the structure of the loan (
Because no comparable commercial loans were taken out by the respondents in the years in which the GOI agreed to provide the subsidies, we used a national average interest rate for comparable commercial loans, pursuant to 19 CFR 351.505(a)(3)(ii). Consistent with past practice in this proceeding, for years prior to 1995, we used the Bank of Italy reference rate adjusted upward to reflect the mark-up an Italian commercial bank would charge a corporate customer.
For discount rates, no company for which we need such rates took out any loans in the years in which the GOI agreed to provide the subsidies in question. Therefore, pursuant to 19 CFR 351.524(d)(3)(i)(B), we used the national average cost of long-term, fixed-rate loans to allocate non-recurring benefits over time.
Law 64/86 provided assistance to promote development in the Mezzogiorno (the south of Italy). Grants were awarded to companies constructing new plants or expanding or modernizing existing plants. Pasta companies were eligible for grants to expand existing plants but not to establish new plants because the market for pasta was deemed to be close to saturated. Grants were made only after a private credit institution chosen by the applicant made a positive assessment of the project.
In 1992, the Italian Parliament abrogated Law 64/86 and replaced it with Law 488/92 (
In the
countervailable subsidy within the meaning of section 771(5) of the Act. They are a direct transfer of funds from the GOI bestowing a benefit in the amount of the grant.
As stated in
In this review, neither the GOI nor respondent companies have provided new information that would warrant reconsideration of our determination that these grants are countervailable subsidies.
In the
We used the grant methodology described in 19 CFR 351.524(d) to allocate the benefit from those grants. We divided the benefit of De Cecco Pastificio/De Cecco Pescara in the POR by their combined total sales in the POR and divided the benefit of Garofalo in the POR by its total sales in the POR.
On this basis, we preliminarily determine the countervailable subsidy from the Law 64/86 industrial development grants to be 0.25 percent
In 1986, the EU initiated an investigation of the GOI's regional subsidy practices. As a result of this investigation, the GOI changed the regions eligible for regional subsidies to include depressed areas in central and northern Italy in addition to the Mezzogiorno. After this change, the areas eligible for regional subsidies are the same as those classified as Objective 1 (underdeveloped regions), Objective 2 (declining industrial regions), or Objective 5(b) (declining agricultural regions) areas by the EU. The new policy was given legislative form in Law 488/92 under which Italian companies in the eligible sectors (manufacturing, mining, and certain business services) may apply for industrial development grants.
Law 488/92 grants are made only after a preliminary examination by a bank authorized by the Ministry of Industry. On the basis of the findings of this preliminary examination, the Ministry of Industry ranks the companies applying for grants. The ranking is based on indicators such as the amount of capital the company will contribute from its own funds, the number of jobs created, regional priorities,
In the
In the
We used the grant methodology described in 19 CFR 351.524(d) to allocate the benefits over time. We divided the benefit received by De Cecco Pastificio/De Cecco Pescara in the POR by their combined total sales in the POR and divided the benefit received by Garofalo in the POR by its total sales in the POR.
On this basis, we preliminarily determine the countervailable subsidy from the Law 488/92 industrial development grants to be 0.18 percent
In the second administrative review of this order, the Department found that “loans are not provided under Law 488/92.”
Under this modification to Law 488/92, the loans must have a duration not exceeding 15 years and not less than six years.
We preliminarily determine that these interest contributions are countervailable subsidies within the meaning of section 771(5) of the Act. They are a direct transfer of funds from the GOI providing a benefit in the amount of the difference between the benchmark interest rate and the interest rate paid by the companies.
In accordance with 19 CFR 351.505(c)(2) and 351.508(c)(2), we calculated the benefit for the POR by computing the difference between the amount of interest paid during the POR by De Cecco Pastificio/De Cecco Pescara on their Law 488/92 loan and the amount of interest De Cecco Pastificio/De Cecco Pescara would have paid at the benchmark interest rate. We divided the benefit received by De Cecco Pastificio/De Cecco Pescara in the POR by their combined sales in the POR.
On this basis, we preliminarily determine the countervailable subsidy from the Law 488/92 interest contributions to be 0.01 percent
Italian law allows companies, particularly those located in the Mezzogiorno, to use a variety of exemptions from and reductions of payroll contributions that employers make to the Italian social security system for health care benefits, pensions,
In the
In the instant review, no party in this proceeding challenged our past determinations in the
Law 407/90 grants an exemption from social security taxes for three years when a company hires a worker who (1) has received wage supplementation for a period of at least two years, or (2) has been previously unemployed for a period of two years. A 100-percent exemption is allowed for companies in the Mezzogiorno, while companies located in the rest of Italy receive a 50-percent reduction.
In the
In accordance with 19 CFR 351.524(c), and consistent with our methodology in the
On this basis, we preliminarily determine the countervailable subsidy from Law 407/90 to be 0.00 percent
We examined the following programs and preliminarily determine that the producers and/or exporters of the subject merchandise under review did not apply for or receive benefits under these programs during the POR:
A. Industrial Development Loans under Law 64/86.
B. Grant Received Pursuant to the Community Initiative Concerning the Preparation of Enterprises for the Single Market (“PRISMA”).
C. European Regional Development Fund (“ERDF”) Programma Operativo Plurifondo (“P.O.P.”) Grant.
D. European Regional Development Fund (“ERDF”) Programma Operativo Multiregionale (“P.O.M.”) Grant.
E. Certain Social Security Reductions and Exemptions—Sgravi (including Law 223/91, Article 8, Paragraph 4 and Article 25, Paragraph 9; and Law 196/97).
F. Law 236/93 Training Grants.
G. Law 1329/65 Interest Contributions (“Sabatini Law”) (Formerly Lump-Sum Interest Payment under the Sabatini Law for Companies in Southern Italy).
H. Development Grants under Law 30 of 1984.
I. Law 908/55 Fondo di Rotazione Iniziative Economiche (Revolving Fund for Economic Initiatives) Loans.
J. Law 317/91 Benefits for Innovative Investments.
K. Brescia Chamber of Commerce Training Grants.
L. Ministerial Decree 87/02.
M. Law 10/91 Grants to Fund Energy Conservation.
N. Export Restitution Payments.
O. Export Credits under Law 227/77.
P. Capital Grants under Law 675/77.
Q. Retraining Grants under Law 675/77.
R. Interest Contributions on Bank Loans under Law 675/77.
S. Preferential Financing for Export Promotion under Law 394/81.
T. Urban Redevelopment under Law 181.
U. Industrial Development Grants under Law 183/76.
V. Interest Subsidies under Law 598/94.
W. Duty-Free Import Rights.
X. European Social Fund Grants.
Y. Law 113/86 Training Grants.
Z. European Agricultural Guidance and Guarantee Fund.
AA. Law 341/95 Interest Contributions on Debt Consolidation Loans (Formerly Debt Consolidation Law 341/95).
BB. Interest Grants Financed by IRI Bonds.
CC. Article 44 of Law 448/01.
DD. Law 289/02.
(1) Article 62—Investments in Disadvantaged Areas.
(2) Article 63—Increase in Employment.
EE. Law 662/96—Patti Territoriali.
FF. Law 662/96—Contratto di Programma.
Law 196/97 provides exemptions, for an additional 12-month period, for employers in the Mezzogiorno that hire employees under “skilling” contracts on a long-term (or permanent) basis.
There are no facts on the record in the instant review that warrant reconsideration of our prior finding from the preliminary results of the 2007 administrative review that any benefits previously available under Law 196/97 terminated as of October 31, 2007. Thus, we preliminarily determine that Law 196/97 has been terminated.
A. Regional Tax Exemptions under IRAP.
B. VAT Reductions under Laws 64/86 and 675/55.
C. Corporate Income Tax (“IRPEG”).
D. Remission of Taxes on Export Credit Insurance under Article 33 of Law 227/77.
E. Export Marketing Grants under Law 304/90.
F. Tremonti Law 383/01.
G. Social Security Reductions and Exemptions—Sgravi.
(1) Article 44 of Law 448/01.
(2) Law 337/90.
(3) Law 863/84.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated individual subsidy rates for the mandatory respondents, De Cecco Pastificio/De Cecco Pescara and Garofalo.
For the non-selected respondents, we have followed the Department's policy for antidumping duty and countervailing duty investigations, and antidumping duty administrative reviews which is to base the margin on an average of the margins calculated for those companies selected for individual review, excluding
For the period January 1, 2008, through December 31, 2008, we preliminarily find the net subsidy rate for the producers/exporters under review to be that specified in the chart below:
If these preliminary results are adopted in our final results of this review, because the countervailing duty rate for De Cecco Pastificio/De Cecco Pescara is less than 0.5 percent and, thus,
For all other companies that were not reviewed (except Barilla G. e R. F.lli S.p.A., and Gruppo Agricoltura Sana S.r.l., which are excluded from the order, and Pasta Lensi S.r.l. which was revoked from the order), the Department has directed CBP to assess countervailing duties on all entries between January 1, 2008, and December 31, 2008, at the rates in effect at the time of entry.
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this review.
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above with the exception of De Cecco Pastificio/De Cecco Pescara. For De Cecco Pastificio/De Cecco Pescara, no cash deposits of estimated duties will be required because their rate is
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice.
Pursuant to 19 CFR 351.309(c)(ii), interested parties may submit written arguments in case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, limited to issues raised in case briefs, may be filed no later than five days after the date of filing the case briefs, in accordance with 19 CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue, and (2) a brief summary of the argument with an electronic version included. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).
Interested parties may request a hearing within 30 days after the date of publication of this notice, pursuant to 19 CFR 351.310(c). Any hearing, if requested, will be held 42 days after the publication of this notice, or the first workday thereafter.
The Department will publish a notice of the final results of this administrative review within 120 days from the publication of these preliminary results, in accordance with section 751(a)(3) of the Act.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is currently conducting the 2008-2009 administrative review of the antidumping duty order on certain tissue paper products from the People's Republic of China (PRC). We preliminarily determine that sales have been made below normal value (NV) with respect to Max Fortune Industrial Limited and Max Fortune (FZ) Paper Products Co., Ltd. (Max Fortune Fuzhou)
If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of subject merchandise made during the period of review (POR).
Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.
Brian Smith or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-3773, respectively.
On March 30, 2005, the Department published in the
On March 2, 2008, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on certain tissue paper products from the PRC.
On March 31, 2008, the Department received a timely request from SPA for an administrative review of this antidumping duty order with respect to its exports of subject merchandise to the United States, in accordance with 19 CFR 351.213. On March 31, 2008, the Department also received a timely request from the petitioner
On April 27, 2008, the Department published in the
On April 29, 2009, we issued Max Fortune and SPA the antidumping duty questionnaire.
On June 30, 2009, the petitioner withdrew its request for an administrative review with respect to Sunlake.
During June 2009, SPA submitted its responses to sections A and C of the antidumping duty questionnaire
On July 1, 2009, the petitioner requested a 30-day extension until September 17, 2009, to submit new factual information in this review in accordance with 19 CFR 351.302. On July 24, 2009, we granted the petitioner's extension request.
On July 6, 2009, Max Fortune submitted its response to sections C and D
On July 16, 2009, we requested that the Import Administration's Office of Policy (the Office of Policy) issue a surrogate-country memorandum for the selection of the appropriate surrogate country in this review,
On July 17, 2009, the Department invited interested parties participating in this review to submit comments on surrogate-country selection and to submit publicly-available information as surrogate values (SVs) for purposes of calculating NV.
On July 20, 2009, SPA submitted its response to section D of the antidumping duty questionnaire.
The Department issued a sections A and C supplemental questionnaire to SPA on July 10, 2009, and received SPA's supplemental questionnaire response on July 24, 2009.
The Department issued a section D supplemental questionnaire to SPA on July 29, 2009, and received SPA's supplemental questionnaire response on August 14, 2009.
The Department issued a section A supplemental questionnaire to Max Fortune on July 29, 2009, and received Max Fortune's supplemental questionnaire response on August 11, 2009.
The Department issued sections C and D supplemental questionnaires to Max Fortune on August 7 and 17, 2009, and received Max Fortune's supplemental questionnaire responses on August 26 and September 21, 2009, respectively.
On August 24, 2009, the Department placed on the record the CBP data it requested from CBP on June 30, 2009.
On August 25, 2009, the petitioner submitted surrogate-country comments in this administrative review.
On September 10, 2009, the petitioner requested a 35-day extension until October 23, 2009, to submit publicly-available information (PAI) in this review. We granted the petitioner's extension request on September 15, 2009.
On September 15, 2009, the petitioner placed on the record of this review a substantial amount of information supporting its allegations that, among other things, that Max Fortune did not report: (1) Multiple affiliates involved in the production and/or sale of the subject merchandise exported to the United States during the POR; and (2) multiple unaffiliated suppliers of raw materials and converting services involved in the production of the subject merchandise exported to the United States during the POR. The petitioner obtained the information supporting its allegations from a foreign market researcher (FMR).
On October 14, 2009, the Department rescinded this review with respect to Sunlake.
On October 19, 2009, Max Fortune filed a submission in which it denied the petitioner's September 15, 2009, allegations.
On October 23, 2009, the petitioner submitted PAI in this administrative review.
On October 26, 2009, the Department met with the petitioner's counsel in order to get clarification of the information on which the petitioner based its September 15, 2009, allegations and the petitioner's analysis of that information.
The Department issued additional supplemental questionnaires to SPA on October 29 and November 13, 2009, and received SPA's supplemental questionnaire responses on November 13 and 18, 2009, respectively.
On October 29, 2009, the Department requested additional entry documentation from CBP.
On November 9, 2009, the Department issued to the petitioner a questionnaire seeking clarification of the information contained in its September 15, 2009, submission. The petitioner submitted its response to this questionnaire in November and December 2009.
On November 11, 2009, the Department postponed the preliminary results of this review until March 31, 2010.
On November 24, 2009, the Department sent Max Fortune a questionnaire seeking clarification and additional information and documentation with respect to Max Fortune's October 19, 2009, submission. Max Fortune submitted its response to this questionnaire on December 11, 2009.
On December 2, 2009, the Department placed on the record the additional CBP data it requested from CBP on October 29, 2009.
On December 16, 2009, the Department conducted an interview by telephone with the FMR in order to confirm the FMR's credentials, and the procedures conducted to obtain the information, on which the petitioner's September 15, 2009, allegations were based.
On December 31, 2010, the Department issued verification outlines to Max Fortune, SPA, and another company whose information was included in the petitioner's September 15, 2009, submission.
SPA submitted pre-verification corrections related to its questionnaire responses on January 7, 2010.
Pursuant to section 782(i) of the Tariff Act of 1930, as amended (the Act), the Department conducted verification of the questionnaire responses submitted by Max Fortune and SPA in January 2010.
The POR is March 1, 2008, through February 28, 2009.
The tissue paper products covered by this order are cut-to-length sheets of tissue paper having a basis weight not exceeding 29 grams per square meter. Tissue paper products subject to this order may or may not be bleached, dye-colored, surface-colored, glazed, surface decorated or printed, sequined, crinkled, embossed, and/or die cut. The tissue paper subject to this order is in the form of cut-to-length sheets of tissue paper with a width equal to or greater than one-half (0.5) inch. Subject tissue paper may be flat or folded, and may be packaged by banding or wrapping with paper or film, by placing in plastic or film bags, and/or by placing in boxes for distribution and use by the ultimate consumer. Packages of tissue paper subject to this order may consist solely of tissue paper of one color and/or style, or may contain multiple colors and/or styles.
The merchandise subject to this order does not have specific classification numbers assigned to them under the Harmonized Tariff Schedule of the United States (HTSUS). Subject merchandise may be under one or more of several different subheadings, including: 4802.30, 4802.54, 4802.61, 4802.62, 4802.69, 4804.31.1000, 4804.31.2000, 4804.31.4020, 4804.31.4040, 4804.31.6000, 4804.39, 4805.91.1090, 4805.91.5000, 4805.91.7000, 4806.40, 4808.30, 4808.90, 4811.90, 4823.90, 4802.50.00, 4802.90.00, 4805.91.90, 9505.90.40. The tariff classifications are provided for convenience and customs purposes; however, the written description of the scope of this order is dispositive.
Excluded from the scope of this order are the following tissue paper products: (1) Tissue paper products that are coated in wax, paraffin, or polymers, of a kind used in floral and food service applications; (2) tissue paper products that have been perforated, embossed, or die-cut to the shape of a toilet seat,
In proceedings involving non-market economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control, and thus, should be assigned a single antidumping duty deposit rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (
For the reasons outlined below, we have preliminarily applied adverse facts available (AFA) to Max Fortune. Section 776(a)(2) of the Act, provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
Furthermore, section 776(b) of the Act states that if the Department “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority * * *, the administering authority * * *, in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
In cases involving NME countries, such as the instant one, the respondent must supply the Department with complete and accurate U.S. sales and factors of production (FOP) data in order for the Department to accurately calculate the respondent's dumping margin. Where one, or both, of these data sets is so incomplete that it cannot serve as a reliable basis for reaching the applicable determination, the Department may decline to consider a respondent's information in its entirety, and apply adverse facts available under section 776(b) of the Act.
In this administrative review, the petitioner provided substantial information in its September 15, 2009, submission as the basis for alleging, among other things, that Max Fortune did not report multiple unaffiliated suppliers of raw materials and converting services involved in the production of the subject merchandise exported to the United States during the POR. In its submissions to the Department, including its October 19, 2009, submission rebutting the allegations made by the petitioner, Max Fortune asserted that its PRC affiliate, Max Fortune Fuzhou, produced all of the tissue paper it reported it sold to the United States during the POR. After conducting verification of the data submitted on the record, we found that for certain U.S. sales reported by Max Fortune in its U.S. sales listing which we selected for examination at verification, Max Fortune Fuzhou was not the only producer of the tissue paper sold in those transactions, contrary to Max Fortune's representations throughout this review.
Accordingly, our verification findings demonstrate that Max Fortune withheld critical information (
As discussed above, section 776(b) of the Act authorizes the Department to use as AFA, information derived from the petition, the final determination in the less-than-fair-value (LTFV) investigation, any previous administrative review, or any information placed on the record. In selecting an AFA rate in reviews, the Department's practice has been to assign the highest margin on the record of any segment of the proceeding.
The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Section 776(c) of the Act provides that when the Department selects from among the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. To corroborate the information, the Department seeks to determine that the information used has probative value.
To be considered corroborated, information must be found to be both reliable and relevant. The AFA rate of 112.64 percent that we are applying in the current review represents the highest rate from the petition in the LTFV investigation segment of this proceeding.
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin.
Because the AFA rate, 112.64 percent, is both reliable and relevant, we determine that it has probative value. As a result, we determine that the 112.64 percent rate is corroborated to the extent practicable for the purposes of this administrative review, in accordance with section 776(c) of the Act, and may reasonably be applied as AFA to the exports of the subject merchandise by Max Fortune.
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
Section 773(c)(1) of the Act directs the Department to base NV on the NME producer's FOPs, valued in a surrogate market-economy (ME) country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall use, to the extent possible, the prices or costs of the FOPs in one or more ME countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Normal Value” section below.
The Department determined that India, the Philippines, Indonesia, Colombia, Thailand, and Peru are countries comparable to the PRC in terms of economic development.
Accordingly, we selected India as the primary surrogate country for purposes of valuing the FOPs in the calculation of NV because it meets the Department's criteria for surrogate-country selection.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results in antidumping administrative reviews, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results.
To determine whether sales of the subject merchandise by SPA to the United States were made at prices below NV, we compared SPA's export prices (EPs) to NV, as described in the “Export Price” and “Normal Value” sections of this notice below, pursuant to section 773 of the Act.
Because SPA sold subject merchandise to an unaffiliated purchaser in the United States prior to importation into the United States and use of a constructed-export-price methodology was not otherwise indicated, we used EP in accordance with section 772(a) of the Act.
We calculated EP based on the reported terms of delivery to the first unaffiliated purchaser in the United States. We made deductions from the starting price (gross unit price) for foreign inland freight in the PRC and U.S. customs duties, pursuant to section 772(c)(2)(A) of the Act.
In determining the most appropriate surrogate values (SVs) to use in a given case, the Department's practice is to use review period-wide price averages, prices specific to the input in question, prices that are net of taxes and import duties, prices that are contemporaneous with the POR, and publicly-available data.
The Department valued inland truck freight expenses using a per-unit average rate calculated from August 2008 data on the following Web site:
Section 773(c)(1) of the Act provides that, in the case of an NME, the Department shall determine NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home market prices, third country prices, or constructed value under section 773(a) of the Act. The Department will base NV on FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under our normal methodologies. Therefore, we calculated NV based on FOPs in accordance with sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
For purposes of calculating NV, we valued the FOPs in accordance with section 773(c)(1) of the Act. The FOPs include: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital
In examining SVs, we selected, where possible, the publicly-available value, which was an average non-export value, representative of a range of prices within the POR or most contemporaneous with the POR, product-specific, and tax-exclusive.
In accordance with section 773(c) of the Act, we calculated NV based on the FOP data reported by SPA for the POR. We relied on the factor-specific data submitted by SPA for the production inputs in its questionnaire responses, where applicable, for purposes of selecting SVs. To calculate NV, we multiplied the reported per-unit factor consumption rates by publicly-available Indian SVs.
In selecting the SVs, consistent with our past practice, we considered the quality, specificity, and contemporaneity of the data.
We valued the raw material and packing material inputs using weighted-average unit import values derived from the
Furthermore, with regard to the WTA Indian import-based SVs, we disregarded prices from NME countries
As discussed above, the Department valued surrogate truck freight cost by using a per-unit average rate calculated from August 2008 data on the following Web site:
We valued water using data from the Maharashtra Industrial Development Corporation (MIDC) because it includes a wide range of industrial water tariffs. This source provides 378 industrial water rates within the Maharashtra province from June 2009; 189 for the “inside industrial areas” usage category; and 189 for the “outside industrial areas” usage category.
The Department calculated a simple average price for domestic coal using data obtained from the Indian Mineral Yearbook and Coal India Limited. Because these data were not contemporaneous with the POR, we adjusted the average value for inflation using WPI.
To value electricity, the Department used March 2008 electricity price rates from
For direct labor, indirect labor and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rates reflective of the observed relationship between wages and national income in ME countries as reported on Import Administration's Web site.
For factory overhead, selling, general, and administrative expenses (SG&A), and profit values, consistent with 19 CFR 351.408(c)(4), we used the public information from the 2008-2009 annual report of Pudumjee Pulp & Paper Mills Ltd. (Pudumjee).
As provided in section 782(i) of the Act, we verified the information submitted by SPA for use in our preliminary results. We used standard verification procedures including an examination of relevant accounting and production records, and original source documents provided by SPA.
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rate in effect on the date of the U.S. sale, as certified by the Federal Reserve Bank.
As a result of our review, we preliminarily determine that the following margins exist for the period March 1, 2008, through February 28, 2009:
We will disclose the calculations used in our analysis to parties to this proceeding within five days of the date of publication of this notice.
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments within 30 days of the date of publication of this notice.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.
In accordance with 19 CFR 351.212(b)(1), for SPA, we calculated an importer-specific assessment rate for the merchandise subject to this review because SPA submitted entered value information with its U.S. sales reporting. Where an importer-specific
With respect to Max Fortune, we will instruct CBP to liquidate appropriate entries at the PRC-wide rate of 112.64 percent.
The following cash deposit requirements will be effective upon publication of the notice of final results of the administrative review for all shipments of certain tissue paper products from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) A cash deposit rate of 0.00 percent will be required for certain tissue paper products from the PRC exported by SPA; (2) a cash deposit rate of 112.64 percent will be required for certain tissue paper products from the PRC exported by Max Fortune; (3) for previously reviewed or investigated companies not listed above that have separate rates, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (4) for all other PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash deposit rate will be PRC-wide rate of 112.64 percent; and (5) for all non-PRC exporters of subject merchandise, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections
National Institute of Standards and Technology (NIST), Department of Commerce.
Notice; request for comments.
The National Institute of Standards and Technology (NIST) seeks comments on the second draft of NISTIR 7628,
Comments must be received on or before June 2, 2010.
Written comments may be sent to: Annabelle Lee, National Institute of Standards and Technology, 100 Bureau Dr., Stop 8930, Gaithersburg, MD 20899-8930. Electronic comments may be sent to:
The report is available at:
Annabelle Lee, National Institute of Standards and Technology, 100 Bureau Dr., Stop 8930, Gaithersburg, MD 20899-8930, telephone (301) 975-8897.
Section 1305 of the Energy Independence and Security Act (EISA) of 2007 (Pub. L. 110-140) requires the Director of the National Institute of Standards and Technology (NIST) “to coordinate the development of a framework that includes protocols and model standards for information management to achieve interoperability of smart grid devices and systems.” EISA also specifies that, “It is the policy of the United States to support the modernization of the Nation's electricity transmission and distribution system to maintain a reliable and secure electricity infrastructure that can meet future demand growth and to achieve each of the following, which together characterize a Smart Grid: * * *
(1) Increased use of digital information and controls technology to improve reliability, security, and efficiency of the electric grid.
(2) Dynamic optimization of grid operations and resources, with full cyber-security * * *”
With the Smart Grid's transformation of the electric system to a two-way flow of electricity and information, the information technology (IT) and telecommunications infrastructures have become critical to the energy sector infrastructure.
NIST has established a Smart Grid Interoperability Panel. The Panel's Cyber Security Working Group (SGIP-CSWG) now has more than 375 volunteer members from the public and private sectors, academia, regulatory organizations, and Federal agencies. Cyber security is being addressed in a process that will result in a comprehensive set of cyber security requirements. These requirements are being developed using a high-level risk assessment process that is defined in the cyber security strategy for the Smart Grid.
NIST published a request for public comments in the
The comment period closed on December 1, 2009. The second draft of NISTIR 7628 incorporates changes based on the comments received, which are summarized below. The complete set of comments and NIST's analysis are posted at:
NIST received comments from sixty-three (63) organizations and individuals. The commenters consisted of twenty-three (23) private companies, five (5) Federal agencies, nine (9) individuals, twelve (12) non-profit organizations, twelve (12) industry associations and two (2) universities. A detailed analysis of the comments follows.
• Multi-Tier Control System Criticality Model.
• Control System Trust Model.
• Threat-based Requirements.
1. NIST and the industry should develop a focus on response and recovery. Although the primary goal of a cyber security strategy should be prevention, a response and recovery plan needs to be developed in the event of a cyber attack.
2. It is essential that those parts or equipment of the Smart Grid that optimize the system are separate from the core components of the Smart Grid. In the event of a cyber security incident on the grid, the core components can be recovered with minimal technology in a quick and efficient manner, thereby assuring bulk power system reliability. This will also help identify where response plan decisions and actions can be carried out to protect core functionality and/or quickly restore it.
1. System scale and diversity prohibits a unified solution to security management.
2. Ubiquitous networking of devices combined with remote control capabilities can enable coordinated manipulation of load on a large scale.
Also, an additional impact to Category 11 was proposed—
1. Possible large-scale load manipulation through distributed control of unsecured or compromised devices.
• Text revisions for technical content.
• Inquiries regarding clarification or further detail.
• Deletion of text.
• Accidental omissions.
• Concerns regarding specific use cases.
• Inconsistency in terminology.
• Inclusion of additional relevant controls.
1. Security policy for the core of the network.
2. Information flow policies at the periphery (between the meter, home and network).
• Additions to Retail Power Electricity Market Use Case.
• Considerations for variation in:
○ Real Time Pricing (RTP) for Customer Load and Distributed Energy Resources (DER)/Plug-in Electric Vehicles (PEV).
○ Time of Use (TOU) Pricing.
○ Power Bulk Electricity Market.
Regional Transmission Operators (RTO).
Independent System Operators (ISO).
• Revisions to the retail power electricity market scenario.
• Revisions to reflect continuing regional diversity in wholesale power markets.
• Refine statements regarding power system operations to demonstrate some portions of a power system can cease operations without an objectionable impact on the overall power system.
• Clarification that the Use Cases are not mandatory.
• Design considerations to assist people with the use/application of the document.
• Concerns regarding impact (financially to the Utility and to customer trust) of incorrect data.
The document will contain the final set of security controls and the final security architecture.
Comments on draft NISTIR 7628,
Comments must be received no later than June 2, 2010.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“the Commission”) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Comments must be submitted on or before June 14, 2010.
Comments may be mailed to Gary J. Martinaitis, Division Economic Analysis, U.S. Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581.
Gary J. Martinaitis, (202) 418-5209; FAX (202) 418-5527; e-mail:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, the Commission invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality of, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate electronic, mechanical, or other technological collection techniques or other forms of information technology;
Under Commission Rule 1.44, 17 CFR 1.44, contract markets must require operators of warehouses regular for delivery to keep records on stocks of commodities and make reports on call by the Commission. The rule is designed to assist the Commission in prevention of market manipulation and is promulgated pursuant to the Commission's rulemaking authority contained in section 5a of the Commodity Exchange Act, 7 U.S.C. 7a.
The Commission estimates the burden of the collection of information as follows:
There are no capital costs or operating and maintenance costs associated with this collection.
This estimate is based on the number of exchanges providing such weekly data to the Commission and the number of elevator operators from which the exchanges collect the data.
Department of Defense (DoD).
Notice of open meeting.
In accordance with the provisions of the Federal Advisory Committee Act, this notice announces a meeting of the Department of Defense Historical Advisory Committee. During the meeting the Committee will discuss the report of the Department of the Army Subcommittee. The meeting will be open to the public.
The meeting will be held on Tuesday, May 18, 2010, at 1 p.m.
The meeting will be held at 1777 North Kent Street, 14th Floor, Conference Room #2, Arlington, VA 22209.
Ms. Carolyn Thorne at 703-588-7890 for information or upon arrival at the building in order to be admitted.
Department of Defense (DoD).
Notice of advisory committee closed meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C. App 2, Section 1), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102-3.150, the Department of Defense announces that the U.S. Strategic Command Strategic Advisory Group will meet on May 6 and 7, 2010. The meeting is closed to the public.
The meeting will be held:
The meeting will be held at the Dougherty Conference Center, Building 432, 906 SAC Boulevard, Offutt AFB, Nebraska 68113.
Mr. Bruce Sudduth, Designated Federal Officer, (402) 294-4102, 901 SAC Blvd., Suite 1F7, Offutt AFB, NE 68113-6030.
For supplementary information, contact: Mr. Floyd March, Joint Staff, (703) 697-0610.
The purpose of the meeting is to provide advice on scientific, technical, intelligence, and policy-related issues to the Commander, U.S. Strategic Command, during the development of the Nation's strategic war plans.
Pursuant to 5 U.S.C. 552b, and 41 CFR 102-3.155, the Department of Defense has determined that the meeting shall be closed to the public. Per delegated authority by the Chairman, Joint Chiefs of Staff, General Kevin P. Chilton, Commander, U.S. Strategic Command, in consultation with his legal advisor, has determined in writing that the public interest requires that all sessions of this meeting be closed to the public because they will be concerned with matters listed in section 552b(c)(1) of title 5, U.S.C.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public of interested organizations may submit written statements to the membership of the Strategic Advisory Group at any time or in response to the stated agenda of a planned meeting. Written statements should be submitted to the Strategic Advisory Group's Designated Federal Officer; the Designated Federal Officer's contact information can be obtained from the GSA's FACA Database—
Department of Energy.
Notice of intent to grant exclusive patent license.
Notice is hereby given with an intent to grant to: Advantage Electronic Product Development Incorporated/Utility Crew Safety LLC, of Broomfield, Colorado, an exclusive license to practice the inventions described in U.S. Patent Application No. 12/401,033, entitled “Ground Potential Rise Monitor,” and PCT/US10/26189, entitled “Ground Potential Rise Monitor,” in the United States and in foreign countries. The inventions are owned by the United States of America, as represented by the U.S. Department of Energy (DOE).
Written comments or nonexclusive license applications are to be received at the address listed below no later than April 28, 2010.
Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585.
Annette R. Reimers, Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, Forrestal Building, Room 6F-067, 1000 Independence Ave., SW., Washington, DC 20585; Telephone (202) 586-3815.
35 U.S.C. 209 provides Federal agencies with authority to grant exclusive licenses in Federally-owned inventions, if, among other things, the agency finds that the public will be served by the granting of the license. The statute requires that no exclusive license may be granted unless public notice of the intent to grant the license has been provided, and the agency has considered all comments received in response to that public notice before the end of the comment period. Under 37 CFR 404.7, DOE has considered whether the interests of the Federal Government or the United States industry in foreign commerce will be enhanced.
Advantage Electronic Product Development Incorporated/Utility Crew Safety LLC, of Broomfield, Colorado, has applied for an exclusive license to practice the inventions embodied in U.S. Patent Application No. 12/401,033, entitled “Ground Potential Rise Monitor” and PCT/US10/26189, entitled “Ground Potential Rise Monitor,” and has plans for commercialization of the inventions. The exclusive license will be subject to a license and other rights retained by the U.S. Government and other terms and conditions to be negotiated. DOE intends to negotiate to grant the license, unless, within 15 days of this notice, the Assistant General Counsel for Technology Transfer and Intellectual Property, Department of Energy, Washington, DC 20585, receives in writing any of the following, together with supporting documents:
(i) A statement from any person setting forth reason why it would not be in the best interests of the United States to grant the proposed license; or
(ii) An application for a nonexclusive license to the invention in which applicant states that it already has brought the invention to practical application or is likely to bring the invention to practical application expeditiously.
Department of Energy.
Notice of inventions available for license.
The Department of Energy hereby announces that the following invention is available for license, in accordance with 35 U.S.C. 207-209: PCT/US10/26189, entitled “Ground Potential Rise Monitor.”
Annette R. Reimers, Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, Forrestal Building, Room 6F-067, 1000 Independence Ave., SW., Washington, DC 20585; Telephone (202) 586-3815.
35 U.S.C. 207 authorizes licensing of government owned inventions. Implementing regulations are contained in 37 CFR part 404.
On March 22, 2010, Mr. Howard Rosenfeld filed an application, pursuant to section 4(f) of the Federal Power Act, for a preliminary permit to study the feasibility of the Warren Energy Independence Hydroelectic Project (Warren Project), to be located on Sucker Brook (a.k.a. Lake Waramaug Brook) in Litchfield County, Connecticut.
Some of the features of the proposed Warren Project would be new and located on residential property owned by the applicant, and some of the project works would include properties owned by the Town of Warren, Connecticut, such as an existing dam, intake, and water conveyance structures. The proposed project would consist of: (1) An existing 80-foot-long, 4-foot-wide, and 5-foot-high masonry dam; (2) an existing 48-inch square sluice gate structure feeding into; (3) a new 18-inch-diameter, approximately 535-foot-long penstock leading to; (4) an existing 25-foot-high, 22-foot-square stone-masonry building to house; (5) a new turbine generator unit, with a maximum hydraulic capacity of 5 cubic feet per second (cfs) and total installed generating capacity of 10 kilowatts (kW); (6) a new approximately 400-foot-long, 3.4 kilovolt (kV) transmission line, which would connect with the existing 23 kV distribution line owned by Connecticut Power & Light and adjacent to the applicant's property; and (7) appurtenant facilities. The Warren Project would have an estimated average annual generation of 50,000 kilowatt-hours (kWh), which would be used by the applicant on-site or distributed to the power grid and sold directly to a local utility.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
26 Katherine Drive, Hallowell, Maine 04347; Telephone (207) 629-1817.
i.
j. This application is not ready for environmental analysis at this time.
k.
The Brassua Project is operated as a seasonal storage facility where water releases are determined by downstream demands for hydroelectric generation in the Kennebec River and for flood control. Reservoir fluctuations follow an annual cycle under which reservoir levels are reduced during the fall and winter to provide additional flows downstream as well as to make storage volume available for spring snow melt and runoff. After the spring refill, flow is released for the Brassua reservoir to provide summer minimum instream flows as well as water for industrial and municipal uses. Specific project operation requirements are discussed below.
The current license allows the licensees to operate the Brassua Project in peaking mode from July 1st through August 31st and from November 6th through the start of spring freshnet (normally mid-May) of each year. The licensees are required to cease peaking operation and resume normal operation in which flows through the project are maintained constant on a daily basis from spring freshet through June 30th and from September 1st through November 5th of each year.
The current license requires the licensees to release the following minimum flows and maintain the following target water levels to protect fish and aquatic habitat and to benefit the reproductive efforts of the landlocked salmon population in the Moose River. All Minimum flow releases are maintained through the turbine or deep gates and discharged in the lower Moose River below the dam.
l. Locations of the Application: A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. You may also register online at
n.
The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5
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 St., NE., Washington, DC 20426.
The filings in the above proceedings 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 dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that on March 26, 2010, pursuant to section 5 of the Natural Gas Act, 15 U.S.C. 717d (2006) and Rule 206 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, 18 CFR 385.206 (2009), Wisconsin Electric Power Company, Wisconsin Gas LLC, and Wisconsin Public Service Corporation (Complainants) filed a formal complaint against ANR Pipeline Company (Respondent) alleging that Respondent has violated Section 36.2(A) of its tariff relating to obligations at Respondent's Marshfield recipient point.
The Complainant certifies that a copy of the complaint has been served on the contacts for the Respondent.
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. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
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
Take notice that on April 2, 2010, pursuant to section 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 (2009) and section 206 of the Federal Power Act, 16 U.S.C. 824(e) (2000), PSEG Power Connecticut LLC (Complainant) filed a formal complaint against ISO New England Inc. (Respondent) challenging the justness and reasonableness of the Respondent's actions to limit the Capacity Network Resource Capability ratings of capacity resources owned by the Complainant.
The Complainant certifies that copies of the complaint were served on the contacts for the Respondent as listed on
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. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
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
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the East Cheyenne Gas Storage Project proposed by East Cheyenne Gas Storage, LLC (East Cheyenne) in the above referenced docket. East Cheyenne requests authorization to convert two substantially depleted oil production reservoirs in Logan County, Colorado to natural gas storage. The purpose of the project is to provide natural gas storage capacity to interstate shippers of natural gas.
The EA assesses the potential environmental effects of the construction and operation of the East Cheyenne Gas Storage Project in accordance with the requirements of the National Environmental Policy Act of 1969. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The proposed Project includes the following facilities:
• Ten gas injection/withdrawal (I/W) wells to be drilled from six new well pads;
• A Process Facility with compression facilities for I/W of natural gas;
• Approximately 66,000 feet of 4- to 24-inch-diameter pipelines connecting the wellheads to the Process Facility area;
• Two header pipelines (16-inch and 24-inch-diameter) to be constructed within a single corridor interconnecting with the Rockies Express Pipeline LLC and Trailblazer Pipeline Company LLC pipeline systems;
• Metering facilities; and
• Temporary compression and ancillary facilities necessary to perform I/W activities.
The EA has been placed in the public files of the FERC and is available for public viewing on the FERC's Web site at
Copies of the EA have been mailed to federal, state, and local government representatives and agencies; elected officials; Native American tribes; potentially affected landowners and other interested individuals and groups; newspapers and libraries in the project area; and parties to this proceeding.
Any person wishing to comment on the EA may do so. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are properly recorded and considered prior to a Commission decision on the proposal, it is important that the FERC receives your comments in Washington, DC on or before May 6, 2010.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP10-34-000) with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located on the Commission's Web site at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's Web site at
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1A, Washington, DC 20426.
Although your comments will be considered by the Commission, simply filing comments will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before May 13, 2010.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2009-0525, to (1) EPA online using
Robert C. Marshall, Jr., Office of Compliance, Mail Code: 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-7021; fax number: (202) 564-0050; 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 July 30, 2009 (74 FR 38004), 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 number EPA-HQ-OECA-2009-0525, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Environmental Protection Agency.
Notification of Public Teleconference and Public Comment.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will host a public teleconference call on, Wednesday April 28, 2010, starting at 2 p.m. Eastern Time. The primary topics of discussion will be updates on EPA's response to the NEJAC's Goods Movement Report; and reports from the NEJAC liaisons to the Tribal Operations Commission and the Children's Health Protection Advisory Committee School Siting Task Group. This NEJAC National Public Teleconference meeting is open to the public. There will be a public comment period from 3:30 p.m. to 4 p.m. Eastern Time. Members of the public are encouraged to provide comments relevant to the topics of this call.
For additional information about registering to attend the call or to provide public comment during the call,
The NEJAC teleconference call on April 28 2010, will begin promptly at 2 p.m. Eastern Time.
To register online, visit the Web site above. If unable to register online, requests for advance-registration forms should be sent to EPA's support contractor, APEX Direct Inc., by phone or fax at (877) 773-0779, or by e-mail at
Questions or correspondences concerning the teleconference meeting should be directed to Mr. Aaron Bell, U.S. Environmental Protection Agency, at 1200 Pennsylvania Avenue, NW., (MC2201A), Washington, DC 20460; by telephone at (202) 564-1044, via e-mail at
The Charter of the NEJAC states that the advisory committee shall provide independent advice to the Administrator on areas that may include, among other things, “advice about broad, cross-cutting issues related to environmental justice, including environment-related strategic, scientific, technological, regulatory and economic issues related to environmental justice. The April 28, 2010, teleconference call shall be used to receive comments, discuss and provide recommendations primarily regarding updates on EPA's response to the NEJAC's Goods Movement Report; and reports from the NEJAC liaisons to the Tribal Operations Commission and the Children's Health School Siting Task Force.
Equal Employment Opportunity Commission.
Notice of Information Collection—Emergency Extension Without Change: Employer Information Report (EEO-1).
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC or Commission) announces that it submitted to the Office of Management and Budget (OMB) a request for a 90-day emergency extension of the Employer Information Report (EEO-1) to be effective after the current April 30, 2010 expiration date.
Ronald Edwards, Director, Program Research and Surveys Division, 131 M Street, NE., Room 4SW30F, Washington, DC 20507; (202) 663-4958 (voice) or (202) 663-7063 (TTY).
The EEOC has collected information from certain private employers on the EEO-1 Report form since 1966.
Equal Employment Opportunity Commission.
Notice of Information Collection—Emergency Extension Without Change: Elementary-Secondary Staff Information Report (EEO-5).
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC or Commission) announces that it submitted to the Office of Management and Budget (OMB) a request for a 90-day emergency extension of the Elementary-Secondary Staff Information Report (EEO-5) to be effective after the current April 30, 2010 expiration date.
Ronald Edwards, Director, Program Research and Surveys Division, 131 M Street, NE., Room 4SW30F, Washington, DC 20507; (202) 663-4958 (voice) or (202) 663-7063 (TTY).
Elementary and secondary public school systems and districts have been required to submit EEO-5 reports to EEOC since 1974 (biennially in even-numbered years since 1982). Since 1996, each public school district or system has submitted all of the district data on a single form, EEOC Form 168A. The individual school form, EEOC Form 168B, was eliminated in 1996, reducing the respondent burden and cost.
Equal Employment Opportunity Commission.
Notice of information collection—Emergency extension without change: Local Union Report (EEO-3).
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC or Commission) announces that it submitted to the Office of Management and Budget (OMB) a request for a 90-day emergency extension of the Local Union Report (EEO-3), to be effective after the current April 30, 2010 expiration date.
Ronald Edwards, Director, Program Research and Surveys Division, 131 M Street, NE., Room 4SW30F, Washington, DC 20507; (202) 663-4958 (voice) or (202) 663-7063 (TTY).
The EEOC has collected information from local unions on the EEO-3 form since 1966 (biennially since 1985).
Equal Employment Opportunity Commission.
Notice of information collection—Emergency extension without change: State and Local Government Information Report (EEO-4).
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC or Commission) announces that it submitted to the Office of Management and Budget (OMB) a request for a 90-day emergency extension of the State and Local Government Information Report (EEO-4), to be effective after the current April 30, 2010 expiration date.
Ronald Edwards, Director, Program Research and Surveys Division, 131 M Street, NE., Room 4SW30F, Washington, DC 20507; (202) 663-4958 (voice) or (202) 663-7063 (TTY).
The EEOC has collected information from State and local governments with 100 or more full-time employees since 1974.
EEO-4 data are used by the EEOC to investigate charges of discrimination against State and local governments and to provide information on the employment status of minorities and women. The data are shared with several other Federal agencies. Pursuant to section 709(d) of Title VII of the Civil Rights Act of 1964, U.S.C. 2000e-8(d), as amended, EEO-4 data is shared with State and Local Fair Employment Practices Agencies (FEPAs). Aggregated data are also used by researchers and the general public.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden
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.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 14, 2010. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via email to N
For additional information, contact Cathy Williams on (202) 418-2918.
OMB Control Number: 3060-0937.
Title: Establishment of a Class A Television Service, MM Docket No. 00-10.
Form Number: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for-profit entities.
Frequency of Response: On occasion and quarterly reporting requirements; Recordkeeping and third party disclosure requirements.
Number of Respondents and Responses: 500 respondents and 12,250 responses.
Estimated time per response: 0.0003 hours—52 hours.
Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Sections 154(i), 307, 308, 309 and 319 of the Communications Act of 1934, as amended.
Total annual burden: 234,621 hours.
Total annual costs: $1,995,000.
Privacy Impact Assessment: No impact(s).
Confidentiality: There is no need for confidentiality with this collection of information.
Needs and Uses: On November 29, 1999, the Community Broadcasters Protection Act of 1999 (CBPA), Pub. L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-594-1501A-598 (1999), codified at 47 U.S.C. Section 336(f), was enacted. That legislation provided that a low power television (LPTV) licensee should be permitted to convert the secondary status of its station to the new Class A status, provided it can satisfy certain statutorily-established criteria. The CBPA directs that Class A licensees be subject to the same license terms and renewal standards as full-power television licenses and that Class A licensees be accorded primary status as television broadcasters as long as they continue to meet the requirements set forth in the statute for a qualifying low power station. The CBPA sets out certain certification and application procedures for LPTV licensees seeking Class A designation, prescribes the criteria LPTV licensees must meet to be eligible for Class A licenses, and outlines the interference protection Class A applicants must provide to analog, digital, LPTV and TV translator stations.
The CBPA directs that Class A stations must comply with the operating requirements for full-service television broadcast stations. Therefore, beginning on the date of its application for a Class A license and thereafter, a station must be “in compliance” with the Commission's operating rules for full-service television stations, contained in 47 CFR Part 73.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that the following matter will be deferred from the “Discussion Agenda” at the open meeting of the Board of Directors of the Federal Deposit Insurance Corporation scheduled to be held at 10 a.m. on Tuesday, April 13, 2010, in the Board Room on the sixth floor of the FDIC Building located at 550—17th Street, NW., Washington, DC:
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-7043.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 8, 2010.
Board of Governors of the Federal Reserve System, April 8, 2010.
This notice corrects a notice (FR Doc. 2010-7980) published on page 17917 of the issue for Thursday, April 8, 2010.
Under the Federal Reserve Bank of New York heading, the entry for Morgan Stanley, New York, New York, is revised to read as follows:
Comments on this application must be received by April 26, 2010.
Board of Governors of the Federal Reserve System, April 8, 2010.
9 a.m. (Eastern Time), April 19, 2010.
4th Floor Conference Room, 1250 H Street, NW., Washington, DC 20005.
Parts will be open to the public and parts closed to the public.
1. Approval of the minutes of the March 15, 2010 Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director.
a. Monthly Participant Activity Report.
b. Legislative Report.
3. Quarterly Reports.
a. Investment Policy Review.
b. Vendor Financial Review.
4. Financial Audit Report.
5. Proprietary Data
Thomas J. Trabucco, Director, Office of External Affairs. (202) 942-1640.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance (9000-0168).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Federal Acquisition Regulation, Regulatory Secretariat, will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning the one-time reporting, compensation requirements. A request for public comments was published in the
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before May 13, 2010.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the Regulatory Secretariat (MVCB), General Services Administration, 1800 F Street, NW., Room 4041, Washington, DC 20405. Please cite OMB Control No. 9000-0168, American Recovery and Reinvestment Act—One-time Reporting, Compensation Requirements, in all correspondence.
Mr. Ernest Woodson, Procurement Analyst, Contract Policy Branch, at telephone (202) 501-3775 or via e-mail to
A one-time reporting elements for prime contractors and first-tier subcontractors to publicly disclose the names and total compensation of each of the contractor's or first-tier subcontractor's five most highly compensated officers, for the calendar year in which the award was made ((i)(2) and (i)(4)(ix)) (see applicability requirements in (i)(2) and (i)(4)(ix)). The parenthetical reference after each reporting element description refers to the FAR clause.
While Section 1512(c)(4) requires reporting on all FFATA data elements, including the compensation information, it limits the prime's
There are likely to be some prime contractors that already provide public access to the compensation of senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 or section 6104 of the Internal Revenue Code of 1986. For purposes of this analysis, the Government estimates 15% of prime contractors already provide such public access. There are also likely to be some first-tier subcontractors that do not meet either of the revenue thresholds for applicability. For purposes of this analysis, the Government estimates 25 percent of first-tier subcontractors will not have to disclose compensation information because they do not meet the revenue thresholds.
The hours estimated per response include the time for reviewing instructions, searching existing data sources, gathering the data, and completing the collection of information.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) and the Assistant Secretary for Health have taken final action in the following case:
Specifically, the Respondent admitted to falsifying the original research data when entering values into computer programs for statistical analysis with the goal of reducing the magnitude of errors within groups, thereby gaining greater statistical power. The Respondent, IU, and ORI agree that the figures identified below in specific grant applications and published papers are false and that these falsifications rise to the level of research misconduct:
• Respondent admitted to falsifying Figures 6B, 18, 22, 23B, and 24 in NCCAM, NIH, grant application R01 AT001846-06, “Chromium Enhanced Insulin & GLUT4 Action via Lipid Rafts,” Jeffery S. Elmendorf, P.I. (07/01/04-05/31/20) (application was withdrawn in May 2009).
• Respondent admitted to falsifying Figures 6B, 8, 9D, 16D, and 21 in NIDDK, NIH, grant application R01 DK082773-01, “Mechanisms of Membrane-Based Insulin Resistance & Therapeutic Reversal Strategies,” Jeffrey S. Elmendork, P.I. (3/15/09-01/31/13).
• Respondent admitted to falsifying Figures 2C, 5, 6D, and 11 in the publication: Horvath, E.M., Tacket, L., McCarthy, A.M., Raman, P., Brozinick, J.T., & Elmendorf, J.S. “Antidiabetogenic Effects of Chromium Mitigate Hyperinsulinemia-induced Cellular Insulin Resistance via Correction of Plasma Membrane Cholesterol Imbalance.”
• Respondent admitted to falsifying Figure 2C in the publication: Bhonagiri, P., Patter, G.R., Horvath, E.M., Habegger, K.M., McCarthy, A.M., Elmendorf, J.S. ``Hexosamine biosysthesis pathway flux contributes to insulin resistance via altering membrane PIP
Respondent also admitted to falsifying Figures 2C, 5, 6D, 11, 13C, 15A, 16A, 17A, 18, 19C, and 20A, which are included in her thesis, “Cholesterol-dependent mechanism(s) of insulin-sensitizing therapeutics.” The Ph.D. was awarded to the Respondent on December 31, 2008. Respondent was supported by a Predoctoral Fellowship Award F31 AT003977 from 09/30/2006 to 09/29/2009.
Ms. Horvath has entered into a Voluntary Settlement Agreement in which she has voluntarily agreed, for a period of three (3) years, beginning on March 22, 2010:
(1) To exclude herself from serving in any advisory capacity to PHS, including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant;
(2) That any institution that submits an application for PHS support for a research project on which the Respondent's participation is proposed or that uses her in any capacity on PHS-supported research, or that submits a report of PHS-funded research in which she is involved, must concurrently submit a plan for supervision of her duties to the funding agency for approval; the supervisory plan must be designed to ensure the scientific integrity of her research contribution; respondent agreed that she will not participate in any PHS-supported research until such a supervisory plan is submitted to ORI;
(3) That any institution employing her submits, in conjunction with each application for PHS funds or report, manuscript, or abstract of PHS-funded research in which the Respondent is involved, a certification that the data provided by the Respondent are based on actual experiments or are otherwise legitimately derived and that the data, procedures, analyses, and methodology are accurately reported in the application, report, manuscript, or abstract; the Respondent must ensure that the institution sends a copy of the certification to ORI; and
(4) That she will write letters, approved by ORI, to relevant journal editors of the published papers cited above to state what she falsified/fabricated and to provide corrections if she has not already done so. These letters should state that her
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) and the Assistant Secretary for Health have taken final action in the following case:
• The Respondent engaged in misconduct in science, 42 CFR 50.102, in NIDDK, NIH, grant application 1 R01 DK072026-01, “MNAR Crosstalk with Steroid Receptors,” submitted to NIH on September 28, 2004, by intentionally falsifying Figures 5 and 6.
• The Respondent engaged in research misconduct, 42 CFR 93.103, in NIDDK, NIH, grant application 1 R01 DK072026-01A2, “MNAR Crosstalk with Steroid Receptors,” submitted to NIH on November 9, 2005, by intentionally falsifying Figures 6 and 9.
Dr. Cheskis' research was in an area of research (estrogen receptors and modulation of nongenomic phosphorylation cascades) that is of importance to women's health. Dr. Cheskis' team identified an adapter protein, MNAR, that coordinates interactions between certain nuclear receptors, Src and PI3K and may play important roles in regulation of cell proliferation and survival.
Both Dr. Cheskis and the U.S. Public Health Service (PHS) were desirous of concluding this matter without further expense of time and other resources. Dr. Cheskis neither admits nor denies that ORI's findings represent findings of research misconduct. The settlement is not an admission of liability on the part of the Respondent.
Dr. Cheskis has entered into a Voluntary Settlement Agreement. Dr. Cheskis has voluntarily agreed, for a period of two (2) years, beginning on March 22, 2010:
(1) To exclude himself from serving in any advisory capacity to PHS, including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant;
(2) That any institution that submits an application for PHS support for a research project on which the Respondent's participation is proposed or that uses him in any capacity on PHS-supported research, or that submits a report of PHS-funded research in which he is involved, must concurrently submit a plan for supervision of his duties to the funding agency for approval; the supervisory plan must be designed to ensure the scientific integrity of his research contribution; respondent agreed that he will not participate in any PHS-supported research until such a supervisory plan is submitted to ORI.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office of Minority Health.
Notice of a new Privacy Act System of Records (SOR).
In accordance with the requirements of the Privacy Act, OMH proposes to establish a new system of records entitled, “Minority Health Information Service.” Under provisions of 42 U.S.C. sec. 300u-6, the Office of Minority Health (OMH) is charged with maintaining a national minority health resource center to (1) Facilitate exchange of and access to information related to health information, promotion, services and education; (2) assist in analysis of issues and problems with regard to such matters; and (3) provide technical assistance with regard to the exchange of such information. The primary purpose of this system is to collect and facilitate distribution of minority health information to public and professional audiences. In support of this purpose, this system maintains individually identifiable information concerning individuals voluntarily participating in OMH health campaigns and technical assistance programs, and concerning information requested by individually identifiable customers that is maintained to facilitate order tracking and customer service.
Blake Crawford, Director, Division of Information and Education, Office of Minority Health, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852. He can be reached by telephone at 240-453-6905 or via e-mail at
Generally, OMH distributes a variety of information via e-mail newsletter, maintains a Resource Persons Network of public and private health experts, plans and implements health campaigns and leads national initiatives with federal and nonfederal partners, conducts leadership development programs, provides capacity development and technical assistance services to community organizations and government agencies and provides information, literature and statistical data in response to public inquiries. The Minority Health Information Service supports the mission of the OMH Resource Center (OMHRC) to function as a help desk and technical assistance service for the public and an organization that assists OMH in implementing national initiatives and
Information is collected on members of the general public, health professionals, faculty of academic institutions, students, representatives of government agencies, community organizations and private businesses who seek health information from OMH or its Resource Center, and those who ask to or agree to participate in OMH-sponsored health programs.
The system of records includes the following subsystems:
1.
2.
3.
4.
5.
6.
The following information is collected.
1.
2.
3.
4.
Records are stored in file folders, electronic media and other types of data storage devices.
Data are retrievable by name, business address, telephone, e-mail, organizational affiliation, and type of technical assistance provided (for the Resource Persons Network).
The Privacy Act permits the disclosure of information without an individual's consent if the information is used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such disclosure of data is known as “routine use.” OMH maintains the following procedures for the maintenance of personally identifiable information:
A. We will only release information from this system as provided for under “Section III. Routine Uses of Records.”
B. We will only collect the minimum data necessary to achieve the purpose of the Minority Health Information Service.
C. We will collect and disclose only data that OMH has determined to be accurate.
D. We will validate information in the system annually, and as corrections are received from the public.
E. We will provide opportunities and methods for individual correction of data in the system consistent with requirements of the Privacy Act.
F. We will publish on the OMH Web site our Privacy Policy for information collected via this Web site.
1. To identify one or more individuals who have volunteered to provide pro bono technical assistance to a community organization or government agency on aspects of minority health in
2. To identify key officials at national, state, regional and local organizations who serve as public points of contact for that organization or its work specifically on minority health. Information searches are provided on request. Contact information for OMH campaign and initiative partners may be posted on the OMH Web site.
3. To allow the OMH Resource Center contractor to operate this data system. OMH uses a contractor to operate the OMH Resource Center, which maintains the Minority Health Information Service. This contractor collects the information, maintains the data system and safeguards the data under the provisions outlined in this notice and applicable law and regulation. The contractor is prohibited from using these data for any purpose other than described in the contract and is required to return all data to the government or deliver it securely to a government-designated successor contractor, at the completion of the contract.
4. To appropriate Department contractors to enable conduct of evaluation studies or administration of OMB-approved customer satisfaction surveys.
5. To appropriate federal agencies and Department contractors that have a need to know the information for the purpose of assisting the department's efforts to respond to a suspected or confirmed breach of the security or confidentiality of information maintained in the system of records, and the information disclosed is relevant and necessary for the assistance.
6. To the Department of Justice, or in a proceeding before a court, adjudicative body, or other administrative body before which the Agency is authorized to appear, when:
a. The Agency, or any component thereof; or
b. Any employee of the Agency in his or her official capacity; or
c. Any employee of the Agency in his or her individual capacity where the Department of Justice or the Agency has agreed to represent the employee; or
d. The United States, if the Agency determines that litigation is likely to affect the Agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or the Agency is deemed by the Agency to be relevant and necessary to the litigation; provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
The system conforms to all applicable Federal laws and regulations and Federal and HHS policies and standards for information security and data privacy. The OMH system manager, OMHRC senior leadership and OMHRC technology manager confer to review and ensure compliance with provisions of this notice and any changes in security requirements.
Records are available to the system manager and OMH staff when they have a need for the records in the performance of their duties. Records are also available to OMHRC technology staff, OMHRC director and deputy director, OMHRC communications staff, OMHRC information specialists (mailing list, organizational databases, inquiry tracking system), OMHRC knowledge center/library staff (organizational data bases and resource persons network), OMHRC data entry staff, who need access in order to perform their duties.
Data systems are in a secured office space with a carded entrance. Servers are located in a locked rack. Data are backed up nightly with a one-month daily snapshot available at any time and monthly snapshots for a year. Annual training is required and conducted for authorized users regarding proper handling and safeguarding of personally identifiable information. OMH and OMHRC staff are trained on HHS policies regarding personal use of health information technology.
OMH proposes to establish this system in accordance with the principles and requirements of the Privacy Act and will collect, use, and disseminate information only as prescribed therein. Data in this system will be subject to authorized releases in accordance with the routine uses identified in this system of records.
OMH will take precautionary measures to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other personal property rights of individuals whose data are maintained in the system. OMH will collect only that information necessary to perform the system's functions. In addition, OMH will make disclosure from the system only with the consent of the subject individual, his or her legal representative, or in accordance with an applicable exception provision of the Privacy Act. OMH therefore does not anticipate an unfavorable effect on individual privacy as a result of information relating to individuals.
Date: March 22, 2010.
09-90-0161
“Minority Health Information Service,” HHS/OS/OPHS/OMH.
None.
The system is located at OMHRC, 1101 Wootton Parkway, Suite 650, Rockville, MD 20852 and OMH, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852.
Information is collected on members of the general public, health professionals, faculty of academic institutions, students, representatives of government agencies, community organizations and private businesses who seek health information from OMH or its Resource Center, and those who ask to or agree to participate in OMH-sponsored health programs.
The system of records includes the following subsystems:
7.
8.
9.
10.
11.
12.
The statutory basis for the maintenance of this system is 42 U.S.C. 300u-6.
The purpose of the system is to (1) Identify individuals who have volunteered to provide pro bono technical assistance to community organizations or government agencies on aspects of minority health; (2) identify key officials at national, state, regional and local organizations who serve as public points of contact for that organization or work specifically on minority health issues; and (3) allow the OMH Resource Center contractor to operate, maintain and safeguard the data system.
7. To identify one or more individuals who have volunteered to provide pro bono technical assistance to a community organization or government agency on aspects of minority health in response to a specific request for assistance. OMHRC staff provide one or more names and associated contact information to requesting organizations when OMHRC staff finds a match between an assistance request and a Resource Persons Network member with relevant expertise, experience and background, and when the request matches the activities, health topics, or populations for which the network member has specified that he or she is available to assist.
8. To identify key officials at national, state, regional and local organizations who serve as public points of contact for that organization or its work specifically on minority health. Information searches are provided on request. Contact information for OMH campaign and initiative partners may be posted on the OMH Web site.
9. To allow the OMH Resource Center contractor to operate this data system. OMH uses a contractor to operate the OMH Resource Center, which maintains the Minority Health Information Service. This contractor collects the information, maintains the data system and safeguards the data under the provisions outlined in this notice and applicable law and regulation. The contractor is prohibited from using these data for any purpose other than described in the contract and is required to return all data to the government or deliver it securely to a government-designated successor contractor, at the completion of the contract.
10. To appropriate Department contractors to enable conduct of evaluation studies or administration of OMB-approved customer satisfaction surveys.
11. To appropriate federal agencies and Department contractors that have a need to know the information for the purpose of assisting the department's efforts to respond to a suspected or confirmed breach of the security or confidentiality of information maintained in the system of records, and the information disclosed is relevant and necessary for the assistance.
12. To the Department of Justice, or in a proceeding before a court, adjudicative body, or other administrative body before which the Agency is authorized to appear, when:
i. The Agency, or any component thereof; or
ii. Any employee of the Agency in his or her official capacity; or
iii. Any employee of the Agency in his or her individual capacity where the Department of Justice or the Agency has agreed to represent the employee; or
iv. The United States, if the Agency determines that litigation is likely to affect the Agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or the Agency is deemed by the Agency to be relevant and necessary to the litigation; provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
Records are stored in file folders, electronic media and other types of data storage devices.
Data are retrievable by name, business address, telephone, e-mail, organizational affiliation, and type of technical assistance provided (for the Resource Persons Network)
The system conforms to all applicable Federal laws and regulations and Federal and HHS policies and standards for information security and data privacy. The OMH system manager, OMHRC senior leadership and OMHRC technology manager confer to review and ensure compliance with provisions of this notice and any changes in security requirements.
Records are available to the system manager and OMH staff when they have a need for the records in the performance of their duties. Records are also available to OMHRC technology staff, OMHRC director and deputy director, OMHRC communications staff, OMHRC information specialists (mailing list, organizational databases, inquiry tracking system), OMHRC knowledge center/library staff (organizational data bases and resource persons network), OMHRC data entry staff, who need access in order to perform their duties.
Data systems are in a secured office space with a carded entrance. Servers are located in a locked rack. Data are backed up nightly with a one-month daily snapshot available at any time and monthly snapshots for a year. Annual
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Records no longer maintained are disposed of by deletion from electronic media and shredding of hard copy records. Electronic records deleted from active files are maintained in system back-up files on tape media for one year.
Director, Division of Information and Education, Office of Minority Health, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852.
To determine whether the system contains a record on you, please write to the system manager at the address above, providing name, address, e-mail, telephone and organizational affiliation.
To determine whether the system contains a record on you, please write to the system manager at the address above, providing name, address, e-mail, telephone and organizational affiliation.
Contesting Records: Mailing list members may unsubscribe from the mailing list or correct their entry by clicking on a link in an e-mail received from the system. Unsubscribing will remove subscriber information from the system. For all other deletions and corrections, please write, call, e-mail or fax Office of Minority Health Resource Center, 1101 Wootton Parkway, Suite 650, Rockville, MD 20852, telephone 800-444-6472, e-mail
Information is collected via mail, e-mail, Web form, telephone or in person at conferences and meetings from individuals who receive some type of communication from OMH. Listings in the organizational database are generally drawn from publicly available documents such as directories, newsletters, and organizational Web sites and are confirmed through direct contact with the organization. Names of contact individuals at organizations partnering with OMH on an initiative, project or campaign are provided by the organization.
None.
Office for Civil Rights (OCR), Department of Health and Human Services (HHS or the Department).
Notice of modified or altered System of Records (SOR).
In accordance with the Privacy Act, we are proposing to modify or alter an existing SOR, “Program Information Management System (PIMS),” System No. 09-90-0052, published at 67 FR 57011, September 6, 2002. First, we propose to add a new authority, the Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), to those under which OCR collects information. Second, we propose to add three new purposes of the PIMS system. Third, we propose to add six new routine uses to the PIMS system. Fourth, we propose to expand the categories of information stored in the PIMS system to include information that covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and their business associates report to the Secretary with respect to a breach of protected health information. See Effective Dates section for comment period.
You may submit comments by any of the following methods (please do not submit duplicate comments):
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For further information contact: PIMS Project Manager, Management Operations Division, Office for Civil Rights, 200 Independence Ave., SW., Room 509F, Washington, DC 20201. Telephone number: (202) 619-2888.
The system of records (
The Privacy Act permits OCR to disclose information or records pertaining to an individual without that individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected, 5 U.S.C. 552a(b)(3). Any such disclosure is known as a “routine use.” The PIMS system conforms to applicable law and policy governing the privacy and security of Federal automated information systems. These include but are not limited to: The Privacy Act of 1974, Federal Information Security Management Act of 2002, Computer Security Act of 1987, the Paperwork Reduction Act of 1995, the Clinger-Cohen Act of 1996, and OMB Circular A-130, Appendix, III, “Security of Federal Automated Information Resources.”
OCR has prepared a system security plan as required by OMB Circular A-130, Appendix III. This plan conforms fully to guidance issued by the National Institute for Standards and Technology (NIST) in NIST Special Publication 800-18, “Guide for Developing Security Plans for Information Technology Systems.” The plan includes performance of a risk assessment that addresses the confidentiality and integrity of the data. Only authorized users have access to the information in the system.
Specific access is structured around need and is determined by the person's role in the organization. Access is managed through the use of electronic access control lists, which regulate the ability to read, change, and delete information in the system. Each OCR user has read access to designated information in the system, with the ability to modify only their own submissions or those of others within their region or group. Data identified as confidential is so designated and only specified individuals are granted access. The system maintains an audit trail of all actions against the data base. All electronic data is stored on servers maintained in locked facilities with computerized access control allowing access to only those support personnel with a demonstrated need for access. A database is kept of all individuals granted security card access to the room, and all visitors are escorted while in the room. The server facility has appropriate environmental security controls, including measures to mitigate damage to automated information system resources caused by fire, electricity, water, and inadequate climate controls. Access control to servers, individual computers and databases includes a required user log-on with a password, inactivity lockout to systems based on a specified period of time, legal notices and security warnings at log-on, and remote access security that allows user access for remote users (e.g., while on government travel) under the same terms and conditions as for users within the office. System administrators have appropriate security clearance. Printed materials are filed in secure cabinets in secure Federal buildings with access based on need as described above for the automated component of the PIMS system.
Section 13402(e)(3) of the HITECH Act requires HIPAA covered entities to provide notice to the Secretary of the Department of Health and Human Services (HHS or the Department) of a breach of unsecured protected health information. Notice to the Secretary is required immediately if a breach affects 500 or more individuals and annually for breaches affecting fewer than 500 individuals. Section 13402(e)(4) of the HITECH Act requires the Secretary to make available to the public on the HHS Web site a list that identifies each covered entity involved in a breach affecting more than 500 individuals. To implement these HITECH provisions, HHS published an interim final rule on August 24, 2009 (74 FR 42740). Section 164.408(a) of the regulations published in the interim final rule requires covered entities to notify the Secretary of breaches of unsecured protected health information. Section 164.408(b) requires breaches that affect 500 or more individuals to be reported to the Secretary contemporaneously with notice to the individual—that is, without unreasonable delay and in no case later than 60 calendar days after a covered entity discovers a breach (subject to a law enforcement delay as provided in section 164.412). Section 164.408(c) sets out the annual reporting for breaches affecting fewer than 500 individuals. Covered entities are required to report these breaches in the manner specified on the HHS Web site. A breach report form that has been approved by OMB for collection of this information can be found at
Accordingly, this notice modifies PIMS by adding a new authority for maintenance of the system, identifies three new purposes of the PIMS system, adds new routine uses of the PIMS system, and expands the categories of information stored in the PIMS system. In addition to the new routine uses proposed because of breach notification requirements under the HITECH Act, one proposed new routine use regards responding to breaches of personally identifiable information within the Department, consistent with Office of Management and Budget (OMB) Memorandum 07-16,
OCR proposes to add the following authority for maintenance of the PIMS system: section 13402 of the HITECH Act, part of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
OCR proposes to add the following three new purposes of the PIMS system: (1) To collect, maintain, and post on the HHS Web site a list of covered entities that experience breaches of unsecured protected health information affecting more than 500 individuals using information reported to the Secretary by covered entities (or a business associate on behalf of a covered entity) as required by section 13402(e) of the HITECH Act; (2) to develop an annual report to Congress, as required by section 13402(i) of the HITECH Act, regarding breach notification using information reported to the Secretary by covered entities (or a business associate on behalf of a covered entity) under section 13402(e) of the HITECH Act; and (3) to provide technical assistance, training, and guidance materials regarding breaches of protected health information.
OCR proposes to establish the following six new routine use disclosures of information for PIMS. Each routine use is compatible with a stated purpose of the system.
I. The first new routine use allows OCR to post on its Web site, as required by section 13402(e)(4) of the HITECH Act, information reported by a covered entity (or a business associate on behalf of a covered entity) to the Secretary pursuant to section 13402(e)(3) of the HITECH Act that identifies covered entities that experience breaches of unsecured protected health information affecting more than 500 individuals.
II. The second new routine use allows OCR to disclose information regarding breaches of unsecured protected health information in an annual report to Congress, as required by section 13402(i) of the HITECH Act, regarding the number and nature of the breaches reported to the Secretary and actions taken in response to such breaches.
III. The third new routine use allows OCR to disclose information regarding breaches of unsecured protected health information to the public and to appropriate Federal agencies and Department contractors to provide technical assistance, training, and guidance materials, after OCR determines that the disclosure would not constitute an unwarranted invasion of personal privacy.
IV. The fourth new routine use allows OCR to disclose information to appropriate Federal agencies and Department contractors that have a need to know the information for the purpose of assisting the Department's efforts to respond to a suspected or confirmed breach of security or confidentiality of information maintained in this system of records, and the information disclosed is relevant and necessary for that assistance.
V. The fifth new routine use allows OCR to disclose information to third party contacts, including public and private organizations, to investigate violations and potential violations, as well as to conduct compliance reviews, of the Federal laws and regulations that OCR has legal authority to enforce.
VI. The sixth new routine use allows OCR to disclose relevant information to the public to inform the public of the results of investigations and compliance reviews of the Federal laws and regulations that OCR has legal authority to enforce, after OCR determines that the disclosure would not constitute an unwarranted invasion of personal privacy.
OCR proposes to add the following category of information included in the PIMS system: Information that HIPAA covered entities (or a business associate on behalf of a covered entity) (defined in 45 CFR 160.103) are required to provide to HHS to fulfill their breach notification requirements to the Secretary pursuant to section 13402(e) of the HITECH Act. This information includes the name, address, and contact information of the covered entity or business associate, as well as the contact name of the individual at the covered entity or business associate that reported the breach of protected health information.
OCR will continue to collect only information that is necessary to perform the PIMS functions. We only disclose the minimum personal data necessary to achieve the purpose of PIMS. Disclosure of information from the system will be approved only to the extent necessary to accomplish the purpose of the disclosure. Further, OCR continues to take precautionary measures to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other individual rights. In addition, OCR makes disclosures from the PIMS system only with consent of the subject individual, or his/her legal representative, or in accordance with an applicable exception provision of the Privacy Act. OCR, therefore, believes that no unfavorable effect on individual privacy will result from the modifications and alterations to PIMS proposed herein.
The following notice is written in the present, rather than the future tense, to avoid the unnecessary expenditure of public funds to republish the notice after the system has become effective.
“Program Information Management System” (PIMS) (09-90-0052) HHS/OS/OCR.
None.
The automated portion of the system is maintained at OCR Headquarters. Paper files are maintained in headquarters and regional offices as noted in Appendix I.
Covered individuals include persons who file complaints alleging discrimination or violation of their rights or other violations under the statutes identified below (Authority for Maintenance) and covered entities (
The system encompasses a variety of records having to do with complaints, reviews, correspondence, and reports of breaches of protected health information. For example, the system includes records containing individual names, Social Security numbers (SSN), tax identification numbers (TIN),
The complaint files and log include complaint allegations, information gathered during the complaint investigation, findings and results of the investigation, and correspondence relating to the investigation, as well as status information for all complaints. This component of PIMS is exempt from the notification, access, correction and amendment provisions of the Privacy Act (
Authority for the collection, maintenance, and disclosures from this system is given under Title VI of the 1964 Civil Rights Act; Sections 533, 542, 794, 855, 1947 and 1908 of the Public Health Service Act; Sections 504 and 508 of the Rehabilitation Act of 1973; Title II of the Americans with Disabilities Act of 1990; the Age Discrimination Act of 1975; the Equal Employment Opportunity Provisions of the Public Telecommunications Financing Act of 1978; Title VI and Title XVI of the Public Health Service Act (the “community services obligation” of facilities funded under the Act); Title IX of the 1972 Education Amendments; Section 407 of the Drug Abuse Office and Treatment Act; Section 321 of the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970; Section 508 of the Social Security Act; the Family Violence Prevention and Services Act; Low-Income Home Energy Assistance Act of 1981; Section 1808 of the Small Business Job Protection Act of 1996; the Health Insurance Portability and Accountability Act of 1996; the Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act); and section 13402 of the Health Information Technology for Economic and Clinical Health (HITECH) Act.
PIMS is used by OCR staff and consists of an electronic repository of information and documents, and supplementary paper document files. PIMS effectively combines and replaces OCR's two previous systems of records, the “Case Information Management System (CIMS), HHS/OS/OCR, 09-90-0050,” and the “Complaint File and Log, HHS/OS/OCR 09-00-0051,” into a single, integrated system with enhanced electronic storage, retrieval and tracking capacities that allows OCR to manage more effectively the information it collects.
The system is designed to allow OCR to integrate all of OCR's various business processes, including all its compliance activities, to allow for real time access and results reporting and other varied information management needs. PIMS provides: (1) A single, central, electronic repository of all significant OCR documents and information, including investigative files, correspondence, administrative records, policy and procedure manuals and other documents and information developed or maintained by OCR; (2) easy, robust capability to search all the information in OCR's repository; (3) better quality control at the front end with simplified data entry and stronger data validation; (4) tools to help staff work on and manage their casework, and (5) supplementary paper document files. The system has the capacity to generate reports concerning the status of all current and closed complaints, reviews, and correspondence; track outreach, training, and other activities; and to locate and retrieve information, and report results, in order to manage more efficiently OCR's work. In addition, PIMS allows for the tracking of work assignments to employees to facilitate workload balancing, timely response to complaints and completion of reviews, and outreach and public education initiatives focused on organizations and individuals.
PIMS also is used by OCR: (1) To collect, maintain, and post on the HHS Web site a list of covered entities that experience breaches of unsecured protected health information affecting more than 500 individuals using information reported to the Secretary by covered entities (or a business associate on behalf of a covered entity) as required by section 13402(e) of the HITECH Act; (2) to develop an annual report to Congress, as required by section 13402(i) of the HITECH Act, regarding breach notification using information reported to the Secretary by covered entities (or a business associate on behalf of a covered entity) pursuant to section 13402(e) of the HITECH Act; and (3) to provide technical assistance, training, and guidance regarding breaches of protected health information.
The Privacy Act allows us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The routine uses in this system meet the compatibility requirement of the Privacy Act. The following are the routine use disclosures of information maintained in the PIMS system:
I. The first routine use for this system, permitting disclosure to a congressional office, allows subject individuals to obtain assistance from their representatives in Congress, should they so desire. Such disclosure would be made only pursuant to the request of the individual.
II. The second routine use allows disclosure to the Department of Justice or a court in the event of litigation.
III. The third routine use allows referral to the appropriate agency, in the event that a System of Records maintained by this agency to carry out its functions indicates a violation or potential violation of law.
IV. The fourth routine use allows disclosure of records to contractors for the purpose of processing or refining records in the system.
V. The fifth routine use allows records to be disclosed to student volunteers, individuals working under a personal services contract, and other individuals performing functions for the Department but technically not having the status of agency employees, if they need access to the records in order to perform their assigned agency functions.
VI. The sixth routine use allows referrals of Age Discrimination Act complaints to the Federal Mediation and Conciliation Service (FMCS) for purposes of mediation.
VII. The seventh routine use allows OCR to post on its Web site, as required by section 13402(e)(4) of the HITECH Act, information reported by a covered entity (or a business associate on behalf of a covered entity) to the Secretary pursuant to section 13402(e)(3) of the HITECH Act that identifies covered entities that experience breaches of unsecured protected health information affecting more than 500 individuals.
VIII. The eighth routine use allows OCR to disclose information regarding breaches of unsecured protected health information in an annual report to Congress, as required by section 13402(i) of the HITECH Act, regarding the number and nature of the breaches
IX. The ninth routine use allows OCR to disclose information regarding breaches of unsecured protected health information to the public and to appropriate Federal agencies and Department contractors to provide technical assistance, training, and guidance materials, after OCR determines that the disclosure would not constitute an unwarranted invasion of personal privacy.
X. The tenth routine use allows OCR to disclose information to appropriate Federal agencies and Department contractors that have a need to know the information for the purpose of assisting the Department's efforts to respond to a suspected or confirmed breach of security or confidentiality of information maintained in this system of records, and the information disclosed is relevant and necessary for that assistance.
XI. The eleventh routine use allows OCR to disclose information to third party contacts, including public and private organizations, to investigate violations and potential violations, as well as to conduct compliance reviews, of the Federal laws and regulations that OCR has legal authority to enforce.
XII. The twelfth routine use allows OCR to disclose relevant information to the public to inform the public of the results of investigations and compliance reviews of the Federal laws and regulations that OCR has legal authority to enforce, after OCR determines that the disclosure would not constitute an unwarranted invasion of personal privacy.
Automated records are maintained on magnetic disc and tape back-up. Paper records are kept in file folders.
Records are indexed by transaction number, but may be retrieved by name, street address, and other complainant, covered entity, or business associate characteristic (such as type of entity, city, state, and type of service provided).
The PIMS system conforms to applicable law and policy governing the privacy and security of Federal automated information systems. These include but are not limited to: the Privacy Act of 1974, Federal Information Security Management Act of 2002, Computer Security Act of 1987, the Paperwork Reduction Act of 1995, the Clinger-Cohen Act of 1996, and OMB Circular A-130, Appendix, III, “Security of Federal Automated Information Resources.” OCR has prepared a system security plan as required by OMB Circular A-130, Appendix III. This plan conforms fully to guidance issued by the National Institute for Standards and Technology (NIST) in NIST Special Publication 800-18, “Guide for Developing Security Plans for Information Technology Systems.” The plan includes conduct of a risk assessment that addresses the confidentiality and integrity of the data. Only authorized users have access to the information in the system.Categories of users include: OCR investigators, regional and headquarters managers, team leaders, OCR budget and Government Performance and Results Act planning staff, program and policy staff, and data analysts. Specific access is structured around need and is determined by the person's role in the organization. Access is managed through the use of electronic access control lists, which regulate the ability to read, change, and delete information in the system. Each OCR user has read access to designated information in the system, with the ability to modify onlytheir own submissions or those of others within their region or group. Data identified as confidential is so designated and only specified individuals are granted access. The system maintains an audit trail of all actions against the data base.
All electronic data is stored on servers maintained in locked facilities with computerized access control allowing access to only those support personnel with a demonstrated need for access. Adatabase is kept of all individuals granted security card access to the room, and all visitors are escorted while in the room. The server facility has appropriate environmental security controls, including measures to mitigate damage to automated information system resources caused by fire, electricity, water, and inadequate climate controls.
Access control to servers, individual computers, and databases includes a required user log-on with a password, inactivity lockout to systems based on a specified period of time, legal noticesand security warnings at log-on, and remote access security that allows user access for remote users (
Documents related to breaches are retained at OCR for two years from the date the breach is reported and then are archived at the National Archives and Records Administration for 15 years. Correspondence is retained for one year following the end of the fiscal year in which processed.
PIMS Project Manager, Management Operations Division, Office for Civil Rights, 200 Independence Ave., SW., Room 509F, Washington, DC 20201.
Contact System Manager (above). Include name and address of complainant, and name of the recipient against which the allegation was filed. The Department is exempting all investigative records from this provision (see below: Records Exempted).
Same as notification procedures. Requesters also should reasonably specify the record contents being sought. Requests should be made to the system manager (above). The Department is exempting all investigative records from this provision. (
Contact the official(s) at the address specified under System Manager, and reasonably identify the record and specify the information to be contested and corrective action sought with supporting justification. (These procedures are in accordance with Department Regulations (45 CFR 5b.7) The Department is exempting all investigative records from this provision (
Information is provided by complainants, covered entities, and business associates.
OCR investigative records maintained in PIMS, either as paper records or electronic documents, are records compiled for law enforcement purposes and are exempt under subsection (k)(2) from the notification, access, correction, and amendment provisions of the Privacy Act.
This system is located at HHS offices in the following cities:
Headquarters, PIMS Project Manager, Management Operations Division, Office for Civil Rights, 200 Independence Ave., SW., Room 509F, Washington, DC 20201.
Region I, Regional Manager, OCR/HHS, J.F. Kennedy Federal Building—Room 1875 Boston, MA 02203.
Region II, Regional Manager, OCR/HHS, 26 Federal Plaza—Suite 3312, New York, NY 10278.
Region III, Regional Manager, OCR/HHS, 150 S. Independence Mall West, Suite 372, Public Ledger Building, Philadelphia, PA 19106-9111.
Region IV, Regional Manager, OCR/HHS, Atlanta Federal Center, Suite 3B70, 61 Forsyth Street, SW., Atlanta, GA 30303-8909.
Region V, Regional Manager, OCR/HHS, 233 N. Michigan Ave, Suite 240, Chicago, IL 60601.
Region VI, Regional Manager, OCR/HHS, 1301 Young Street, Suite 1169, Dallas, TX 75202.
Region VII, Regional Manager, OCR/HHS, 601 E. 12th Street—Room 248, Kansas City, MO 64106.
Region VIII, Regional Manager, OCR/HHS, Federal Office Building, 1961 Stout Street—Room 1426 FOB, Denver, CO 80294-3538.
Region IX, Regional Manager, OCR/HHS, 90 7th Street, Suite 4-100, San Francisco, CA 94103.
Region X, Regional Manager, OCR/HHS, 2201 Sixth Avenue— M/S: RX-11, Seattle, WA 98121-2290.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
CDC Oral Health Management Information System (OMB no. 0920-0739, exp. 6/30/2010)—Revision—Division of Oral Health, National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The CDC seeks to improve the oral health of the nation by targeting efforts to improve the infrastructure of state and territorial oral health departments, developing effective programs to improve the oral health of children and adults, and reducing health disparities among high-risk groups. Through a cooperative agreement program, CDC provides funding to oral health programs in states and territories.
The CDC collects information from awardees to support oral health program management, consulting and evaluation. The information collection is supported by an electronic management information system (MIS) known as the Management Overview for Logistics, Analysis, and Reporting (MOLAR) system. The MIS provides a centralized, standardized and searchable repository of information about each awardee's objectives, programmatic activities, performance indicators, and financial status.
CDC requests OMB approval to continue the electronic collection of information for three years. The information collected will continue to facilitate CDC's ability to monitor, evaluate, and compare individual programs; provide technical assistance to states and territories; share and disseminate lessons learned; assess and report aggregate information regarding the overall effectiveness of oral health infrastructure and capacity at the state and territorial level; and monitor national progress toward meeting
Information will be collected electronically twice per year. No changes to the MIS or the estimated burden per response are proposed. There is an increase in the total estimated annualized burden due to an increase in the number of CDC-funded oral health programs. There are no costs to respondents other than their time. The total estimated annualized burden hours are 462.
ACF is requesting that OMB grant a 180 day approval for this information collection under procedures for emergency processing by April 15, 2010. A copy of this information collection, with applicable supporting documentation, may be obtained by calling the Administration for Children and Families, Reports Clearance Officer, Robert Sargis at (202) 690-7275.
Comments and questions about the information collection described above should be directed to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ACF, Office of Management and Budget, Paperwork Reduction Project, 725 17th Street, NW., Washington, DC 20503, FAX (202) 395-6974.
(1) A statement of need;
(2) A requirements analysis and feasibility study;
(3) A cost benefit analysis;
(4) A proposed activity schedule; and,
(5) A proposed budget.
HHS' determination of a State Agency's need to acquire requested ADP equipment or services is authorized at sections 402(a)(5), 452(a)(1), 1902(a)(4), and 1102 of the Social Security Act.
Estimated Total Annual Burden Hours: 5,751.50
In compliance with the requirements of section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
Food and Drug Administration, HHS.
Notice of meeting.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “Preparation for ICH Steering Committee and Expert Working Group Meetings in Tallinn, Estonia” to provide information and receive comments on the International Conference on Harmonisation (ICH) as well as the upcoming meetings in Tallinn, Estonia. The topics to be discussed are the topics for discussion at the forthcoming ICH Steering Committee Meeting. The purpose of the meeting is to solicit public input prior to the next Steering Committee and Expert Working Group meetings in Tallinn, Estonia, June 5 through 10, 2010, at which discussion of the topics underway and the future of ICH will continue.
Interested persons may present data, information, or views orally or in writing, on issues pending at the public meeting. Public oral presentations will be scheduled between approximately 4 p.m. and 4:30 p.m. Time allotted for oral presentations may be limited to 10 minutes. Those desiring to make oral presentations should notify the contact person by April 30, 2010, and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses, phone number, fax, and e-mail of proposed participants, and an indication of the approximate time requested to make their presentation.
The agenda for the public meeting will be made available via the Internet at:
If you need special accommodations due to a disability, please contact Jennifer Haggerty at least 7 days in advance.
The ICH was established in 1990 as a joint regulatory/industry project to improve, through harmonization, the efficiency of the process for developing and registering new medicinal products in Europe, Japan, and the United States without compromising the regulatory obligations of safety and effectiveness.
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for medical product development among regulatory agencies. ICH was organized to provide an opportunity for harmonization initiatives to be developed with input from both regulatory and industry representatives. ICH is concerned with harmonization among three regions: The European Union, Japan, and the United States. The six ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labor and Welfare; the Japanese Pharmaceutical Manufactures Association; the Centers for Drug Evaluation and Research and Biologics Evaluation and Research, FDA; and the Pharmaceutical Research and Manufacturers of America. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations (IFPMA). The ICH Steering Committee includes representatives from each of the ICH sponsors and Health Canada, the European Free Trade Area, and the World Health Organization. The ICH process has achieved significant harmonization of the technical requirements for the approval of pharmaceuticals for human use in the three ICH regions.
The current ICH process and structure can be found at the following Web site:
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) is announcing a public workshop entitled “FDA/NHLBI/NSF Workshop on Computer Methods for Cardiovascular Devices: The Integration of Nonclinical and Clinical Models.” The workshop will include a smaller, optional session entitled “Microstructure Modeling Session.” FDA is cosponsoring the workshop with the National Heart Lung and Blood Institute of the National Institutes of Health and the National Science Foundation. The purpose of the workshop is to facilitate discussion between FDA and other interested parties on the use of computational modeling in the design, development, and evaluation of cardiovascular medical devices.
If you need special accommodations because of a disability, please contact Donna R. Lochner at least 7 days before the public workshop.
The purpose of the public workshop is to facilitate discussion between FDA and other interested parties on the use of computational modeling in cardiovascular device design, development, and evaluation.
We hope to discuss a large number of issues at the public workshop, with our overall theme being the integration of computer and nonclinical models. Topics include, but are not limited to the following:
• Multiscale, multiphysics, and multiphase modeling;
• Modeling of cardiovascular diseases and therapies;
• Patient-specific modeling, including virtual surgical planning and predictive biomedicine;
• Open source projects, including public policy initiatives, database development and data presentation, and standards and protocols; and
• Regulatory issues with implementation of computer modeling.
Background information on the public workshop, registration information, the agenda, information about lodging, and other relevant information will be posted, as it becomes available, on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “Prevention of
Submit electronic or written comments on the SECG at any time.
Submit electronic comments on the SECG to
Nancy S. Bufano, Center for Food Safety and Applied Nutrition (HFS-315), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1493.
In the
FDA examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Public Law 104-121), FDA is making available this SECG stating in plain language the requirements of the regulation.
FDA is issuing this SECG as level 2 guidance consistent with FDA's good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents FDA's current thinking on the prevention of SE in shell eggs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This SECG refers to collections of information described in FDA's final rule that published in the
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at
National Protection and Programs Directorate, DHS.
30-day notice and request for comments: New information collection request 1670-NEW.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Infrastructure Protection (IP), Infrastructure Security Compliance Division (ISCD) will be submitting the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is a new information collection. A 60-day public notice for comments was previously published in the
Comments are encouraged and will be accepted until May 13, 2010. This process is conducted in accordance with 5 CFR 1320.8.
Interested persons are invited to submit comments on the proposed information collection through the Federal Rulemaking Portal at
Comments that include trade secrets, confidential commercial or financial information, Chemical-terrorism Vulnerability Information (CVI), Sensitive Security Information (SSI), or Protected Critical Infrastructure Information (PCII) should not be submitted to the public regulatory docket. Please submit such comments separately from other comments in response to this notice. Comments containing trade secrets, confidential commercial or financial information, CVI, SSI, or PCII should be appropriately marked and submitted by mail to the DHS/NPPD/IP/ISCD CFATS Program Manager at the Department of Homeland Security, 245 Murray Lane, SW., Mail Stop 0610, Arlington, VA 20528-0610. Comments must be identified by docket number DHS-2009-0026.
A copy of this ICR, with applicable supporting documentation, may be obtained through the Federal Rulemaking Portal at
The Chemical Facility Anti-Terrorism Standards (CFATS), 6 CFR part 27, require high-risk chemical facilities to submit information about facility personnel and, as appropriate, unescorted visitors with access to restricted areas or critical assets at those facilities. This information will be vetted by the Federal Government against the Terrorist Screening Database (TSDB), the consolidated and integrated terrorist watchlist maintained by the Federal Government, to identify known or suspected terrorists (i.e., individuals with terrorist ties).
High-risk chemical facilities must also perform other relevant background checks in compliance with CFATS Personnel Surety Risk-Based Performance Standard 12 (RBPS-12).
On October 4, 2006, the President signed the Department of Homeland Security Appropriations Act of 2007 (the Act), Public Law 109-295. Section 550 of the Act provides DHS with the authority to regulate the security of high-risk chemical facilities.
Section 550 requires that DHS regulations establish CFATS RBPS. RBPS-12 (6 CFR 27.230(a)(12)(iv)) requires that regulated chemical facilities implement “measures designed to identify people with terrorist ties.” The ability to identify individuals with terrorist ties requires the use of information held in Government-maintained databases, which are unavailable to high-risk chemical facilities. Therefore, DHS is implementing the CFATS Personnel Surety Program, which will allow chemical facilities to comply with RBPS-12 by implementing “measures designed to identify people with terrorist ties.”
The CFATS Personnel Surety Program will work with the DHS Transportation Security Administration (TSA) to identify individuals who have terrorist ties by comparing information submitted by each high-risk chemical facility to the information of known or suspected terrorists who are listed in the TSDB.
Information will be submitted to DHS through the Chemical Security Assessment Tool (CSAT), the online data collection portal for CFATS. The representative(s) of each high-risk chemical facility will submit the information of affected individuals to DHS through CSAT. The representative(s) of each high-risk chemical facility will also certify that the information is (1) true, correct, and complete, and (2) collected and submitted in compliance with the facility's Site Security Plan (SSP). The representative(s) of each high-risk chemical facility will also affirm that notice required by the Privacy Act of 1974, 5 U.S.C. 552a, has been given to affected individuals before their information is submitted to DHS.
DHS will send a verification of submission to the representative(s) of each high-risk chemical facility when a high-risk chemical facility (1) Submits information about an affected individual for the first time, (2) submits updated or corrected information about an affected individual, and/or (3) notifies DHS that an affected individual no longer has access to that facility's restricted areas or critical assets.
Upon receipt of each affected individual's information in CSAT, DHS will send a copy of the information to TSA. Within TSA, the Office of Transportation Threat Assessment and Credentialing (TTAC) conducts screening and vetting of information against the TSDB for many DHS programs. On behalf of DHS, TTAC will compare the information of affected individuals collected by DHS to the information of known or suspected terrorists on the TSDB. TTAC will forward the results from potential matches to the Federal Bureau of Investigation's Terrorist Screening Center (TSC), which will make a final determination of whether an individual is a match to a known or suspected terrorist listed in the TSDB.
In the event that there is a positive match to an identity in the TSDB, the TSC will notify the appropriate Federal law enforcement agency for coordination, investigative action, and/or response, as appropriate. DHS will neither routinely provide vetting results to high-risk chemical facilities, nor will it provide results to an affected individual whose information was submitted by a high-risk chemical facility. As warranted, high-risk chemical facilities may be contacted by the Department or Federal law enforcement as a part of appropriate law enforcement investigation activity. (See the amendment to the FBI's Terrorist Screening Records System, published in the
DHS may collect the following information from individuals:
DHS will collect information that identifies the high-risk chemical facility or facilities, to which the affected individual has access to restricted areas or critical assets. As applicable, DHS will also collect information to verify that an affected individual is currently enrolled in a DHS program which relies on DHS-performed TSDB checks, in addition to other program-specific requirements.
DHS may request additional information on an affected individual to confirm that the individual is or is not a match to a known or suspected terrorist in the TSDB. DHS may randomly select a small percentage of affected individuals for further verification as part of data accuracy review and auditing processes. In order to assist with this confirmation and verification, DHS may request additional information on affected individuals from the high-risk chemical facilities which have submitted their information to the Department. DHS may also collect information about points of contact at each high-risk chemical facility, and which points of contact the Department or Federal law enforcement personnel may contact with follow-up questions. However, a request for additional information from DHS does not imply, and should not be construed to indicate, that an individual is known or suspected to be associated with terrorism.
DHS may collect information on affected individuals as necessary to enable it to provide redress for individuals who believe that they have been improperly impacted by the Personnel Surety Program. The information collected may include information necessary to conduct adjudications under subpart C of CFATS, 6 CFR 27.300-27.345.
DHS will also collect administrative or programmatic information (
6 CFR 27.230(a)(12) requires facility personnel and, as appropriate, unescorted visitors who have access to restricted areas or critical assets to undergo background checks. This affected population will include (1)
These background checks do not affect facility personnel who do not have access to facilities' restricted areas or critical assets, nor do they affect escorted visitors.
To comply with CFATS, high-risk chemical facilities are required to identify who is an affected individual, and at which high-risk chemical facility or facilities each affected individual has access to restricted areas or critical assets. DHS intends to collect this information through CSAT.
DHS will establish a CFATS Personnel Surety Submission schedule for high-risk chemical facilities when submitting information to DHS to check for terrorist ties under 6 CFR 27.230(a)(12)(iv). The schedule will be published in the
DHS is requesting from OMB an exception for the CFATS Personnel Surety Program to the Paperwork Reduction Act (PRA) requirement, as contained in 5 CFR 1320.8(b)(3), which requires Federal agencies to confirm that their information collections provide certain reasonable notices, under the Paperwork Reduction Act, to affected individuals. If this exception is granted, DHS will be relieved of the potential obligation to require high-risk chemical facilities to collect signatures or other positive affirmations of these notices from affected individuals. Whether or not this exception is granted, DHS will still require high-risk facilities to affirm that required Privacy Act notice has been provided to affected individuals before personal information is collected.
DHS's request for an exception to the requirement under 5 CFR 1320.8(b)(3) would not exempt high-risk chemical facilities from having to adhere to applicable Federal, State, local, or tribal laws, or to regulations or policies pertaining to the privacy of facility personnel and the privacy of unescorted visitors.
DHS received 17 comments in response to the 60-day notice for comment. Comments were received from three private citizens, four private sector companies, seven associations, one training council, and one professional society. One additional comment was a jointly submitted comment. Many of the comments were in response to the questions posed by DHS in the 60-day notice for comments. In this section of this notice, DHS first addresses specific questions that the Department solicited, then other comments related to the Personnel Surety Program, and finally unsolicited comments received in response to the 60-day notice.
(A) On behalf of OMB, DHS solicited comments that evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
For example, when a high-risk chemical facility becomes aware that an affected individual's information has changed (
One piece of information that may change is the list of high-risk chemical facilities within one company or organization to which an affected individual has access. When such a change occurs, updates are not required immediately but rather in accordance with a schedule to be published by DHS.
DHS recognizes that some affected individuals under CFATS possess TWICs or other credentials that rely on DHS-conducted TSDB vetting (
(B) On behalf of OMB, DHS solicited comments which evaluate the accuracy of the Department's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
The estimated time for a responsible entity to submit the information of each affected individual through the CSAT portal is 0.59 hours per individual. This estimate is based upon the CFATS regulatory evaluation. The estimated time per affected individual was derived by assuming that (1) 30 minutes is
DHS believes that the information contained in this notice, in the Personnel Surety Program's 60-day PRA notice preceding this notice (74 FR 27555 (June 10, 2009)), and in the CFATS regulatory evaluation provides sufficient detail about the proposed Personnel Surety Program's information collection process.
The Department is also seeking to collect five core data elements about each individual to be vetted under the Personnel Surety Program: Full name, date of birth, place of birth, gender, and citizenship. When taken together, these identifiers will minimize false positive matches to the TSDB. Furthermore, each potential match will be manually reviewed by Department adjudicators who have expertise in evaluating matches prior to confirmation that an individual's information matches the information of a known or suspected terrorist.
(C) On behalf of OMB, DHS solicited comments to enhance the quality, utility, and clarity of the information to be collected.
DHS will not require immediate reporting of updates to previously submitted information. As previously discussed in this notice, DHS will permit high-risk chemical facilities to update information on a periodic basis in compliance with a DHS-approved schedule.
This will likely require fewer pieces of information than are required to vet an individual who is not enrolled in another vetting program. DHS believes the burden of collecting those fewer pieces of information is accounted for in the estimated burden.
This approach will also limit the number of instances in which different DHS programs may vet the same affected individual against the TSDB. If other programs' vetting results cannot be verified without substantial effort, DHS may initiate new vetting of an affected individual's information against the TSDB.
(D) On behalf of OMB, DHS solicited comments regarding the minimization of the burden of information collection 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 (
(E) DHS solicited comments that respond to the Department's interpretation of the population affected by RBPS-12's background check requirement.
However, the preamble to the CFATS Interim Final Rule could be read to imply that a different population would undergo vetting rather than the population suggested in the regulatory text of CFATS. To the extent that there is a potential conflict, the regulatory text of CFATS takes precedence. As such, the populations of individuals who must be vetted under 6 CFR 27.230(a)(12) are the same as those described in the 60-day notice preceding this 30-day notice: (1) Facility personnel (
DHS would like to underscore that a high-risk chemical facility has wide latitude in its unique and tailored SSP regarding the terms under which facility personnel will be granted access, either unescorted or otherwise, to restricted areas and critical assets. Each high-risk chemical facility will need to consider its unique security concerns when determining which individuals will be afforded access to restricted areas or critical assets.
Additionally, DHS will expect that each facility be able to explain why an individual is an affected individual. Specifically, an affected individual must meet one and only one of the following three criteria: (1) The individual is facility personnel with unescorted access to restricted areas or critical assets; (2) the individual is facility personnel with access, but not unescorted access, to restricted areas or critical assets; or (3) the individual is an unescorted visitor with access to restricted areas or critical assets.
(F) DHS solicited comments which respond to the statement that a Federal law enforcement agency may, if appropriate, contact the high-risk chemical facility as a part of a law enforcement investigation into terrorist ties of facility personnel.
It should also be noted that DHS will randomly audit its vetting processes in an effort to maximize vetting accuracy and Personnel Surety Program efficiency. As part of this auditing, DHS may request information on a small percentage of affected individuals after those individuals have been initially vetted against the TSDB. A request for additional information does not imply, and should not be construed to indicate, that an individual is known or suspected to be associated with terrorism.
(G) DHS solicited comments which respond to the Department's intention to seek an exception to the notice requirement under 5 CFR 1320.8(b)(3).
Because the information being collected under this information collection request is information that will be used to identify individuals with known or suspected terrorist ties, the Department believes that it is important for affected individuals to be informed of the Government's intended use of their information. However, under CFATS the Department regulates high-risk chemical facilities and not affected individuals. Although the affected individual is ultimately the source of the collected information, the burden of submitting the collected data to DHS lies on the high-risk chemical facility. (For example, high-risk chemical facilities may collect affected individuals' information by having affected individuals fill out forms, or high-risk chemical facilities may submit batch files extracted from databases which contain the necessary information previously collected from affected individuals.) An exception to 5 CFR 1320.8(b)(3) will ensure that the Department does not need to inspect, audit, or receive confirmation (
The Department's request for an exception to 5 CFR 1320.8(b)(3) of the PRA is not a request for an exception to provide notice to affected individuals under the Privacy Act. If this exception is granted, high-risk chemical facilities will be relieved of the potential obligation to collect signatures or other positive affirmations from affected individuals, but will still be obligated to affirm that required privacy notice has been provided to affected individuals before personal information is collected.
(H) DHS also received unsolicited comments in response to the 60-day notice related to the CFATS Personnel Surety Program.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate 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;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. 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
The Department is particularly interested in comments which:
1. Respond to the Department's interpretation of the population affected by RBPS-12 background checks, as outlined in 6 CFR 27.230(a)(12);
2. Respond to fact that the Department or a Federal law enforcement agency may, if appropriate, contact the high-risk chemical facility as a part of a law enforcement investigation into terrorist ties of facility personnel;
3. Respond to the Department's intention to collect information that identifies the high-risk chemical facilities, restricted areas and critical assets to which each affected individual has access; and
4. Respond to the Department on its intention to seek an exception to the notice requirement under 5 CFR 1320.8(b)(3).
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security is giving notice that it proposes to establish a new Department of Homeland Security system of records notice titled, “Department of Homeland Security Citizenship and Immigration Services Ombudsman-001 Virtual Ombudsman System of Records.” This system of records will ensure the efficient and secure processing of information to aid the Citizenship and Immigration Services Ombudsman in providing assistance to individuals, employers, and their representatives in resolving problems with U.S. Citizenship and Immigration Services; identify areas in which individuals, employers, and their representatives have problems working with U.S. Citizenship and Immigration Services; and to the extent possible, propose changes to mitigate problems pursuant to 6 U.S.C. 272. This newly established system will be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before May 13, 2010. This new system will be effective May 13, 2010.
You may submit comments, identified by docket number DHS-2009-0146 by one of the following methods:
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•
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For general questions please contact: Raymond Mills (202-357-8100), Privacy Point of Contact, Office of the Citizenship and Immigration Services Ombudsman, 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.
Pursuant to the Privacy Act of 1974, (5 U.S.C. 552a), the Department of Homeland Security (DHS) Citizenship and Immigration Services Ombudsman (CISOMB) is giving notice that it proposes to establish a new DHS system of records notice titled, “DHS/CISOMB-001 Virtual Ombudsman System of Records.” This system of records will ensure the efficient and secure processing of information to aid the CISOMB in providing assistance to individuals, employers, and their representatives in resolving problems with U.S. Citizenship and Immigration Services (USCIS); identify areas in which individuals, employers, and their representatives have problems working with USCIS; and to the extent possible, propose changes to mitigate problems pursuant 6 U.S.C. 272.
CISOMB has developed the DHS/CISOMB-001 Virtual Ombudsman System of Records to ensure the efficient and secure processing of information and to aid the Ombudsman in assisting individuals and employers in making systemic recommendations to USCIS. The core of the DHS/CISOMB-001 Virtual Ombudsman System of Records is CISOMB's Web form 7001 which is a user interface Web-based form which will automatically convert information submitted by an individual or employer into a case within CISOMB's account within Internet Quorum/Enterprise Correspondence Tracking (IQ/ECT) system. IQ/ECT is the Department's enterprise-wide correspondence and case management tracking system. This system allows the Department's headquarters and components to manage cases and resolve issues in a coordinated and timely manner. For more information on IQ/ECT, please view the Enterprise Correspondence Tracking System PIA at
The purpose of this system is to provide efficient and secure case management and processing of information related to individuals and employers problems allowing the Ombudsman to make systemic recommendations to USCIS. The Department's authority for this collection is primarily Section 452 of the Homeland Security Act of 2002. This system will collect individuals' personal information to support the Ombudsman's efforts to make recommendations to USCIS pursuant to 6 U.S.C. 272. 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 cover sharing with the Department of Justice for legal representation; to Congress at the request of a constituent; to the National Archives and Records Administration for records retention and disposal; to agencies, organizations, and individuals for purposes of audit as well as for security breaches; to contractors of the Department in performance of their contractual duties; to appropriate agencies and entities for investigations and prosecutions; and to an attorney or representative who is acting on behalf of an individual. This system collects information under the Paperwork Reduction Act using the following form: DHS Form 7001, Case Problem Submission Worksheet and Supporting Statement Case Problem Submission, OMB Control Number 1601-0004, Expiration Date 01/01/2013.
This newly established system will 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 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 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 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/CISOMB-001
Citizenship and Immigration Services Ombudsman—001 Virtual Ombudsman System of Records.
Unclassified.
Records are maintained at Citizenship and Immigration Services Ombudsman Headquarters in Washington, DC.
Categories of individuals covered by this system include: any member of the general public, including individuals, employers, and their representatives seeking assistance from the Citizenship and Immigration Services Ombudsman in resolving general matters, issues, or problems with USCIS.
Categories of records in this system include:
• Individual's full legal name including any aliases;
• Individual's date and country of birth;
• Individual's legal citizenship;
• Individual's alien (“A”) number;
• Full legal name of person preparing form if other than the individual named in the case;
• Applications and petitions filed;
• Receipt number located on the top left hand corner of Notice of Action (Form I-797) received from USCIS in response to the application/petition filed;
• Immigration status or interim benefit applied or petitioned for;
• Type of case problem;
• Source of case problem;
• Description of case problem;
• Prior actions taken to remedy the problem;
• Designated attorney/representative;
• Consent of the petitioner for USCIS to disclose information in the file to the designated representative;
• Verification statement signed and dated by the individual of the inquiry or the authorized representative; and
• Declaration by the individual or the attorney or representative submitting the case problem.
Section 452 of the Homeland Security Act of 2002.
The purpose of this system is to provide efficient and secure case management and processing of information related to individuals and employers problems with USCIS.
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), and in accordance with 6 U.S.C. 272, 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 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 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.
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 a CISOMB 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 attorney or representative who is acting on behalf of an individual covered by this system of records to obtain the individual's information submitted to the Virtual Ombudsman System.
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 CISOMB Case Number, Alien Registration Number, or by the individuals' name.
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 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.
In accordance with National Archives and Records Administration approved retention and disposal policy N1-563-08, processed case files are cut off at the final disposition of the case and are deleted or destroyed ten years after cutoff. Uncompleted case files are the record copy of cases where additional information is requested, but not received. Cases are closed 30 days after the request for additional information. These records are cut off 30 days from date of request if no response, and are deleted or destroyed 5 years after cutoff.
CISOMB VOS Project Manager (202-357-8100), Office of the Citizenship and Immigration Services Ombudsman, 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 CISOMB's FOIA Officer, whose contact information can be found at
• 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.
Information originates from stakeholders and customers who contact the CISOMB.
None.
Privacy Office, DHS.
Notice to alter an existing Privacy Act system of records.
In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to update and reissue an existing Department of Homeland Security system of records notice titled, Transportation Security Administration—013 Federal Flight Deck Officer Record System, previously published on August 18, 2003. The Federal Flight Deck Officer Record System contains records necessary for assessment, acceptance, training, participation, and recertification of deputized pilots of commercial air carriers who participate in the Flight Deck Officer Program designed to defend aircraft flight decks against acts of criminal violence or air piracy.
As a result of the biennial review of this system, modifications are being made to the system of records' routine uses, record sources, retention and disposal, notification procedures, and system manager and address.
Portions of this system are exempt under 5 U.S.C. 552a(k)(1), (k)(2) and (k)(6) as reflected in the final rule published in the
This updated system will continue to be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before May 13, 2010. The system will be effective May 13, 2010.
You may submit comments, identified by docket number DHS-2010-0017 by one of the following methods:
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For general questions please contact: Peter Pietra, Privacy Officer, Transportation Security Administration, TSA-36, 601 South 12th Street, Arlington, VA 20598-6036 or
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) Transportation Security Administration (TSA) proposes to update and reissue a DHS/TSA system of records notice titled, DHS/TSA-013 Federal Flight Deck Officer Record System (FDORS), previously published on August 18, 2003 (68 FR 49496).
TSA's mission is to protect the nation's transportation systems to ensure freedom of movement for people and commerce. To achieve this mission, TSA is required to develop and adapt its security programs to respond to evolving threats to transportation security. In accordance with the biennial review of this system, the following modifications are being made:
• DHS/TSA is updating the system of records to incorporate five Department of Homeland Security (DHS) standard routines uses. One routine use will allow the release of information to appropriate agencies, entities, and persons when DHS/TSA suspects or has confirmed that the security or confidentiality of an information system of records has been compromised. Another routine use permits the release of information to the media when there exists a legitimate public interest in disclosing information. Release under this routine use will require the approval of the DHS Chief Privacy officer in consultation with counsel. The third routine use allows the release of information to a court, magistrate, administrative tribunal or opposing counsel or parties where a federal agency is a party or has an interest in the litigation or administrative proceeding. The fourth routine use allows DHS/TSA to release information to a former employee when it is necessary to consult with the former employee regarding a matter that is within that person's former area of responsibility. The fifth routine use allows DHS/TSA to release information to appropriate entities where it would assist in the enforcement of civil or criminal laws.
• DHS/TSA is revising a routine use currently in by adding indirect air carriers and other facility operators as potential recipients of information from these systems when appropriate to address a threat or potential threat to transportation security or national security, or when required for administrative purposes related to the effective and efficient administration of transportation security laws.
• DHS/TSA is also revising a current routine use by adding indirect air carriers and other facility operators as potential recipients of information about individuals who are their employees, job applicants, or 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, training or the issuance of such credentials or clearances.
• Finally, DHS/TSA has removed as a routine use the sharing of information with the Attorney General of the United States concerning violations of the Brady Handgun Violence Prevention Act as it is duplicative.
• The record source categories are being updated to reflect the use of commercial and public record databases and Web sites to obtain information regarding the identity of individuals who attempt to gain access to the sterile areas of the airport and for whom identity needs to be verified or individuals who are being vetted to qualify as federal flight deck officers.
• The retention and disposal section is updated to reflect the records retention schedules approved by the National Archives and Records Administration (NARA).
• The notification section was changed to reflect that inquiries regarding whether the applicable system contains records about an individual should be directed to TSA's Freedom of Information Act (FOIA) Office.
• The system manager and address were revised to reflect the current system manager.
FFDORS contains records necessary for assessment, acceptance, training, participation, and recertification of deputized pilots of commercial air carriers who participate in the Flight Deck Officer Program designed to defend aircraft flight decks against acts of criminal violence or air piracy.
As a result of the biennial review of this system, modifications are being made to the system of records' routine uses, record sources, retention and disposal, notification procedures, and system manager and address.
Portions of this system are exempt under 5 U.S.C. 552a(k)(1), (k)(2) and (k)(6) as reflected in the final rule published on June 25, 2004, 69 FR 35536.
Consistent with the Privacy Act, information shared in the Federal Flight Deck Officer Records System 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 Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States government collects, maintains, uses, and disseminates 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 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 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 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/TSA 013
Transportation Security Administration 013 Federal Flight Deck Officer Record System (FFDORS).
Classified, sensitive.
Federal Flight Deck Officer (FFDO) Program Records are maintained at the offices of the Transportation Security Administration (TSA) Headquarters in Reston, Virginia.
Categories of individuals covered by this system include:
1. All individuals who volunteer to participate in the FFDO program,
2. FFDO program participants,
3. former FFDO program participants.
This system includes all records required in connection with an individual's voluntary participation in the program, including records associated with FFDO application, selection, training, participation, retention and requalification. FFDORS includes records about individuals who applied but were not accepted into the program. Such records may include, but are not limited to the following:
(a) Volunteer forms prepared by applicants for program participation containing such information as work history, education, military service, certificates of specialized training, awards and honors;
(b) Copies of correspondence between the applicant and TSA, and between TSA and other agencies, applicant places of employment, and educational institutions, for the purposes of verifying information provided to TSA by the applicant;
(c) The FD-258 Fingerprint card, investigative summaries, and compilations of criminal history record checks, to include administrative records and correspondence incidental to the background investigation process, obtained from various law enforcement authorities;
(d) Results of written cognitive and noncognitive assessments and information regarding how the volunteer form was rated, prepared by TSA employees or contract psychologists;
(e) Records regarding the TSA's final decision to accept or reject volunteers for the FFDO program for suitability or medical reasons, including records prepared by TSA employees, and responses to and results of approved psychological assessments or similar tests administered by TSA;
(f) Results of telephonic or in-person interviews with program volunteers, including summary recommendations regarding the individual's participation in the program, prepared by TSA employees;
(g) Records prepared by TSA employees related to the selection or rejection of volunteer applicants (to include records generated as a result of any administrative appeal of TSA's determination to reject an applicant), and records related to recertification and decertification;
(h) Records prepared by TSA employees related to training, including academic and firearms performance; and
(i) Records prepared by TSA employees related to requalification and deputation renewal.
49 U.S.C. 114, 44921.
The purpose of this system is to maintain records necessary for the assessment and acceptance of volunteers, and the training, participation and recertification of deputized volunteer pilots of air carriers providing commercial air transportation as federal law enforcement to defend the flight decks of aircraft of such air carriers against acts of criminal violence or air piracy.
A. To the Department of Justice (DOJ) (including United States Attorney Offices) or other federal agency in
1. DHS or any component thereof;
2. Any current or former employee of DHS in his/her official capacity;
3. Any current or former 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 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 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.
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 agency, including law enforcement, 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 the United States Department of Transportation, its operating administrations, or the appropriate state or local agency when relevant or necessary to:
1. Ensure safety and security in any mode of transportation;
2. Enforce safety- and security-related regulations and requirements;
3. Assess and distribute intelligence or law enforcement information related to transportation security;
4. Assess and respond to threats to transportation;
5. Oversee the implementation and ensure the adequacy of security measures at airports and other transportation facilities;
6. Plan and coordinate any actions or activities that may affect transportation safety and security or the operations of transportation operators; or
7. The issuance, maintenance, or renewal of a license, certificate, contract, grant, or other benefit.
I. To a Federal, State, local, tribal, territorial, foreign, or international agency, in response to queries regarding persons who may pose a risk to transportation or national security; a risk of air piracy or terrorism or a threat to airline or passenger safety; or a threat to aviation safety, civil aviation, or national security.
J. To the appropriate Federal, State, local, tribal, territorial, foreign, or international agency regarding individuals who pose or are suspected of posing a risk to transportation or national security.
K. To a Federal, State, local, tribal, territorial, foreign, or international agency, where such agency has requested information relevant or necessary for the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit.
L. To a Federal, State, local, tribal, territorial, foreign, or international agency, if necessary to obtain information relevant to a DHS/TSA decision concerning the hiring or retention of an employee, the issuance of a security clearance, license, contract, grant, or other benefit.
M. To international and foreign governmental authorities in accordance with law and formal or informal international agreement.
N. To third parties to the extent necessary to obtain information pertinent to the individual's fitness and qualifications for the FFDO program.
O. To airport operators, aircraft operators, and maritime and surface transportation operators, indirect air carriers, and other facility operators about individuals who are their employees, job applicants, or 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, training or the issuance of such credentials or clearances.
P. To the DOJ in review, settlement, defense, and prosecution of claims, complaints, and lawsuits involving matters over which DHS/TSA exercises jurisdiction.
Q. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a Federal, State, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-relate or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
R. 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.
S. To the appropriate Federal, State, local, tribal, territorial, foreign, or international agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, order, license, or treaty, where DHS/TSA determines that the information would assist in the enforcement of a civil or criminal laws.
T. To the news media and the public, with the approval of the DHS 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 or a risk to transportation or national security.
None.
Records in this system may be maintained on paper 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.
Information can be retrieved by name, address, social security, and account number or other assigned tracking identifier of the individual on whom the records are maintained.
Information in this system is safeguarded in accordance with applicable laws, rules and policies. All records are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include restricting access to authorized personnel who have a need-to-know; using locks, alarm devices, and passwords; and encrypting data communications. TSA file areas are locked after normal duty hours and security personnel protect the facilities from the outside.
Records associated with the assessment of FFDO's will be destroyed one year after TSA is notified that access based on security threat assessment is no longer valid; where an individual was a possible match to a watchlist, records will be destroyed seven years after completion of the security threat assessment or one year after being notified that access based on the security threat assessment is no longer valid, whichever is longer; and where the individual is an actual match to a watchlist records will be destroyed 99 years after the security threat assessment or seven years after TSA is notified the individual is deceased, whichever is shorter.
Transportation Security Administration, Office of Law Enforcement/Federal Air Marshal Service. 1900 Oracle Way, Suite 500, Reston, VA 20190.
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. Thus, individuals seeking notification and access to any record contained in the 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 Director, Disclosure and FOIA,
• 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,
• 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.
Information maintained in this system is primarily obtained from the FFDO volunteer form or derived from information the applicant supplied, reports from medical personnel on physical and psychological results of examinations, training records, and law enforcement and intelligence agency record systems, commercial and public databases and Web sites and individuals interviewed as part of the background investigation.
Portions of this system are exempt under 5 U.S.C. 552a(k)(1), (k)(2) and (k)(6) as reflected in the final rule published on June 25, 2004.
Privacy Office, DHS.
Notice to alter an existing Privacy Act system of records.
In accordance with the Privacy Act of 1974 the Department of Homeland Security is updating and reissuing the Department of Homeland Security Transportation Security Administration—006 Correspondence and Matters Tracking Records system of records, last published on August 18, 2003, to reflect necessary programmatic changes. As a result of the biennial review of this system, modifications are being made to the system of records' authorities, routine uses, data retention and disposal, notification procedures, and system location. The Department of Homeland Security Transportation Security Administration Correspondence and Matters Tracking Records system covers records associated with the management, tracking, retrieval, and response to incoming correspondence, all outgoing correspondence, memoranda, documentation, injuries, claims, and complaints associated with all subject matters over which the Transportation Security Administration exercises jurisdiction. For example, records pertaining to individuals who make a complaint to the agency's contact center are covered by this system.
Portions of this system are exempt under 5 U.S.C. 552a(k)(1) and (k)(2) as reflected in the final rule published in the
This updated system will continue to be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before May 13, 2010. This new system will be effective May 13, 2010.
You may submit comments, identified by docket number DHS-2010-0015 by one of the following methods:
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For general questions please contact: Peter Pietra (
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) Transportation Security Administration (TSA) is updating and reissuing a DHS/TSA system of records notice titled, DHS/TSA-006 Correspondence Matters Tracking System Records (CMTR) (68 FR 49496, August 18, 2003).
TSA's mission is to protect the nation's transportation systems to ensure freedom of movement for people and commerce. To achieve this mission, TSA is required to develop and adapt its security programs to respond to evolving threats to transportation security. In accordance with the biennial review of this system, the following modifications are being made:
• TSA is updating the authorities for maintenance of the system.
• DHS/TSA is updating the system of records to incorporate four DHS standard routines uses. One routine use will allow release of information to appropriate agencies, entities, and persons when DHS/TSA suspects or has confirmed that the security or confidentiality of information in a system of records has been compromised The second routine use permits the release of information to the media when there exists a legitimate public interest in disclosing information. Release under this routine use will require the approval of the Chief Privacy Officer in consultation with the counsel. The third routine use allows the release of information to a court, magistrate, administrative tribunal or opposing counsel or parties where a federal agency is a party or has an interest in the litigation or administrative proceeding. The fourth routine use allows DHS/TSA to release information to a former employee when it is necessary to consult with the former employee regarding a matter that is within that person's former area of responsibility.
• Additionally, DHS/TSA is revising a routine use that currently allows DHS/TSA to release information only to third parties during the course of an investigation related to transportation security. The revised routine use will allow disclosure to third parties for the purposes of investigating any matter before DHS/TSA. These changes will allow DHS/TSA to thoroughly and efficiently investigate and adjudicate theft or damage claims before the agency, as well as complaints about employees. DHS/TSA is also revising a current routine use by adding indirect air carriers and other facility operators as potential recipients of information about individuals who are their employees, job applicants, or 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, training or the issuance of such credentials or clearances.
DHS/TSA is removing the routine uses involving sharing with the Department of State and other Intelligence Community agencies, information relating to persons who may pose a risk to transportation or national security. Also removed as a routine use is the sharing of information with the Attorney General of the United States concerning violations of the Brady Handgun Violence Prevention Act. Both routine uses are duplicative.
• The retention and disposal section has been updated to reflect the records retention schedule approved by the National Archives and Records Administration (NARA).
• The notification section was changed to reflect that inquiries regarding whether the applicable system contains records about an individual should be directed to TSA's Freedom of Information Act (FOIA) Office.
• DHS/TSA updated the system location to reflect the current location of the system.
The CMTR system covers records associated with the management, tracking, retrieval, and response to incoming correspondence, all outgoing correspondence, memoranda, documentation, injuries, claims, and complaints associated with all subject matters over which DHS/TSA exercises jurisdiction. For example, records pertaining to individuals who make a complaint to the agency's contact center are covered by this system. DHS/TSA is revising its system of records to reflect necessary programmatic changes.
Portions of this system are exempt under 5 U.S.C. 552a(k)(1) and (k)(2) as reflected in the final rule published in the
Consistent with the Privacy Act, information stored in the CMTR system may be shared with other DHS
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 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 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/TSA-006.
Transportation Security Administration 006 Correspondence and Matters Tracking Records (CMTR).
Sensitive, Classified.
Records are maintained at the TSA Office of the Executive Secretariat, TSA Headquarters in Arlington, Virginia. Records may also be located at the Office of Legislative Affairs, Office of Civil Rights and Liberties, Redress Office, and the Office of the Ombudsman (which includes the Consumer Response Center (CRC)), to the extent those offices maintain matter tracking information. Records may also be maintained in other offices at TSA Headquarters and the various TSA field offices.
To the extent not covered by any other system, this system covers individuals who submit inquiries, comments, complaints, or claims to TSA in writing, in person, or by telephone, for response and resolution and those with any matter pending before TSA. This includes TSA employees, Members of Congress and their staff, officers and employees of other Executive branch agencies and the White House, tort and property claimants who have filed claims against the Government or TSA, stakeholders, passengers in transportation, and members of the public.
Correspondence and information related thereto, including name, address, and telephone number of individuals contacting TSA; records of contacts made by or on behalf of individuals, including inquiries, comments, complaints, resumes and letters of reference; staff reports; TSA's responses to correspondence and calls; and staff recommendations on actions requiring approval or action by a TSA official. The system also includes records, including those prepared by TSA employees, related to matters under consideration by TSA.
5 U.S.C. 301, 28 U.S.C. 1346(b), 1402(b), 2401(b), 2412(c), 2671-80; 31 U.S.C. 3325, 3332, 3701, 3711, 3721; 49 U.S.C. 114.
(a) To facilitate and assist in the management, tracking, retrieval, and response to incoming correspondence, inquiries, claims, and complaints associated with all subject matters over which TSA exercises jurisdiction.
(b) To monitor assignment, disposition, status, and results of correspondence, inquiries, claims, and complaints sent to TSA and, generally, to review, analyze, investigate, and study trends identified by the concerns expressed.
(c) To facilitate and assist in the management, tracking, and retrieval of information associated with matters and issues under consideration by TSA.
A. To the Department of Justice (DOJ) (including United States Attorney offices) or other federal agency in anticipation of or 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 current or former employee of DHS in his/her official capacity, or
3. Any current or former 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 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
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 perform 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 agency, including law enforcement, 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 the United States Department of Transportation and its operating administrations when relevant or necessary to
1. Ensure safety and security in any mode of transportation;
2. Enforce safety- and security-related regulations and requirements;
3. Assess and distribute intelligence or law enforcement information related to transportation security;
4. Assess and respond to threats to transportation;
5. Oversee the implementation and ensure the adequacy of security measures at airports and other transportation facilities;
6. Plan and coordinate any actions or activities that may affect transportation safety and security or the operations of transportation operators; or
7. The issuance, maintenance, or renewal of a license, certificate, contract, grant, or other benefit.
I. To a federal, state, local, tribal, territorial, foreign, or international agency, in response to queries regarding persons who may pose a risk to transportation or national security; a risk of air piracy or terrorism or a threat to airline or passenger safety; or a threat to aviation safety, civil aviation, or national security.
J. To a federal, state, local, tribal, territorial, foreign, or international agency, where such agency has requested information relevant or necessary for the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit.
K. To a federal, state, local, tribal, territorial, foreign, or international agency, if necessary to obtain information relevant to a DHS/TSA decision concerning initial or recurrent security threat assessment, the hiring or retention of an employee; the issuance of a security clearance, license, endorsement, contract, grant, waiver, credential, or other benefit and to facilitate any associated payment and accounting.
L. To international and foreign governmental authorities in accordance with law and formal or informal international agreement.
M. To third parties during the course of an investigation into any matter before DHS/TSA to the extent necessary to obtain information pertinent to the investigation.
N. To airport operators, aircraft operators, and maritime and surface transportation operators, indirect air carriers, and other facility operators about individuals who are their employees, job applicants, or 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.
O. To a debt collection agency for the purpose of debt collection.
P. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a federal, state or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
Q. 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.
R. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, where 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.
Privacy Act information may be reported to consumer reporting agencies pursuant to 5 U.S.C. 552a(b)(12) for the purpose of collecting a debt on behalf of the United States Government.
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.
Records are retrieved by name, Social security number or other assigned identifier of an individual covered by this system.
Information in this system is safeguarded in accordance with applicable laws, rules and policies. All records are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include restricting access to authorized personnel who have a need-to-know and password protection identification features. TSA file areas are locked after normal duty hours and the facilities are protected from the outside by security personnel.
In accordance with NARA approved records schedule, N1-560-03-4, Contact Center and Ombudsman inquiries are destroyed after three years; correspondence files including Congressional correspondence are
Director, Office of the Executive Secretariat, TSA Headquarters, 601 S. 12th Street, Arlington, VA 20598.
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 as reflected in the final rule published on June 25, 2004 (69 FR 35536). However, TSA will consider individual requests to determine whether or not information may be released. This, 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 or records you 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 data and place of birth. You must sign your request, and your signature must 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 Director, Disclosure and FOIA,
• 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,
• If your request is seeking records pertaining to other living individual, you must include a statement from the 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.
Same as “Notification Procedure” above.
Records are obtained from calls and correspondence from or on behalf of individuals who contact TSA with inquiries, comments, complaints, or claims, as well as from TSA employees or contractors and witnesses, and other third parties who provide pertinent information where applicable. Information may also be collected from documents such as records of the contact made with TSA, incident reports, and from other sources, such as employers, state and local agencies, other federal agencies, and related material for background as appropriate.
Portions of this system are exempt under 5 §§ 552a(k)(1) and (k)(2) as reflected in the final rule published on June 25, 2004 (69 FR 35536).
Privacy Office, DHS.
Notice to alter an existing 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 of Homeland Security system of records notice titled, Transportation Security Administration—011 Transportation Security Intelligence Service Operations Files previously published on December 10, 2004 to reflect necessary programmatic changes. As a result of the biennial review of this system, modifications are being made to the system of records' categories of individuals, categories of records, routine uses, record source categories, retention and disposal, and notification procedure. The Transportation Security Intelligence Service Operations Filing System contains records on individuals identified in intelligence, counterintelligence, transportation security and information systems security records that relate to the Transportation Security Administration's mission. For example, this system contains information on individuals involved in terrorism or the compromise of classified information.
Portions of this system are exempt under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and (k)(5) as reflected in the final rule published in the
This updated system will continue to be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before May 13, 2010. This new system will be effective May 13, 2010.
You may submit comments, identified by docket number DHS-2010-0016 by one of the following methods:
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Docket: For access to the docket to read background documents or comments received go to
For general questions please contact: Peter
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) Transportation Security Administration (TSA) proposes to update and reissue a DHS/TSA system of records notice titled, DHS/TSA-011, Transportation Security Intelligence Service (TSIS) Operations Files System of Records (69 FR 71828, December 10, 2004).
TSA's mission is to protect the nation's transportation systems to ensure freedom of movement for people and commerce. To achieve this mission, TSA is required to develop and adapt its security programs to respond to evolving threats to transportation security. In accordance with the biennial review of this system, the following modifications are being made:
• The categories of records section is updated to include biometric records.
• DHS/TSA is incorporating four DHS standard routines uses. One routine use will allow release of information to appropriate agencies, entities, and persons when DHS/TSA suspects or has confirmed that the security or confidentiality of an information system of records has been compromised. Another routine use permits the release of information to the media when there exists a legitimate public interest in disclosing information. Release under this routine use will require the approval of the DHS Chief Privacy Officer in consultation with counsel. Another routine use allows the release of information to a court, magistrate, administrative tribunal or opposing counsel or parties where a Federal agency is a party or has an interest in the litigation or administrative proceeding. The fourth routine use allows DHS/TSA to release information to a former employee when it is necessary to consult with the former employee regarding a matter that is within that person's former area of responsibility.
• TSA is revising a routine use by adding indirect air carriers and other facility operators as potential recipients of information from these systems when appropriate to address a threat or potential threat to transportation security or national security, or when required for administrative purposes related to the effective and efficient administration of transportation security laws.
• TSA is also revising a current routine use by adding indirect air carriers and other facility operators as potential recipients of information about individuals who are their employees, job applicants, or 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, training or the issuance of such credentials or clearances.
• The record source categories are updated to reflect the use of commercial and public record databases and Web sites to obtain information regarding the identity of individuals who attempt to gain access to the sterile areas of the airport and for whom identity needs to be verified or individuals who are being vetted to qualify as Federal flight deck officers. The record source categories to include Federal, State, local and foreign agencies; formerly only U.S. agencies were included.
• For each system of records covered by this notice, the retention and disposal sections are updated to reflect the records retention schedules approved by the National Archives and Records Administration (NARA).
• The notification section for each system of records covered by this notice was changed to reflect that inquiries regarding whether the applicable system contains records about an individual should be directed to TSA's Freedom of Information Act (FOIA) Office.
The TSIS Operations Filing System contains records on individuals identified in intelligence, counterintelligence, transportation security and information systems security records that relate to TSA's mission. For example, this system contains information on individuals involved in terrorism or the compromise of classified information. DHS/TSA is revising its system of records to reflect necessary programmatic changes.
Portions of this system are exempt under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and (k)(5) as reflected in the final rule published on August 4, 2006 in 71 FR 44223.
Consistent with the Privacy Act, information stored in the TSIS Operations Files System 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 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 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 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/TSA-011
Transportation Security Administration 011 Transportation Security Intelligence Service (TSIS) Operations Files.
Classified, sensitive.
Records are maintained at the Transportation Security Administration's Office of the Transportation Security Intelligence Service in Arlington, Virginia and field offices.
Individuals identified in intelligence, counterintelligence, transportation security, or information system security reports and supporting materials, including but not limited to individuals involved in matters of intelligence, law enforcement or transportation security, information systems security, the compromise of classified information, or terrorism.
Records include biographic and biometric information; intelligence requirements, analysis, and reporting; information systems security analysis and reporting; articles, public-source data, and other published information on individuals and events of interest to TSA; actual or purported compromises of classified intelligence; countermeasures in connection therewith; identification of classified source documents and distribution thereof; records related to transportation security matters (
49 U.S.C. 114; National Security Act of 1947, as amended, 50 U.S.C. 403-3(d); National Security Agency Act of 1959, Pub. L. 86-36, as amended, 50 U.S.C. 402 Note; E.O. 12333; E.O. 13292 and 12958; E.O. 9397; and National Security Directive 42.
To maintain records on intelligence, counterintelligence, transportation security, and information systems security matters as they relate to TSA's mission of protecting the nation's transportation systems. To identify potential threats to transportation security, uphold and enforce the law, and ensure public safety.
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 (DOJ) (including United States attorney Offices) or other Federal agency in anticipation of conducing, or 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 current or former employee of DHS in his/her official capacity, or
3. Any current or former 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 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. DHS 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) that rely upon the compromised information;
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, or 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 agency, including law enforcement, 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 the United States Department of Transportation, its operating administrations, or the appropriate State or local agency when relevant or necessary to:
1. Ensure safety and security in any mode of transportation;
2. Enforce safety- and security-related regulations and requirements;
3. Assess and distribute intelligence or law enforcement information related to transportation security;
4. Assess and respond to threats to transportation;
5. Oversee the implementation and ensure the adequacy of security measures at airports and other transportation facilities;
6. Plan and coordinate any actions or activities that may affect transportation safety and security or the operations of transportation operators; or
7. The issuance, maintenance, or renewal of a license, certificate, contract, grant, or other benefit.
I. To Federal, State, local, Tribal, territorial, foreign, or international agencies to provide intelligence, counterintelligence, information systems and transportation security information, and other information for the purpose of counterintelligence or antiterrorism activities authorized by U.S. law or Executive Order or for the purpose of enforcing laws that protect national security of the U.S.
J. To U.S. Government agencies regarding compromises of classified information including the document(s) apparently compromised, implications of disclosure of intelligence sources and methods, investigative data on
K. To any U.S. Government organization in order to facilitate any security, employment, detail, liaison, or contractual decision by any U.S. Government organization, or to facilitate access to any U.S. Government information system.
L. To U.S. agencies involved in the protection of intelligence sources and methods to facilitate such protection and to support intelligence analysis and reporting.
M. To a Federal, State, local, Tribal, territorial, foreign, or international agency, where such agency has requested information relevant or necessary for the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit.
N. To a Federal, State, local, Tribal, territorial, foreign, or international agency, if necessary to obtain information relevant to a DHS/TSA decision concerning the hiring or retention of an employee, the issuance of a security clearance, license, contract, grant, or other benefit.
O. To international and foreign governmental authorities in accordance with law and formal or informal international agreement.
P. To third parties during the course of or as follow-up to an investigation into violations or potential violations of the law, or an investigation related to the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit, to the extent necessary to obtain information pertinent to the follow-up inquiry or investigation.
Q. To airport operators, aircraft operators, maritime and surface transportation operators, indirect air carriers, and other facility operators about individuals who are their employees, job applicants, or 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, training or the issuance of such credentials or clearances.
R. To the appropriate Federal, State, local, Tribal, territorial, foreign, or international agency regarding individuals who pose or are suspected of posing a risk to transportation or national security.
S. To airport operators, aircraft operators, maritime and surface transportation operators, indirect air carriers, or other facility operators when appropriate to address a threat or potential threat to transportation security, or when required for administrative purposes related to the effective and efficient administration of transportation security laws.
T. 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.
U. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a Federal, State, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
V. To the news media and the public, with the approval of the DHS 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.
Records may be retrieved by the individual's name, Social Security number, or other assigned personal identifier.
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 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 the approved National Archives and Records Administration records retention schedule N1-560-04-12, routine and insignificant case files are destroyed after thirty years; significant case files are retained permanently; watch logs are destroyed after thirty years; watchlists are destroyed 99 years after date of entry or seven years after confirmation of death, whichever is sooner.
Transportation Security Administration, Special Assistant, Office of Intelligence, TSA-10, 601 South 12th Street, Arlington, VA 20598.
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, the Transportation Security Administration will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification and access to any record contained in the 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
• 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,
• 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.
Information contained in this system is obtained from subject individuals; other Federal, State, local and foreign agencies and organizations; hard-copy media, including periodicals, newspapers, and broadcast transcripts, and commercial and public record databases and Web sites; public and classified reporting, intelligence source documents, investigative reports, and correspondence.
Portions of this system are exempt under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and (k)(5) as reflected in the final rule published on August 4, 2006, in 71 FR 44223.
60-Day Notice of Information Collection under Review: Form N-600K, Application for Citizenship and Issuance of Certificate under Section 322. OMB Control No. 1615-0087.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until June 14, 2010.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) 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,
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, telephone number 202-272-8377.
Coast Guard, DHS.
Notice.
The Coast Guard announces that it will impose conditions of entry on vessels arriving from the country of the Democratic Republic of Sao Tome and Principe.
The policy announced in this notice will become effective April 27, 2010.
This notice will be available for inspection and copying at the Docket Management Facility at the U.S. Department of Transportation, Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
If you have questions on this notice, call Mr. Michael Brown, International Port Security Evaluation Division, Coast Guard, telephone 202—372-1081. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826 or (toll free) 1-800-647-5527.
Section 70110 of title 46, United States Code, enacted as part of section 102(a) of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295, Nov. 25, 2002), authorizes the Secretary of Homeland Security to prescribe conditions of entry into the United States on vessels arriving from ports that are not maintaining effective anti-terrorism measures and may deny entry into the United States to any vessel that does not meet such conditions. It also requires public notice of the ineffective anti-terrorism measures. The Secretary has delegated to the Coast Guard authority to carry out the provisions of this section. Previous notices have imposed or removed conditions of entry on vessels arriving from certain countries, and those conditions of entry and the countries they pertain to remain in effect unless modified by this notice.
Based on an assessment conducted pursuant to the provisions of 46 U.S.C. 70108 and the International Ship and Port Facility (ISPS) Code, the Coast Guard has determined that ports in the Democratic Republic of Sao Tome and Principe are not maintaining effective anti-terrorism measures. Inclusive to this determination is an assessment that the Democratic Republic of Sao Tome and Principe presents significant risk of introducing instruments of terror into international maritime commerce. The Coast Guard notified the Department of State of this determination pursuant to 46 U.S.C. 70110(c).
The United States notified the Democratic Republic of Sao Tome and Principe of this determination in July of 2009, and identified steps necessary to improve the antiterrorism measures in use at ports in the Democratic Republic of Sao Tome and Principe, as required by 46 U.S.C. 70109. The United States conducted a visit in February 2010 reconfirming that the identified deficiencies have not been corrected.
Accordingly, effective April 27, 2010, the Coast Guard will impose the following conditions of entry on vessels that visited ports in the Democratic Republic of Sao Tome and Principe during their last five port calls. Vessels must:
• Implement measures per the ship's security plan equivalent to Security Level 2 while in a port in the Democratic Republic of Sao Tome and Principe. As defined in the ISPS Code and incorporated herein, “Security Level 2” refers to the “level for which appropriate additional protective security measures shall be maintained for a period of time as a result of heightened risk of a security incident.”
• Ensure that each access point to the ship is guarded and that the guards have total visibility of the exterior (both landside and waterside) of the vessel while the vessel is in ports in the Democratic Republic of Sao Tome and Principe.
• Guards may be provided by the ship's crew; however, additional crewmembers should be placed on the ship if necessary to ensure that limits on maximum hours of work are not exceeded and/or minimum hours of rest are met, or provided by outside security forces approved by the ship's master and Company Security Officer. As defined in the ISPS Code and incorporated herein, “Company Security Officer” refers to the “person designated by the Company for ensuring that a ship security assessment is carried out, that a ship security plan is developed, submitted for approval, and thereafter implemented and maintained and for liaison with port facility security officers and the ship security officer.”
• Attempt to execute a Declaration of Security while in port in the Democratic Republic of Sao Tome and Principe;
• Log all security actions in the ship's log; and
• Report actions taken to the cognizant Coast Guard Captain of the Port prior to arrival into U.S. waters.
In addition, based on the findings of a Coast Guard boarding or examination, vessels may be required to ensure that each access point to the ship is guarded by armed, private security guards and that they have total visibility of the exterior (both landside and waterside) of the vessel while in U.S. ports. The number and position of the guards has to be acceptable to the cognizant Coast Guard Captain of the Port prior to the vessel's arrival.
Consistent with 46 U.S.C. 70110, the United States may deny entry into the United States to any vessel that does not meet the conditions set forth herein. This notice also informs passengers of the ineffective anti-terrorism measures at ports in the Democratic Republic of Sao Tome and Principe.
This notice is issued under authority of 46 U.S.C. 70110(a)(3).
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This collection of information is required in connection with the Multiclass Securities Program. The intent of the Multiclass Securities program is to increase liquidity in the secondary mortgage market and to attract new sources of capital for federally insured or guaranteed residential loans.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2503-0030) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806.
Leroy McKinney, Jr., Reports
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Robert Duncan, Department of Housing Urban and Development, 451 7th Street, SW., Room 7149, Washington, DC 20410.
Nikki Bowser at telephone number 202-402-4395 (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35 as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
Through this notice, HUD announces the availability on its website of the application information, submission deadlines, funding criteria, and other requirements for the Fiscal Year 2009 Rental Assistance for Non-Elderly Persons with Disabilities Notice of Funding Availability (NOFA). The Omnibus Appropriations Act, 2009 (Pub. L. 111-8) makes available approximately $40 million for incremental Section 8 Housing Choice Vouchers (HCV) for non-elderly disabled families served by entities (which the NOFA limits to public housing agencies) with demonstrated experience and resources for supportive services). This money should fund approximately 5,300 HCVs. The notice providing information regarding the application process, funding criteria and eligibility requirements is available on the Grants.gov Web site at
Questions regarding specific HCV program requirements should be directed to Phyllis Smelkinson by phone at 202-402-4138 or by e-mail at
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice of a federal advisory committee meeting.
This notice sets forth the schedule and proposed agenda of a scheduled meeting of the Manufactured Housing Consensus Committee (the Committee). The meeting is open to the public and the site is accessible to individuals with disabilities.
The meetings will be held on April 28-30, 2010.
These meetings will be held at: Marriott Tulsa Southern Hills,
Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9164, Washington, DC 20410-8000; telephone 202-708-6409 (this is not a toll-free number). Persons with hearing or speech challenges may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Notice of this meeting is provided in accordance with section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.2) and 41 CFR 102-3.150. The Manufactured Housing Consensus Committee was established under section 604(a)(3) of the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5403(a)(3), providing:
(A)
(i) Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards in accordance with this subsection;
(ii) Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring in accordance with subsection (b);
(iii) Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation; and
(iv) Be deemed to be an advisory committee not composed of Federal employees.
Convening of Meeting by HUD.
Call to Order.
Roll Call/Establish Quorum.
Welcome/Introductions/New Members.
Announcements/Administrative
Report from HUD officials.
Call for Committee Reports (information only).
Public Comments.
MHCC recommendations to the Secretary to adopt, revise, and interpret
MHCC recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations.
Bureau of Land Management, Interior; U.S. Forest Service, Agriculture.
Notice of Intent.
Notice is hereby given that the Department of the Interior, Bureau of Land Management (BLM), Pocatello Field Office and the U.S. Department of Agriculture, Forest Service (FS), Caribou-Targhee National Forest, will jointly prepare an Environmental Impact Statement (EIS) to determine and analyze the effects of a proposed phosphate mine and reclamation plan on people and the environment. The BLM will serve as the lead agency. Plans have been developed and submitted for agency review of proposed open pit mining operations at the Dairy Syncline Phosphate Lease Area in Caribou County, Idaho by the J.R. Simplot Company (Simplot). The Dairy Syncline Phosphate Lease Area is located about 12 miles east of Soda Springs, Idaho.
The proposed new mining operations at the Dairy Syncline Phosphate Lease Area lie within the Caribou-Targhee National Forest on lands where the surface estate is administered by the FS, and the Federal mineral estate is administered by the BLM. In 2000, the BLM completed an EIS to support a decision to lease. The BLM issued Federal mineral lease I-28115 to Simplot by competitive bid in 2000. The Federal mineral lease I-0258 was transferred from P4 Production LLC to Simplot in 2009. These leases grant the lease holder, Simplot in this case, exclusive rights to mine and otherwise dispose of the Federally owned phosphate deposit at the site. Through development of this EIS, the BLM will analyze environmental impacts of the proposed mining operations, land exchanges and reasonable alternatives. Appropriate mitigation measures also will be formulated.
To ensure comments will be considered, the BLM must receive written comments on the scope of the analysis described in this Notice by May 13, 2010. The BLM will announce future meetings or hearings and any other public involvement activities at least 15 days in advance through public notices, media news releases, and/or mailings.
Send written comments to: Dairy Syncline Mine EIS, Bureau of Land Management, Pocatello Field Office, 4350 Cliffs Drive, Pocatello, Idaho 83204. E-mail:
Barry Myers, Bureau of Land Management, Pocatello Field Office, 4350 Cliffs Drive, Pocatello, Idaho 83204, phone (208) 478-6369. Information is also available at:
1. Recommendations to the BLM concerning surface management and mitigation on leased lands within the Caribou-Targhee National Forest; and
2. Decisions on mine related activities which occur off-lease.
Special use authorizations from the FS will be necessary for all off-lease support structures for the mine. A FS decision regarding the proposed exchange of FS land for private holdings will be issued by the Regional Director of Lands.The Army Corps of Engineers may also make decisions related to permits under section 404 of the Clean Water Act.
Please note that public comments and information submitted, including names, street addresses, and e-mail addresses of respondents, will be available for public review and disclosure at the address listed below during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
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.
The Dairy Syncline Phosphate Lease Area represents a significant phosphate ore deposit that is economically feasible for prolonged development. In total, approximately 2,133 acres are proposed for disturbance. The proposed project would include an open pit phosphate mine, a new milling facility, installation of underground phosphate slurry, tailings and water lines, a new tailings impoundment, a new power line, and a land sale with mitigation (BLM) and a land exchange (FS) of Federal lands for private holdings. The proposed mitigated land sale would require an amendment to the 1988 Pocatello RMP.
The proposal also includes six lease modification or fringe acreage lease areas that are contiguous with the existing leases that would allow for optimum recovery of the existing phosphate ore body. Disturbance on these proposed lease modification and/or fringe acreage lease areas represent approximately 347 acres of the total
In their mine and reclamation plan, Simplot has proposed management practices to reduce environmental impacts. As mining progresses, reclamation would begin concurrently. Simplot's plan emphasizes total backfill of mine pits and limiting the amount of overburden placed external to the pits. In addition, Simplot's mine plan contains provisions aimed at limiting the amount of time seleniferous overburden is exposed to the elements. To reduce the potential for contaminant release to water or uptake into reclamation vegetation, Simplot is proposing to cover over all seleniferous overburden with non-seleniferous material consisting of approximately 2 feet of chert, overlain by 2 feet of Dinwoody and/or Salt Lake Formation, and finally a topsoil layer estimated at 6 to 12 inches, contingent upon the baseline soil resources study.
Associated new facilities that are proposed include: Main office/security building, mill and shop complex, support facilities, ore stockpile, tailings pond, groundwater supply well(s), and pipelines. The proposed location of the main office/security building is an area southeast of the mouth of Wilde Canyon and west of the Slug Creek Road. This location is on National Forest System lands off-lease and would require a Special Use Authorization from the FS. Approximately 5 acres would be disturbed for the office and parking areas.
The proposed location for the mill/shop complex is in the mining area between the north and south pits. The complex would disturb about 20 acres. The mill would be required to process the ore into concentrated slurry that would be pumped in a proposed 8-mile underground pipeline to a currently existing pipeline that connects to Simplot's Don Fertilizer Plant just outside of Pocatello, Idaho. The proposed mill is assumed to be configured essentially the same as the operating Smoky Canyon Mill. In addition, a shop would be required for repairing and maintaining the mining equipment. The shop area would be included in the mill/shop complex.
An ore stockpile (of 750,000 to 1,000,000 tons) is proposed for supplying ore to the mill. The location of the stock pile would be on-lease near the mill building at the mill/shop complex. The stockpile would be approximately 13 acres in size. The simple milling process would consist of crushing and grinding the phosphate ore to a fine powder. Associated clay would be physically removed from the finely ground ore and would then be mixed with water and pumped into another new underground pipeline to the tailings impoundment. The product and tailings pipelines would be installed next to each other.To facilitate mobile equipment operation and personnel, some small support facilities at the active mining sites would be required. Typically, these facilities would consist of equipment ready lines (cold climate hot starts), electrical power, fuel and grease storage within secondary containment, communication, and safety structures. The location of these facilities would vary during the mining process.
A new tailings pond is proposed for the mining operation. The proposed location would be approximately 4.4 miles northwest of the Dairy Syncline leases. A land sale with mitigation (BLM) and a land exchange (FS) of Federal lands for private holdings are proposed for the proposed tailings pond area. An earthen dam structure on the north end of the pond would be constructed resulting in a design capacity of 20 million cubic yards of material. The proposed configuration would be large enough to hold all of the tailings expected to be generated during the life of the mine.
Three pipelines are proposed for the project; one each for delivery of tailings, ore concentrate, and a water return line. The pipelines would be buried in one earth covered trench. The ore concentrate pipeline would transport ore in slurry form from the proposed mill site to the existing pipeline. The buried 8-inch diameter steel pipe would be about 8 miles long. The proposed pipeline route would originate at the mill/shop complex, follow the access road on the north side of Wilde Canyon, and then follow the western side of the Slug Creek Valley where it would tie into the existing ore concentrate pipeline from Smoky Canyon to the Conda Pump Station. This pipeline route represents approximately 14 acres of off-lease disturbance.
The tailings pipeline would transport tailings from the mill/shop complex to the proposed tailings pond. The pipeline would be approximately 5 miles long. The proposed pipeline route would originate at the mill/shop complex and be placed in the same trench as the ore concentrate pipeline. At a location near the tailings pond, the tailings line would go east to the southern end of the pond. A number of pipeline branches would be installed around the pond to ensure even distribution of tailings in the pond.
The water return line would transport water from the tailings pond back to the mill and would be approximately 5 miles long. As noted above, this line would be in the same trench as the tailings and concentrate pipeline.
Off-lease facilities would include the main office/security building, tailings pond, and portions of access roads, pipelines, a power line, and storm water control features. The proposed power line would run northeast to connect with an existing power line and existing corridor in Upper Dry Valley. It is estimated that off-lease activities would total about 337 acres of disturbance, which would include the assumed disturbance for the power line.
Truck haulage would transport both ore to the proposed on-lease ore stockpile and overburden to its permanent disposal site. Several external pit roads would be required throughout the life of the mine for both overburden and ore transportation. All of these roads are located on-lease and would be constructed of chert or limestone with cut side ditches, culverts as appropriate, and fill side berms where necessary for safety. Access to the mine site for employees, equipment, and supplies is proposed through Georgetown Canyon and along Slug Creek via the existing FS road. Upgrades to this road will be necessary for safe passage of two-way traffic.
Potential impacts to surface resources and water quality include erosion, sediment, and dissolved contaminants such as selenium. Simplot has proposed to implement practices designed to reduce, eliminate, or mitigate these impacts. Suitable topsoil would be salvaged from disturbed areas for use in reclamation. Reclamation of mining disturbances would include: removal of facilities and equipment, backfilling pits, regrading slopes, restoring drainages, spreading topsoil, stabilizing surfaces, revegetation, testing and treatment for remaining hydrocarbon contaminants, and environmental monitoring.
Issues initially identified for the proposed mining of the Dairy Syncline phosphate leases include potential effects on: Groundwater and surface water quantity and quality; wildlife and their habitats; livestock grazing; wetlands and riparian habitat; recreation; socio-economics; Native American rights, treaties, and land uses; inventoried roadless areas; visual resources; and cumulative effects.
The EIS will analyze the Proposed Action and the No Action Alternative. Other alternatives may consider: Alternative access road(s); alternative tailings pond locations; alternatives to the land sale with mitigation and land exchange; use of conveyors to transport ore to the existing mill; revising the layout or sequencing of the proposed mining facilities; different methods for reducing potential impacts from overburden handling; and other alternatives that could provide mitigation for potential impacts.
The tentative EIS project schedule is as follows:
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At least four “open-house” style public scoping meetings will be held which will includedisplays explaining the project and providing a forum for commenting on the project.Meetings are currently planned for Pocatello, Fort Hall, Georgetown, and Soda Springs,Idaho. The dates, times, and locations of the public scoping meetings will be announcedin mailings and public notices issued by the BLM (
Bureau of Land Management, Interior.
Notice.
All interested parties are hereby invited to participate with Reserve Coal Properties Company on a pro rata cost-sharing basis, in a program for the exploration of coal deposits owned by the United States of America in lands located in Emery and Sevier Counties, Utah.
Any party electing to participate in this exploration program must send written notice to Reserve Coal Properties Company and the Bureau of Land Management (BLM) as provided in the
The exploration plan, as submitted by Reserve Coal Properties Company, is available for review in the public room of the BLM's Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah during normal business hours (9 a.m. to 4 p.m.), Monday through Friday. Any party electing to participate in this exploration program shall notify the BLM State Director, in writing, at the Utah State Office, P.O. Box 45155, Salt Lake City, Utah 84145 and Reserve Coal Properties Company,
Bill Buge at (801) 539-4086.
The authority for the notice is section 2(b) of the Mineral Leasing Act of 1920, as amended by section 4 of the Federal Coal Leasing Amendments Act of 1976 and the regulations adopted as 43 CFR part 3410. The purpose of the exploration program is to gain additional geologic knowledge of the coal underlying the exploration area for the purpose of assessing the reserves contained in a potential lease. The Federal coal resources are located in Emery and Sevier Counties, Utah:
These lands contain 4,082.33 acres, more or less.
The above-described land is within the Wasatch Plateau Known Coal Leasing Area. The proposed exploration program will be conducted pursuant to an exploration plan to be approved by the BLM. The plan may be modified to accommodate the legitimate exploration needs of persons seeking to participate.
The foregoing is published in the