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Food and Nutrition Service, USDA.
Final rule.
The 2008 Farm Bill amended the Richard B. Russell National School Lunch Act to direct that the Secretary of Agriculture encourage institutions operating Child Nutrition Programs to purchase unprocessed locally grown and locally raised agricultural products. Effective October 1, 2008, institutions receiving funds through the Child Nutrition Programs may apply an optional geographic preference in the procurement of unprocessed locally grown or locally raised agricultural products. This provision applies to institutions in all of the Child Nutrition Programs, including the National School Lunch Program, School Breakfast Program, Fresh Fruit and Vegetable Program, Special Milk Program for Children, Child and Adult Care Food Program and Summer Food Service Program, as well as to purchases made for these programs by the Department of Defense Fresh Program. The provision also applies to State agencies making purchases on behalf of any of the aforementioned Child Nutrition Programs. The purpose of this rule is to finalize the geographic preference option in Child Nutrition Programs.
This rule is effective May 23, 2011.
Julie Brewer, Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, or by telephone at (703) 305-2590.
Section 4302 of Public Law 110-246, the Food, Conservation, and Energy Act of 2008, amended section 9(j) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(j)) to require the Secretary of Agriculture to encourage institutions operating Child Nutrition Programs to purchase unprocessed locally grown and locally raised agricultural products. Pursuant to section 4407 of Public Law 110-246, beginning October 1, 2008, institutions receiving funds as participants in the Child Nutrition Programs may apply an optional geographic preference in the procurement of unprocessed locally grown or locally raised agricultural products. This provision applies to institutions operating all of the Child Nutrition Programs, including the National School Lunch Program, School Breakfast Program, Fresh Fruit and Vegetable Program, Special Milk Program, Child and Adult Care Food Program and Summer Food Service Program, as well as to purchases made for these programs by the Department of Defense Fresh Program. The provision does not apply to purchases made by the Department. However, the provision does also apply to State agencies making purchases on behalf of any of the aforementioned Child Nutrition Programs. The provisions were initially implemented through policy memoranda and explanatory question and answer communications dated January 9, 2009, July 22, 2009, and October 9, 2009.
The Department published a proposed rule on April 19, 2010, at 75 FR 20316 to solicit comments on the incorporation of this procurement option in Child Nutrition Program regulations. The rule also served to define the term “unprocessed locally grown or locally raised agricultural products” to ensure that both the intent of Congress in providing for such a procurement option was met and that any such definition would facilitate ease of implementation for institutions participating in the Child Nutrition Programs. The comment period ended on June 18, 2010. The Department received 77 comments on the proposed rule. The following discussion provides information on the comments as well as a discussion of the clarifications and changes made to the proposal based on the comments received.
In general, the comments received by the Department were very supportive of the regulation as proposed. Fifty-eight comments commended the Department for clarifying previous interpretations of the geographic preference option for procurement. Forty-four commentors stated that they believed the updated language of the rule more closely complied with the Congressional Conference Report language that indicated that there is no intent to preclude “de minimus handling and preparation such as necessary to present an agricultural product to a school food authority in a useable form.” Forty-seven comments supported the provision of the rule allowing the purchasing entity, such as local school food authorities, to determine the local area to which a geographic preference will be applied, indicating that they agreed with the Department's view that individual circumstances and product availability leads to the most successful local and regional procurement programs.
As indicated in the proposed rule, traditionally, a geographic preference established for procurements provides bidders located in a specified geographic area additional points or credit calculated during the evaluation of the proposals or bids received in response to a solicitation. A geographic preference is not a procurement set-aside for bidders located in the specified geographic area, guaranteeing them a certain level or percentage of business. In addition, including a geographic preference in a procurement does not preclude a bidder from outside the specified geographic area from competing for, and possibly being awarded, the contract subject to the geographic preference. Rather, a geographic preference is a tool that gives bidders in a specified geographic area a specific, defined advantage in the procurement process. We received a number of comments specifically
By utilizing the statutorily established geographic preference option in Child Nutrition Programs, purchasing institutions, such as States, school food authorities, child care institutions and Summer Food Service Program (SFSP) sponsors, may specifically identify the geographic area within which unprocessed locally raised and locally grown agricultural products will originate. As indicated in the proposed rule, a responsive bidder would offer to provide unprocessed locally raised and locally grown agricultural products from the specifically identified geographic area. In most cases, we would expect that a bidder would be located in the identified geographic area, though it is possible for a responsive bidder to be located outside of that area. These procurements may be accomplished through informal or formal procurement procedures, as required by respective Child Nutrition Program regulations.
The proposed rule provided for allowing institutions operating the Child Nutrition Programs to specifically define geographic areas from which they will seek to procure unprocessed local agricultural products. It was proposed that each institution, whether it be a school food authority, a child care institution or an SFSP sponsor, determine how to define the geographic area. As indicated previously, 47 comments supported allowing the purchasing entity to define the local area in which the geographic preference option will be applied. No objections to this provision were received, therefore it is finalized in this rule as proposed.
One comment specifically recommended that the “Buy American” provisions of § 210.21 and § 220.16 of the National School Lunch Program and School Breakfast Program regulations be specifically noted in this amendment to those programs regulations. In response to that comment, the Department reiterates that all other regulatory requirements of the Child Nutrition Programs must be complied with when implementing the geographic preference option. When specifying the local area from which items will be purchased using the geographic procurement option, purchasing entities must ensure that the “Buy American” requirements of the regulations are complied with and included in the procurement specifications. No change, however, has been made in the regulatory language of this final rule.
As provided in the Joint Explanatory Statement of the Committee of Conference in House Report 110-627, the term “unprocessed” precludes the use of geographic preference in procuring agricultural products that have significant value added components. The Conference report also noted the acceptability of
For the purpose of implementing the geographic preference procurement option in the Child Nutrition Programs, the Department proposed a definition of “unprocessed agricultural products.” The guiding principles in developing the definition were that the definition should:
(1) Comply with the language and reflect the intent of the statute;
(2) Ensure that any processing of agricultural products results in only minimal value added to such products; and
(3) Facilitate ease of use of such products for institutions.
The definition of “unprocessed agricultural products” included in the proposed rule specifically prohibited any processing method that alters the inherent character of the agricultural product. To that end, we included in the proposed definition a list of acceptable food handling and preservation techniques for purposes of applying the geographic preference procurement option. Such techniques included: General heat transfer methods such as cooling, refrigerating and freezing; size adjustment through size reduction (peeling, slicing, dicing, cutting and grinding); drying/dehydration; washing; vacuum packing and bagging; pasteurization for milk; the application of high water pressure (“cold pasteurization”); butchering of livestock and poultry and the cleaning of fish. The Department asserted that these handling and preservation techniques both complied with the intent of the statute and did not alter the inherent character of agricultural products subjected to them.
While two commentors supported the definition as proposed, a number of comments regarding the food handling and preservation techniques included in the definition were received. The following discussion outlines those comments by issue and the decisions made by the Department in response to the comments in this final rule.
Fifty comments were received expressing support for the addition of combination packages of local, frozen, bagged vegetables such as zucchini and summer squash or fresh vegetable roast packages such as winter squash, turnips and beets. The commentors indicated that the “inherent character” of the vegetables is not being altered in any way when packaged in such a manner and fits within the “de minimus” handling and preparation requirements intended by Congress. In addition, such packaging conforms with the language of the statute with regard to presenting the product in usable form. The Department agrees with the comments and, therefore, has revised the definition of “unprocessed agricultural products” to include such combination packaged items in this final rule.
One commentor indicated that frozen products should be included in the definition. The proposed rule included frozen products and the final rule retains frozen products as acceptable as a preservation technique. Two comments were received requesting that, in order to ensure that flash frozen products are included in the definition, the Department specify Individually Quick Frozen (IQF) as an acceptable preservation technique. The final rule retains inclusion of frozen products as acceptable but the Department does not wish to include specific techniques for freezing since technology changes over time and such specific references to technique may necessitate future amendments to the regulation in response to changes in technology.
Three comments were received requesting that canned products be included in the definition of
Fifty comments were received supporting allowing foods such as ground beef and other meat patties to be included in the definition of “unprocessed agricultural products”. Those comments assert that such products have been handled in a manner consistent with “de minimus” exceptions in that they are ground then formed similar to cutting carrots into sticks or coin shapes. The commentors indicated that contracting separately for further processing of ground meat products which does not change the inherent character of that product would be costly and time consuming for the purchasing entities. Five other commentors recommended allowing meat patties made with pure meat and containing no fillers or additives as meeting the criteria for geographic preference procurement. The Department agrees with these commentors and has revised the definition to include formed products that contain no additives or fillers as acceptable for purchase using the geographic preference procurement option.
Forty-one comments were received recommending that cutting chicken or other meat into fajita strips and filleting fish be allowed as acceptable as meeting the definition of “unprocessed agricultural products”. The Department wishes to point out that fish filets would be considered to be “cleaned” and cut, and slicing products into strips would be considered to be “cut”, both of which are included in the definition as proposed. One commentor requested that ground flour be allowed to be considered as acceptable. The Department wishes to clarify that ground products are allowed and that the grinding of grain into flour would be considered to be acceptable as a ground product subject to the geographic preference procurement option. Therefore, there is no change to the definition in response to these comments.
Forty-six comments were received requesting clarification as to whether or not preservatives were allowed in products subject to the geographic preference procurement option. Specifically, they requested clarification as to whether or not ascorbic acid to hold color or prevent oxidation once a fruit or vegetable product was cut or chopped was acceptable. The Department agrees that this should be addressed and has provided for the addition of ascorbic acid and/or other preservatives that retain the color of a product or prevent oxidation to the definition of “unprocessed agricultural products”. However, no other preservatives used for any other purpose are considered to be acceptable.
One commentor requested that portion packaging be explicitly recognized as meeting the requirements of the rule. The Department wishes to point out that packaging is recognized as allowable with regard to the definition of “unprocessed agricultural products”. The size of such packaging included in the procurement specifications is made at the discretion of the purchasing entity. Therefore, no change in response to this comment has been made in this final rule.
One commentor expressed concern that the term “high water pressure cold pasteurization” included in the definition of “unprocessed agricultural product” could be interpreted to mean irradiation. The Department's intent was to use this term in the definition to reference a washing technique. Since “washing” is already included in the definition of “unprocessed locally grown or locally raised agricultural products” and in response to this comment, the term “high water pressure (cold pasteurization)” is removed from the definition.
This final rule prohibits the application of the geographic preference procurement option for products subjected to processing methods not included in the definition of “unprocessed agricultural products”.
This final rule adds new paragraphs to §§ 210.21, 215.14a, 220.16, 225.17 and 226.22 of Title 7, CFR, to include the geographic preference procurement option and define the term “unprocessed locally grown or locally raised agricultural products”.
The geographic preference procurement option is applicable to purchases made in the Fresh Fruit and Vegetable Program, 42 U.S.C. 1769a (FFVP). However, this provision shall only be applied within the context of the FFVP's requirement that produce utilized in the program be fresh. The definition of “unprocessed locally grown or locally raised agricultural products” does not change the basic statutory requirement that only fresh produce may be purchased using funds for the Fresh Fruit and Vegetable Program. Development of regulations pertaining to the requirements for the Fresh Fruit and Vegetable Program are currently in process and the provisions relating to the geographic preference procurement option will be included in that proposed rule, as appropriate.
This rule has been determined to be not significant and was not reviewed by the Office Management and Budget in conformance with Executive Order 12866.
This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). It has been certified that this rule will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) that
The National School Lunch Program and the School Breakfast Program are listed in the Catalog of Federal Domestic Assistance under No. 10.555 and 10.553, respectively. The Special Milk Program is listed under No. 10.556. The Child and Adult Care Food Program is listed under No. 10.558 and the Summer Food Service Program for Children is listed under No. 10.559. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), these programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. The Food and Nutrition Service (FNS) has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless specified in the
FNS has reviewed this rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis,” and 1512-1, “Regulatory Decision Making Requirements.” After a careful review of the rule's intent and provisions, FNS has determined that this rule is not intended to limit or reduce in any way the ability of protected classes of individuals to receive benefits on the basis of their race, color, national origin, sex, age or disability nor is it intended to have a differential impact on minority owned or operated business establishments, and woman- owned or operated business establishments that participate in the Child Nutrition Programs. This rule simply allows institutions that participate in the Child Nutrition Programs the option to apply a geographic preference should such institutions wish to procure unprocessed locally grown or locally raised agricultural products.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.
The Food and Nutrition Service is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
E.O. 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. In late 2010 and early 2011, USDA engaged in a series of consultative sessions to obtain input by Tribal officials or their designees concerning the impact of this rule on the Tribe or Indian Tribal governments, or whether this rule may preempt Tribal law. Reports from these consultations will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal officials or their designees concerning ways to improve this rule in Indian country.
We are unaware of any current Tribal laws that could be in conflict with this final rule.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Penalties, Reporting and recordkeeping requirements, School breakfast and lunch programs, Surplus agricultural commodities.
Food assistance programs, Grant programs—education, Grant programs—health, Infants and children, Milk, Reporting and recordkeeping requirements.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs.
Food assistance programs, Grant programs—health, Infants and children, Labeling, Reporting and recordkeeping requirements.
Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs—health, Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities.
Accordingly, 7 CFR Parts 210, 215, 220, 225, and 226 are amended as follows:
42 U.S.C. 1751-1760, 1779.
(g)
(2) For the purpose of applying the optional geographic procurement preference in paragraph (g)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); the addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk.
42 U.S.C. 1772 and 1779.
(e)
42 U.S.C. 1773, 1779, unless otherwise noted.
(f)
(2) For the purpose of applying the optional geographic preference in paragraph (f)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk.
Secs. 9, 13 and 14, Richard B. Russell National School Lunch Act, as amended, (42 U.S.C. 1758, 1761 and 1762a).
(e)
(2) For the purpose of applying the optional geographic preference in paragraph (e)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk.
Secs. 9, 11, 14, 16, 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
(n)
(2) For the purpose of applying the optional geographic preference in paragraph (n)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk.
Rural Business-Cooperative Service, USDA.
Notice of public meeting.
The Rural Business-Cooperative Service (RBS) will hold two informational Webinars for the Rural Energy for America Program (REAP) associated with the recently published REAP interim rule and Notice of Funds Availability (NOFA). Participation will be limited for each Webinar to the first two hundred registrants.
The Webinars will be held on Friday, April 29, 2011, and on Monday, May 2, 2011, from 2 p.m. to 4 p.m. EDT both days. You must register, as described in the
To participate in one of the Webinars, you must register for one of the Webinars by sending an e-mail to:
Donnetta Rigney, Rural Business-Cooperative Service, U.S. Department of Agriculture, Stop 3225, 1400 Independence Avenue, SW., Washington, DC 20250-3221, Telephone: (202) 720-9812.
The REAP interim rule and the NOFA were published in the
Please note that formal comments on the interim rule will not be accepted during the Webinar. Instead, the public has an opportunity to comment formally on the interim rule as provided in the interim rule published in the
All prospective registrants will be notified by the Agency via e-mail if they are or are not among the first two hundred registrants for one of the two Webinars.
Participants are responsible for ensuring their systems are compatible with the Webinar software.
Consumer Product Safety Commission.
Notice of requirements; revision of retrospective testing terms.
The U.S. Consumer Product Safety Commission (“CPSC,” “Commission,” or “we”) issues this notice amending the terms under which it will accept certifications for children's products based on third party conformity assessment body (laboratory) testing to the flammability regulations at 16 CFR part 1610 that occurred before the Commission's acceptance of the accreditation of the third party conformity assessment body.
Robert “Jay” Howell, Assistant Executive Director for the Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; e-mail:
Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, directs the CPSC to publish a notice of requirements for accreditation of third party conformity assessment bodies to assess children's products for conformity with “other children's product safety rules.” Section 14(f)(1) of
In the
We addressed testing performed by a third party conformity assessment body prior to the Commission's acceptance of its accreditation, or “retrospective” testing, in section IV of the notice of requirements. We stated that we would accept a certificate of compliance with the standard included in 16 CFR part 1610 based on testing performed by an accredited third party conformity assessment body (including a government-owned or -controlled conformity assessment body, and a firewalled conformity assessment body), prior to the Commission's acceptance of its accreditation if:
• The product was tested by a third party conformity assessment body that was ISO/IEC 17025 accredited by an ILAC-MRA member at the time of the test. For firewalled conformity assessment bodies, the firewalled conformity assessment body must be one that the Commission accredited by order at or before the time the product was tested, even though the order will not have included the test methods in the regulations specified in this notice. If the third party conformity assessment body has not been accredited by a Commission order as a firewalled conformity assessment body, the Commission will not accept a certificate of compliance based on testing performed by the third party conformity assessment body before it is accredited, by Commission order, as a firewalled conformity assessment body;
• The third party conformity assessment body's application for testing using the test methods in 16 CFR part 1610 is accepted by the CPSC on or before October 18, 2010;
• The product was tested under 16 CFR part 1610 on or after August 18, 2010;
• The accreditation scope in effect for the third party conformity assessment body at the time of testing expressly included testing to 16 CFR part 1610;
• The test results show compliance with the applicable current standards and/or regulations; and
• The third party conformity assessment body's accreditation, including inclusion in its scope of 16 CFR part 1610, remains in effect through the effective date for mandatory third party testing and manufacturer certification for conformity with 16 CFR part 1610.
On December 2, 2010, the American Apparel and Footwear Association (AAFA) submitted a letter to the Commission requesting that we “extend the testing and certification date by an additional 60 days,” and that we amend section IV of the notice of requirements “to accept third party tests done on or after August 18, 2009 by testing facilities accredited on or before November 16, 2010.” (The AAFA letter may be viewed at
The AAFA based its request for an extension of the testing and certification date on our authority in section 102(a)(3)(F) of the CPSIA, which states:
If the Commission determines that an insufficient number of third party conformity assessment bodies have been accredited to permit certification for a children's product safety rule under the accelerated schedule required by this paragraph, the Commission may extend the deadline for certification to such rule by not more than 60 days.
The AAFA stated that limiting acceptable retrospective tests to those conducted since August 18, 2010, would “further back up testing facilities and be an unnecessary burden on business * * * [and would] put at a disadvantage those companies who had taken the proactive step to engage in third party testing” prior to August 18, 2010. It noted that many textiles are tested before they are manufactured into garments and explained that in some cases, the time that elapses between when a textile has been tested and when the garment is produced can be “several months or even years.” In addition, the AAFA stated that limiting retrospective tests to those conducted since August 18, 2010, “unnecessarily adversely affects the continuing guarantees * * * issued * * * pursuant to Section 8 of the FFA.” Section 8 of the FFA provides that a manufacturer or supplier of clothing textiles may issue a guaranty, based on reasonable and representative testing, that the clothing textile complies with FFA standards. The holder of a valid guaranty is not subject to criminal prosecution under section 7 of the FFA (penalties) for a violation of section 3 of the FFA (prohibited transactions). A continuing guaranty is a notarized declaration filed with the Commission in which the manufacturer avers that it has conducted the requisite reasonable and representative product testing and that the testing shows that the product conforms to 16 CFR part
We decline to extend the date by which a manufacturer of a children's product subject to 16 CFR part 1610 must have such product tested by a third party conformity assessment body accredited to do so and must issue a certificate of compliance based on that testing. We have the authority to grant such a request only if there is insufficient laboratory capacity. The existence of 67 CPSC-accepted labs accredited to test to 16 CFR part 1610 as of November 16, 2010, belies the claim of insufficient laboratory capacity, even if the laboratories are not distributed geographically as the AAFA would prefer.
We also disagree with the AAFA's assertion, as another basis for an extension, that some manufacturers are not fully aware that children's product certifications must be based on testing conducted by CPSC-accepted third party laboratories, and that many companies are unaware that the stay of enforcement on the testing and certification requirements had been lifted for children's apparel. The CPSIA became law in August 2008, and we published the notice of requirements pertaining to 16 CFR part 1610 in the
Finally, we note that section 14(a)(3)(E) of the CPSA authorizes the Commission to extend the deadline for certification “by not more than 60 days.” Such a time period is measured from the date on which such certification would have been required. In this case, the certification requirement became effective for products manufactured after November 16, 2010; therefore, a 60-day extension, had it been granted, would have expired in mid-January 2011. Thus, the AAFA's request for an extension is moot.
We have considered AAFA's request and, through this notice, are revising our position regarding “Limited Acceptance of Children's Product Certifications Based on Third Party Conformity Assessment Body Testing Prior to the Commission's Acceptance of Accreditation.” Due to the nature of the wearing apparel industry, there is a possible significant time lapse between fabric testing and the finished garment. This could mean that some products that were tested previously by laboratories that have since become CPSC-accepted, would need to be retested. Therefore, we agree that revising our position on “retrospective” testing is appropriate because it will reduce further the potential need for redundant testing. We will accept children's product certifications based on third party conformity assessment body testing, prior to our acceptance of accreditation, under the following conditions:
• At the time of product testing, the product was tested by a third party conformity assessment body that was ISO/IEC 17025 accredited by an accreditation body that is a signatory to the ILAC-MRA;
• The third party conformity assessment body's application for testing using the test methods in 16 CFR part 1610 is accepted by the CPSC on or before November 16, 2010;
• The product was tested under 16 CFR part 1610 on or after August 18, 2009;
• The accreditation scope in effect for the third party conformity assessment body at the time of testing expressly included testing to 16 CFR part 1610;
• The test results show compliance with the applicable current standards and/or regulations; and
• The third party conformity assessment body's accreditation, including inclusion in its scope of 16 CFR part 1610, remains in effect through the effective date for mandatory third party testing and manufacturer certification for conformity with 16 CFR part 1610.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Bayer HealthCare LLC. The supplemental NADA provides for the addition of a pathogen to the indications for use of enrofloxacin solution in cattle, as a single injection, for the treatment of respiratory disease.
This rule is effective April 22, 2011.
Cindy L. Burnsteel, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8341,
Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201, filed a supplement to NADA 141-068 for BAYTRIL 100 (enrofloxacin), an injectable solution. The supplemental NADA provides for the addition of
In accordance with the freedom of information provisions of 21 CFR part 20 and § 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval qualifies for 3
The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 522 is amended as follows:
21 U.S.C. 360b.
(e) * * *
(2) * * *
(ii)
(B)
Internal Revenue Service (IRS), Treasury.
Correction to final regulations.
This document describes a correction to final regulations (TD 9518) that were published in the
This correction is effective on April 22, 2011, and is applicable to individual income tax returns filed after December 31, 2010.
Keith L. Brau, (202) 622-4940 (not a toll-free number).
The final regulations that are the subject of this correction are under section 6011 of the Internal Revenue Code.
As published, final regulations (TD 9518) contain an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of the final regulations (TD 9518) which were the subject of FR Doc. 2011-7571 is corrected as follows:
On page 17528, column 2, under CFR Part Heading “PART 301—PROCEDURE AND ADMINISTRATION”, the language “
Office of the Secretary, DoD.
Direct final rule with request for comments.
The Office of the Secretary of Defense is exempting those records contained in DMDC 12 DoD, entitled “Joint Personnel Adjudication System (JPAS)”, when investigatory material is compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that such material would reveal the identity of a confidential source.
This direct final rule makes nonsubstantive changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act. This change will allow the Department to move part of the Department's personnel security program records from the Defense Security Service Privacy Program to the Office of the Secretary of Defense Privacy Program. This direct final rule is consistent with the rule previously published at 32 CFR 321.13(h) and another rule is being published to remove and reserve 321.13(h). This will improve the efficiency and effectiveness of DoD's program by preserving the exempt status of the applicable records and/or material when the purposes underlying the exemption(s) are valid and necessary.
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
The rule will be effective on July 1, 2011 unless comments are received that would result in a contrary determination. Comments will be accepted on or before June 21, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Cindy Allard at (703) 588-6830.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Progams. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that this Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 311 is amended as follows:
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).
(c) * * *
(18)
(i)
(ii)
(iii)
(B) From subsection (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. It is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations.
Office of the Secretary, DoD.
Direct final rule with request for comments.
The Office of the Secretary of Defense is proposing to exempt one (1) new system of records, DA&M 01, entitled, “Civil Liberties Program Case Management System” from subsections (c)(3); (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), (H), (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k).
This direct final rule makes nonsubstantive changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act. This will improve the efficiency and effectiveness of DoD's program by preserving the exempt status of the applicable records and/or material when the purposes underlying the exemption(s) are valid and necessary.
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
The rule will be effective on July 1, 2011 unless comments are received that would result in a contrary determination. Comments will be accepted on or before June 21, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Cindy Allard at (703) 588-6830.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Progams. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that this Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 311 is amended as follows:
Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).
(c) * * *
(19) System identifier and name: DA&M 01, Civil Liberties Program Case Management System.
(i)
(ii)
(iii)
(B) From subsections (d)(1), (2), (3) and (4) (record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption, records in this system may be exempted from access and amendment to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(C) From subsection (e)(1) (maintain only relevant and necessary records) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. It is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. In the absence of a national security basis for exemption under subjection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subjection (k)(5) because it is not possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(D) From subsections (e)(4)(G) and (H) (publication of procedures for notifying subject of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection (d) provisions regarding access and amendment, and from the subsection (f) requirement to promulgate agency rules. Nevertheless, the Office of the Secretary of Defense has published notice concerning notification, access, and contest procedures because it may, in certain circumstances, determine it appropriate to provide subjects access to all or a portion of the records about them in this system of records.
(E) From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement the Office of the Secretary of Defense identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in this system of records.
(F) From subsection (f) (agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection (d) provisions regarding access and amendment of records by record subjects. Nevertheless, the Office of the Secretary of Defense has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the Office of the Secretary of Defense may determine it appropriate to satisfy a record subject's access request.
National Security Agency/Central Security Services, DoD.
Final rule.
The National Security Agency/Central Security Services (NSA/CSS) is adding an exemption rule for the system of records GNSA 23, “NSA/CSS Operations Security Support Program and Training Files” when an exemption has been previously claimed for the records in another Privacy Act system of records. The exemption is intended to preserve the exempt status of the record when the purposes underlying the exemption for the original records are still valid and necessary to protect the contents of the records.
Ms. Anne Hill at (301) 688-6527.
The proposed rule was published on May 19, 2008 (73 FR 28767-29768). No comments were received.
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that this Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 322 is amended as follows:
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
(r) GNSA 23.
(1)
(2)
(3)
(4)
(ii) From subsections (d) and (f) because providing access to records of a civil or administrative investigation and the right to contest the contents of those records and force changes to be made to the information contained therein would seriously interfere with and thwart the orderly and unbiased conduct of the investigation and impede case preparation. Providing access rights normally afforded under the Privacy Act would provide the subject with valuable information that would allow interference with or compromise of witnesses or render witnesses reluctant to cooperate; lead to suppression, alteration, or destruction of evidence; enable individuals to conceal their wrongdoing or mislead the course of the investigation; and result in the secreting of or other disposition of assets that would make them difficult or impossible to reach in order to satisfy any Government claim growing out of the investigation or proceeding.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the early stages of an investigation. In some cases, it is only after the information is evaluated in light of other evidence that its relevance and necessity will be clear.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for investigative purposes and is exempt from the access provisions of subsections (d) and (f).
(v) From subsection (e)(4)(I) because to the extent that this provision is construed to require more detailed disclosure than the broad, generic information currently published in the system notice, an exemption from this provision is necessary to protect the confidentiality of sources of information and to protect privacy and physical safety of witnesses and informants.
National Security Agency/Central Security Service, DoD.
Direct final rule with request for comments.
The National Security Agency/Central Security Service is deleting an exemption rule and adding a new exemption rule. The exemption rule for GNSA 13, entitled “Archive Records” is being deleted in its entirety; a new exemption rule for GNSA 28, entitled “Freedom of Information Act, Privacy Act and Mandatory Declassification Review Records” is being added to exempt those records that have been previously claimed for the records in another Privacy Act system of records. To the extent that copies of exempt records from those other systems of records are entered into these case records, NSA/CSS hereby claims the same exemptions for the records as claimed in the original primary system of records of which they are a part.
This direct final rule makes nonsubstantive changes to the National Security Agency/Central Security Service Privacy Program rules. These changes will allow the Department to exempt records from certain portions of the Privacy Act. This will improve the efficiency and effectiveness of DoD's program by preserving the exempt status of the records when the purposes underlying the exemption for the original records are still valid and necessary to protect the contents of the records.
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
The rule will be effective on July 1, 2011 unless comments are received that would result in a contrary determination. Comments will be accepted on or before June 21, 2011.
You may submit comments, identified by docket number and title, by any of the following methods.
•
•
Ms. Anne Hill at (301) 688-6527.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Progams. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 322 is amended as follows:
Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 U.S.C. 552a).
(u) ID: GNSA 28 (General Exemption)
(1)
(2)
(3)
(4)
Department of the Navy, DoD.
Direct final rule with request for comments.
The Department of the Navy is reinstating an exemption rule that was inadvertently deleted for system of records notice N03834-1, entitled “Special Intelligence Personnel Access File (April 28, 1999, 64 FR 22840)”.
This direct final rule makes nonsubstantive changes to the Department of the Navy Privacy Program rules. These changes will allow the Department to exempt records from certain portions of the Privacy Act. This will improve the efficiency and effectiveness of DoD's program by
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
The rule will be effective on July 1, 2011 unless comments are received that would result in a contrary determination. Comments will be accepted on or before June 21, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Robin Patterson at (202) 685-6545.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Progams. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.
It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.
It has been determined that Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
It has been determined that Privacy Act rules for the Department of Defense do not have federalism implications. The rules do not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
Privacy.
Accordingly, 32 CFR part 701 is amended as follows:
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
(f)
(1) N03834-1, Special Intelligence Personnel Access File.
(2)
(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
(iii) Portions of this system of records are exempt from the following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through (I), and (f).
(3)
(4)
(ii) Exempted portions of this system also contain information considered relevant and necessary to make a determination as to qualifications, eligibility, or suitability for access to classified information and was obtained by providing an express or implied assurance to the source that his or her identity would not be revealed to the subject of the record.
Postal Regulatory Commission.
Final rule.
The Commission is updating the postal product lists. This action reflects the disposition of recent dockets, as reflected in Commission orders, and a publication policy adopted in a recent Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The product lists, which are re-published in their entirety, include these updates.
Stephen L. Sharfman, General Counsel at 202-789-6820.
This document identifies recent updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule.
1. Parcel Select Contract 1 (MC2011-16 and CP2011-53), added March 1, 2011 (Order No. 686);
2. Discover Financial Services 1 (MC2011-19 and R2011-3), added March 15, 2011 (Order No. 694);
3. Competitive Ancillary Services (MC2011-23 and CP2011-62), added March 28, 2011 (Order No. 703); and
4. Lightweight Commercial Parcels (MC2011-22), added April 6, 2011 (Order No. 710)
Administrative practice and procedure; Postal Service.
By the Commission.
For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:
39 U.S.C. 503; 3622; 3631; 3642; 3682.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of triflusulfuron-methyl in or on beet, garden, roots and beet, garden, tops. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective April 22, 2011. Objections and requests for hearings must be received on or before June 21, 2011, and must be filed in accordance with the instructions provided in 40 CFR part 178 (
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2010-0102. All documents in the docket are listed in the docket index available at
Laura Nollen, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0102 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 21, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0102, by one of the following methods:
•
•
•
In the
EPA has revised the tolerance expression for all established commodities to be consistent with current Agency policy and has made a technical correction to the chemical name. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”
Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for triflusulfuron-methyl, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with triflusulfuron-methyl follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Triflusulfuron-methyl is of low acute toxicity when administered orally, dermally, or via inhalation. It is not a dermal sensitizer or irritant, and causes only minor transient irritation to the eye. The primary target organs identified for triflusulfuron-methyl are the liver, testes, and red blood cells. Hematological and histopathological changes consistent with mild hemolytic anemia were observed in the rat and the dog. Following subchronic and/or chronic dietary exposure, increased incidence of testicular interstitial hyperplasia was observed in the rat, and testicular atrophy and reduced size were observed in the dog. Liver effects including histopathology and increased weight were observed in the dog and mouse, but not in the rat.
No evidence of neurotoxicity was observed except for a statistically significant increase in sciatic nerve myelin/axon degeneration in female rats at the highest dose tested in the rat combined chronic toxicity/carcinogenicity study. However, the incidence was high in all dose groups, no increases were seen in the interim sacrifice groups or in shorter-term studies, and it is commonly observed in older rats.
In the rat developmental toxicity study, no developmental effects were noted, whereas maternal toxicity was observed (decreased body weight gain, food consumption and feed efficiency). Abortions occurred in the rabbit developmental toxicity study at a dose that also caused significant maternal toxicity, including mortality, clinical signs, sharply reduced food consumption and decreased weight gain. In the rat reproductive toxicity study, decreased parental body weight/weight gain and offspring weight during lactation were observed at the mid and high doses. No reproductive effects were observed.
Triflusulfuron-methyl is classified as a possible human carcinogen (Group C) under the 1986 Cancer Guidelines, based on an increased incidence of benign testicular interstitial cell adenomas in male rats in the combined chronic/carcinogenicity toxicity study and evidence of clastogenicity in some
Specific information on the studies received and the nature of the adverse effects caused by triflusulfuron-methyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a RfD—and a safe margin of exposure
1.
i.
ii.
iii.
iv.
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of triflusulfuron-methyl for chronic exposures for non-cancer assessments are estimated to be 0.005 parts per billion (ppb) for surface water and 0.50 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 0.50 ppb was used to assess the contribution to drinking water.
3.
4.
1.
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3.
i. The toxicity database for triflusulfuron-methyl is complete except for immunotoxicity testing. Recent changes to 40 CFR part 158 require immunotoxicity testing (OPPTS Guideline 870.7800) for pesticide registration. However, the existing data are sufficient for endpoint selection for exposure/risk assessment scenarios, and for evaluation of the requirements under the FQPA. There was no evidence of direct immunotoxicity in the available studies. Hemolytic anemia, an effect associated with exposure to some sulfonylurea compounds, was observed for triflusulfuron-methyl. Immune-mediated hemolysis following binding to red blood cells has been reported for sulfonylurea drugs such as chlorpromamide, although it is not clear that the hemolytic anemia observed with triflusulfuron-methyl is related to the immune system. However, the hemolytic effects seen in the studies were of low concern because the effects were sporadic and marginal (< 10% below controls) and a large margin of safety for the effects was provided by the selection of the PODs. In the rat, significant hematological alterations and regenerative changes were observed at doses ≥ 100-fold above the selected PODs. Effects in the dog were seen at doses ≥ 15-fold higher. The Agency does not believe that an immunotoxicity study will provide a POD lower than that currently used for risk assessment; therefore, an additional UF is not needed to account for the lack of this study.
ii. Although a statistically significant increase in sciatic nerve myelin/axon degeneration in high dose female rats was observed in the triflusulfuron-methyl rat combined chronic toxicity/carcinogenicity study, the incidence was high in all dose groups, no increases were seen in the interim sacrifice groups or in shorter-term studies, and the lesion is commonly observed in older rats. Therefore, EPA did not consider this finding to be evidence of frank neurotoxicity, and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that triflusulfuron-methyl results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground water and surface water modeling used to assess exposure to triflusulfuron-methyl in drinking water. These assessments will not underestimate the exposure and risks posed by triflusulfuron-methyl.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methodology, a high-performance liquid chromatography with ultraviolet detection (HPLC-UV) method (Method AMR 1930-91), is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350;
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There are currently no Codex MRLs established for residues of triflusulfuron-methyl in or on commodities associated with this petition. However, this action was a work share agreement with Canada's Pesticide Management Regulatory Agency (PMRA). While the tolerance for beet, garden, roots at 0.01 ppm is harmonized with PMRA, the tolerance for beet, garden, tops at 0.02 ppm is not harmonized with PMRA's MRL of 0.01 ppm for that commodity. Based on the submitted residue data, garden beet tops had residue levels equal to 0.01 ppm; given the level of uncertainty for quantification around the limit of quantitation (0.01 ppm), EPA has determined that a tolerance for beet, garden, tops at 0.02 ppm is appropriate.
EPA received one comment to the Notice of Filing that made a general objection to the presence of any pesticide residues on crops and stated that EPA should set no pesticide tolerance greater than zero. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, the existing legal framework provided by section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.
EPA has revised the tolerance expression to clarify: (1) That, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of triflusulfuron-methyl not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression. Additionally, EPA has revised the chemical name from triflusulfuron methyl to triflusulfuron-methyl in order to reflect the preferred common name of the chemical.
Therefore, tolerances are established for residues of triflusulfuron-methyl, (methyl 2-[[[[[4-(dimethylamino)-6-(2,2,2-trifluoroethoxy)-1,3,5-triazin-2-yl]amino]carbonyl]amino]sulfonyl]-3-methylbenzoate), in or on beet, garden, roots at 0.01 ppm; and beet, garden, tops at 0.02 ppm.
This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the national government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
Transportation Security Administration, DHS.
Final rule.
The Transportation Security Administration (TSA) is adding procedures by which any person will receive a receipt for reporting a problem, deficiency, or vulnerability related to transportation security, including the security of aviation, maritime, railroad, motor carrier vehicle, or pipeline transportation, or any mode of public transportation, such as mass transit, in accordance with the “Implementing Recommendations of the 9/11 Commission Act of 2007” (9/11 Act).
Effective May 23, 2011.
Traci Klemm, Office of Chief Counsel, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6002; telephone (571) 227-3596; facsimile (571) 227-1380; e-mail
You can get an electronic copy using the Internet by—
(1) Searching the electronic Federal Docket Management System (FDMS) Web page at
(2) Accessing the Government Printing Office's Web page at
(3) Visiting TSA's Security Regulations Web page at
In addition, copies are available by writing or calling the person in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in
In the immediate aftermath of the events on September 11, 2001, the Federal Aviation Administration (FAA) established a task force to respond to the large volume of incoming phone calls, e-mails, and letters from the public. On June 1, 2002, the Transportation Security Administration (TSA) assumed responsibility for this response to the public, creating what is now known as the TSA Contact Center (TCC). The TCC is a widely-publicized open line for the public to contact TSA. As such, it has also provided a mechanism through which TSA may receive information about potential threats to transportation security from both well-meaning persons and those with harmful intent.
In December 2004, TCC availability was expanded to 24 hours a day, 7 days a week, 365 days per year, primarily to ensure continuous review for threat-related contacts. The current process for public reporting of potential security violations, threat information or criminal activities, vulnerabilities and intelligence was put in place after the DHS Office of Inspector General assessed the Agency's actions to improve the handling of threat and non-threat communications following an incident where a college student was testing security.
TSA also has ongoing initiatives within the various transportation modes, such as the General Aviation Secure Program, that includes hotline numbers to alert TSA of security concerns.
The “Implementing Recommendations of the 9/11 Commission Act” (9/11 Act) requires the Secretary of Homeland Security to establish, by regulation, a process for any person to report transportation-related security problems, deficiencies, or vulnerabilities and promptly receive an acknowledging receipt for their report.
This rule, which implements the 9/11 requirements, establishes the process for any person
In § 1503.3(a) of the rule, TSA designates the addresses and a telephone number that a person must use in order to obtain a receipt for their report. In order to obtain a receipt, the person must use one of these reporting mechanisms and provide valid contact information.
Paragraph (b) indicates how TSA will provide a receipt acknowledging the report. Reports submitted by mail or through the Internet will receive written confirmation. Internet receipts will include the content of the report. Reports submitted by phone will receive a call identifier number. The call identifier number is linked to a copy of the information as recorded by TSA, which will be maintained according to TSA's record retention schedules (currently, these records are scheduled to be retained by TSOC for two years). To receive a written copy of the report, the person will need to contact TSA at the address identified in the rule within two years of their call and request a paper copy.
Paragraph (c) reiterates TSA's commitment to review and consider all information received and to take appropriate steps.
Paragraph (d) clarifies that a report made voluntarily under this subpart will not satisfy any separate legal obligation of any person to report information to TSA or any other Government agency under any other law. Operators must comply with those provisions regardless of whether a report has been submitted through the new part 1503 procedures.
Finally, paragraph (e) is a reminder that these reporting mechanisms are not to be used for reporting immediate or emergency security or safety concerns. These concerns should be immediately reported to the appropriate emergency services operator, such as by calling 911. Alleged waste, fraud, and abuse in TSA programs should be reported to the Department of Homeland Security Inspector General: (800) 323-8603, or
As previously discussed, the 9/11 Act requires DHS to issue this regulation for transportation security-related reports affecting public transportation, rail, and motor carriers. TSA has determined that the security benefits of receiving these reports applies to modes of transportation not enumerated in the statute: Aviation, maritime, and pipeline.
Aspects of this rule not required by the 9/11 Act are supported by TSA's statutory authority to enhance security for all modes of transportation.
This final rule adopts the regulations proposed in the NPRM
While the text of the rule has not been significantly altered since the NPRM, the costs estimated for this regulation have been significantly lowered. At the time that the NPRM was published, TSA intended to extensively publicize the reporting mechanism for use by the general public to report any transportation-related security concern. The costs in the NPRM reflected that assumption. Since that time, however, DHS has launched the “See Something, Say Something” campaign.
The “See Something, Say Something” campaign is part of DHS's commitment to promoting a vigilant citizenry that actively participates in protecting national security. In her September 2010 speech to first responders at the NYC Emergency Operations Center, Secretary Napolitano noted in her prepared remarks: “Recall that it was a New York street vendor who tipped off a policeman about the bombing attempt in Times Square. It was a group of passengers on Flight 253 who intervened to stop the bombing attempt on Christmas Day.” She then continued, “Making individuals and citizens better informed and empowered is crucial, and DHS has therefore launched, and is expanding, a national campaign around a slogan you probably know well: `If You See Something, Say Something.' ” The purpose of the campaign, as stated by the Secretary, is to raise “awareness of potential terrorist tactics, and emphasizing the importance of reporting suspicious activity to law enforcement.”
The implementation of that campaign has changed TSA's assumptions regarding how the mechanisms required by the 9/11 Act are likely to be used. Where the NPRM estimated costs based on the most currently available number of all security-related calls to the Contact Center and then increased that amount based on additional publicity, TSA now assumes that most reports under this rule will be made by a subset of the individuals who contact TSA with security concerns, primarily made up of employees within the transportation sector seeking a reporting mechanism that will provide them with documentation of their report in the event they may need it in the future. This results in far fewer estimated reports resulting from the mechanisms
As a result, the estimated costs have been significantly reduced from those provided in the NPRM. This specifically relates to estimates for the number of reports received and the TSA costs for processing those reports. In addition, TSA has developed new automated mechanisms for providing receipts to persons who report security concerns through e-mail; all security-related reports, regardless of whether they are being made as a result of this rule or for other reasons, will automatically receive an e-mail receipt. This substantially reduces the potential costs for TSA.
The public comment period for the NPRM closed on October 26, 2009. TSA received two public comments, from a commercial airline and a trade association representing members of the aviation industry. TSA addresses these comments below.
While the language regarding the reporting and receipt mechanism is inclusive, referencing “any person,”
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
Changes to Federal regulations must undergo several economic analyses. First, Executive Order (EO) 12866, Regulatory Planning and Review,
In conducting these analyses, TSA determined:
1. This rulemaking is not a “significant regulatory action” as defined in the Executive Order.
2. This rulemaking will not have a significant economic impact on a substantial number of small entities.
3. This rulemaking will not constitute a barrier to international trade.
4. This rulemaking does not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector.
The basis for these conclusions is set forth below.
This rule enhances the ability for any person to report to TSA—via regular mail, through the Internet, or telephone—security problems, deficiencies, or vulnerabilities related to aviation, maritime, railroad, motor vehicle, pipeline, or public transportation. As previously discussed, when TSA prepared its initial draft of this rule, it intended to extensively publicize the reporting mechanism for use by the general public to report any transportation-related security concern. The costs in the NPRM reflected that assumption. Since that time, however, DHS has developed the “See Something, Say Something” campaign. The implementation of that campaign has changed TSA's assumptions for how the reporting and receipt mechanisms required by the 9/11 Act are likely to be used.
TSA now assumes that most reports under this rule will be made by a subset of the general population, primarily made up of employees within the transportation sector seeking a reporting mechanism that will provide them with documentation of their report in the event they may need it in the future. This results in far fewer estimated reports under this final rule than estimated in the NPRM. As a result, the estimated costs have been significantly reduced from those provided in the NPRM. This specifically relates to estimates for the number of reports received and the TSA costs for processing those reports. In addition, TSA has developed new automated mechanisms for providing receipts to persons who report security concerns through e-mail; all security-related reports, regardless of whether they are being made as a result of this rule or for other reasons, will automatically receive an e-mail receipt. Consistent with the estimates of the NPRM, TSA assumes that the costs associated with the operation of this reporting system will be incurred by TSA and the person making the report.
TSA currently provides the public with the ability to communicate security concerns by contacting TSA's Contact Center (1-866-289-9673) or through the TSA Web site (
As a result of this rulemaking, the “Security Violation and Concerns” section of the site will include a hyperlink back to the “Security Issues” form and the additional contact addresses identified in this rule. Therefore, this analysis of costs and benefits assumes that all Web-based reports under this rule will be through the “Security Issues” form on TSA's Web site. As noted, the public will also be able to make reports by contacting TSA directly through a designated phone number or submitting a report through the mail to a designated address.
There is no accurate method for gauging how many additional e-mail messages, telephone calls, and letters reporting transportation security concerns these changes to the Web site could generate. While estimating an accurate cost to the public of voluntarily reporting security concerns to TSA is difficult, one can use fiscal year (FY) 2010 TSA Contact Center (TCC) data as a starting point to estimate the cost of potential scenarios. For this analysis, we assumed that the rule will incrementally expand the number of security-related telephone calls and e-mail messages TSA received in FY 2010 by 25 percent.
In FY 2010, the TCC fielded 393 security-related telephone calls that could be categorized as reporting a transportation-related security problem, deficiency, or vulnerability. (While the TCC may receive many more calls that a person has self-selected to be “security-related,” not all of those are within the scope of what is anticipated to be relevant to this rule.) These calls are addressed by security specialists who help determine whether the issue involves an issue related to transportation security or other complaints or concerns that the caller may have. They also determine whether the information provided will fit within the scope of the rule. Issues requiring action by TSA are routed to the appropriate TSA components. The security specialists also route information relevant to sister agencies to their designated points of contact. According to the TCC, the average telephone conversation involving a security specialist during FY 2010 lasted 3.25 minutes. For purposes of the NPRM, TSA estimated the calls would last approximately 4 minutes.
To estimate the cost of contacting TSA electronically, this analysis used other data collected by the TCC as a starting point. In FY 2010 the TCC received 1,527 security-related e-mail messages from customers who logged onto the TSA Web site and used the links described above. TSA receives information submitted through the Web site in the form of an e-mail. As noted under the analysis for phone calls, the TCC may receive many more e-mails that a person has self-selected than are within the scope of what is anticipated to be relevant to this rule. The estimates reflect those e-mails that are relevant to the rule.
If one assumes that TSA will receive an additional 382 e-mail messages (1,527 × .25) as a result of this rule and that the average e-mail message will require thirty minutes to prepare, one can modify the value-of-time formula used to calculate the FY 2010 cost of security-related telephonic reports to TSA to estimate the cost to the public of e-mailing its concerns: 382 e-mail messages × 30/60 hours per e-mail message × $19.32 per hour = $3,690. TSA has doubled the time estimate assumed in the NPRM due to the more detailed information one would expect to be provided; a person who is reporting a security vulnerability or deficiency is likely to have more information regarding security requirements that are not being followed.
The rule will also allow the public to report transportation-related security problems, deficiencies, and vulnerabilities by regular mail (the mailing address will be posted on the TSA Web site). As previously noted, TSA assumes the majority of persons contacting TSA by mail and requesting a receipt will be subset of the general population, primarily made up of employees within the transportation sector seeking a reporting mechanism that will provide them with documentation of their report in the event they may need it in the future. In addition, TSA also assumes that most persons will report by e-mail as they will be provided with a more comprehensive verification of their report as the automated e-mail will include the exact text that they submitted. As a result, the estimated costs have been significantly reduced from those provided in the NPRM. If one projects that this rule will generate 50 letters per year and that it takes the average letter writer 30 minutes to write a report and 15 minutes to mail it, the value of the public's time for this exercise equates to $725 (50 letters × 45/60 hour per letter × $19.32 per hour). This increase in time from the NPRM is consistent with that for the other reporting mechanisms. When the cost of postage is included (50 letters × $.44 per stamp = $22), using regular mail to report transportation security-related problems, deficiencies, and vulnerabilities to TSA will cost the public $747.
The projected cost of the three modes of communication—$316 for telephone calls, $3,690 for Web-based communications, and $747 for regular mail—is $4,753. As reporting under this rule is voluntary, the public would assume this direct cost voluntarily; the cost is not imposed by this rule.
In addition to this direct cost to the public, TSA will incur expenses in handling the increased volume of reports. Although it is not feasible to accurately establish the number of additional telephonic, e-mail, and regular mail reports this rule will generate, TSOC is prepared to dedicate one full time equivalent (FTE) employee (at an overall cost of $80,208
The hardware and software needed to implement the “auto-response” function for Web-based reports will cost $2,060 ($1,100 for a dedicated desktop computer and $960 for software). This feature provides an electronic receipt including the content of their report to anyone who uses the “Security Issues” Web form on the TSA Web site to submit security concerns (people who contact TSA by phone will be provided a unique identifier number for the call).
Persons who submit reports by mail will receive a receipt in the mail. If one projects that this rule will generate 50 letters per year and that all the letters will have return addresses, the cost of mailing a response will be $22 (50 letters × $.44 per stamp = $22).
Taken together, the estimated labor expense ($80,208) and receipt processes ($2,060 for auto-response and $22 for mail) yield a total annual cost to TSA of $82,290.
This rulemaking provides the following benefits:
1. It reminds the public that TSA wants to receive these reports, possibly alerting TSA to transportation security concerns that may otherwise have been overlooked. It is quite possible that reports from the public could prevent a national security problem that otherwise would have gone unaddressed.
2. It encourages employees and other persons who may hesitate to make a report for fear of retaliation or other adverse action to obtain the necessary documentation to support any future claims under 6 U.S.C. 1142, 49 U.S.C. 20109, 49 U.S.C. 31105, and 49 U.S.C. 42121.
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. For purposes of the RFA, small entities include small businesses, not-for-profit organizations, and small governmental
This rule enhances the public's ability to report security concerns voluntarily to TSA. TSA and the public will incur some costs in the operation of this enhanced reporting system. As stated previously, the public will voluntarily assume the direct cost of reporting problems and deficiencies to TSA; the cost is not imposed by this rule. TSA certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and has determined that it will impose the same costs on domestic and international entities and thus have a neutral trade impact.
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”
This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act.
TSA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.
TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment.
The energy impact of the action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.
Administrative practice and procedure, Investigations, Law enforcement, Penalties, Transportation.
For the reasons set forth in the preamble, the Transportation Security Administration amends part 1503 in chapter XII of title 49, Code of Federal Regulations to read as follows:
6 U.S.C. 1142; 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114, 20109, 31105, 40113-40114, 40119, 44901-44907, 46101-46107, 46109-46110, 46301, 46305, 46311, 46313-46314.
This part provides information on TSA's investigative and enforcement procedures.
This section prescribes the reporting mechanisms that persons may use in order to obtain a receipt for reports to TSA regarding transportation-related security problems, deficiencies, and vulnerabilities.
(a) Any person who reports to TSA a transportation security-related problem, deficiency, or vulnerability—including the security of aviation, commercial motor vehicle, maritime, pipeline, any mode of public transportation, or railroad transportation—will receive a receipt for their report if they provide valid contact information and report through one of the following:
(1) U.S. mail to Transportation Security Administration HQ, TSA-2; Attn: 49 CFR 1503.3 Reports; 601 South 12th Street; Arlington, VA 20598-6002;
(2) Internet at
(3) Telephone (toll-free) at 1-866-289-9673.
(b) Reports submitted by mail will receive a receipt through the mail, reports submitted by the Internet will receive an e-mail receipt, and reports submitted by phone will receive a call identifier number linked to TSA documents held according to published record schedules. To obtain a paper copy of reports provided by phone, the person who made the report, or their authorized representative, must contact TSA at the address identified in (a)(1) of this section within that period and provide the identifier number.
(c) TSA will review and consider the information provided in any report submitted under this section and take appropriate steps to address any problems, deficiencies, or vulnerabilities identified.
(d) Nothing in this section relieves a person of a separate obligation to report information to TSA under another provision of this title, a security program, or a security directive, or to another Government agency under other law.
(e) Immediate or emergency security or safety concerns should be reported to the appropriate local emergency services operator, such as by telephoning 911. Alleged waste, fraud, and abuse in TSA programs should be reported to the Department of Homeland Security Inspector General: telephone (toll-free) 1-800-323-8603, or e-mail
Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, Farm Services Agency, USDA.
Proposed rule.
The U.S. Department of Agriculture proposes to amend its regulations to maintain consistency with standard industry contracts and to make minor revisions to streamline processing applications. These revisions are needed to conform with market and industry changes by updating, clarifying, and modifying the regulatory requirements for community facility construction and development. The amendments to the regulation will streamline current processes and provide for faster reviews of alternate construction contract methods (such as Design/Build and Construction Management) by the Agency's National Office. This rule can also apply to applications under the Rural Business-Cooperative Service Programs.
Written comments on the proposed rule must be received on or before June 21, 2011 to be assured of consideration.
You may submit comments on this rule by any of the following methods:
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All written comments will be available for public inspection during regular work hours at the 300 7th Street, SW., address listed above.
William Downs, Technical Support Branch, Program Support Staff, Rural Housing Service, U.S. Department of Agriculture, STOP 0761, 1400 Independence Avenue, SW., Washington, DC 20250-0761; Telephone: 202-720-1499; FAX: 202-690-4335; E-mail:
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under this program, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This rule is not retroactive. It will not affect agreements entered into prior to the effective date of this rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted.
The Administrator of the Agency has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) Public Law 104-4 establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, Rural Development must prepare, to the extent practicable, a written statement including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. With certain exceptions, section 205 of UMRA requires Rural Development to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. This proposed rule contains no Federal mandates for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” The Agency has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
The programs affected are listed in the Catalog of Federal Domestic Assistance under Numbers 10.769 Rural Business
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
The Agency conducts intergovernmental consultation in the manner delineated in RD Instruction 1940-J, “Intergovernmental Review of Rural Development Programs and Activities,” and in 7 CFR part 3015, subpart V. The changes being considered are not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. An intergovernmental review for this revision is not required or applicable.
There are no new reporting and recordkeeping requirements associated with this rule.
The Agency is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-GOV compliance related to this proposed rule, please contact Larry Fleming, 202-720-8547.
The proposed change will remove restrictive language in 7 CFR part 1942 that limits projects using alternate construction methods to loans only, and will allow grant funds to be used with design/build and other alternate construction methods. When the regulation was written in the 1970's design/build and construction management were unique forms of contracting that were not commonly used. It was determined that the Agency would not allow grant funds to be used for alternate construction methods. Over time, design/build and construction management became more common in the construction industry. The success or failure rate of such contracting methods has proven to be no greater than the traditional design/bid/build method. Therefore, the Agency has determined that the funding source—loans or grants—should have no determination on the construction method used. Further, these changes streamline processing by allowing contracts up to $250,000 to be reviewed by the State Office. The present regulation, which went into effect in the 1970's, requires all projects over $100,000 be reviewed by the National Office. Additional language is added to describe alternate construction methods: Design/build, construction management constructor, construction management advisor, and fast tracking. Presently, only a definition is given. The new language will help field staff and applicants understand when a project qualifies as an alternate construction method. None of the changes proposed are statutory requirements, and the Agency has determined that these changes better reflect current conditions within the construction industry, and will better streamline processing for applicants.
This change revises the Agency Guide documents used with American Institute of Architects (AIA) contracts for construction to reflect their updated contracts. The AIA revises their contract documents every 10 years. Contracts referenced in the present regulation are replaced with the new updated contracts. New Guides are added for AIA contracts for design/build and construction management. Providing these Guides within the Agency regulation eliminates the need for National Office review of these projects, which reduces review time for the applicant. A new Guide is added listing the Agency requirements for review of alternate contract methods, to assist field staff and applicants.
Community development, Community facilities, Loan programs—Housing and community development, Loan security, Rural areas.
For the reasons set forth in the preamble, Chapter XVIII, Title 7 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 1942 continues to read as follows:
7 U.S.C. 1926; 7 U.S.C. 1927, 7 U.S.C. 7901, and Pub. L. 110-246.
2. Section 1942.9 is amended by revising paragraph (b) introductory text and (b)(1) to read as follows:
(b)
(1) State Director's and Rural Development engineer/architect's comments and recommendations, and if noncompetitive negotiation per 1942.18(k)(4) is accepted by the Agency, submit an evaluation of previous work of the proposed construction firm.
3. Section 1942.18, paragraph (l) is amended to read as follows:
(l)
(1) The owner will request Rural Development approval by providing the following information to the State Office for review and approval by the State Architect:
(i) The owner's written request to use an unconventional contracting method with a description of the proposed method.
(ii) A proposed scope of work describing in clear, concise terms the technical requirements for the contract. This would include a nontechnical statement summarizing the work to be performed by the contractor and the results expected. Also include the sequence in which the work is to be performed and a proposed construction schedule.
(iii) A proposed firm-fixed-price contract for the entire project which provides that the contractor shall be responsible for any extra cost which
(iv) An evaluation of the contractor's performance on previous similar projects in which the contractor acted in a similar capacity.
(v) A detailed listing and cost estimate of equipment and supplies not included in the construction contract but which are necessary to properly operate the facility.
(vi) Evidence that a qualified construction inspector who is independent of the contractor has or will be hired.
(vii) Preliminary plans and outline specifications. However, final plans and specifications must be completed and reviewed by Rural Development prior to the start of construction.
(viii) The owner's attorney's opinion and comments regarding the legal adequacy of the proposed contract documents and evidence that the owner has the legal authority to enter into and fulfill the contract.
(2) The State Office may approve design/build or construction management/constructor projects if the contract amount is equal to or less than $250,000.
(3) If the contract amount exceeds $250,000, National Office prior concurrence must be obtained in accordance with § 1942.9(b) of this subpart. Only that information required under § 1942.9(b) of this subpart must be provided to National Office Program Support Staff for review. Additional information, such as plans and specifications, may be submitted by the State Office, if a review of those items is desired.
(4) The design/build method of construction is one in which the architectural and engineering services, normally provided by an independent consultant to the owner, are combined with those of the General Contractor under a single source contract. These services are commonly provided by a design/build firm, a joint venture between an architectural firm and a construction firm, or a company providing pre-engineered buildings and design services.
(5) The Construction Management/constructor (CMc), acts in the capacity of a General Contractor and is actually responsible for the construction. This type of construction management is also referred to as Construction Manager “At Risk”. The construction contract is between the owner and the CMc. The CMc, in turn, may subcontract for some or all of the work.
(6) The National Office may approve other alternative contact methods, such as Construction Management/advisor (CMa), with a recommendation from the State Office. The recommendation shall indicate the circumstances which prove this method advantageous to the applicant and the government. A CMa acts in an advisory capacity to the owner, and the actual contract for construction is between the owner and a prime contractor or multiple prime contractors. When a contract for an architect and a CMa are being provided, care must be taken to assure that separate professionals are not being paid to provide similar services. Further, paragraph (e)(3) of this section discourages separate contracts for construction.
(7) All alternate contracting method projects must comply with the requirements for “maximum open and free competition” in paragraph (j)(2) of this section. Choosing an alternate contracting method is not a way to avoid competition. Further information on procurement methods, which must be followed, is provided in paragraph (k) of this section.
Office of the Comptroller of the Currency, Department of the Treasury.
Notice of proposed rulemaking.
The Office of the Comptroller of the Currency (OCC) is proposing a rule authorizing national banks, Federal branches or agencies of foreign banks, and their operating subsidiaries to engage in off-exchange transactions in foreign currency with retail customers. The proposed rule also describes various requirements with which national banks, Federal branches or agencies of foreign banks, and their operating subsidiaries must comply to conduct such transactions.
Comments on this notice of proposed rulemaking must be received by May 23, 2011.
Because paper mail in the Washington, DC, area is subject to delay, commenters are encouraged to submit comments by the Federal eRulemaking Portal or e-mail. Please use the title “Retail Foreign Exchange Transactions” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:
• Federal eRulemaking Portal—“regulations.gov”: Go to
Click on the “Help” tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting or viewing public comments, viewing other supporting and related materials, and viewing the docket after the close of the comment period.
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You may review comments and other related materials that pertain to this
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Tena Alexander, Senior Counsel, or Roman Goldstein, Attorney, Securities and Corporate Practices Division, (202) 874-5120.
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act).
Retail forex rules must prescribe appropriate requirements with respect to disclosure, recordkeeping, capital and margin, reporting, business conduct, and documentation requirements, and may include such other standards or requirements as the Federal regulatory agency determines to be necessary.
In addition, on July 21, 2011, the OCC will become the appropriate Federal banking agency for Federal savings associations.
On September 10, 2010, the Commodity Futures Trading Commission (CFTC) adopted a retail forex rule for persons subject to its jurisdiction.
For national banks, the requirements in this proposed rule could overlap with applicable expectations contained in the Interagency Statement on Retail Sales of Nondeposit Investment Products (NDIP Policy Statement).
The OCC's proposed retail forex rule is modeled on the CFTC's retail forex rule to promote consistent treatment of retail forex transaction regardless of whether a retail forex customer's dealer is a national bank or a CFTC registrant. The proposal includes various changes
• The OCC's proposed retail forex rule leverages the OCC's existing comprehensive supervision of national banks. For example, the OCC's proposed retail forex rule does not include registration requirements, because national banks are already subject to comprehensive supervision by the OCC. Thus, instead of a registration requirement, national banks must receive a supervisory non-objection to conduct a retail forex business.
• Because national banks are already subject to various capital and other supervisory requirements,
This section authorizes a national bank to conduct retail forex transactions.
The OCC notes that some national banks may also engage in retail forex transactions through their foreign branches. The CEA does not clearly define whether foreign branches of national banks may be considered United States financial institutions that can be included in the scope of this proposed rule. Generally, the OCC defines a national bank to include all its branches, foreign and domestic. Using that definition, the proposed retail forex rule would include these branches, and all their transactions would be subject to the terms of this proposed rule.
This section defines terms specific to retail forex transactions and to the regulatory requirements that apply to retail forex transactions.
The definition of “retail forex transaction” generally includes the following transactions in foreign currency between a national bank and a person that is not an eligible contract participant:
First, certain transactions in foreign currency are not “retail forex transactions.” For example, a “spot” forex transaction where one currency is bought for another and the two currencies are exchanged within two days would not meet the definition of a “retail forex transaction,” since actual delivery occurs as soon as practicable.
Second, rolling spot forex transactions (so-called
This section defines several terms by reference to the CEA, the most important of which is “eligible contract participant.” Foreign currency transactions with eligible contract participants are not considered retail forex transactions and are therefore not subject to this rule. In addition to a variety of financial entities, certain governmental entities, businesses, and individuals may be eligible contract participants.
(a) A corporation, partnership, proprietorship, organization, trust, or other entity—
(1) That has total assets exceeding $10,000,000;
(2) The obligations of which under an agreement, contract, or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by certain other eligible contract participants; or
(3) That—
(i) Has a net worth exceeding $1,000,000; and
(ii) Enters into an agreement, contract, or transaction in connection with the conduct of the entity's business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by the entity in the conduct of the entity's business;
(b) Subject to certain exclusions,
(1) A governmental entity (including the United States, a State, or a foreign government) or political subdivision of a governmental entity;
(2) A multinational or supranational governmental entity; or
(3) An instrumentality, agency or department of an entity described in (b)(1) or (2); and
(c) An individual who has amounts invested on a discretionary basis, the aggregate of which is in excess of—
(1) $10,000,000; or
(2) $5,000,000 and who enters into the agreement, contract, or transaction in order to manage the risk associated with an asset owned or liability incurred, or reasonably likely to be owned or incurred, by the individual.
This section prohibits a national bank and its institution-affiliated parties from engaging in fraudulent conduct in connection with retail forex transactions. This section also prohibits a national bank from acting as a counterparty to a retail forex transaction if the national bank or its affiliate exercises discretion over the customer's retail forex account because the OCC views such self-dealing as inappropriate.
This section requires a national bank to obtain a written supervisory non-objection prior to engaging in a retail forex business. To obtain such non-objection, the national bank will have to provide such information as the OCC deems necessary to determine that the national bank would satisfy the requirements of the rule. This information will include information on: customer due diligence (including credit evaluations, customer appropriateness, and “know your customer” documentation); new product approvals; haircuts for noncash margin; and conflicts of interest. In addition, the national bank must establish that it has adequate written policies, procedures, and risk measurement and management systems and controls.
National banks engaged in retail forex transactions as of the effective date of this rule who promptly request the OCC's review of their retail forex business will have six months, or a longer period provided by the OCC, to bring their operations into conformance with the rule. Under this rule, a national bank that requests the OCC's review within 30 days of the effective date of the final retail forex rule and submits the information requested by the OCC will be deemed to be operating its retail forex business pursuant to a rule or regulation of a Federal regulatory agency, as required under the Commodity Exchange Act, for such period.
A national bank need not join a futures self-regulatory organization as a condition of conducting a retail forex business.
This section requires a national bank to close out offsetting long and short positions in a retail forex account. The national bank would have to offset such positions regardless of whether the customer has instructed otherwise. The CFTC concluded that “keeping open long and short positions in a retail forex customer's account removes the opportunity for the customer to profit on the transactions, increases the fees paid by the customer and invites abuse.”
This section requires a national bank to provide retail forex customers with a risk disclosure statement similar to the one required by the CFTC's retail forex rule, but tailored to address certain unique characteristics of retail forex in national banks. The prescribed risk disclosure statement would describe the risks associated with retail forex transactions. The disclosure statement would make clear that a national bank is prohibited from applying customer losses arising out of retail forex transactions against any property of a customer other than money or property specifically given as margin for retail forex transactions; the national bank may not use rights of set-off to collect margin for or cover losses arising out of retail forex transactions.
In its retail forex rule, the CFTC requires its registrants to disclose to retail customers the percentage of retail forex accounts that earned a profit, and the percentage of such accounts that experienced a loss, during each of the most recent four calendar quarters.
Similarly, the CFTC's retail forex rule requires a disclosure that when a retail customer loses money trading, the dealer makes money on such trades, in addition to any fees, commissions, or spreads.
As proposed, the risk disclosure must be provided as a separate document.
This section specifies which documents and records a national bank engaged in retail forex transactions must retain for examination by the OCC. This section also prescribes document maintenance standards.
This section requires that a national bank that offers or enters into retail forex transactions must be “well capitalized” as defined in the OCC's prompt corrective action regulation
Paragraph (a) requires a national bank that engages in retail forex transactions, in advance of any such transaction, to collect from the retail forex customer margin equal to at least two percent of the notional value of the retail forex transaction if the transaction is in a major currency pair, and at least five percent of the notional value of the retail forex transaction otherwise. These margin requirements are identical to the requirements imposed by the CFTC's retail forex rule. A major currency pair is a currency pair with two major currencies. The major currencies currently are the U.S. Dollar (USD), Canadian Dollar (CAD), Euro (EUR), United Kingdom Pound (GBP), Japanese Yen (JPY), Swiss franc (CHF), New Zealand Dollar (NZD), Australian Dollar (AUD), Swedish Kronor (SEK), Danish Kroner (DKK), and Norwegian Krone (NOK).
For retail forex transactions, margin protects the retail forex customer from the risks related to trading with excessive leverage. The volatility of the foreign currency markets exposes retail forex customers to substantial risk of loss. High leverage ratios can significantly increase a customer's losses and gains. Even a small move against a customer's position can result in a substantial loss. Even with required margin, losses can exceed the margin posted, and if the account is not closed out, and depending on the specific circumstances, the customer could be liable for additional losses. Given the risks that inhere in the trading of retail forex transactions by retail customers, the only funds that should be invested in such transactions are those that the customer can afford to lose.
Prior to the CFTC's rule, non-bank dealers routinely permitted customers to trade with 1 percent margin (leverage of 100:1) and sometimes with as little as 0.25 percent margin (leverage of 400:1). When the CFTC proposed its retail forex rule in January 2010, it proposed a margin requirement of 10 percent (leverage of 10:1). In response to comments, the CFTC reduced the required margin in the final rule to 2 percent (leverage of 50:1) for trades involving major currencies and 5 percent (leverage of 20:1) for trades involving non-major currencies.
Paragraph (b) specifies the acceptable forms of margin that customers may post. National banks must establish policies and procedures providing for haircuts for noncash margin collected from customers and must review these haircuts annually. It may be prudent for national banks to review and modify the size of the haircuts more frequently.
Paragraph (c) requires a national bank to hold each retail forex customer's retail forex transaction margin in a separate account that contains only that customer's retail forex margin. This paragraph is designed to work with the prohibition on set-off in paragraph (e), so that a national bank may not have an account agreement that treats all of a retail forex customer's assets held by a bank as margin for retail forex transactions.
Paragraph (d) requires a national bank to collect additional margin from the customer or to liquidate the customer's position if the amount of margin held by the national bank fails to meet the requirements of paragraph (a). The proposed rule requires the national bank to mark the customer's open retail forex positions and the value of the customer's margin to the market daily to ensure that a retail forex customer does not accumulate substantial losses not covered by margin.
Paragraph (e) prohibits a national bank from applying a retail forex customer's losses against any asset or liability of the retail forex customer other than money or property given as margin. A national bank's relationship with a retail forex customer may evolve out of a prior relationship of providing financial services or may evolve into such a relationship. Thus it is more likely that a national bank acting as a retail forex counterparty will hold other assets or liabilities of a retail forex customer, for example a deposit account or mortgage, than a retail forex dealer regulated by the CFTC. The OCC believes it is inappropriate to allow a national bank to leave trades open and allow additional losses to accrue that can be applied against a retail forex customer's other assets or liabilities held by the national bank.
This section requires a national bank engaging in retail forex transactions to provide each retail forex customer a monthly statement and confirmation statements.
This section prohibits a national bank and its institutional-affiliated parties from representing that the Federal government, the OCC, or any other Federal agency has sponsored, recommended, or approved retail forex
This section requires a national bank to have specific written authorization from a retail forex customer before effecting a retail forex transaction for that customer.
This section largely follows the trading standards of the CFTC's retail forex rule, which were developed to prevent some of the deceptive or unfair practices identified by the CFTC and the National Futures Association.
Under paragraph (a), a national bank engaging in retail forex transactions is required to establish and enforce internal rules, procedures and controls (1) to prevent front running, in which transactions in accounts of the national bank or its related persons are executed before a similar customer order; (2) to establish settlement prices fairly and objectively; and (3) to record and maintain transaction records and make them available to customers.
Paragraph (b) prohibits a national bank engaging in retail forex transactions from disclosing that it holds another person's order unless disclosure is necessary for execution or is made at the OCC's request.
Paragraph (c) ensures that institution-affiliated parties of another retail forex counterparty do not open accounts with a national bank without the knowledge and authorization of the account surveillance personnel of the other retail forex counterparty to which they are affiliated. Similarly, paragraph (d) ensures that institution-affiliated parties of a national bank do not open accounts with other retail forex counterparties without the knowledge and authorization of the account surveillance personnel of the national bank to which they are affiliated.
Paragraph (e) prohibits a national bank engaging in retail forex transactions from (1) entering a retail forex transaction to be executed at a price that is not at or near prices at which other retail forex customers have executed materially similar transactions with the national bank during the same time period, (2) changing prices after confirmation, (3) providing a retail forex customer with a new bid price that is higher (or lower) than previously provided without providing a new ask price that is similarly higher (or lower) as well, and (4) establishing a new position for a retail forex customer (except to offset an existing position) if the national bank holds one or more outstanding orders of other retail forex customers for the same currency pair at a comparable price.
Paragraph (e)(3) does not prevent a national bank from changing the bid or ask prices of a retail forex transaction to respond to market events. The OCC understands that market practice among CFTC-registrants is not to offer requotes, but to simply reject orders and advise customers they may submit a new order (which the dealer may or may not accept). Similarly, a national bank may reject an order and advise customers they may submit a new order.
Paragraph (e)(4) requires a national bank engaging in retail forex transactions to execute similar orders in the order they are received. The prohibition prevents a national bank from offering preferred execution to some of its retail forex customers but not others.
This section imposes on a national bank and its agents, officers, and employees a duty to supervise subordinates with responsibility for retail forex transactions to ensure compliance with the OCC's retail forex rule.
This section describes the requirements for transferring a retail forex account. Generally, a national bank must provide retail forex customers 30 days' prior notice before transferring or assigning their account. Affected customers may then instruct the national bank to transfer the account to an institution of their choosing or liquidate the account. There are three exceptions to the above notice requirement: a transfer in connection with the receivership or conservatorship under the Federal Deposit Insurance Act; a transfer pursuant to a retail forex customer's specific request; and a transfer otherwise allowed by applicable law. A national bank that is the transferee of retail forex accounts must generally provide the transferred customers with the risk disclosure statement of section 6 and obtain each affected customer's written acknowledgement within 60 days.
This section imposes limitations on how a national bank may handle disputes arising out of a retail forex transaction. For example, this section would restrict a national bank's ability to require mandatory arbitration for such disputes.
The OCC requests comment on all aspects of the proposed rule, including the questions posed in the preamble. In addition, the OCC requests comments on the following questions:
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The Regulatory Flexibility Act, 5 U.S.C. 601
Pursuant to section 605(b) of the RFA, the OCC certifies that this proposed rule will not have a significant economic impact on a substantial number of the small entities it supervises. Accordingly, a regulatory flexibility analysis is not required. In making this determination, the OCC estimated that there are no small banking organizations currently engaging in retail forex transactions with their customers. Therefore, the OCC estimates that no small banking organizations under its supervision would be affected by the proposed rule.
Persons wishing to submit written comments regarding the OCC's certification under the RFA should refer to the instructions for submitting comments in the front of this release. Such comments will be considered and placed in the same public file as comments on the proposal itself.
In accordance with section 3512 of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), the OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The information collection requirements contained in this notice of proposed rulemaking have been submitted by the OCC to OMB for review and approval under section 3506 of the PRA and § 1320.11 of OMB's implementing regulations (5 CFR part 1320
Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
All comments will become a matter of public record. Comments should be addressed to: Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 2-3, Attention: 1557-NEW, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to 202-874-5274, or by electronic mail to
Additionally, you should send a copy of your comments to the OMB Desk Officer, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., 10235, Washington, DC 20503, or by fax to 202-395-6974.
The reporting requirements in § 48.4 would require that, prior to initiating a retail forex business, a national bank provide the OCC with prior notice and obtain a written supervisory non-objection letter. In order to obtain a supervisory non-objection letter, a national bank must have written policies and procedures, and risk measurement and management systems in controls in place to ensure that retail forex transactions are conducted in a safe and sound manner. The national bank must also provide other information required by the OCC, such as documentation of customer due diligence, new product approvals, and haircuts applied to noncash margins. A national bank already engaging in a retail forex business may continue to do so, provided it requests an extension of time.
Under § 48.5, regarding the application and closing out of offsetting long and short positions, would require a national bank to promptly provide the customer with a statement reflecting the financial result of the transactions and the name of the introducing broker to the account. The customer would provide specific written instructions on how the offsetting transaction should be applied.
Section 48.6 would require that a national bank furnish a retail forex customer with a written disclosure before opening an account that will engage in retail forex transactions for a retail forex customer and receive an acknowledgment from the customer that it was received and understood. It also requires the disclosure by a national bank of its fees and other charges and its profitable accounts ratio.
Section 48.10 would require a national bank to issue monthly statements to each retail forex customer and to send confirmation statements following transactions.
Section 48.13(b) would allow disclosure by a national bank that an order of another person is being held by them only when necessary to the effective execution of the order or when the disclosure is requested by the OCC. Section 48.13(c) would prohibit a national bank engaging in retail forex transactions from knowingly handling the account of any related person of another retail forex counterparty unless it receives proper written authorization, promptly prepares a written record of the order, and transmits to the counterparty copies all statements and written records. Section 48.13(d) would prohibit a related person of a national bank engaging in forex transactions from having an account with another retail forex counterparty unless it receives proper written authorization and copies of all statements and written records for such accounts are transmitted to the counterparty.
Section 48.15 would require a national bank to provide a retail forex customer with 30 days' prior notice of any assignment of any position or transfer of any account of the retail forex customer. It would also require a national bank to which retail forex accounts or positions are assigned or transferred to provide the affected customers with risk disclosure
The customer dispute resolution provisions in § 48.16 would require certain endorsements, acknowledgments, and signature language. It also would require that within 10 days after receipt of notice from the retail forex customer that they intend to submit a claim to arbitration, the national bank provide them with a list of persons qualified in the dispute resolution and that the customer must notify the national bank of the person selected within 45 days of receipt of such list.
Sections 48.7 and 48.13 would require that a national bank engaging in retail forex transactions keep full, complete, and systematic records and establish and implement internal rules, procedures, and controls. Section 48.7 also would require that a national bank keep account, financial ledger, transaction and daily records, as well as memorandum orders, post-execution allocation of bunched orders, records regarding its ratio of profitable accounts, possible violations of law, records for noncash margin, and monthly statements and confirmations. Section 48.9 would require policies and procedures for haircuts for noncash margin collected under the rule's margin requirements, and annual evaluations and modifications of the haircuts.
Section 202 of the Unfunded Mandates Reform Act of 1995
Section 722 of the Gramm-Leach-Bliley Act requires the OCC to use plain language in all proposed and final rules published after January 1, 2000. The OCC invites comment on how to make this proposed rule easier to understand. For example, the OCC requests comment on such questions as:
• Have we organized the material to suit your needs? If not, how could the material be better organized?
• Have we clearly stated the requirements of the rule? If not, how could the rule be more clearly stated?
• Does the rule contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?
• What else could we do to make the regulation easier to understand?
Consumer protection, Definitions, Federal branches and agencies, Foreign currencies, Foreign exchange, National banks, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the OCC proposes to add part 48 to Title 12, Chapter I of the Code of Federal Regulations to read as follows:
12 U.S.C. 1, 24, 93a, 161, 1813(q), 1818, 1831o, 3102, 3106a, 3108.
(a)
(b)
(c)
In addition to the definitions in this section, for purposes of this part, the following terms have the same meaning as in the Commodity Exchange Act: “affiliated person of a futures commission merchant”; “associated person”; “contract of sale”; “commodity”; “eligible contract participant”; “futures commission merchant”; “security”; and “security futures product”.
(1) A national bank;
(2) A Federal branch or agency of a foreign bank, each as defined in 12 U.S.C. 3101; and
(3) An operating subsidiary of a national bank or a Federal branch or agency of a foreign bank.
(1) Any general partner, officer, director, or owner of ten percent or more of the capital stock of the national bank;
(2) An associated person or employee of the retail forex counterparty, if the retail forex counterparty is not a national bank;
(3) An IAP, if the retail forex counterparty is a national bank; and
(4) Any relative or spouse of any of the foregoing persons, or any relative of such spouse, who shares the same home as any of the foregoing persons.
(1) The national bank;
(2) An officer, director or owner of ten percent or more of the capital stock of the national bank; or
(3) An employee of the national bank, whose duties include:
(i) The management of the national bank's business;
(ii) The handling of the national bank's retail forex transactions;
(iii) The keeping of records, including without limitation the software used to make or maintain those records, pertaining to the national bank's retail forex transactions; or
(iv) The signing or co-signing of checks or drafts on behalf of the national bank;
(4) A spouse or minor dependent living in the same household as of any of the foregoing persons; or
(5) An affiliate of the national bank;
(1) A national bank;
(2) A retail foreign exchange dealer;
(3) A futures commission merchant; and
(4) An affiliated person of a futures commission merchant.
(1) A contract of sale of a commodity for future delivery or an option on such a contract;
(2) An option, other than an option executed or traded on a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78(f)(a)); or
(3) Offered or entered into on a leveraged or margined basis, or financed by a national bank, its affiliate, or any person acting in concert with the national bank or its affiliate on a similar basis, other than:
(i) A security that is not a security futures product as defined in section 1a(47) of the Commodity Exchange Act (7 U.S.C. 1a(47)); or
(ii) A contract of sale that—
(A) Results in actual delivery within two days; or
(B) Creates an enforceable obligation to deliver between a seller and buyer that have the ability to deliver and accept delivery, respectively, in connection with their line of business.
(a)
(1) Cheat or defraud or attempt to cheat or defraud any person;
(2) Willfully make or cause to be made to any person any false report or statement or cause to be entered for any person any false record; or
(3) Willfully deceive or attempt to deceive any person by any means whatsoever.
(b)
(a)
(b)
(i) Establish to the satisfaction of the OCC that the national bank has established and implemented written policies, procedures, and risk measurement and management systems and controls for the purpose of ensuring that it conducts retail forex transactions in a safe and sound manner and in compliance with this part; and
(ii) Provide such other information as the OCC may require.
(2) The information provided under paragraph (b)(1) of this section shall include, without limitation, information regarding:
(i) Customer due diligence, including without limitation credit evaluations, customer appropriateness, and “know your customer” documentation;
(ii) New product approvals;
(iii) The haircuts that the national bank will apply to noncash margin as provided in § 48.9(b)(2); and
(iv) Conflicts of interest.
(c)
(d)
(a)
(1) Engages in a retail forex transaction involving the purchase of any currency for the account of any retail forex customer when the account
(2) Engages in a retail forex transaction involving the sale of any currency for the account of any retail forex customer when the account of such retail forex customer at the time of such sale has an open retail forex transaction for the purchase of the same currency;
(3) Purchases a put or call option involving foreign currency for the account of any retail forex customer when the account of such retail forex customer at the time of such purchase has a short put or call option position with the same underlying currency, strike price, and expiration date as that purchased; or
(4) Sells a put or call option involving foreign currency for the account of any retail forex customer when the account of such retail forex customer at the time of such sale has a long put or call option position with the same underlying currency, strike price, and expiration date as that sold shall:
(i) Immediately apply such purchase or sale against such previously held opposite transaction; and
(ii) Promptly furnish such retail forex customer with a statement showing the financial result of the transactions involved and the name of any introducing broker to the account.
(b)
(c)
(a)
(b)
(c)
(d)
Retail forex transactions involve the leveraged trading of contracts denominated in foreign currency with a national bank as your counterparty. Because of the leverage and the other risks disclosed here, you can rapidly lose all of the funds you give the national bank as margin for such trading and you may lose more than you pledge as margin.
Furthermore, you may lose funds in other accounts that you maintain at the national bank or its affiliates if you pledge those funds or other assets as collateral for your retail forex obligations. Your national bank is prohibited from applying losses that you experience on retail forex transactions on any funds or property of yours other than funds or property that you have given or pledged as margin for retail forex transactions.
You should be aware of and carefully consider the following points before determining whether such trading is appropriate for you.
(1) Trading is a not on a regulated market or exchange—your national bank is your trading counterparty and has conflicting interests. The retail forex transaction you are entering into is not conducted on an interbank market, nor is it conducted on a futures exchange subject to regulation as a designated contract market by the Commodity Futures Trading Commission. The foreign currency trades you transact are trades with your national bank as the counterparty. When you sell, the national bank is the buyer. When you buy, the national bank is the seller. As a result, when you lose money trading, your national bank is making money on such trades, in addition to any fees, commissions, or spreads the national bank may charge.
(2) An electronic trading platform for retail foreign currency transactions is not an exchange. It is an electronic connection for accessing your national bank. The terms of availability of such a platform are governed only by your contract with your national bank. Any trading platform that you may use to enter into off-exchange foreign currency transactions is only connected to your national bank. You are accessing that trading platform only to transact with your national bank. You are not trading with any other entities or customers of the national bank by accessing such platform. The availability and operation of any such platform, including the consequences of the unavailability of the trading platform for any reason, is governed only by the terms of your account agreement with the national bank.
(3) You may be able to offset or liquidate any trading positions only through your banking entity because the transactions are not made on an exchange or regulated contract market, and your national bank may set its own prices. Your ability to close your transactions or offset positions is limited to what your national bank will offer to you, as there is no other market for these transactions. Your national bank may offer any prices it wishes, including prices derived from outside sources or not in its discretion. Your national bank may establish its prices by offering spreads from third party prices, but it is under no obligation to do so or to continue to do so. Your national bank may offer different prices to different customers at any point in time on its own terms. The terms of your account agreement alone govern the obligations your national bank has to you to offer prices and offer offset or liquidating transactions in your account and make any payments to you. The prices offered by your national bank may or may not reflect prices available elsewhere at any exchange, interbank, or other market for foreign currency.
(4) Paid solicitors may have undisclosed conflicts. The national bank may compensate introducing brokers for introducing your account in ways that are not disclosed to you. Such paid solicitors are not required to have, and may not have, any special expertise in trading, and may have conflicts of interest based on the method by which they are compensated. You should thoroughly investigate the manner in which all such solicitors are compensated and be very cautious in granting any person or entity authority to trade on your behalf. You should always consider obtaining dated written confirmation of any information you are relying on from your national bank in making any trading or account decisions.
(5) This transaction is not insured by the Federal Deposit Insurance Corporation.
(6) This transaction is not a deposit in, or guaranteed by, a national bank.
(7) This transaction is subject to investment risks, including possible loss of all amounts invested.
Finally, you should thoroughly investigate any statements by any national bank that minimize the importance of, or contradict, any of the terms of this risk disclosure. Such statements may indicate sales fraud.
This brief statement cannot, of course, disclose all the risks and other aspects of trading off-exchange foreign currency with a national bank.
I hereby acknowledge that I have received and understood this risk disclosure statement.
(e)(1)
(i) The total number of retail forex customer accounts maintained by the national bank over which the national bank does not exercise investment discretion;
(ii) The percentage of such accounts that were profitable for retail forex customer accounts during the quarter; and
(iii) The percentage of such accounts that were not profitable for retail forex customer accounts during the quarter.
(2) The national bank's statement of profitable trades shall include the following legend: “Past performance is not necessarily indicative of future results.” Each national bank shall provide, upon request, to any retail forex customer or prospective retail forex customer the total number of retail forex accounts maintained by the national bank for which the national bank does not exercise investment discretion, the percentage of such accounts that were profitable, and the percentage of such accounts that were not profitable for each calendar quarter during the most recent five-year period during which the national bank maintained such accounts.
(f)
(i) The amount of any fee, charge, or commission that the national bank may impose on the retail forex customer in connection with a retail forex account or retail forex transaction;
(ii) An explanation of how the national bank will determine the amount of such fees, charges, or commissions; and
(iii) The circumstances under which the national bank may impose such fees, charges, or commissions.
(g)
(h)
(i)
(a)
(1)
(i) The name and address of the person for who such retail forex account is carried or introduced and the principal occupation or business of such person;
(ii) The name of any other person guaranteeing such retail forex account or exercising trading control with respect to such account;
(iii) The establishment or termination of each retail forex account; and
(iv) For each retail forex account the records must also show the name of the person who has solicited and is responsible for the account or assign account numbers in such a manner as to identify that person.
(2)
(3)
(i) All retail forex transactions that are futures transactions executed for such account, including the date, price, quantity, market, currency pair, and delivery date;
(ii) All retail forex transactions that are option transactions executed for such account, including the date, whether the transaction involved a put or call, expiration date, quantity, underlying contract for future delivery or underlying physical, strike price, and details of the purchase price of the option, including premium, mark-up, commission, and fees; and
(iii) All other retail forex transactions that are executed for such account, including the date, price, quantity, and currency pair.
(4)
(i) All retail forex transactions that are futures transactions executed on that day, including the date, price, quantity, market, currency pair, delivery date, and the person for whom such transaction was made;
(ii) All retail forex transactions that are option transactions executed on that day, including the date, whether the transaction involved a put or call, the expiration date, quantity, currency pair, delivery date, strike price, details of the purchase price of the option, including premium, mark-up, commission and fees, and the person for whom the transaction was made; and
(iii) All other retail forex transactions executed on that day for such account, including the date, price, quantity, currency and the person for whom such transaction was made.
(5)
(i) Account identification (account or customer name with which the retail forex transaction was effected);
(ii) Order number;
(iii) Type of order (market order, limit order, or subject to special instructions);
(iv) Date and time, to the nearest minute, the retail forex transaction order was received (as evidenced by timestamp or other timing device);
(v) Time, to the nearest minute, the retail forex transaction order was executed; and
(vi) Price at which the retail forex transaction was executed.
(6)
(i) The national bank placing and directing the allocation of an order eligible for post-execution allocation has been granted written investment discretion with regard to participating customer accounts and makes the following information available to customers upon request:
(A) The general nature of the allocation methodology the national bank will use;
(B) Whether the national bank has any interest in accounts which may be included with customer accounts in
(C) Summary or composite data sufficient for that customer to compare its results with those of other comparable customers and, if applicable, any account in which the national bank has an interest.
(ii) A national bank must allocate orders eligible for post-execution allocation in accordance with the following:
(A) Allocations must be made as soon as practicable after the entire transaction is executed;
(B) Allocations must be fair and equitable; no account or group of accounts may receive consistently favorable or unfavorable treatment; and
(C) The allocation methodology must be sufficiently objective and specific to permit independent verification of the fairness of the allocations using that methodology by the OCC.
(7)
(b)
(i) A calculation of the percentage of such accounts that were profitable;
(ii) A calculation of the percentage of such accounts that were not profitable; and
(iii) Data supporting the calculations described in paragraphs (b)(1)(i) and (ii) of this section.
(2) In calculating whether a retail forex account was profitable or not profitable during the quarter, the national bank shall compute the realized and unrealized gains or losses on all retail forex transactions carried in the retail forex account at any time during the quarter, and subtract all fees, commissions, and any other charges posted to the retail forex account during the quarter, and add any interest income and other income or rebates credited to the retail forex account during the quarter. All deposits and withdrawals of funds made by the retail forex customer during the quarter must be excluded from the computation of whether the retail forex account was profitable or not profitable during the quarter. Computations that result in a zero or negative number shall be considered a retail forex account that was not profitable. Computations that result in a positive number shall be considered a retail forex account that was profitable.
(3) A retail forex account shall be considered “active” for purposes of paragraph (b)(1) of this section if and only if, for the relevant calendar quarter, a retail forex transaction was executed in that account or the retail forex account contained an open position resulting from a retail forex transaction.
(c)
(d)
(1) A description of the securities or property received;
(2) The name and address of such retail forex customer;
(3) The dates when the securities or property were received;
(4) The identity of the depositories or other places where such securities or property are segregated or held, if applicable;
(5) The dates in which the national bank placed or removed such securities or property into or from such depositories; and
(6) The dates of return of such securities or property to such retail forex customer, or other disposition thereof, together with the facts and circumstances of such other disposition.
(e)
(f)
(g)
A national bank offering or entering into retail forex transactions must be well capitalized as defined by 12 CFR part 6, unless specifically exempted by the OCC in writing.
(a)
(1) Two percent of the notional value of the retail forex transaction for major currency pairs and 5 percent of the notional value of the retail forex transaction for all other currency pairs;
(2) For short options, 2 percent for major currency pairs and 5 percent for all other currency pairs of the notional value of the retail forex transaction, plus the premium received by the retail forex customer; or
(3) For long options, the full premium charged and received by the national bank.
(b)(1)
(i) Obligations of the United States and obligations fully guaranteed as to principal and interest by the United States;
(ii) General obligations of any State or of any political subdivision thereof;
(iii) General obligations issued or guaranteed by any enterprise, as defined in 12 U.S.C. 4502(10);
(iv) Certificates of deposit issued by an insured depository institution, as defined in section 3(c)(2) of the Federal Deposit Insurance Act (12 U.S.C. 1813(c)(2));
(v) Commercial paper;
(vi) Corporate notes or bonds;
(vii) General obligations of a sovereign nation;
(viii) Interests in money market mutual funds; and
(ix) Such other financial instruments as the OCC deems appropriate.
(2)
(i) Haircuts for noncash margin collected under this section; and
(ii) Annual evaluation, and, if appropriate, modification of the haircuts.
(c)
(d)
(1) Mark the value of the retail forex customer's open retail forex positions to market;
(2) Mark the value of the margin collected under this section from the retail forex customer to market;
(3) Determine if, based on the marks in paragraphs (c)(1) and (2) of this section, the national bank has collected margin from the retail forex customer sufficient to satisfy the requirements of this section; and
(4) Collect such margin from the retail forex customer as the national bank may require to satisfy the requirements of this section, or liquidate the retail forex customer's retail forex transactions.
(e)
(1) Apply a retail forex customer's losses on retail forex transactions against any funds or other asset of the retail forex customer other than margin in the retail forex customer's separate margin account described in paragraph (c) of this section;
(2) Apply a retail forex customer's losses on retail forex transactions to increase the amount owed by the retail forex customer to the national bank under any loan; or
(3) Collect the margin required under this section by use of any right of set-off.
(a)
(1) For each retail forex customer:
(i) The open retail forex transactions with prices at which acquired;
(ii) The net unrealized profits or losses in all open retail forex transactions marked to the market;
(iii) Any money, securities or other property in the separate margin account required by § 48.9(c); and
(iv) A detailed accounting of all financial charges and credits to the retail forex customer's retail forex accounts during the monthly reporting period, including: money, securities, or property received from or disbursed to such customer; realized profits and losses; and fees, charges, and commissions.
(2) For each retail forex customer engaging in retail forex transactions that are options:
(i) All such options purchased, sold, exercised, or expired during the monthly reporting period, identified by underlying retail forex transaction or underlying currency, strike price, transaction date, and expiration date;
(ii) The open option positions carried for such customer and arising as of the end of the monthly reporting period, identified by underlying retail forex transaction or underlying currency, strike price, transaction date, and expiration date;
(iii) All such option positions marked to the market and the amount each position is in the money, if any;
(iv) Any money, securities or other property in the separate margin account required by § 48.9(c); and
(v) A detailed accounting of all financial charges and credits to the retail forex customer's retail forex accounts during the monthly reporting period, including: money, securities, or property received from or disbursed to such customer; realized profits and losses; and fees, charges, and commissions.
(b)
(1) To each retail forex customer, a written confirmation of each retail forex transaction caused to be executed by it for the customer, including offsetting transactions executed during the same business day and the rollover of an open retail forex transaction to the next business day;
(2) To each retail forex customer engaging in forex option transactions, a written confirmation of each forex option transaction, containing at least the following information:
(i) The retail forex customer's account identification number;
(ii) A separate listing of the actual amount of the premium, as well as each mark-up thereon, if applicable, and all other commissions, costs, fees and other charges incurred in connection with the forex option transaction;
(iii) The strike price;
(iv) The underlying retail forex transaction or underlying currency;
(v) The final exercise date of the forex option purchased or sold; and
(vi) The date the forex option transaction was executed.
(3) To each retail forex customer engaging in forex option transactions, upon the expiration or exercise of any option, a written confirmation statement thereof, which statement shall include the date of such occurrence, a description of the option involved, and, in the case of exercise, the details of the retail forex or physical currency position which resulted therefrom including, if applicable, the final trading date of the retail forex transaction underlying the option.
(c) Notwithstanding the provisions of paragraphs (b)(1) through (3) of this section, a retail forex transaction that is caused to be executed for a pooled investment vehicle that engages in retail forex transactions need be confirmed only to the operator of such pooled investment vehicle.
(d)
(e)
(a)
(1) Guarantee such person or account against loss;
(2) Limit the loss of such person or account; or
(3) Not call for or attempt to collect margin as established for retail forex customers.
(b)
(c)
(d)
(e)
(a)
(b)
(1) The precise retail forex transaction to be effected;
(2) The exact amount of the foreign currency to be purchased or sold; and
(3) In the case of an option, the identity of the foreign currency or contract that underlies the option.
(a)
(1) Ensure, to the extent reasonable, that each order received from a retail forex customer that is executable at or near the price that the national bank has quoted to the customer is entered for execution before any order in any retail forex transaction for any proprietary account, any other account in which a related person has an interest, or any account for which such a related person may originate orders without the prior specific consent of the account owner (if such related person has gained knowledge of the retail forex customer's order prior to the transmission of an order for a proprietary account), an account in which such a related person has an interest, or an account in which such a related person may originate orders without the prior specific consent of the account owner;
(2) Prevent national bank related persons from placing orders, directly or indirectly, with another person in a manner designed to circumvent the provisions of paragraph (a)(1) of this section;
(3) Fairly and objectively establish settlement prices for retail forex transactions; and
(4) Record and maintain essential information regarding customer orders and account activity, and to provide such information to customers upon request. Such information shall include:
(i) Transaction records for the customer's account, including:
(A) The date and time each order is received by the national bank;
(B) The price at which each order is placed, or, in the case of an option, the premium paid;
(C) If the transaction was entered into by means of a trading platform, the price quoted on the trading platform when the order was placed, or, in the case of an option, the premium quoted;
(D) The customer account identification information;
(E) The currency pair;
(F) The size of the transaction;
(G) Whether the order was a buy or sell order;
(H) The type of order, if the order was not a market order;
(I) If a trading platform is used, the date and time the order is transmitted to the trading platform;
(J) If a trading platform is used, the date and time the order is executed;
(K) The size and price at which the order is executed, or in the case of an option, the amount of the premium paid for each option purchased, or the amount credited for each option sold; and
(L) For options, whether the option is a put or call, the strike price, and expiration date.
(ii) Account records that contain the following information:
(A) The funds in the account, net of any commissions and fees;
(B) The net profits and losses on open trades; and
(C) The funds in the account plus or minus the net profits and losses on open trades. (In the case of open option positions, the account balance should be adjusted for the net option value);
(iii) If a trading platform is used, daily logs showing each price change on the platform, the time of the change to the nearest second, and the trading volume at that time and price; and
(iv) Any method or algorithm used to determine the bid or asked price for any retail forex transaction or the prices at which customer orders are executed, including, but not limited to, any markups, fees, commissions or other items which affect the profitability or risk of loss of a retail forex customer's transaction.
(b)
(c)
(1) Receives written authorization from a person designated by such other retail forex counterparty with responsibility for the surveillance over such account pursuant to paragraph (a)(2) of this section;
(2) Prepares immediately upon receipt of an order for such account a written record of such order, including the account identification and order number, and records thereon to the nearest minute, by time-stamp or other timing device, the date and time the order is received; and
(3) Transmits on a regular basis to such other retail forex counterparty copies of all statements for such account and of all written records prepared upon the receipt of orders for such account pursuant to paragraph (a)(2) of this section.
(d)
(1) It receives written authorization to maintain such an account from a person designated by the national bank of which it is a related person with responsibility for the surveillance over such account pursuant to paragraph (a)(2) of this section; and
(2) Copies of all statements for such account and of all written records prepared by such other retail forex counterparty upon receipt of orders for such account pursuant to paragraph (c)(2) of this section are transmitted on a regular basis to the retail forex counterparty of which it is a related person.
(e)
(1) Enter into a retail forex transaction, to be executed pursuant to
(2) Adjust or alter prices for a retail forex transaction after the transaction has been confirmed to the retail forex customer;
(3) Provide a retail forex customer a new bid price for a retail forex transaction that is higher than its previous bid without providing a new asked price that is also higher than its previous asked price by a similar amount;
(4) Provide a retail forex customer a new bid price for a retail forex transaction that is lower than its previous bid without providing a new asked price that is also lower than its previous asked price by a similar amount; or
(5) Establish a new position for a retail forex customer (except one that offsets an existing position for that retail forex customer) where the national bank holds outstanding orders of other retail forex customers for the same currency pair at a comparable price.
(a)
(b)
(a)
(b)
(1) Requested by the retail forex customer;
(2) Made by the Federal Deposit Insurance Corporation as receiver or conservator under the Federal Deposit Insurance Act; or
(3) Otherwise authorized by applicable law.
(c)
(a)
(1) Signing the agreement must not be made a condition for the customer to use the services offered by the national bank.
(2) If the agreement is contained as a clause or clauses of a broader agreement, the customer must separately endorse the clause or clauses.
(3) The agreement must advise the retail forex customer that, at such time as the customer notifies the national bank that the customer intends to submit a claim to arbitration, or at such time the national bank notifies the customer of its intent to submit a claim to arbitration, the customer will have the opportunity to choose a person qualified in dispute resolution to conduct the proceeding.
(4) The agreement must acknowledge that the national bank will pay any incremental fees that may be assessed in connection with the dispute resolution, unless it is determined in the proceeding that the retail forex customer has acted in bad faith in initiating the proceeding.
(5) The agreement must include the following language printed in large boldface type:
The opportunity to settle disputes by arbitration may in some cases provide benefits to customers, including the ability to obtain an expeditious and final resolution of disputes without incurring substantial cost. Each customer must individually examine the relative merits of arbitration and consent to this arbitration agreement must be voluntary.
By signing this agreement, you: (1) May be waving your right to sue in a court of law; and (2) are agreeing to be bound by arbitration of any claims or counterclaims which you or [insert name of national bank] may submit to arbitration under this agreement. In the event a dispute arises, you will be notified if [insert name of national bank] intends to submit the dispute to arbitration.
You need not sign this agreement to open or maintain a retail forex account with [insert name of national bank].
(b)
(2) The customer shall, within 45 days after receipt of such list, notify the national bank of the person selected. The customer's failure to provide such notice shall give the national bank the right to select a person from the list.
(c)
(d)
(e)
Board of Governors of the Federal Reserve System (Board) and Federal Deposit Insurance Corporation (Corporation).
Proposed rule; request for public comment.
The Board and the Corporation request comment on this proposed rule that implements the requirements in section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) regarding resolution plans and credit exposure reports. Section 165(d) requires each nonbank financial company supervised by the Board and each bank holding company with assets of $50 billion or more to report periodically to the Board, the Corporation, and the Financial Stability Oversight Council (the “Council”) the plan of such company for rapid and orderly resolution in the event of material financial distress or failure, and the nature and extent of credit exposures of such company to significant bank holding companies and significant nonbank financial companies and the nature and extent of the credit exposures of significant bank holding companies and significant nonbank financial companies to such company. Section 165(d)(8) of the Dodd-Frank Act requires the Board and the Corporation to jointly issue final rules implementing section 165(d) by not later than January 21, 2012.
Comments should be received on or before June 10, 2011.
Comments should be directed to:
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To promote financial stability, section 165(d) of the Dodd-Frank Act requires each nonbank financial company supervised by the Board and each bank holding company with total consolidated assets of $50 billion or more to periodically submit to the Board, the Corporation and the Council a plan for such company's rapid and orderly resolution in the event of material financial distress or failure, and a report on the nature and extent of credit exposures of such company to significant bank holding companies and significant nonbank financial companies and the nature and extent of credit exposures of significant bank holding companies and significant nonbank financial companies to such company.
Section 165(d) provides regulators with the ability to conduct advance resolution planning for a covered company. As demonstrated by the Corporation's experience in failed bank resolutions, as well as the Board's and the Corporation's experience in the recent crisis, advance planning is critical for an efficient resolution of a company subject to the proposed rule.
The Dodd-Frank Act requires each company covered by the proposed rule to produce a resolution plan, or “living will,” that includes information regarding the manner and extent to which any insured depository institution affiliated with the company is adequately protected from risks arising from the activities of any nonbank subsidiaries of the company; full descriptions of the ownership structure, assets, liabilities, and contractual obligations of the company; identification of the cross-guarantees tied to different securities; identification of major counterparties; a process for determining to whom the collateral of the company is pledged; and any other information that the Board and the Corporation jointly require by rule or order.
Section 165(d)(8) of the Dodd-Frank Act requires the Board and the Corporation to jointly issue rules implementing the provisions of section 165(d) of the Dodd-Frank Act.
The Dodd-Frank Act requires that, in applying the requirements of section 165(d) to any foreign nonbank financial company supervised by the Board or any foreign-based bank holding company, the Board give due regard to the principle of national treatment and equality of competitive opportunity, and to take into account the extent to which the foreign financial company is subject on a consolidated basis to home country standards that are comparable to those applied to financial companies in the United States.
The proposed rule requires that each Covered Company periodically submit to the Board and Corporation (i) a plan for the rapid and orderly resolution of the Covered Company under the Bankruptcy Code in the event of material financial distress at or failure of the Covered Company (“Resolution Plan”); and (ii) a report on the nature and extent to which the Covered Company has credit exposure to other significant nonbank financial companies and significant bank holding companies and on the nature and extent to which other significant nonbank financial companies and significant bank holding companies have credit exposure to the Covered Company (“Credit Exposure Report”). The proposal would establish rules and requirements regarding the submission and content of a Resolution Plan and a Credit Exposure Report, as well as procedures and standards for review by the Board and Corporation of a Resolution Plan. The Board would make such reports available to the Council upon request.
“Rapid and orderly resolution” means a reorganization or liquidation of the Covered Company (or, in the case of a Covered Company that is incorporated or organized in a jurisdiction other than the United States, the subsidiaries and operations of such foreign company that are domiciled in the United States) under the Bankruptcy Code that can be accomplished within a reasonable period of time and in a manner that substantially mitigates the risk that the failure of the Covered Company would have serious adverse effects on financial stability in the United States.
“Material financial distress” with regard to a Covered Company means that: (i) The Covered Company has incurred, or is likely to incur, losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the company to avoid such depletion; (ii) the assets of the Covered Company are, or are likely to be, less than its obligations to creditors and others; or (iii) the Covered Company is, or is likely to be, unable to pay its obligations (other than those subject to a bona fide dispute) in the normal course of business.
Under the proposed rule, each Resolution Plan submitted should provide for the rapid and orderly resolution of the Covered Company in the event of material financial distress or failure of the Covered Company. The Resolution Plan also should take into consideration that the event of material financial distress may be idiosyncratic or may occur at a time when financial markets, or other significant companies, are also under stress.
“Core business lines” means those business lines, including associated operations, services, functions and support that, in the firm's view, upon
“Critical operations” are those operations, including associated services, functions and support that, in the view of the Covered Company or as jointly directed by the Board and the Corporation, upon a failure of, or discontinuance of such operations, would likely result in a disruption to the U.S. economy or financial markets. The Resolution Plan should address and provide for the continuation and funding of critical operations.
“Material entity” means a subsidiary or foreign office of the Covered Company that is significant to the activities of a critical operation or core business line.
The proposed rule specifies the minimum content of a Resolution Plan. The Board and the Corporation recognize that plans will vary by company and, in their evaluation of plans, will take into account variances among companies in their core business lines, critical operations, foreign operations, capital structure, risk, complexity, financial activities (including the financial activities of their subsidiaries), size and other relevant factors.
After the initial Resolution Plan is submitted, each Covered Company would be required to submit a new Resolution Plan no later than 90 days after the end of each calendar year.
A Covered Company would be required to file an updated Resolution Plan within a time period specified by the Board and the Corporation, but no later than 45 days after any event, occurrence, change in conditions or circumstances or change which results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan of the Covered Company. An update should describe the event, any material effects that the event may have on the Resolution Plan and any actions the Covered Company has taken or will take to address such material effects.
Material changes may include, but are not limited to, any of the following—
(i) A significant acquisition, or series of such acquisitions, by the Covered Company;
(ii) A significant sale, other divestiture, or series of such transactions, by the Covered Company;
(iii) A discontinuation of the business of, or dissipation of the assets of the Covered Company, a material entity, core business line or critical operation;
(iv) The bankruptcy, insolvency of a material entity;
(v) A material reorganization of the Covered Company;
(vi) The loss of a material servicing subsidiary or material servicing contract;
(vii) The unavailability or loss of a significant correspondent or counterparty relationship, source of funding or liquidity utilized by the Covered Company, a material entity, a core business line or critical operation;
(viii) The transfer or relocation of 5 percent or more of the total consolidated United States (domestic) assets of the Covered Company to a location(s) outside of the United States;
(ix) A reduction in the market capitalization or book value of the consolidated capital of 5 percent or more of the Covered Company as of the end of the previous calendar yearend; or
(x) The transfer, termination, suspension or revocation of any material license or other regulatory authorization required to conduct a core business line or critical operation.
The Board and the Corporation jointly may waive a requirement that a Covered Company file an update of a Resolution Plan. The Board and the Corporation jointly may also require an update for any other reason, more frequent submissions or updates, and may extend the time period that a Covered Company has to submit its Resolution Plan or update.
The board of directors of the Covered Company would be required to approve the initial and each annual Resolution Plan filed. In the case of a foreign-based Covered Company, a delegee of the board of the directors of such organization may approve the initial Resolution Plan and any updates to a Resolution Plan.
Each Resolution Plan would be required to contain an executive summary, a strategic analysis of the plan's components, a description of the Covered Company's corporate governance structure for resolution planning, information regarding the Covered Company's overall organizational structure and related information, information regarding the Covered Company's management information systems, a description of interconnections and interdependencies among the Covered Company and its material entities, and supervisory and regulatory information.
The executive summary should summarize the key elements of the Covered Company's strategic plan, material changes from the most recently filed plan, and any actions taken by the Covered Company to improve the effectiveness of the Resolution Plan or remediate or otherwise mitigate any material weaknesses or impediments to the effective and timely execution of the plan.
The strategic analysis of how the resolution plan can be implemented to facilitate a rapid and orderly resolution is the foundation for any credible plan. The strategic analysis should describe the Covered Company's critical thinking detailing how, in practice, it could be resolved under the Bankruptcy Code. As a result, the strategic analysis should include the analytical support for the plan, its key assumptions, including any assumptions made concerning the economic or financial conditions that would be present at the time the Covered Company sought to implement such plan. The strategic analysis should include detailed information as to how, in the event of material financial distress or failure of the Covered Company, a reorganization or liquidation of the Covered Company (or, in the case of a Covered Company that is incorporated or organized in a jurisdiction other than the United States, the subsidiaries and operations of such foreign company that are domiciled in the United States) under the Bankruptcy Code could be accomplished within a reasonable period of time and in a manner that substantially mitigates the risk that the failure of the Covered Company would have serious adverse effects on financial stability in the United States. The strategic analysis of the Covered Company's resolution plan must also identify the range of specific actions to
Funding, liquidity, support functions, and other resources, including capital resources, should be identified and mapped to the Covered Company's material entities, core business lines and critical operations. The Covered Company's strategy for maintaining and funding the critical operations and core business lines in an environment of material financial distress and in the implementation and execution of its resolution plan should be provided and mapped to its material entities. The Covered Company's strategic analysis should demonstrate how such resources would be utilized to facilitate an orderly resolution in an environment of material financial distress. The Covered Company should also provide its strategy in the event of a failure or discontinuation of a material entity, core business line or critical operation, and the actions that will be taken by the Covered Company to prevent or mitigate any adverse effects of such failure or discontinuation on the financial stability of the company and the United States. In addition, a Covered Company would be required to provide its strategy for ensuring that any insured depository institution subsidiary will be adequately protected from risks arising from the activities of any nonbank subsidiaries of the Covered Company (other than those that are subsidiaries of an insured depository institution).
The analytical mapping of the core business lines and critical operations of the Covered Company and the mapping of funding, liquidity, critical service support, and other resources to legal entities should demonstrate how those core business lines and critical operations could be resolved and transferred to potential acquirers. This analysis should demonstrate how these critical elements of the business operations could survive in an environment of material financial distress as well as the failure or insolvency of one or more entities within the Covered Company. This is particularly important for internal as well as external service level agreements that provide the business services essential for continued operation of the Covered Company's core business lines and critical operations.
The description of the Covered Company's corporate governance structure for resolution planning should include information regarding how resolution planning is integrated into the corporate governance structure and processes of the Covered Company, and identify the senior management official that is primarily responsible for overseeing the development, maintenance, implementation, and filing of the Resolution Plan and for the Covered Company's compliance with the proposed rule. The requirements in the proposed rule are minimums and the size of the corporate governance structure is expected to vary based upon the size and complexity of the Covered Company. For the largest and most complex companies, it may be necessary to establish a central planning function that is headed by a senior management official. Such official would report to the Chief Risk Officer or Chief Executive Officer and periodic reports on resolution planning would be made to the Covered Company's board of directors.
The information regarding the Covered Company's overall organization structure and related information should include a hierarchical list of all material entities, jurisdictional and ownership information. This information should be mapped to core business lines and critical operations. An unconsolidated balance sheet for the Covered Company and a consolidating schedule for all entities that are subject to consolidation should be provided. The Resolution Plan should include information regarding material assets, liabilities, derivatives, hedges, capital and funding sources and major counterparties. Material assets and liabilities should be mapped to material entities along with location information. An analysis of whether the bankruptcy of a major counterparty would likely have an adverse effect on and result in the material financial distress or failure of the Covered Company should also be included. Trading, payment, clearing and settlement systems utilized by the Covered Company should be identified. The Covered Company would not need to identify trading, payment, clearing and settlement systems that are immaterial in resolution planning, such as a local check clearing house.
For a Covered Company with foreign operations, the plan should identify the extent of the risks related to its foreign operations and the Covered Company's strategy for addressing such risks. These elements of the Resolution Plan should take into consideration, and address through practical responses, the complications created by differing national laws, regulations, and policies. This analysis should include a mapping of core business lines and critical operations to legal entities operating or with assets, liabilities, operations, or service providers in foreign jurisdictions. The continued ability to maintain core business lines and critical operations in these foreign jurisdictions during material financial distress and insolvency proceedings should be evaluated and practical steps identified to address weaknesses or vulnerabilities.
The proposed rule requires the Covered Company to provide information regarding the management information systems supporting its core business lines and critical operations, including information regarding the legal ownership of such systems as well as associated software, licenses, or other associated intellectual property. The analysis and practical steps that are identified by the Covered Company should address the continued availability of the key management information systems that support core business lines and critical operations both within the United States and in foreign jurisdictions.
The proposed rule also requires the Covered Company to provide a description of interconnections and interdependencies among the Covered Company and its material entities and affiliates, and among the critical operations and core business lines of the Covered Company that, if disrupted, would materially affect the funding or operations of the Covered Company, its material entities, or its critical operations or core business lines. As noted above, the continued availability of key services and supporting business operations to core business lines and critical operations in an environment of material financial distress and after insolvency should be a focus of resolution planning. Steps to ensure that service level agreements for such services, whether provided by internal or external service providers, survive insolvency should be demonstrated in the Resolution Plan.
The plan should identify the Covered Company's supervisory authorities and regulators, including information identifying any foreign agency or authority with significant supervisory authority over material foreign-based subsidiaries or operations.
The proposed rule requires the Resolution Plan to include a description of the Covered Company's processes and systems to collect, maintain, and report the information and other data underlying the Resolution Plan. The Resolution Plan should identify any deficiencies in such processes and systems and discuss plans to remedy such deficiencies. The Covered Company should, within a reasonable
A Credit Exposure Report submitted by a Covered Company that is a company incorporated or organized in a jurisdiction other than the United States (other than a bank holding company) or that is a foreign banking organization would be required to include only information with respect to its subsidiaries and operations that are domiciled in the United States.
With regard to the proposed content of the Credit Exposure Reports, the Board and the Corporation note that there are several other initiatives underway or contemplated, such as the data to support the Board's single counterparty credit exposure limits and stress testing responsibilities under the Dodd-Frank Act. The Board and the Corporation will ensure that data collected through these other initiatives and the Credit Exposure Report will be coordinated and harmonized to the extent possible so as to minimize redundant data collections and allow maximum data quality. It is anticipated that proposed reporting requirements associated with this and other regulations under the Dodd-Frank Act, will be issued for public comment later this year and will provide additional clarity around the definition of credit exposure for each asset class listed in § ____.5.
After a Resolution Plan is accepted for review, the Board and Corporation would review the plan for its compliance with the requirements of the proposed rule. If, following such review, the Board and the Corporation jointly determine that the Resolution Plan of a Covered Company submitted under this part is not credible or would not facilitate an orderly resolution of the Covered Company under the Bankruptcy Code, the Board and Corporation would jointly notify the Covered Company in writing of such determination. Such notice would identify the aspects of the Resolution Plan that the Board and Corporation jointly determined to be deficient and request the resubmission of a Resolution Plan that remedies the deficiencies of the Resolution Plan.
Within 90 days of receiving such notice of deficiencies, or such shorter or longer period as the Board and Corporation may jointly determine, a Covered Company would be required to submit a revised Resolution Plan to the Board and Corporation that addresses the deficiencies jointly identified by the Board and Corporation. The revised Resolution Plan would be required to discuss in detail: (i) The revisions made by the Covered Company to address the deficiencies jointly identified by the Board and the Corporation; (ii) any changes to the Covered Company's business operations and corporate structure that the Covered Company proposes to undertake to facilitate implementation of the revised Resolution Plan (including a timeline for the execution of such planned changes); and (iii) why the Covered Company believes that the revised Resolution Plan is credible and would result in an orderly resolution of the Covered Company under the Bankruptcy Code.
Upon a written request by a Covered Company, the Board and Corporation may jointly extend the time to resubmit a revised Resolution Plan. Any extension request would have to be supported by a written statement of the company describing the basis and justification for the request.
The proposed rule further provides that nothing in the rule would create or is intended to create a private right of action based on a Resolution Plan prepared or submitted under this part or based on any action taken by the Board or the Corporation with respect to any Resolution Plan submitted under this part.
Any Covered Company submitting a Resolution Plan or Credit Exposure Report that desires confidential treatment of the information submitted would be required to file a request for confidential treatment in the manner set forth in the proposed rule.
The Board and the Corporation seek comment on all aspects of the proposed rule, including the following:
Should a Covered Company for purposes of the rule be defined as any bank holding company that had $50 billion or more in total consolidated assets, based on the average of the Covered Company's four most recent Consolidated Financial Statements? Should the average be calculated over a shorter period of time (
1. What terms defined by the proposal require further clarification and how should they be defined?
2. What other terms used in the proposal should the Board and Corporation define?
1. What additional elements of strategic analysis should be included in the Covered Company's Resolution Plan? Are there any elements listed in the rule that create an unnecessary burden or that should not be included in the Covered Company's Resolution Plan?
2. How can the requirements regarding the strategic analysis be improved to provide additional clarity?
3. What are the types of strategies that should be described regarding the manner and extent to which a depository institution could be protected from the risks arising from the activities of its nonbank affiliates?
1. What additional resolution planning governance and oversight requirements should the proposed rule include?
2. What alternative governance requirements might exist that would ensure that a Covered Company places adequate importance and attention on resolution planning?
1. What additional informational elements should the proposal require as part of a Resolution Plan? What impediments attend collection and production of the informational elements identified by the proposal? What impediments apply to collection and production of additional informational elements you have identified?
2. Do the informational elements described in the proposal capture the correct types of information for resolution planning? Are any of the informational elements identified in the proposal not necessary?
3. Which of the information elements described in the proposal could be clarified?
4. To the extent any of the informational elements identified in the proposed rule are not readily available, identify the burden of or impediment to (
5. Should any informational elements be required to be available on an “on demand” basis? What impediments apply to making such information available on demand?
6. What is the burden related to producing an unconsolidated balance sheet and providing consolidating schedules? What alternatives could the Board and Corporation include in the proposal to reduce that burden?
1. The proposal would require foreign companies that are bank holding companies or are treated as bank holding companies under the International Banking Act and that have at least $50 billion in worldwide assets to prepare resolution plans and credit exposure reports only with respect to their U.S.-domiciled subsidiaries and operations. What are the issues that arise with respect to foreign banking organizations that would be subject to the proposed rule? What alternative means could the Board and Corporation employ to implement the resolution plan and credit exposure report requirements of the Dodd-Frank Act with respect to foreign banking organizations?
2. To the extent that foreign jurisdictions do not impose a recovery or resolution plan requirement on a foreign-based Covered Company, how should the proposed Resolution Plan related to U.S. operations be linked to the contingency planning process of the foreign-based Covered Company?
1. Are the proposed timelines for Resolution Plan and Credit Exposure Report submission (
2. With regard to the provision of the proposed rule that would require a Covered Company to update its Resolution Plan upon a material event, occurrence, or change, should the rule provide greater specificity (
3. Are there explicit factors the Board and the Corporation should consider in determining whether a Resolution Plan
1. Are the elements proposed for inclusion in the Credit Exposure Reports sufficiently clear? What further clarification would be appropriate? Is there other information that would provide a clearer picture of the credit exposures associated with a Covered Company?
2. Does the proposal adequately capture cross-border exposures?
3. What other types of credit exposures should be covered by the proposed rule?
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board and the Corporation invite comment on how to make the proposed rule easier to understand. For example:
• Is the material organized to suit your needs? If not, how could they present the rule more clearly?
• Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?
• Do the regulations contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would achieve that?
• Is this section format adequate? If not, which of the sections should be changed and how?
• What other changes can the agencies incorporate to make the regulation easier to understand?
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
(b) The accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments on the collection of information should be sent to Cynthia Ayouch, Acting Federal Reserve Clearance Officer, Division of Research and Statistics, Mail Stop 95-A, Board of Governors of the Federal Reserve System, Washington, DC 20551, with copies of such comments sent to the Office of Management and Budget, Paperwork Reduction Project (7100-0202), Washington, DC 20503. You may also submit comments electronically, identified by Docket number, by any of the following methods:
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•
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Section 252.3 sets forth the requirements for resolution plans to be filed initially, annually, and on an interim basis following material events. Section 252.4 details the information to be included in the resolution plans. Organizational structure information required in Section 252.4 may be incorporated by reference to information previously reported to the Board (FR Y-6, Annual Report of Bank Holding Companies; FR Y-7, Annual Report of Foreign Banking Organizations; and FR Y-10, Report of Changes in Organizational Structure; OMB No. 7100-0297). Section 252.5 details the information to be provided in the Credit Exposure Reports. Section 252.6 includes a written request for institutions to request an extension of time to resubmit the resolution plan where deficiencies have been identified by the agencies.
The burden associated with this collection of information may be summarized as follows:
In accordance with section 3(a) of the Regulatory Flexibility Act, 5 U.S.C. 601
In accordance with section 165(d) of the Dodd-Frank Act, the Board is proposing to add Regulation YY (12 CFR part 252) and the Corporation is proposing to add new part 381 (12 CFR part 381) to establish the requirements that a Covered Company periodically submit a Resolution Plan and a Credit Exposure Report to the Board and Corporation.
Under regulations issued by the Small Business Administration (“SBA”), a “small entity” includes those firms within the “Finance and Insurance” sector with asset sizes that vary from $7 million or less in assets to $175 million or less in assets.
As discussed in the Supplementary Information, the proposed rule applies to a “Covered Company,” which includes only bank holding companies and foreign banks that are or are treated as a bank holding company (“foreign banking organization”) with $50 billion or more in total consolidated assets, and nonbank financial companies that the Council has determined under section 113 of the Dodd-Frank Act must be supervised by the Board and for which such determination is in effect. Bank holding companies and foreign banking organizations that are subject to the proposed rule therefore substantially exceed the $175 million asset threshold at which a banking entity is considered a “small entity” under SBA regulations.
As noted above, because the proposed rule is not likely to apply to any company with assets of $175 million or less, if adopted in final form, it is not expected to apply to any small entity for purposes of the RFA. Moreover, as discussed in the
The Corporation has determined that the proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
(a)
(b)
(1) Requires that each Covered Company periodically submit to the Board and Corporation:
(i) A report regarding the plan of the Covered Company for rapid and orderly resolution under the Bankruptcy Code in the event of material financial distress at or failure of the Covered Company (
(ii) A report on the nature and extent to which:
(A) The Covered Company has credit exposure to other significant nonbank financial companies and significant bank holding companies; and
(B) Other significant nonbank financial companies and significant bank holding companies have credit exposure to the Covered Company (
(2) Establishes rules and requirements regarding the submission and content of a Resolution Plan and a Credit Exposure Report, as well as procedures and standards for review by the Board and Corporation of a Resolution Plan.
(a)
(b)
(2)
(c)
(1) Require that a Covered Company submit a Resolution Plan more frequently than required pursuant to paragraph (a) of this section, or provide an interim update to any Resolution Plan submitted pursuant to paragraph (a) under circumstances other than those listed in paragraph (b) of this section;
(2) Extend the time period that a Covered Company has to submit a Resolution Plan under paragraphs (a) and (b) of this section; and
(3) Waive the requirement that a Covered Company submit an update to a Resolution Plan.
(d)
(e)
(1) The board of directors of the Covered Company and noted in the minutes; or
(2) In the case of a foreign-based Covered Company only, a delegee acting under the express authority of the board of directors of the Covered Company to approve the Resolution Plan.
(f)
(a)
(2)
(i) The information specified in paragraphs (b) through (i) of this section with respect to the subsidiaries, branches and agencies, and critical operations and core business lines, as applicable, that are domiciled in the United States or conducted in whole or material part in the United States. With respect to the information specified in paragraph (g) of this section, the Resolution Plan of a foreign-based Covered Company shall also identify, describe in detail, and map to legal entity the interconnections and interdependencies among the U.S. subsidiaries, branches and agencies, and critical operations and core business lines of the foreign-based Covered Company and any foreign-based affiliate; and
(ii) A detailed explanation of how resolution planning for the subsidiaries, branches and agencies, and critical operations and core business lines of the foreign-based Covered Company that are domiciled in the United States or conducted in whole or material part in the United States is integrated into the foreign-based Covered Company's overall resolution or other contingency planning process.
(3)
(i) Take into account that such material financial distress or failure of the Covered Company may occur at a time when financial markets, or other significant companies, are also under stress and that the material financial distress of the Covered Company may be the result of a range of stresses experienced by the Covered Company; and
(ii) Not rely on the provision of extraordinary support by the United States or any other government to the Covered Company or its subsidiaries to prevent the failure of the Covered Company.
(b)
(1) The key elements of the Covered Company's strategic plan for rapid and orderly resolution in the event of material financial distress at or failure of the Covered Company.
(2) Material changes to the Covered Company's Resolution Plan from the company's most recently filed Resolution Plan (including an updated Resolution Plan submitted under § __.3(b).
(3) Any actions taken by the Covered Company since filing of the previous Resolution Plan to improve the effectiveness of the Covered Company's Resolution Plan or remediate or otherwise mitigate any material weaknesses or impediments to effective and timely execution of the Resolution Plan.
(c)
(1) Include detailed descriptions of the—
(i) Key assumptions and supporting analysis underlying the Covered Company's Resolution Plan, including any assumptions made concerning the economic or financial conditions that would be present at the time the
(ii) Range of specific actions to be taken by the Covered Company to facilitate a rapid and orderly resolution of the Covered Company, its material entities, and its critical operations and core business lines in the event of material financial distress or failure of the Covered Company;
(iii) Funding, liquidity and capital needs of, and resources available to, the Covered Company and its material entities, which shall be mapped to its critical operations and core business lines, in the ordinary course of business and in the event of material financial distress at or failure of the Covered Company;
(iv) Covered Company's strategy for maintaining operations of, and funding for, the Covered Company and its material entities, which shall be mapped to its critical operations and core business lines;
(v) Covered Company's strategy in the event of a failure or discontinuation of a material entity, core business line or critical operation, and the actions that will be taken by the Covered Company to prevent or mitigate any adverse effects of such failure or discontinuation on the financial stability of the United States; and
(vi) Covered Company's strategy for ensuring that any insured depository institution subsidiary of the Covered Company will be adequately protected from risks arising from the activities of any nonbank subsidiaries of the Covered Company (other than those that are subsidiaries of an insured depository institution);
(2) Identify the time period(s) the Covered Company expects would be needed for the Covered Company to successfully execute each material aspect and step of the Covered Company's plan;
(3) Identify and describe any potential material weaknesses or impediments to effective and timely execution of the Covered Company's plan;
(4) Discuss the actions and steps the Covered Company has taken or proposes to take to remediate or otherwise mitigate the weaknesses or impediments identified by the Covered Company, including a timeline for the proposed remedial or other mitigatory action; and
(5) Provide a detailed description of the processes the Covered Company employs for:
(i) Determining the current market values and marketability of the core business lines, critical operations, and material asset holdings of the Covered Company;
(ii) Assessing the feasibility of the Covered Company's plans (including timeframes) for executing any sales, divestitures, restructurings, recapitalizations, or other similar actions contemplated in the Covered Company's Resolution Plan; and
(iii) Assessing the impact of any sales, divestitures, restructurings, recapitalizations, or other similar actions on the value, funding, and operations of the Covered Company, its material entities, critical operations and core business lines.
(d)
(1) Include a detailed description of:
(i) How resolution planning is integrated into the corporate governance structure and processes of the Covered Company;
(ii) The Covered Company's policies, procedures, and internal controls governing preparation and approval of the Covered Company's Resolution Plan;
(iii) The identity and position of the senior management official(s) of the Covered Company that is primarily responsible for overseeing the development, maintenance, implementation, and filing of the Covered Company's Resolution Plan and for the Covered Company's compliance with this part; and
(iv) The nature, extent, and frequency of reporting to senior executive officers and the board of directors of the Covered Company on the development, maintenance, and implementation of the Covered Company's Resolution Plan;
(2) Describe the capabilities of the Covered Company's processes and systems to collect, maintain, and report the information and other data underlying the Resolution Plan to senior executive officers and the board of directors of the Covered Company;
(3) Describe the nature, extent, and results of any contingency planning or similar exercise conducted by the Covered Company since the date of the Covered Company's most recently filed Resolution Plan to assess the viability of or improve the Resolution Plan of the Covered Company; and
(4) Identify and describe the relevant risk measures used by the Covered Company to report credit risk exposures both internally to its senior management and board of directors, as well as any relevant risk measures reported externally to investors or to the Covered Company's appropriate Federal regulator.
(e)
(1) Provide a detailed description of the Covered Company's organizational structure, including:
(i) A hierarchical list of all material legal entities, including but not limited to material entities within the Covered Company's organization that:
(A) Identifies the direct holder and the percentage of voting and nonvoting equity of each legal entity and foreign office listed; and
(B) The location, jurisdiction of incorporation, licensing, and key management associated with each material legal entity and foreign office identified;
(ii) A mapping of the Covered Company's critical operations and core business lines, including material asset holdings and liabilities related to such critical operations and core business lines, to material entities;
(2) Provide an unconsolidated balance sheet for the Covered Company and a consolidating schedule for all entities that are subject to consolidation by the Covered Company;
(3) Include a description of the material components of the liabilities of the Covered Company, its material entities, critical operations and core business lines that, at a minimum, separately identifies types and amounts of the short-term and long-term liabilities, the secured and unsecured liabilities, and subordinated liabilities;
(4) Identify and describe the processes used by the Covered Company to:
(i) Determine to whom the Covered Company has pledged collateral;
(ii) Identify the person or entity that holds such collateral; and
(iii) The jurisdiction in which the collateral is located; and, if different, the jurisdiction in which the security interest in the collateral is enforceable against the Covered Company;
(5) Describe any material off-balance sheet exposures (including guarantees and contractual obligations) of the Covered Company and its material entities, including a mapping to its critical operations and core business lines;
(6) Describe the practices of the Covered Company, its material entities and its core business lines related to the booking of trading and derivatives activities;
(7) Identify material hedges of the Covered Company, its material entities, and its core business lines related to trading and derivative activities, including a mapping to legal entity;
(8) Describe the hedging strategies of the Covered Company;
(9) Describe the process undertaken by the Covered Company to establish exposure limits;
(10) Identify the major counterparties of the Covered Company and describe the interconnections, interdependencies and relationships with such major counterparties;
(11) Analyze whether the failure of each major counterparty would likely have an adverse impact on or result in the material financial distress or failure of the Covered Company;
(12) Identify each system on which the Covered Company conducts a material number or value amount of trades. Map membership in each such system to the Covered Company's material entities, critical operations and core business lines; and
(13) Identify each payment, clearing, or settlement system of which the Covered Company, directly or indirectly, is a member and on which the Covered Company conducts a material number or value amount of transactions. Map membership in each such system to the Covered Company's material entities, critical operations and core business lines.
(f)
(1) A detailed inventory and description of the key management information systems and applications, including systems and applications for risk management, accounting, and financial and regulatory reporting, used by the Covered Company and its material entities, including a mapping to its critical operations and core business lines;
(2) An identification of the legal owner of the systems identified in paragraph (f)(1) of this section, service level agreements related thereto, and any software and systems licenses or associated intellectual property, including a mapping thereof to the material entities, critical operations and core business lines of the Covered Company that use or rely on such intellectual property;
(3) An identification of the scope, content, and frequency of the key internal reports that senior management of the Covered Company, its material entities, critical operations and core business lines use to monitor the financial health, risks, and operation of the Covered Company, its material entities, critical operations and core business lines; and
(4) A description of the process for the appropriate supervisory or regulatory agencies to access the management information systems and applications identified in paragraph (f)(1) of this section.
(g)
(1) Common or shared personnel, facilities, or systems (including information technology platforms, management information systems, risk management systems, and accounting and recordkeeping systems);
(2) Capital, funding, or liquidity arrangements;
(3) Existing or contingent credit exposures;
(4) Cross-guarantee arrangements, cross-collateral arrangements, cross-default provisions, and cross-affiliate netting agreements;
(5) Risk transfers; and
(6) Service level agreements.
(h)
(1) Identify any:
(i) Federal, state, or foreign agency or authority with supervisory authority or responsibility for ensuring the safety and soundness of the Covered Company, its material entities, critical operations and core business lines; and
(ii) Other Federal, state, or foreign agency or authority (other than a Federal banking agency) with significant supervisory or regulatory authority over the Covered Company, and its material entities and critical operations and core business lines.
(2) Identify any foreign agency or authority responsible for resolving a foreign-based material entity and critical operations or core business lines of the Covered Company; and
(3) Include contact information for each agency identified in paragraphs (h)(1) and (2) of this section.
(i)
(1) Identify a senior management official at the Covered Company responsible for serving as a point of contact regarding the Resolution Plan of the Covered Company; and
(2) Include contact information for the material entities and critical operations and core business lines of the Covered Company.
(j)
(1) The Resolution Plan seeking to incorporate informational elements by reference clearly indicates:
(i) The informational element the Covered Company is incorporating by reference; and
(ii) Which of the Covered Company's previously submitted Resolution Plan(s) originally contained the information the Covered Company is incorporating by reference; and
(2) The Covered Company certifies that the information the Covered Company is incorporating by reference remains accurate.
(k)
(l)
(a)
(i) The aggregate credit exposure associated with all extensions of credit, including loans, leases, and funded lines of credit, by:
(A) The Covered Company and its subsidiaries to each significant company and its subsidiaries; and
(B) Each significant company and its subsidiaries to the Covered Company and its subsidiaries.
(ii) The aggregate credit exposure associated with all committed but undrawn lines of credit by:
(A) The Covered Company and its subsidiaries to each significant company and its subsidiaries; and
(B) Each significant company and its subsidiaries to the Covered Company and its subsidiaries.
(iii) The aggregate credit exposure associated with all deposits and money placements by:
(A) The Covered Company and its subsidiaries with each significant company and its subsidiaries; and
(B) Each significant company and its subsidiaries with the Covered Company and its subsidiaries.
(iv) The aggregate credit exposure associated with (on both a gross and net basis) of all repurchase agreements between the Covered Company and its subsidiaries and each significant company and its subsidiaries;
(v) The aggregate credit exposure associated with all reverse repurchase agreements (on both a gross and net basis) between the Covered Company and its subsidiaries and each significant company and its subsidiaries;
(vi) The aggregate credit exposure associated with all securities borrowing transactions (on both a gross and net basis) between the Covered Company and its subsidiaries and each significant company and its subsidiaries;
(vii) The aggregate credit exposure associated with all securities lending transactions (on both a gross and net basis) between the Covered Company and its subsidiaries and each significant company and its subsidiaries;
(viii) The aggregate credit exposure associated with all guarantees, acceptances, or letters of credit (including endorsement or standby letters of credit) issued by:
(A) The Covered Company and its subsidiaries on behalf of each significant company and its subsidiaries;
(B) Each significant company and its subsidiaries on behalf of the Covered Company and its subsidiaries;
(ix) The aggregate credit exposure associated with all purchases of or investments, as of the last day of the reporting quarter, in securities issued by each significant company or its subsidiaries by the Covered Company and its subsidiaries;
(x) The aggregate credit exposure associated with all counterparty credit exposure (on both a gross and net basis) in connection with a derivative transaction between the Covered Company and its subsidiaries and each significant company and its subsidiaries;
(xi) A description of the systems and processes that the Covered Company uses to:
(A) Collect and aggregate the data underlying the Credit Exposure Report; and
(B) Produce and file the Credit Exposure Report;
(xii) The credit exposure associated with intra-day credit extended, as specified by paragraph (a)(1)(i) of this section, by the Covered Company to each significant company and its subsidiaries during the prior quarter; and
(xiii) Any other transactions that result in credit exposure between a Covered Company and its subsidiaries and each significant company and its subsidiaries that the Board, by order or regulation, determines to be appropriate.
(2)
(b)
(c)
(d)
(1) Require that a Covered Company submit a Credit Exposure Report more frequently than required pursuant to paragraph (a) of this section; and
(2) Extend the time period that a Covered Company has to submit a Credit Exposure Report.
(a)
(1) Within 60 calendar days of receiving a Resolution Plan under § __.3(a), the Board and the Corporation shall jointly:
(i) Determine whether a Resolution Plan submitted pursuant to § __.3(a) satisfies the minimum informational requirements of § __.4; and
(ii) Either acknowledge acceptance of the plan for review or return the Resolution Plan if the Board and Corporation jointly determine that it is incomplete or that substantial additional information is required to facilitate review of the Resolution Plan.
(2) If the Board and Corporation jointly determine that a Resolution Plan is informationally incomplete or that substantial additional information is necessary to facilitate review of the Resolution Plan:
(i) The Board and Corporation shall jointly inform the Covered Company in writing of the area(s) in which the Resolution Plan is informationally incomplete or with respect to which additional information is required; and
(ii) The Covered Company shall resubmit an informationally complete Resolution Plan or such additional information as jointly requested to facilitate review of the Resolution Plan no later than 30 days after receiving the notice described in paragraph (a)(2)(i) of this section, or such other time period as the Board and Corporation may jointly determine.
(b)
(c)
(1) The revisions made by the Covered Company to address the deficiencies jointly identified by the Board and the Corporation;
(2) Any changes to the Covered Company's business operations and corporate structure that the Covered Company proposes to undertake to facilitate implementation of the revised Resolution Plan (including a timeline for the execution of such planned changes); and
(3) Why the Covered Company believes that the revised Resolution Plan is credible and would result in an orderly resolution of the Covered Company under the Bankruptcy Code.
(d)
(a)
(1) The Covered Company fails to submit a revised Resolution Plan under § ___.6(c) within the required time period; or
(2) The Board and the Corporation jointly determine that a revised Resolution Plan submitted under § ___.6(c) does not adequately remedy the deficiencies jointly identified by the Board and the Corporation under § ___.6(b).
(b)
(c)
(1) The Board and Corporation have jointly determined that the Covered Company or a subsidiary thereof shall be subject to requirements or restrictions pursuant to paragraph (a) of this section; and
(2) The Covered Company has failed, within the 2-year period beginning on the date on which the determination to impose such requirements or restrictions under paragraph (a) of this section was made, to submit a revised Resolution Plan that adequately remedies the deficiencies jointly identified by the Board and the Corporation under § ___.6(b); and
(3) The Board and Corporation jointly determine that the divestiture of such assets or operations is necessary to facilitate an orderly resolution of the Covered Company under the Bankruptcy Code in the event the company was to fail.
Prior to issuing any notice of deficiencies under § ____.6(b), determining to impose requirements or restrictions under § ____.7(a), or issuing a divestiture order pursuant to § ____.7(c) with respect to a Covered Company that is likely to have a significant impact on a functionally regulated subsidiary or a depository institution subsidiary of the Covered Company, the Board—
(a) Shall consult with each Council member that primarily supervises any such subsidiary; and
(b) May consult with any other Federal, state, or foreign supervisor as the Board considers appropriate.
(a)
(1) A court or trustee in a proceeding commenced under the Bankruptcy Code;
(2) A receiver appointed under Title II of the Dodd-Frank Act (12 U.S.C. 5381
(3) A bridge financial company chartered pursuant to 12 U.S.C. 5390(h); or
(4) Any other authority that is authorized or required to resolve a Covered Company (including any subsidiary or affiliate thereof) under any other provision of Federal, state, or foreign law.
(b)
(c)
The Board and Corporation may jointly enforce an order jointly issued by the Board and Corporation under § ____.7(a) or § ____.7(c) of this part. The Board, in consultation with the Corporation, may take action to address any violation of this part by a Covered Company under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818).
Administrative practice and procedure, Banks, banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements.
Administrative practice and procedure, Banks, banking, Holding companies, Reporting and recordkeeping requirements.
The adoption of the proposed common rules by the agencies, as modified by agency-specific text, is set forth below:
12 CFR Chapter II
For the reasons stated in the Supplementary Information, the Board of Governors of the Federal Reserve System proposes to add the text of the common rule as set forth at the end of the Supplementary Information as Part 252 to Chapter II of Title 12, modified as follows:
1. The authority citation for part 252 is added to read as follows:
12 U.S.C. 5365.
2. Add § 252.2 to read as follows:
For purposes of this part:
(a)
(b)
(c)
(d)
(i) Any nonbank financial company supervised by the Board;
(ii) Any bank holding company, as that term is defined in section 2 of the Bank Holding Company Act, as amended (12 U.S.C. 1841), and the Board's Regulation Y (12 CFR part 225), that had $50 billion or more in total consolidated assets, as determined based on the average of the company's four most recent Consolidated Financial Statements for Bank Holding Companies as reported on the Federal Reserve's Form FR Y-9C; and
(iii) Any foreign bank or company that is a bank holding company or is treated as a bank holding company under section 8(a) of the International Banking Act of 1978 (12 U.S.C. 3106(a)) and that had $50 billion or more in total consolidated assets, as determined based on the foreign bank's or company's most recent annual or, as applicable, the average of the four most recent quarterly Capital and Asset Reports for Foreign Banking Organizations as reported on the Federal Reserve's Form FR Y-7Q.
(2)
(3)
(e)
(f)
(g)
(h)
(1) The Covered Company has incurred, or is likely to incur, losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the company to avoid such depletion;
(2) The assets of the Covered Company are, or are likely to be, less than its obligations to creditors and others; or
(3) The Covered Company is, or is likely to be, unable to pay its obligations (other than those subject to a bona fide dispute) in the normal course of business.
(i)
(j)
(k)
(l)
(m)
12 CFR Chapter III
For the reasons set forth in the Supplementary Information, the Federal Deposit Insurance Corporation proposes to add the text of the common rule as set forth at the end of the Supplementary Information as Part 381 to Chapter III of Title 12, Code of Federal Regulations, modified as follows:
3. The authority citation for part 381 is added to read as follows:
12 U.S.C. 5365(d).
4. Add § 381.2 to read as follows:
For purposes of this part:
(a)
(b)
(c)
(d)
(e)
(i) Any nonbank financial company supervised by the Board;
(ii) Any bank holding company, as that term is defined in section 2 of the Bank Holding Company Act, as amended (12 U.S.C. 1841), and the Board's Regulation Y (12 CFR part 225), that had $50 billion or more in total consolidated assets, as determined based on the average of the company's four most recent Consolidated Financial Statements for Bank Holding Companies as reported on the Federal Reserve's FR Y-9C; and
(iii) Any foreign bank or company that is a bank holding company or is treated as a bank holding company under section 8(a) of the International Banking Act of 1978 (12 U.S.C. 3106(a)) and that had $50 billion or more in total consolidated assets, as determined based on the foreign bank's or company's most recent annual or, as applicable, the average of the four most recent quarterly Capital and Asset Reports for Foreign Banking Organizations as reported on the Federal Reserve's Form FR Y-7Q.
(2)
(3)
(f)
(g)
(h)
(1) A foreign bank, as defined in section 1(b)(7) of the International Banking Act of 1978 (12 U.S.C. 3101(7)), that:
(i) Operates a branch, agency, or commercial lending company subsidiary in the United States;
(ii) Controls a bank in the United States; or (iii) Controls an Edge corporation acquired after March 5, 1987; and
(2) Any company of which the foreign bank is a subsidiary.
(i)
(j)
(k)
(1) The Covered Company has incurred, or is likely to incur, losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the company to avoid such depletion;
(2) The assets of the Covered Company are, or are likely to be, less than its obligations to creditors and others; or
(3) The Covered Company is, or is likely to be, unable to pay its obligations (other than those subject to a bona fide dispute) in the normal course of business.
(l)
(m)
(n)
(o)
(p)
(q)
By order of the Board of Directors.
Board of Governors of the Federal Reserve System.
Notice of intent and request for comments.
The Board of Governors of the Federal Reserve System (“Board”) invites comment on its intention to apply certain elements of its consolidated supervisory program currently applicable to bank holding companies to savings and loan holding companies (“SLHCs”) after assuming supervisory responsibility for SLHCs in July 2011. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 transfers supervisory functions related to SLHCs and their non-depository subsidiaries to the Board on July 21, 2011.
Comments must be submitted on or before May 23, 2011.
You may submit comments by any of the following methods:
•
•
•
•
•
All public comments are available from the Board's Web site at
Kathleen O'Day, Deputy General Counsel, (202-452-3786), or Amanda K. Allexon, Counsel, (202) 452-3818, Legal Division; Anna Lee Hewko, Assistant Director, (202) 530-6260, T. Kirk Odegard, Manager, (202) 530-6225, or Kristin B. Bryant, Supervisory Financial Analyst, (202) 452-3670, Division of Banking Supervision and Regulation, Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869).
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
The Board believes that it is important that any company that owns and operates a depository institution be held to appropriate standards of capitalization, liquidity, and risk management consistent with the principles of safety and soundness. As a result, it is the Board's intention, to the greatest extent possible taking into account any unique characteristics of SLHCs and the requirements of the Home Owners Loan Act (“HOLA”), to assess the condition, performance, and activities of SLHCs on a consolidated risk-based basis in a manner that is consistent with the Board's established approach regarding bank holding company (“BHC”) supervision. As with BHCs, our objective will be to ensure that the SLHC and its nondepository subsidiaries are effectively supervised and can serve as a source of strength for, and do not threaten the soundness of, its subsidiary depository institutions.
The Board has identified three elements of its current supervisory program that are particularly critical to the effective evaluation of the consolidated condition of holding companies: (i) The Board's consolidated supervision program for large and regional holding companies; (ii) the Board's supervisory program for small, noncomplex holding companies; and (iii) the Board's holding company rating system. The Board believes that these programs aid in the effective supervision of BHCs and that they would be equally effective for the supervision of SLHCs.
It is the Board's intention that, after the transfer date, the Board will issue formal guidance or notices of proposed rulemaking, as appropriate, taking into consideration any comments received on this notice, to apply the supervisory program in place for BHCs to SLHCs to the fullest extent possible taking into account the unique characteristics of SLHCs and the requirements of HOLA in order to ensure continuous and effective supervision of SLHCs. By this notice, the Board seeks to inform interested persons, including SLHCs, about the Board's approach to supervision and invites comment on its intended approach in order to help identify issues and matters that may require special attention.
Consistent with its responsibilities under the Bank Holding Company Act, the Gramm-Leach-Bliley Act, and the Dodd-Frank Act, the Board supervises BHCs on a consolidated and enterprise-wide basis.
The Board believes that applying the BHC consolidated supervision program to SLHCs is essential to executing its supervisory responsibilities under the Dodd-Frank Act and is consistent with the authorities provided by HOLA. While the Board's BHC consolidated supervision program has some similarities to the current supervisory program employed by the OTS, the Board nevertheless believes that the Board's consolidated supervision program may entail more intensive supervisory activities than under current OTS practice, at least for some SLHCs. For example, the Board's consolidated supervision of SLHCs may entail more rigorous review of internal control functions and consolidated liquidity, as well as the conduct of discovery reviews of specific activities. In addition, the Board's supervisory program may entail heightened review of the activities of nonbank subsidiaries (consistent with applicable law and regulation) and may entail greater continuous supervisory monitoring of larger SLHCs. Nevertheless, the Board does not believe that application of its BHC consolidated supervision program to SLHCs would require any specific action on the part of SLHCs prior to the transfer date or cause undue burden on an ongoing basis.
The Board intends to integrate each SLHC into existing programs that align institutions with various supervisory portfolios (
Consistent with a risk-focused approach to supervision, both the Board and OTS have tailored specific supervisory programs for holding companies that are viewed as posing a relatively low level of risk to depository institution subsidiaries and to the financial system. The OTS currently classifies low-risk or noncomplex SLHCs (irrespective of size and as determined by supervisory staff on a case-by-case basis) as “Category I” and subjects these SLHCs to abbreviated, limited-scope onsite examinations.
Similarly, the Board has a program for BHCs with total consolidated assets of $1 billion or less (“small shell BHCs”).
For a noncomplex BHC with total consolidated assets between $1-$10 billion and a satisfactory composite rating, a limited-scope
For a noncomplex BHC with total consolidated assets between $1-$10 billion and a less-than-satisfactory composite rating, irrespective of complexity, at least one full-scope onsite inspection and one limited-scope or targeted inspection are required annually. In the case of BHCs with assets between $1-$5 billion, the requirement for an annual full-scope inspection may be satisfied with a limited-scope or targeted inspection for the onsite portion, supplemented by other inspection sources.
For all BHCs with total consolidated assets greater than $1 billion (
Once Board supervisory staff has become familiar with the structure and financial condition of SLHCs, the Board intends to apply the program for small shell BHCs as set forth in SR 02-1 and supporting documents to SLHCs that meet the same criteria. A Reserve Bank will determine whether an SLHC with assets of $1 billion or less is complex or noncomplex, and will tailor its supervision as appropriate. For a number of small, noncomplex SLHCs, this may have the effect of reducing burden as onsite examinations/inspections will no longer be required.
The Board and OTS (together, the “agencies”) have developed rating systems for supervised institutions to provide an assessment of financial and nonfinancial factors based on the findings from examination and inspection activities, as well as to ensure uniform treatment across institutions. Both agencies use a 1-to-5 rating scale, with 1 indicating the highest rating and least degree of supervisory concern, and 5 indicating the lowest rating and highest degree of supervisory concern. These ratings are nonpublic supervisory information and, as such, are shared with the institution being rated but are otherwise generally confidential.
The OTS rating system for SLHCs is known as “CORE.”
Based on analyses of the CORE and RFI rating systems by the agencies, the Board believes there is substantial overlap between the two rating systems. However, there are some areas where the CORE and RFI rating systems differ. Under the CORE rating system, SLHCs generally are assigned individual component ratings
Under the RFI rating system, BHCs generally are assigned individual component ratings
A primary difference between the two rating systems is that, unlike the RFI rating system, the CORE rating system does not explicitly take account of asset quality.
Additionally, as discussed in more detail below, in contrast to BHCs, SLHCs currently are not subject to regulatory capital requirements. As one element of its overall assessment of capital adequacy, the (F) component of the RFI rating system does take into account regulatory capital requirements for BHCs. The (C) component of the CORE rating system takes into consideration both a qualitative and quantitative supervisory capital assessment that can be found in OTS guidance. With the exception of the regulatory capital requirement for BHCs, the methods used by the agencies to determine capital adequacy for purposes of establishing a supervisory rating are similar. Until such time as consolidated capital standards for SLHCs are finalized by the Board, the Board anticipates that it will assess SLHC capital using supervisory quantitative and qualitative methods similar to those currently employed by the OTS.
The Board notes that changes to the RFI rating system guidance and policies may be necessary to accommodate SLHCs and differences in their statutory and regulatory framework. The Board is reviewing this guidance to determine where adjustments may be necessary.
The Board is seeking comment on all aspects of this approach. Specifically, the Board requests comment with regard to:
1. The burden of these potential modifications to supervisory activities on SLHCs; and
2. Whether there are any unique characteristics, risks, or specific activities of SLHCs that should be taken into account when evaluating which supervisory program should be applied to SLHCs and what changes would be required to accommodate these unique characteristics.
One material difference between the OTS and Board supervisory programs for holding companies is the assessment of capital adequacy. Currently, SLHCs are not subject to minimum regulatory capital ratio requirements. The OTS instead applies both a qualitative and quantitative supervisory capital assessment to SLHCs that is based in guidance.
Section 171 of the Dodd-Frank Act requires that BHCs and SLHCs be subject to minimum leverage and risk-based capital requirements that are not less than the generally applicable leverage and risk-based capital requirements applied to depository institutions.
Pursuant to the Dodd-Frank Act and the Basel Committee on Banking Supervision's “Basel III: A global regulatory framework for more resilient banks and banking systems” report (“Basel III”),
Although the Board believes it is important for SLHCs generally to be subject to the same consolidated leverage and risk-based capital requirements as BHCs, it recognizes that SLHCs have traditionally been permitted to engage in a broad range of nonbanking activities that were not contemplated when the general leverage and risk-based capital requirements for BHCs were developed. The Board is seeking specific comment with respect to any unique characteristics, risks, or specific activities of SLHCs the Board should take into consideration when developing consolidated capital requirements for SLHCs based on Basel III. What specific provisions, consistent with the Dodd-Frank Act, should be incorporated in the proposed rule in order to address such unique characteristics, risks, and/or specific activities? Additionally, the Board is seeking comment on the following:
3. What instruments that are currently includable in SLHCs' regulatory capital would be either excluded from regulatory capital or more strictly limited under Basel III? 3(a) How prevalent is the issuance of such instruments? Please comment on the appropriateness of the Basel III transitional arrangements for non-qualifying regulatory capital instruments. Provide specific examples and data to support any proposed alternative treatment.
4. Are the proposed Basel III-based transition periods appropriate for SLHCs and, if not, what alternative transition periods would be appropriate and why?
Finally, the Board is seeking specific comment with respect to what methods the Board should consider implementing for assessing capital adequacy for SLHCs during the period between the transfer date and implementation of consolidated capital standards for SLHCs. The Board also anticipates providing additional notice or issuing specific formal guidance or rules with regard to supervisory capital assessment after the transfer date and providing further opportunity for comment.
Environmental Protection Agency (EPA).
Notice of availability.
The Office of Air Quality Planning and Standards (OAQPS) of EPA is announcing the availability of a
The PA will be available on or about April 19, 2011.
The document will be available via the Internet at the following Web site:
For questions related to this final document, please contact Ms. Beth Hassett-Sipple, Office of Air Quality Planning and Standards (Mail code C504-06), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; e-mail:
Under section 108(a) of the Clean Air Act (CAA), the Administrator identifies and lists certain pollutants which “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” The EPA then issues air quality criteria for these listed pollutants, which are commonly referred to as “criteria pollutants.” The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air, in varying quantities.” Under section 109 of the CAA, EPA establishes primary (health-based) and secondary (welfare-based) national ambient air quality standards (NAAQS) for pollutants for which air quality criteria are issued. Section 109(d) of the CAA requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and revise the NAAQS, if appropriate, based on the revised criteria.
Presently, EPA is reviewing the NAAQS for particulate matter (PM).
A preliminary draft PA (EPA-452/P-09-007) was released in September 2009 for informational purposes and to facilitate discussion with the Clean Air Scientific Advisory Committee (CASAC) at an October 5-6, 2009, meeting on the overall structure, areas of focus, and level of detail to be included in the PA (74 FR 46586, September 10, 2009). CASAC's comments on the preliminary draft PA encouraged the development of a document focused on the key policy-relevant issues that draws from and is not repetitive of information in the Integrated Science Assessment (ISA) and REAs. These comments were considered in developing a first draft PA (EPA-452/P-10-003, March 2010; 75 FR 4067, January 26, 2010) that built upon the information presented and assessed in the ISA and second draft REAs (EPA-452/P-10-001, February 2010; EPA-452/P-10-002, January 2010). The EPA presented an overview of the first draft PA at a CASAC meeting on March 10, 2010 (75 FR 8062, February 23, 2010). CASAC and public review of the first draft PA was discussed during public teleconferences on April 8-9, 2010, (75 FR 8062, February 23, 2010) and May 7, 2010 (75 FR19971, April 16, 2010).
CASAC (Samet, 2010a)
Research, Education, and Economics, USDA.
Solicitation for membership.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the United States Department of Agriculture announces solicitation for nominations to fill 8 vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board.
Deadline for Advisory Board member nominations is July 12, 2011.
The nominee's name, resume, and completed Form AD-755 must be sent to the U.S. Department of Agriculture, National Research, Extension, Education, and Economics Advisory Board Office, 1400 Independence Avenue, SW., Room 3901, South Building, Washington, DC 20250-2255.
J. Robert Burk, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, 1400 Independence Avenue, SW., Room 3870, South Building, Washington, DC 20250-2255, telephone: 202-720-3684; fax: 202-720-6199; e-mail:
Section 1408 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3123) was amended by the Farm Security and Rural Investment Act of 2008 by deleting six members to the National Agricultural Research, Extension, Education, and Economics Advisory Board, which totals 25 members. Since the Advisory Boards inception by congressional legislation in 1996, each member has represented a specific category related to farming or ranching, food production and processing, forestry research, crop and animal science, land-grant institutions, non-land grant college or university with a historic commitment to research in the food and agricultural sciences, food retailing and marketing, rural economic development, and natural resource and consumer interest groups, among many others. The Board was first appointed by the Secretary of Agriculture in September 1996 and one-third of its members were appointed for a one, two, and three-year term, respectively. The terms for 8 members who represent specific categories will expire September 30, 2011. Nominations for a 3-year appointment for these 8 vacant categories are sought. All nominees will be carefully reviewed for their expertise, leadership, and relevance to a category.
The 8 slots to be filled are:
Nominations are being solicited from organizations, associations, societies, councils, federations, groups, and companies that represent a wide variety of food and agricultural interests throughout the country. Nominations for one individual who fits several of the categories listed above,
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations of the Advisory Board take into account the needs of the diverse groups served by the Department, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
Appointments to the National Agricultural Research, Extension, Education, and Economics Advisory Board will be made by the Secretary of Agriculture.
Food Safety and Inspection Service, USDA.
Notice of availability and opportunity for comments.
The Food Safety and Inspection Service (FSIS) is announcing the availability of a compliance guide for small and very small meat establishments on the safe production of ready-to-eat (RTE) meat and poultry products with respect to
Submit written comments by June 21, 2011.
FSIS invites interested persons to submit comments on this notice and the compliance guidelines. Comments may be submitted by either of the following methods:
Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to
Mail, including floppy disks or CD-ROMs, and hand- or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture (USDA), FSIS, Room 2-2127, George Washington Carver Center, 5601 Sunnyside Avenue, Mailstop 5272, Beltsville MD 20705-5272.
Kristina Barlow, USDA, FSIS,
This document provides small and very small meat and poultry establishments
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at
FSIS will also make copies of this
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Shasta Unit of the Shasta-Trinity National Forest is proposing a hazardous fuels treatment project to reduce the risk of life, property and resource values from a high severity wildland fire event and improve fire suppression abilities and firefighter safety by modifying predicted fire behavior along Interstate Highway 5 (I-5) corridor north of the Pit River Bridge; south of the community of Pollock; east of Backbone Ridge peninsula; and west of the McCloud River Arm of Shasta Lake (approximately 15 miles north of Redding, Califronia). The project is located in Shasta County, California. The project area covers approximately 33,700 acres, 15,600 acres are within the wildland urban interface (WUI), 11,900 acres of the WUI are on National Forest System lands. Approximately 20,025 acres of the project area is proposed for treatment. Treatment methods include prescribe fire (
Comments concerning the scope of the analysis must be received by May 25, 2011. The draft environmental impact statement is expected December 2011 and the final environmental impact statement is expected October 2012.
Send written comments to Marian Kadota, Project Manager, 1072 Casitas Pass Road, #288, Carpinteria, CA 93013. Comments may also be sent via e-mail to
Marian Kadota, Project Manager, 1072 Casitas Pass Road, #288, Carpinteria, CA 93013. Phone: (805) 220-6388; e-mail address:
The needs for the I-5 Corridor Fuels Reduction (I-5 Corridor) Project are to reduce the risk to life, property and resource values from a high severity wildland fire event uncharacteristic of the historical fire regime, and improve fire suppression abilities and firefighter safety by modifying fire predicted behavior through fuels treatment within the project area. This would be achieved by reducing the uncharacteristic buildup of fuels on the landscape on National Forest System lands. This proposal will compliment other existing and planned firewise treatments on non-national forest lands. Vegetation treatment on non-national forest lands for reducing the risk to individual homes is the responsibility of private landowners. The project is designed to respond to goals and objectives identified in the Forest Land and Resource Management Plan, the Northwest Forest Plan, and the Lakehead Area Strategic Fuel Reduction Plan.
The purposes (objectives) for the I-5 Corridor Project are to: restore fire to its natural role in the ecosystem (Forest Plan, p. 4-4); manage the chaparral ecosystem to enhance wildlife habitat and watershed condition (Forest Plan, p. 4-4); manage vegetation to a level that results in healthy forest stands, maintenance of wildlife habitat, good scenic quality and public health and safety (Forest Plan, Management Area 8 [Shasta Unit], p. 4-112); and within bald eagle nest territories, manage vegetation to enhance or retain critical habitat elements over the long-term (Forest Plan, Management Area 8 [Shasta Unit], p. 4-112).
The Shasta-Trinity National Forest is proposing approximately 20,025 acres of vegetation treatment on National Forest System lands in portions of T33N, R5W; T34N, R4W; T34N, R5W; T35N, R3W; T25N, R4W; T35N, R5W; T36N, R3W, MDM. The project does not involve any commercial timber harvest. The treatment methods include: Broadcast and underburn prescribe fire (approximately 12,815 acres); mastication followed by broadcast or underburn prescribe fire (approximately 1,675 acres); thin, pile, pile burn followed by broadcast or underburn prescribe fire (approximately 1,590 acres); thin, pile, pile and burn or chip (approximately 2,820 acres); and masticate (approximately 1,125 acres).
Within all treatment areas, trees that pose a hazard to firefighter or public safety would be cut. If the tree is greater than 19 inches diameter at breast height (dbh), the downed tree would be left on site unless this conflicts with fuels management objectives or poses a safety hazard for that specific site.
No new forest system or temporary roads are proposed for construction. The majority of roads within the project area are hard surfaced (e.g. paved) and would need no additional maintenance work through the implementation of this project. The native forest system surfaced roads (
The project is proposed for implementation over a ten year period. The proposed average annual treatment is approximately 2,000 acres. Treatments can occur any time of the year so long as Best Management Practices are implemented and the treatments comply with the design features included in the project design.
Design features (protection measures) were developed and incorporated into the proposed action to reduce potential resource impacts from this project. In addition, monitoring measures are proposed to determine the effectiveness of the project's design and associated design features.
The proposed action requires non-significant project level Forest Plan amendments. Two Forest Plan Management Prescription standards require higher levels of unburned dead and down material per acre be retained than what is proposed after treatment. The Limited Roaded Motorized Recreation management prescription requires an average of 20 tons of unburned dead and down material per acre (Forest Plan, p. 4-47); Roaded Recreation requires an average of ten tons of unburned dead and down material per acre on slopes less than 40 percent and where feasible, maintain the same amount on slopes over 40 percent (Forest Plan, pp. 4-65-66). The Forest Plan amendment would reduce the dead and down material from ten to 20 tons per acre to generally five to ten tons per acre in Limited Roaded Motorized Recreation and Roaded Recreation Management Prescription areas. This would entail approximately 1,255 acres of Limited Roaded Motorized Recreation and 8,475 acres of Roaded Recreation. Another non-significant Forest Plan amendment would include designating a Forest Service acquired parcel located in Sec 9, T34N, R4W, MDM, totaling 117 acres, as Roaded Recreation for the management prescription. The National Forest System lands surrounding this parcel are designated Roaded Recreation. This 117-acre parcel is located in one of the proposed treatment areas.
A more detailed project description can be found on the Forest Web site at
Based on the initial scoping of the project, another action alternative will be considered in the environmental analysis that only involves treatments within the wildland urban interface. The preliminary alternatives currently under consideration (besides the proposed action) are: the No Action Alternative and the Wildland Urban Interface Alternative. The final alternatives analyzed in detail will depend on the issues raised during public scoping.
The Forest Service responsible official for the preparation of the EIS is the Shasta-Trinity Forest Supervisor J. Sharon Heywood, 3644 Avtech Parkway, Redding, CA 96002.
The Forest Supervisor will decide whether to implement the proposed action, approve an alternative to the proposed action, or take no action on treating the vegetation related to this project at this time.
Issues identified during initial scoping include potential cumulative, visual quality, water quality, special status species, and invasive plants impacts.
This notice of intent reinitiates the scoping process, which guides the development of the environmental impact statement.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Agency
Forest Service, USDA.
Notice of intent to prepare an Environmental Impact Statement (EIS).
The Forest Service will prepare an environmental impact statement on a proposal to use multiple vegetation treatments focused on reducing the threat to ecosystem components including forest resources from an existing insect epidemic (mountain pine beetle), creating a landscape condition that reduces the potential for high severity wildfire adjacent to the at-risk community of Custer, SD. The proposal is being planned for the 43,516 acre Vestal Project that includes about 25,726 acres of National Forest System land and about 17,790 acres of interspersed private land. The project area is located surrounding the city of Custer, SD. This project will be conducted as an authorized project under Section 102 of the Healthy Forests Restoration Act of 2003 (HFRA). Actions proposed for the Vestal Project would occur on National Forest System lands only.
Comments concerning the scope of the analysis would be most useful if received by 30 days following the date of this notice. The draft environmental impact statement is expected to be available for public review by November 2011 and the final environmental impact statement is expected to be completed by March 2012.
Send written comments to Lynn D. Kolund, District Ranger, Black Hills National Forest, Hell Canyon Ranger District, 330 Mount Rushmore Road, Custer, South Dakota 57730. Telephone Number: (605) 673-4853. E-mail:
If you have any questions or need additional information, please contact Kelly Honors, Team Leader or Lynn D. Kolund, District Ranger, at the Hell Canyon Ranger District office in Custer, SD at (605) 673-4853.
The actions proposed are in direct response to management direction provided by the Black Hills National Forest Land and Resource Management Plan (Forest Plan). The site specific actions are designed, based on Forest Plan Standards and Guidelines, to move existing resource conditions in the Vestal Project toward meeting Forest Plan Goals and Objectives. The project area is located surrounding the at-risk community of Custer, SD.
The primary purpose for action in the Vestal project is to reduce the threat to forest resources from the existing mountain pine beetle (MPB) epidemic. This action is needed because there is a rapidly increasing MPB outbreak occurring within the project area which is resulting in substantial levels of pine mortality. Existing stand conditions across the project area are largely at medium to high risk for MPB caused mortality.
A secondary purpose of this project is to protect local communities and watersheds from large-scale wildfire. This action is needed because the project area is located within and surrounding the town of Custer, SD and overall fire hazard in the area is high due to dense stand conditions and dead, dry fuels resulting from MPB caused mortality. Approximately 40 percent of lands in the project area are privately owned, with an estimated 3,194 private structures.
• Thin and harvest approximately 19,779 acres of pine stands using a variety of methods to treat mountain pine beetle (MPB) infested stands, reduce the overall density of pine trees and create a mosaic of structural stages across the landscape. Both commercial harvest and non-commercial thinning will be used to reduce the stand density, and associated fuel hazard conditions and susceptibility to mountain pine beetle infestations.
• Reduce the amount of fuels that currently exist and that are modified by mountain pine beetle caused mortality by creation of fuelbreaks on 180 acres and deadfall treatment on 24,110 acres. Deadfall treatments could include lopping, chipping, crushing, piling and burning, and mastication of fuels. Prescribed broadcast burning on approximately 1,761 acres is also planned to disrupt the continuity of surface and canopy fuels. The deadfall treatment and prescribed burning would occur on sites also proposed for other mechanical treatments.
• Remove conifers from hardwood stands and meadows on approximately 1,889 acres and convert pine stands to aspen on 126 acres to provide additional wildfire protection by enhancing natural fuel breaks.
• Removal of live pine trees which have mountain pine beetle larva in them across the entire project area and as a stand alone treatment on approximately 3,655 acres. This is a suppression method for mountain pine beetle infestations.
• Conversion of 0.6 miles of unauthorized road to system road to facilitate treatments, and closure of approximately 0.9 miles of system road to protect resources.
Lynn D. Kolund, District Ranger, Hell Canyon Ranger District, Black Hills National Forest, 330 Mount Rushmore Road, Custer, South Dakota 57730.
The decision to be made is whether or not to implement the proposed action or possible alternative at this time.
The Hell Canyon Ranger District has mailed letters with comprehensive scoping documents to local and tribal government representatives, permittees, organizations and others. A public notice will also be published in local newspapers. The scoping document with attached maps will also be posted on the Black Hills National Forest Web site. A public meeting is scheduled for Wednesday, May 11, 2011 from 5-7 p.m. at the Custer High School, Custer, South Dakota. Scoping comments submitted based on this NOI will be most useful if received within 30 days from the date of this notice.
This notice of intent is part of the scoping process which will guide the development of the EIS. Comments received will assist the planning team to identify key issues and opportunities used to refine the proposal or develop possible alternatives. Comments on the DEIS will be requested during the 45 day comment period following publication of the Notice of Availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21.
Forest Service, USDA.
Notice of meeting.
The Custer County Resource Advisory Committee will meet in Custer, South Dakota. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is review of project proposals to be implemented in 2012.
The meeting will be held May 10, 2011 at 5:30 p.m.
The meeting will be held at 1019 N 5th Street at the Office of the Forest Supervisor. Written comments should be sent to 330 MT Rushmore Rd., Custer, South Dakota 57730. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at 330 MT Rushmore Rd., Custer, SD. Visitors are encouraged to call ahead to 605-673-4853 to facilitate entry into the building.
Lynn Kolund, District Ranger, Hell Canyon Ranger District, 605-673-4853,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: Review of Project Proposals for implementation in 2012. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by May 5, 2011, will have the opportunity to address the Committee at those sessions.
Forest Service, USDA.
Notice of meeting.
The Lincoln County Resource Advisory Committee will meet in Libby, MT. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review 2011 project proposals.
May 4, 2011, 6 p.m.
Forest Supervisor's Office, 31374 Hwy 2, Libby, Montana. Written comments may be submitted as described under Supplementary Information.
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Forest Supervisor's Office. Please call ahead to 406-283-7764 to facilitate entry into the building to view comments.
Janette Turk, Committee Coordinator, Kootenai National Forest at (406) 283-7764, or e-mail jturk
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed For Further Information.
The following business will be conducted: A review of 2011 project proposals. If the meeting date or location is changed, notice will be posted in the local newspapers, including the Daily Interlake, based in Kalispell, Montana. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement
Forest Service, USDA.
Notice of meeting.
The Nicolet Resource Advisory Committee will meet in Crandon, WI. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and approve submitted project proposals.
The meeting will be held June 22, 2011 and will begin at 9:30 a.m.
The meeting will be held at Forest County Courthouse, County Boardroom, 200 East Madison Street, Crandon, WI. Written comments may be submitted as described under Supplementary Information.
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Chequamegon-Nicolet National Forest, Laona Ranger District, 4978 Hwy 8 West, Laona, WI 54541. Please call ahead to 715-674-4481 to facilitate entry into the building to view comments.
Penny McLaughlin, RAC Coordinator, USDA, Chequamegon-Nicolet National Forest, Laona Ranger District, 4978 Hwy 8 W, Laona, WI 54541; 715-674-4481; e-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed
The following business will be conducted: 3rd Round Project Review and Approval. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by June 1, 2011 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Chequamegon-Nicolet National Forest, Laona Ranger District, 4978 Hwy 8 W, Laona, WI 54541 or by e-mail to
Forest Service, USDA.
Notice of meeting.
The Shoshone Resource Advisory Committee (Committee) will meet in Thermopolis, Wyoming. The Committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to continue to review Title II project proposals and start selecting some to recommend to the Designated Federal Official.
The meeting will be held May 4, 2011, 9 a.m.
The meeting will be held at Big Horn Federal Savings, 643 Broadway, Thermopolis, Wyoming.
Olga Troxel, Resource Advisory Committee Coordinator, Shoshone National Forest Supervisor's Office, (307) 578-5164.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Continue to review Title II project proposals (2) Start selecting projects to recommend to the Designated Federal Official (3) Make a decision on travel reimbursements for RAC members. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided.
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:
ATTEST:
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:
The application to reorganize FTZ 176 to expand the service area under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, and to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project.
ATTEST:
National Institute of Standards and Technology, Department of Commerce.
Notice of public meeting—amendment.
On April 1, 2011, the National Institute of Standards and Technology (NIST) published a notice in the
The meeting will convene Wednesday, May 18, 2011, at 8:30 a.m. and will adjourn at 3:30 p.m.
The meeting will be held at the National Institute of Standards and Technology, Portrait Room, Building 101, Gaithersburg, Maryland 20899. Please note admittance instructions under the
Rene Cesaro, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2162. Ms. Cesaro's e-mail address is
The Technology Innovation Program (TIP) Advisory Board is composed of ten members appointed by the Director of NIST who are eminent in such fields as business, research, science and technology, engineering, education, and management consulting. The purpose of this meeting is to review and make recommendations regarding general policy for the Technology Innovation Program, its organization, its budget, and its programs within the framework of applicable national policies as set forth by the President and the Congress. The agenda will include a TIP update, a presentation on the status of TIP's current project portfolio, and a discussion of potential critical national need areas for future funding. The agenda may change to accommodate Board business. The final agenda will be posted on the TIP Web site at:
National Institute of Standards and Technology, Commerce.
Notice of Open Meeting.
NIST announces that the Manufacturing Extension Partnership (MEP) Advisory Board, National Institute of Standards and Technology (NIST) will hold an open meeting on Sunday, May 15, 2011, from 8:30 a.m. to 5 p.m.
The meeting will convene May 15, 2011, at 8:30 a.m. and will adjourn at 5 p.m. on May 15, 2011.
The meeting will be held at the Orlando World Center Marriott Resort and Convention Center, 8701 World Center Drive, Orlando, Florida 32821. Anyone wishing to attend this meeting should submit their name, e-mail address and phone number to Susan Hayduk (
Karen Lellock, Manufacturing Extension Partnership, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899-4800, telephone number (301) 975-4269.
This meeting is being held in conjunction with MEP's Manufacturing Innovations 2011 Conference in Orlando, Florida. The MEP Advisory Board is composed of 10 members, appointed by the Director of NIST. MEP is a unique program consisting of centers across the United States and Puerto Rico with partnerships at the State, Federal, and local levels. The Board works closely with MEP to provide input and advice on MEP's programs, plans, and policies. This meeting will focus on (1) discussions with local MEP Board members, (2) research focused on advancing U.S. competitiveness, and (3) an update on MEP's State partnerships. The agenda may change to accommodate other Board business.
Individuals and representatives of organizations who would like to offer comments and suggestions related to the MEP Advisory Board's business are invited to request a place on the agenda. Approximately 15 minutes will be reserved for public comments at the beginning of the meeting. Speaking times will be assigned on a first-come, first-served basis. The amount of time per speaker will be determined by the number of requests received but is likely to be no more than three to five minutes each. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements to the MEP Advisory Board, National Institute of Standards and Technology, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899-4800, or via fax at (301) 963-6556, or electronically by e-mail to
National Institute of Standards and Technology, Department of Commerce.
Notice of Public Meeting.
The Malcolm Baldrige National Quality Award Panel of Judges and Board of Overseers will hold a meeting on Wednesday, June 15, 2011 from 8:30 a.m. to 3 p.m. 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 Update, Baldrige Fellows Program Discussion, and Strategic Planning.
The meeting will convene June 15, 2011, at 8:30 a.m. and adjourn at 3 p.m. on June 15, 2011. The meeting will be open to the public.
The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room D, Gaithersburg, Maryland 20899. Please note admittance instructions under the
Dr. Harry Hertz, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app., notice is hereby given that there will be a meeting of the Board of Overseers of the Malcolm Baldrige National Quality Award on June 15, 2011. The Board of Overseers is composed of 12 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 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.
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 13, 2011, and she will provide you with instructions for admittance. Non-U.S. citizens must also submit their passport number, country of citizenship, title, employer/sponsor, address and telephone. Ms. Harrison's e-mail address is
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., notice is hereby given that there will be a meeting of the Panel of Judges of the Malcolm Baldrige National Quality Award on June 14, 2011. 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: Overview of the Role of the Judges and Scoring Data Reviewed at the September 2010 Meeting, 2011 Baldrige Award Cycle, Conflict of Interest, Judges' Survey of Applicants, Judging Process Improvement Discussion and Judges' Mentoring Program.
The meeting will convene June 14, 2011, at 9 a.m. and adjourn at 4 p.m. on June 14, 2011. The entire meeting will be closed.
The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room D, Gaithersburg, Maryland 20899.
Dr. Harry Hertz, Director, Baldrige Performance Excellence 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 March 7, 2011, that the meeting of the Judges Panel may be closed in accordance with 5 U.S.C. 552b(c)(4) because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential and 5 U.S.C. 552b(c)(9)(B) because for a government agency the meetings are likely to disclose information that could significantly frustrate implementation of a proposed agency action. 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, will be closed to the public.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before June 21, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Walter Ikehara, (808) 944-2275 or
National Marine Fisheries Service (NMFS) Pacific Islands Region (PIR) manages the U.S. Fisheries of the Exclusive Economic Zone (EEZ) in the western Pacific under five fishery management plans (FMP), prepared by the Western Pacific Fishery Management Council (Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The regulations implementing the FMP are found at 50 CFR part 665.
The permitting requirements at 50 CFR part 665 form the basis for this collection of information. PIR requests information from participants in the fisheries and interested persons. This information is needed for permit issuance, to identify participants in the fisheries, and to help measure impacts of management controls on the participants in the fisheries of the EEZ in the western Pacific.
Paper submissions and telephone calls are required from participants. Methods of submittal include mailing and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before June 21, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Mi Ae Kim, (301) 713-2276 or
This request is for an extension of a current information collection.
Section 204 of the Magnuson-Stevens Fishery Conservation and Management Act and regulations at 50 CFR 600, Subpart F, provide for the issuance of fishing permits to foreign vessels. The information submitted in applications is used to determine whether permits should be issued to authorize directed foreign fishing, participation in joint ventures with United States (U.S.) vessels, or transshipments of fish or fish products within U.S. waters.
Paper forms are used.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Pacific Council) Ad Hoc Salmon Amendment Committee (SAC) will hold a meeting to finalize alternatives and analyses for an amendment to the Pacific Coast Salmon Fishery Management Plan (FMP) to address the Magnuson-Stevens Act (MSA) requirements for annual catch limits (ACL) and accountability measures (AM). This meeting of the SAC is open to the public.
The meeting will be held Monday, May 16, 2011 from 10 a.m. to 4:30 p.m. and Tuesday, May 17, 2011 from 8:30 a.m. to 4 p.m.
The meeting will be held at the Pacific Council Office, Large Conference Room, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280.
Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council; telephone: (503) 820-2280.
The reauthorized MSA established new requirements to end and prevent overfishing through the use of ACLs and AMs. Federal FMPs must establish mechanisms for ACLs and AMs by 2010 for stocks subject to overfishing and by 2011 for all others, with the exceptions of stocks managed under an international agreement or stocks with a life cycle of approximately one year.
On January 16, 2009, NMFS published amended guidelines for National Standard 1 (NS1) of the MSA to provide guidance on how to comply with new ACL and AM requirements. The NS1 guidelines include recommendations for establishing several related reference points to ensure scientific and management uncertainty are accounted for when management measures are established.
The purpose of this meeting is to finalize alternatives and analyses to address those issues in a National Environmental Policy Act (NEPA) analysis that will be presented to the Council for final action at its June 2011 meeting in Spokane, WA.
Although non-emergency issues not contained in the meeting agenda may come before the SAC for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's Groundfish Plan Team will meet via teleconference in Juneau, AK, Seattle, WA and Anchorage, AK. Note the meeting starts at 1:30 p.m. (ADT)/2:30 PDT, but the lines will open
The session will start at 1:30 p.m. (ADT) on Tuesday, May 17, 2011.
The session will be held at the Auke Bay Laboratory, 17385 Glacier Highway, Juneau, AK; Anchorage Council office, Old Federal Building, Room 205, Anchorage, AK; Alaska Fishery Science Center (AFSC), Traynor Room, 7600 Sand Point Way NE., Seattle, WA.
Council staff contact, Jane DiCosimo; telephone: (907) 271-2809.
The teams will be reviewing proposals for model runs for GOA and BSAI Pacific cod and making recommendations to the author for those that will be reviewed at the August 2011 Groundfish Plan Team meeting. Proposed model runs include those by the author, BSAI Plan Team, GOA Plan Team, Science and Statistical Committee, CIE reviewers (tentative) and the public. Joint Plan Team recommendations from this May 2011 meeting will be reviewed by the author with the SSC in June 2011. The deadline for proposing models had been extended to April 29 to allow the public an opportunity to consider the results of the CIE reviews, which are due April 22. Proposals should be submitted to Grant Thompson, AFSC, 7600 Sand Point Way NE., Building 4, Seattle, WA.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council (Pacific Council) will hold a meeting, via conference call, of the Groundfish Management Team (GMT). The meeting is open to the public.
The conference call will be held Tuesday, May 10, 2011, from 9 a.m. to 12 p.m. Pacific Time.
A listening station will be available at the Pacific Council offices. Please contact the Pacific Council Staff Officer for accommodations.
Kelly Ames, Staff Officer; telephone: (503) 820-2280.
The Pacific Fishery Management Council (Council) will convene a conference call of the Groundfish Management Team to review the developing Ecosystem Fishery Management Plan. The GMT will discuss reports of the Ecosystem Plan Development Team and will develop statements for Council consideration at its June meeting in Spokane, WA.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Carlos Diez, Ph.D., Puerto Rico Department of Natural Resources, Protected Species Program, P.O. Box 366147, San Juan, PR, 00936, has been issued a permit to take green (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Colette Cairns or Carrie Hubard, (301)713-2289.
On March 22, 2010, notice was published in the
Dr. Diez was issued a 5-year permit to provide information on the ecology and population dynamics of hawksbill and green turtles inhabiting the waters surrounding Puerto Rico and the adjacent islands including Mona, Monito, Desecheo, Caja-de-Muertos, Vieques, the Culebra Archipelago, and the Tres Palmas reserve. In addition, researchers would monitor the prevalence of fibropapillomatosis, a debilitating disease know to occur in green turtle foraging aggregations in Puerto Rico. Researchers may capture by hand, entanglement or cast net, transport, photograph, measure, weigh, flipper tag, passive integrated transponder tag, blood and tissue sample, ultrasound, attach satellite transmitters to and release sea turtles. A subset of up to 10 green turtles per year from the Culebra study sites may undergo fibropapillomatosis tumor removal surgery and subsequent rehabilitation.
Issuance of this permit, as required by the ESA, was based on a finding that such permit: (1) Was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
United States Patent and Trademark Office, Commerce.
Notice of inquiry.
The United States Patent and Trademark Office (“USPTO” or “Office”) is seeking comments from stakeholders about the extent to which the Trademark Trial and Appeal Board (“TTAB” or “Board”) should become more directly involved in settlement discussions of parties to
Written comments must be received on or before June 21, 2011.
Written comments should be sent by electronic mail message over the Internet addressed to
The written comments will be available for public inspection at the Trademark Trial and Appeal Board, located in Madison West, Ninth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the Office's Internet Web site (address:
Karen Kuhlke, Administrative Trademark Judge, Trademark Trial and Appeal Board, at (571) 272-4287.
Over time, representatives of the Board have engaged in discussions with the Trademark Public Advisory Committee (TPAC) concerning the average overall length of Board trial proceedings. These discussions have generated a number of suggestions for process improvements, including suggestions related to fostering settlement discussions. The USPTO 2010-2015 Strategic Plan includes a commitment by the Office to assess the desirability among stakeholders, including trademark owners, intellectual property organizations, the trademark bar and others with an interest in defining Board procedures, for meaningful involvement of Board personnel in settlement discussions regarding
The Board estimates that two-thirds of all
Most of the cases comprising the one-third that are not disposed of prior to an answer being filed still are disposed of without a full trial and do not require issuance of a final decision on the merits. While some of these are cases that a plaintiff fails to prosecute, or cases in which a defendant eventually abandons an application or surrenders a registration,
In the Board's Notice of Final Rule Making published August 1, 2007, at 72 FR 42242, the Board introduced to its
Under current Board practice, if a party requests Board involvement in a discovery conference, Board personnel will first inquire whether the parties have initiated settlement discussions. To date, parties have infrequently invited Board personnel to participate in these conferences. Moreover, when Board personnel participate in discovery conferences, Board involvement in settlement discussions is only in the broadest context. There is no routine Board involvement in settlement discussions in cases in which the Board is not invited into the discovery conference or, for cases in which the Board is so invited, after the completion of the discovery conference.
Non-party involvement (through an ATJ, an IA, a USPTO mediator, or an outside mediator) in these settlement conferences could help the parties consider various means for resolution of the proceeding. For example, where parties are at an impasse because of difficulty resolving possible amendments to the identifications of goods or services, assistance could be provided to the parties in arriving at mutually agreeable amendments, and this is an area in which Board personnel could be particularly helpful. Or a mediator could be involved in discussions regarding possible restrictions on use of a mark, such as a requirement that it be used with a disclaimer or with a house mark. Also, in cases where pre-trial settlement is not possible, Board personnel or a mediator could be involved in discussions that would nonetheless narrow the issues for trial and encourage the parties to adopt an Accelerated Case Resolution procedure for their case. In other words, even if greater involvement by Board personnel or by mediators does not result in more frequent or faster settlements, an alternative result may be faster, more focused trials.
Thus, the Office seeks responses to the following questions, as well as comments or suggestions on related topics (as these questions are illustrative of the discussion to be generated and not the exclusive issues to be discussed):
(1) Should the Board be routinely involved in settlement discussions of parties, or instead, be involved only in particular cases on an “as needed” basis?
(2) If you believe parties would benefit from involvement of a non-party, would it be preferable for settlement discussions to be handled by (a) an ATJ, (b) an IA, (c) a USPTO employee trained as a mediator but who is not an ATJ or IA, or (d) a third-party mediator?
(3) How would the involvement be triggered? For example, by stipulation of the parties, by unilateral request or by some other trigger? Examples of situations that might be used as triggers for required settlement discussions involving a non-party could include the use by the parties of multiple suspensions for settlement discussions which proved unsuccessful, or events such as the filing of an answer, the exchange of disclosures, the completion of some discovery, or the close of the discovery period.
(4) How many triggers should there be that would prompt Board or mediator involvement in settlement talks? For example, apart from the initial discovery conference, should there be a follow-up inquiry from the Board in the middle of discovery, at the end of discovery, or before pre-trial disclosures are made and commencement of trial is imminent? Should there be a required phone conference after the second or any subsequent request to extend or suspend discovery for settlement?
(5) To what extent should Board personnel involved in settlement discussions be recused from working on the case?
(6) Should motions for summary judgment, the vast majority of which are denied and do not result in judgment, be barred unless the parties have been involved in at least one detailed settlement conference? Should an exception to such a rule be made for motions based on jurisdictional issues or claim or issue preclusion?
(7) Should the parties be accorded only limited discovery until they have had a detailed settlement discussion with a Board judge, attorney or mediator, with the need for subsequent discovery dependent on the results of the discussion?
(8) Should the Board amend its rules to require that a motion for summary judgment be filed before a plaintiff's pre-trial disclosures are due, and that the parties be required to engage in a settlement conference in conjunction with a discussion of plaintiff's pre-trial disclosures?
The potential benefits from facilitating more frequent and/or more detailed settlement discussions may include the following: (a) Increasing the number of settlements by having Board personnel or non-party mediators available to address parties' needs in
Section 17 of the Trademark Act, 15 U.S.C. Section 1067, provides that the Trademark Trial and Appeal Board shall determine and decide the respective rights of registration of parties to various
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed addition to the Procurement List.
The Committee is proposing to add a service to the Procurement List that will be provided by the nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C. 47(a) (2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the service to the Government.
2. If approved, the action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following service is proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes services from the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On 2/25/2011 (76 FR 10571), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services deleted from the Procurement List.
Accordingly, the following services are deleted from the Procurement List:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can
Currently, the Corporation is soliciting comments concerning its proposed implementation of AmeriCorps National Civilian Community Corp's NCCC Team Leader Application. This Application was developed to collect applicant information for the hiring of NCCC team leaders at each of the five NCCC campuses. The application will be completed by prospective NCCC team leaders, during each campus hire cycle. Completion of this information collection is required to be selected as an NCCC team leader.
Copies of the information collection request can be obtained by contacting the office listed in the addresses section of this Notice.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1)
(2) By hand delivery or by courier to the Corporation's mailroom at Room 8100 at the mail address given in paragraph (1) above, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays.
(3)
(4) Electronically through
Colleen Clay, (202) 606-7561, or by e-mail at
The Corporation is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are expected to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
This NCCC team leader application was developed to provide information pertinent to the selection of team leaders for AmeriCorps NCCC. Specifically, NCCC engages approximately 1100 corps members each year in community service. In order to achieve this goal, NCCC utilizes team leaders and support team leaders as project leaders and project developers, as well as on site team supervision and reporting. There is at least one team leader for each team of approximately ten Corps members. The application is available in paper or electronically for all team leader applicants.
The Corporation seeks to renew the current information collection. The information collection will otherwise be used in the same manner as the existing application. The Corporation also seeks to continue using the current application until the revised application is approved by OMB. The current application is due to expire on 6/30/2011.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Department of Defense.
Notice.
The Defense Logistics Agency (DLA) is updating its Address Directory which is published as an appendix to DLA's compilation of Privacy Act systems of records notices. This notice benefits the public in advising them where to send requests for review. DLA FOIA/Privacy Points of Contact are found at:
Ms. Jody Sinkler, 703-767-5045.
DLA Address Directory:
Office of the Secretary, DoD.
Notice to Delete a System of Records.
The Office of the Secretary of Defense is deleting a system of records notice from its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on May 23, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Mrs. Cindy Allard at (703) 588-6830, or Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Overseas Staffing Files (February 22, 1993, 58 FR 10227).
Washington Headquarters Services no longer provides human resource services for the Defense Advanced Research Projects Agency, the North Atlantic Treaty Organization (NATO), or the U.S. Mission to NATO and has certified that all records have been disposed of in accordance with a National Archives and Records Administration approved retention period.
Department of the Air Force, DoD.
Notice to alter a system of records.
The Department of the Air Force proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective on May 23, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/RIN number and title, by any of the following methods:
•
•
Mr. Charles J. Shedrick, 703-696-6488, or Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information Officer, ATTN: SAF/CIO A6, 1800 Air Force Pentagon, Washington DC 20330-1800.
The Department of the Air Force's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, were submitted on April 15, 2011 to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996, (February 20, 1996, 61 FR 6427).
Air-to-Air Weapon System Evaluation Program (June 11, 1997, 62 FR 31793).
Delete entry and replace with “The 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.”
Delete entry and replace with “Air Force pilots and aircrew members who have live-fired missiles in the Air-to-Air Weapon System Evaluation Program.”
Delete entry and replace with “Maintained in file folders and computer storage media.”
Delete entry and replace with “Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Air-to-Air Weapon System Evaluation Program Records
The 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
Air Force pilots and aircrew members who have live-fired missiles in the Air-to-Air Weapon System Evaluation Program.
Name, Social Security Number (SSN), unit of assignment, and flying experience information.
10 U.S.C. 8013, Secretary of the Air Force; Powers and Duties, delegation by; as implemented by Air Force Regulation 55-11, Programming of Requirements and Reporting Expenditures for Missile/Targets in Noncombat Firing Programs; and E.O. 9397 (SSN), as amended.
Used to measure program goals that dictate maximizing aircrew participation during their first fighter assignment tour. Personal data is also used to determine the effects of experience and training on Air-to-Air weapons employment.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' published at the beginning of the Air Force's compilation of system of records notices apply to this system.
Maintained in file folders and computer storage media.
Retrieved by name and/or Social Security Number (SSN).
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties and by authorized personnel who are properly screened and cleared for need-to-know. Records are stored in locked rooms, safes and cabinets. Those in computer storage devices are protected by computer system software, which is Common Access Card (CAC) enabled.
Paper records are retained for one year after data is entered in computer then destroyed by tearing into pieces, shredding, macerating, or burning. Electronic records are maintained indefinitely.
Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, 83d Fighter Weapons Squadron, Analysis Division, Building 226, 1287 Florida Avenue, Tyndall Air Force Base, FL 32403-5217.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Information for this system is obtained from forms completed by aircrew members.
None.
Department of the Army, DoD.
Notice of Availability (NOA).
The Department of the Army announces the availability of the DEIS for the Real Property Master Plan at the POM. This document analyzes and evaluates potential environmental impacts associated with proposed development at two properties: POM (located on the Monterey Peninsula between the cities of Monterey and Pacific Grove) and Ord Military Community (OMC) (approximately eight miles northeast of the POM and situated within the former Fort Ord military installation and adjacent to the City of Seaside). Both properties are located within Monterey County and in close proximity to the Pacific Ocean coast.
The public comment period will end 45 days after publication of the NOA in the
Questions or comments regarding the DEIS should be forwarded to: Department of the Army, U.S. Army Garrison Presidio of Monterey, Directorate of Public Works, Master Plans (
Mr. John Elliott at (831) 242-7777 or via e-mail at
The Real Property Master Plan identifies facility improvements and phased construction to maintain and enhance the professional standards established by the Defense Language Institute Foreign Language Center (DLIFLC). Modernization of classrooms, living quarters, and support facilities helps ensure a sustainable mission throughout the foreseeable future.
The Department of Defense foreign language Proficiency Enhancement Program (PEP) changes the student-to-instructor ratio and will result in a greater overall base population. POM needs to train more linguists for deployment throughout the world, because current projections indicate a shortfall in personnel properly trained to interface with people of other nations. The existing facilities at the POM neither meet current needs nor the anticipated population growth at the DLIFLC. This fact coupled with anti-terrorism/force protection results in the need to change the physical landscape at the POM and OMC.
There are three project alternatives analyzed in this DEIS: No Action, POM centric and POM and OMC. Six other alternatives are considered and eliminated from further analysis.
(1) The No Action Alternative describes the conditions that would result by maintaining the current conditions and not proceeding with the proposed new construction. One key component of the No Action Alternative is the installation's population is expected to increase because of the demand for additional linguists even if no improvements are made. This condition results in a need for more housing and service throughout the neighboring communities.
(2) POM-centric (the preferred alternative) proposes the majority of the new construction and development within the existing central campus at the POM. Several community service facilities are proposed at the OMC to support the military family housing areas. No new barracks or instructional facilities are proposed at the OMC as part of the POM-centric alternative.
(3) The POM and OMC alternative proposes new construction at both properties. Construction at the OMC is limited to the existing Army-owned land, primarily next to military housing and within the Joe Lloyd Way compound.
The potential for significant environmental impacts is the greatest for the following resource areas: Aesthetics, endangered plant species and associated critical habitat, housing, land use, population, public services, traffic circulation, and water usage.
All government agencies, special interest groups and individuals are invited to attend the public meetings and/or submit their comments in writing. Information on the time and location of public meetings will be published locally.
Copies of the DEIS are available at Chamberlain Library, Seaside; City of Monterey Public Library, Monterey; City of Pacific Grove Public Library, Pacific Grove; and Monterey County Library, Seaside Branch, Seaside. The DEIS can also be viewed at the following Web
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before May 23, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB 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.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Notice of public meeting.
The Federal Energy Management Program (FEMP) will hold public meetings of the Interagency Energy Management Task Force (Task Force) in 2011. FEMP intends to hold recurring public meetings of the Task Force. Interested parties can check
Hayes Jones, Federal Energy Management Program; EE-2L; 1000 Independence Ave., SW.; Washington, DC 20585; (202) 586-8873. More information on DOE's Federal Energy Management Program can be found at
The Federal Energy Management Program (FEMP), within the Department of Energy's Office of Energy Efficiency and Renewable Energy, facilitates the Federal Government's implementation of sound, cost-effective energy management and investment practices to enhance the nation's energy security and environmental stewardship. In support of this goal, the FEMP Program Manager chairs the Interagency Task Force (Task Force). The Task Force was created by the Federal Energy Management Improvement Act of 1988 (Pub. L. 100-615) to coordinate the activities of the Federal Government in promoting energy conservation and the
Take notice that on April 8, 2011, Colorado Interstate Gas Company (CIG), Post Office Box 1087 Colorado Springs, CO 80944, filed in Docket No. CP11-186-000, an application under section 7(b) of the Natural Gas Act (NGA) and section 157.5,
Any questions regarding this application should be directed to Susan C. Stires, Director, Regulatory Affairs, Post Office Box 1087 Colorado Springs, CO 80944; telephone (719) 667-7514; facsimile (719) 667-7534; e-mail
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify Federal and State agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all Federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
Take notice that the Commission received the following qualifying facility 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 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status
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 docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
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:
Take notice that the Commission received the following open access transmission tariff 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 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
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 docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff 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 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
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 docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
Take notice that the Commission received the following open access transmission tariff 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 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
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
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Cape Canaveral Project involving construction and operation of facilities by Florida Gas Transmission Company, LLC (FGT) in Orange County, Florida. This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues need to be evaluated in the EA. Please note that the scoping period will close on May 12, 2011.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice FGT provided to landowners. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
FGT proposes to construct and operate a new 15,000-horsepower (hp) electric compressor station (CS 32) along its existing 26-inch-diameter mainline near milepost (MP) 691.7; install appurtenant auxiliary facilities at an existing compressor station (CS 18) at MP 668.8; and upgrade existing pipeline facilities, all located in Orange County, Florida. The facilities are proposed in order to provide increased delivery pressure to Florida Power & Light Company's (FPL) Cape Canaveral Energy Center (CCEC) in Brevard County, Florida, that is presently being modernized with high efficiency electric power generators capable of producing 1,250 megawatts of power. According to FGT, two 15,000-hp compressor units would be required at the proposed CS 32 in order to allow for 100 percent redundancy. FGT stated that its project would provide a minimum of 650 pounds per square inch gauge delivery pressure at FPL's CCEC facilities, while maintaining the current contractual rights of all of its existing customers.
The Cape Canaveral Project would consist of the following facilities:
• Two new compressor buildings, each housing a centrifugal compressor unit with variable-speed gearbox and a 15,000-hp electric motor;
• An auxiliary building;
• A process control room enclosure;
• A switchgear enclosure;
• 30-inch-diameter suction and discharge piping;
• Main block, suction, and discharge valves;
• Three blow downs;
• A gas cooling system;
• Condensate and oily water tanks;
• A back-up generator;
• A construction yard;
• An access road; and
• Replacement of about 800 feet of 26-inch-diameter mainline from MP 691.6 to MP 691.8.
• an electric power substation.
• Addition of gas after coolers;
• Yard pulsation bottles; and
• Minor appurtenant facilities.
The general location of the project facilities is shown in Appendix 1.
Construction of the Cape Canaveral Project would require a total of about 41.6 acres which include about 14.6 acres for the facilities within the proposed CS 32, 11.8 acres for temporary work spaces, 10.4 acres for the construction yard, 1.7 acres for the access road, and 3.1 acres consisting of forested wetland and a 50-foot-wide upland buffer zone which would not be affected during construction or operation of the project. After construction about 24.9 acres would be restored and allowed to revert to their former uses. No new work space would be required at CS 18 as all construction-related activities would be confined to the existing compressor station.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species; and
• Public safety.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be presented in the EA. The EA will be placed in the public record and, depending on the comments received during the scoping process, may be published and distributed to the public. A comment period will be allotted if the EA is published for review. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section beginning on page 5.
With this notice, we are asking agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian Tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. 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 timely and properly recorded, please send your comments so that they will be received in Washington, DC on or before May 12, 2011.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP11-145-000) with your submission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the
(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.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own property within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site.
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 at
In addition, the Commission now 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
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on April 12, 2011, SP 49 Pipeline LLC (“SP 49”) submitted a request for waiver of the requirement to file the FERC Form No. 6 for the last two months of the 2010 calendar year. SP 49 requests was based on the fact that its tariffs only affect the last two months of the 2010 calendar year and would not provide useful information to the Commission or to shippers.
Effective November 12, 2010, SP 49 acquired a portion of Chevron Pipe Line Company's (“Chevron”) pipeline system and associated equipment, specifically the South Pass Block 49 Pipeline System, in addition to certain related pipeline assets. SP 49 filed an Adoption Notice and related tariffs on December 6, 2010.
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 or 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Wildcat Power Holdings, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 9, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Yuba City Cogeneration Partners, LP's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 9, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Phalanx Energy Services, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 9, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
On March 23, 2011, Missouri River Energy Services and Western Minnesota Municipal Power Agency (collectively, MRES/WMMPA) filed a motion to withdraw its Attachment O transmission formula rate tariff sheets under the Midwest Independent Transmission System Operator, Inc.'s (Midwest ISO) Open Access Transmission, Energy and Operating Reserve Markets Tariff. MRES/WMMPA also request that the Commission act on this motion no later than May 1, 2011. MRES/WMMPA state that in light of changed circumstances, MRES has determined that it desires to now use the Midwest ISO's
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 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
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 the following application has been filed with the Commission and is available for public inspection:
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All documents should be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at
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When a Petition for Declaratory Order is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the proposed project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that on April 8, 2011, pursuant to Rule 207(a)(2) of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.207(a)(2) (2011), Midwest Independent Transmission System Operator, Inc. (MISO) filed a petition for declaratory order seeking the Commission's confirmation that the terms of the Joint Operating Agreement (JOA) in effect between Southwest Power Pool and MISO, regarding the sharing of transmission capacity on a common path, as set forth in section 5.2 of the JOA, will remain in effect and applicable to Entergy Arkansas, Inc. (Entergy Arkansas) in the event Entergy Arkansas becomes a transmission-owning member of MISO.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
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
On January 12, 2011, Arizona Independent Power, Inc. filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Verde Pumped Storage Project (project) to be located within the Colorado River region, near Maricopa County, Arizona. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A roller compacted concrete dam (upper reservoir) having a total storage capacity of 13,900 acre-feet at a normal maximum operating elevation of 3,040 feet msl; (2) a roller compacted concrete dam (lower reservoir) having a total storage capacity of 13,900 acre-feet at a normal maximum operating elevation of 1,800 feet mean sea level (msl); (3) two 12,160-foot-long, 19-foot-diameter penstocks; (4) a powerhouse with approximate dimensions of 750 feet long by 70 feet wide by 175 feet high, housing three to 267 megawatt Francis pump turbines and motor generators units; (5) two 3,000-foot-long, 21-foot-diameter tailraces; (6) a twin circuit, 40-mile-long, 500-kilovolt transmission line extending to the existing transmission line rights-of-way owned by the Arizona Public Service Company or Salt River Project. The estimated annual generation of the Verde Pumped Storage Project would be 1,078 gigawatt-hours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on April 11, 2011, Gulf South Pipeline Company, LP (Gulf South), 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, pursuant to its blanket certificate issued in Docket No. CP82-430-000,
Gulf South proposes to increase the south-bound capacity of its Index 880 by 54 MMcf/day to 304,000 MMcf/day by increasing the maximum operating pressure on the lateral from 976 to 982 psig. This increase in capacity will provide Gulf South's shippers the added flexibility to nominate additional deliveries into Florida markets through the Gulfstream Interconnect. Increasing the capacity by increasing the maximum operating pressure of the Index 880 will provide Gulf South with a timely and cost effective method of increasing firm transportation capacity to additional Florida markets. Gulf South states that its proposal will not have any adverse effects on the processing plant's operations.
Any questions concerning this application may be directed to J. Kyle Stephens, Vice President, Regulatory Affairs, Gulf South Pipeline Company, LP, 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, at (713) 479-8033 or via fax (713) 479-1846, or e-mail at
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for
The Federal Energy Regulatory Commission hereby gives notice that members of its staff may attend the meetings of the Southwest Power Pool, Inc. (SPP) Regional Entity Trustee (RE), Regional State Committee (RSC) and Board of Directors, as noted below. Their attendance is part of the Commission's ongoing outreach efforts.
All meetings will be held at the Doubletree Hotel, 616 West 7th Street, Tulsa, OK 74127. The hotel phone number is (800) 838-7914.
April 25, 2011 (8:30 a.m.-2 p.m.).
April 25, 2011 (1 p.m.-5 p.m.).
April 26, 2011 (8 a.m.-3 p.m.).
The discussions may address matters at issue in the following proceedings:
These meetings are open to the public.
For more information, contact Patrick Clarey, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (317) 249-5937 or
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e. All local, State, and Federal agencies, Tribes, and interested parties, are hereby invited to listen in on the teleconference. The phone number and passcode to the teleconference will be provided upon a request made by interested parties. Please make that request to Ms. Ginger Gillian, representative of Eagle Crest Energy, via e-mail at:
In accordance with Section 309(a) of the Clean Air Act, EPA is required to make its comments on EISs issued by other Federal agencies public. Historically, EPA met this mandate by
Revision to FR Notice Published 01/14/2011: Reestablishing the Review Period, because Non-Distribution of EIS.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before May 23, 2011. 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 the Internet at
Benish Shah, Office of Managing Director, (202) 418-7866.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 21, 2011. 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 the Internet at
Benish Shah, Office of Managing Director, (202) 418-7866.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501-3520 Comments are requested concerning:
(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 21, 2011. 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 the Federal Communications Commission. To submit your PRA comments by e-mail send them to:
Benish Shah, Office of Managing Director, (202) 418-7866.
Licensees use FCC Form 606 to associate their FCC Registration Number (FRN) with their Wireless Telecommunications Bureau and/or Public Safety and Homeland Security Bureau call signs and antenna structure registration numbers. The form must be submitted before filing any subsequent applications associated with the existing license or antenna structure registration that is not associated with a FCC Registration Number (FRN).
The information collected in the FCC Form 606 is used to populate the Universal Licensing System (ULS) with the FRNs of licensees and antenna structure registration owners who interact with ULS.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995, (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before May 23, 2011. 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 the Internet at
Judith B. Herman, Office of Managing Director, (202) 418-0214.
The Commission adopted an Order, DA 10-2342, which requires public safety broadband waiver recipients to certify, at various stages of deployment, their compliance with the technical requirements set forth in the Order, and to submit additional information regarding their early deployments. The Order provides that waiver recipients may include this information in their quarterly reports to the Commission's Public Safety and Homeland Security Bureau, which are required to be submitted under a previous order (FCC 10-79). The revised information collections required under this Order will enable the Commission and Bureau to monitor the progress of 700 MHz public safety broadband waiver recipients' network deployments and ensure that such deployments are consistent with the Commission's long-standing goal or ensuring nationwide interoperability among public safety broadband networks.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501—3520. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 21, 2011. 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 the Internet at
Leslie F. Smith, Office of Managing Director, (202) 418-0217. For additional information, contact Leslie F. Smith, 202-418-0217, or via e-mail to
The Commission mails fee assessment notifications to broadcast licensees and commercial mobile radio service (CMRS) licensees on an annual basis. (The Commission notes that beginning in Fiscal Year (FY) 2004, the Commission mailed fee assessment notifications to cable television operators. The Commission stopped this practice in FY 2007 because the method was ineffective and the data sent out on the notifications were unreliable. In OMB 3060-0855, Telecommunications Reporting Worksheet and Related Collections, FCC Form 499-A, FCC499-Q, the Commission has required regulatees to provide e-mail address and revenue amount as the fee assessment basis. The Commission plans to use these e-mail addresses collected in OMB 3060-0855 to transmit the fee assessment notifications in the future.)
With these fee assessment notifications, we also provide regulatees with a “true-up,”
The Commission offers several ways for regulatees to “true-up” their assessed fee amount. Regulatees may call the Commission's Financial Operations Help Desk. They may return their amended assessment notification or otherwise send written correspondence to a designated Commission mailing address. In addition, regulates may use a Commission-authorized Web site at
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: CEDAR COVE BROADCASTING, INC., Station KAVI, Facility ID 173643, BMPED-20110303ABV, From ALAMOSA, CO, To WESTCLIFFE, CO; CHURCH PLANTERS OF AMERICA, Station WOPR, Facility ID 173562, BMPED-20110302ABD, From DANBURY, NC, To MADISON, NC; COX RADIO, INC., Station WHIO-FM, Facility ID 73908, BPH-20110301ABT, From PIQUA, OH, To PLEASANT HILL, OH; CUMULUS LICENSING LLC, Station KMCK-FM, Facility ID 64630, BPH-20110301ACG, From SILOAM SPRINGS, AR, To PRAIRIE GROVE, AR; CUMULUS LICENSING LLC, Station KYNF, Facility ID 70257, BPH-20110301ACH, From PRAIRIE GROVE, AR, To CEDARVILLE, AR; CUMULUS LICENSING LLC, Station WTYB, Facility ID 14069, BPH-20110302ABO, From TYBEE ISLAND, GA, To BLUFFTON, SC; CUMULUS LICENSING LLC, Station WZAT, Facility ID 25549, BPH-20110302ABP, From SAVANNAH, GA, To TYBEE ISLAND, GA; EDUCATIONAL MEDIA FOUNDATION, Station KXPC-FM, Facility ID 61987, BPH-20110302ACD, From LEBANON, OR, To HARRISBURG, OR; EDUCATIONAL PUBLIC RADIO, INC., Station WRTH, Facility ID 175255, BMPED-20110303AAR, From LAYTON, FL, To KEY COLONY BEACH, FL; ENTERTAINMENT MEDIA TRUST, DENNIS J. WATKINS, TRUSTEE, Station WQQW, Facility ID 90598, BP-20100510ATN, From HIGHLAND, IL, To UNIVERSITY CITY, MO; FARMWORKER EDUCATIONAL RADIO NETWORK, INC., Station KBHH, Facility ID 82085, BPH-20110302ACB, From KERMAN, CA, To CANTUA CREEK, CA; FELLOWSHIPWORLD, INC., Station WFWO, Facility ID 172262, BMPED-20110307AAA, From MEDINA, NY, To NEWFANE, NY; GS RADIO OF ILLINOIS, LLC, Station WCSJ, Facility ID 17039, BP-20110228ADK, From MORRIS, IL, To ROANOKE, IL; MARTIN BROADCASTING, INC., Station KYOK, Facility ID 40484, BP-20110407ABH, From CONROE, TX, To KATY, TX; MIDNATION MEDIA LLC, Station KNDH, Facility ID 165977, BPH-20110301ACN, From HETTINGER, ND, To NEW SALEM, ND; OLD NORTHWEST BROADCASTING, INC., Station WWBL, Facility ID 50239, BPH-20110302AAC, From WASHINGTON, IN, To PETERSBURG, IN; RADIO ONE LICENSES, LLC, Station WFXK, Facility ID 24931, BPH-20110301ABN, From TARBORO, NC, To BUNN, NC; RAMS I, Station NEW, Facility ID 160978, BMP-20110311ABB, From FAYETTE, AL, To COKER, AL; SAIDNEWSFOUNDATION, Station KYCO, Facility ID 175979, BMPED-20100909ABQ, From LIMON, To HUGO; THE ORIGINAL COMPANY, INC, Station WBTO-FM, Facility ID 52567, BPH-20110302AAE, From PETERSBURG, IN, To HAUBSTADT, IN; TOM F. HUTH, Station KRAC, Facility ID 54978, BP-20110302ACC, From QUINCY, CA, To RED BLUFF, CA; UNITED STATES CP, LLC, Station KXCL, Facility ID 164277, BMPH-20110303ABW, From WESTCLIFFE, CO, To ROCK CREEK PARK, CO.
Comments may be filed on or before June 21, 2011.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Tung Bui, 202-418-2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Deposit Insurance Corporation.
Update Listing of Financial Institutions in Liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
3 p.m., Monday, April 25, 2011.
The Richard V. Backley Hearing Room, 9th Floor, 601 New Jersey Avenue, NW., Washington, DC.
Open.
The Federal Mine Safety and Health Review Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen (202) 434-9950/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
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 application 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 standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
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 19, 2011.
A. Federal Reserve Bank of Atlanta (Clifford Stanford, Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309:
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The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, 12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 9, 2011.
A. Federal Reserve Bank of Richmond (A. Linwood Gill, III, Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning presolicitation notice and response.
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 June 21, 2011.
Submit comments identified by Information Collection 9000-0037 by any of the following methods:
•
•
•
Cecelia Davis, Procurement Analyst, Acquisition Policy Division, GSA (202) 219-0202 or
Presolicitation notices are used by the Government for several reasons, one of which is to aid prospective contractors in submitting proposals without undue expenditure of effort, time, and money. The Government also uses the presolicitation notices to control printing and mailing costs. The presolicitation notice response is used to determine the number of solicitation documents needed and to assure that interested offerors receive the solicitation documents. The responses are placed in the contract file and referred to when solicitation documents are ready for mailing. After mailing, the responses remain in the contract file and become a matter of record.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) 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 Affidavit of Individual Surety, Standard Form 28.
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 June 21, 2011.
Submit comments identified by Information Collection 9000-0001 by any of the following methods:
•
•
•
Cecelia Davis, Procurement Analyst, Acquisition Policy Division, GSA (202) 219-0202 or e-mail
The Affidavit of Individual Surety (Standard Form (SF) 28) is used by all executive agencies, including the Department of Defense, to obtain information from individuals wishing to serve as sureties to Government bonds. To qualify as a surety on a Government bond, the individual must show a net worth not less than the penal amount of the bond on the SF 28. It is an elective decision on the part of the maker to use individual sureties instead of other available sources of surety or sureties for Government bonds. We are not aware if other formats exist for the collection of this information.
The information on SF 28 is used to assist the contracting officer in determining the acceptability of individuals proposed as sureties.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning duty-free entry.
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 June 21, 2011.
Submit comments identified by Information Collection 9000-0022 by any of the following methods:
•
•
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Cecelia Davis, Procurement Analyst, Acquisition Policy Division, GSA (202) 219-0202 or e-mail
United States laws impose duties on foreign supplies imported into the customs territory of the United States. Certain exemptions from these duties are available to Government agencies. These exemptions are used whenever the anticipated savings outweigh the administrative costs associated with processing required documentation. When a Government contractor purchases foreign supplies, it must notify the contracting officer to determine whether the supplies should be duty-free. In addition, all shipping documents and containers must specify certain information to assure the duty-free entry of the supplies.
The contracting officer analyzes the information submitted by the contractor to determine whether or not supplies should enter the country duty-free. The information, the contracting officer's determination, and the U.S. Customs forms are placed in the contract file.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0153).
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning OMB Circular A-119.
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 June 21, 2011.
Submit comments identified by Information Collection 9000-0153 by any of the following methods:
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Mr. Anthony Robinson, Procurement Analyst, Contract Policy Branch, GSA (202) 501-2658 or e-mail
On February 19, 1998, a revised OMB Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” was published in the
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), CDC/HRSA announces the following meeting of the aforementioned committee.
8 a.m.-5:30 p.m., May 10, 2011.
8 a.m.-3 p.m., May 11, 2011.
Agenda items are subject to change as priorities dictate.
Margie Scott-Cseh, CDC, National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, 1600 Clifton Road, NE., Mailstop E-07, Atlanta, Georgia 30333,
The Director, Management Analysis and Services Office, has been delegated
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB, Office of Information and Regulatory Affairs,
Centers for Medicare & Medicaid Services (CMS), HHS.
Final notice.
This notice announces our decision to approve the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF) for recognition as a national accreditation program for organizations that provide outpatient physical therapy and speech-language pathology services seeking to participate in the Medicare or Medicaid programs.
Alexis Prete, (410) 786-0375. Patricia Chmielewski, (410) 786-6899.
Under the Medicare program, eligible beneficiaries may receive outpatient physical therapy and speech language pathology covered services from a provider of services, a clinic, a rehabilitation agency, a public health agency, or by others under an arrangement with and under the supervision of such provider, clinic, rehabilitation agency, or public health agency (collectively, “organizations”), provided certain requirements are met. Section 1861(p)(4) of the Social Security Act (the Act) establishes distinct criteria for organizations seeking approval to provide outpatient physical therapy and speech language pathology services. The regulations at 42 CFR part 485, subpart H specify, among other things, the conditions that an organization providing outpatient physical therapy and speech-language pathology services must meet to participate in the Medicare program. Regulations concerning provider agreements are located at 42 CFR part 489 (Provider Agreements and Supplier Approval) and those pertaining to survey and certification of facilities at 42 CFR part 488.
Generally, in order to enter into a provider agreement, an organization offering outpatient physical therapy and speech language pathology services must first be certified by a State survey agency as complying with the conditions or requirements set forth in section 1861(p)(4) of the Act, and 42 CFR part 485, subpart H. Thereafter, the organization is subject to ongoing review by a State survey agency to determine whether it continues to meet the Medicare requirements. There is an alternative, however, to State compliance surveys. Accreditation by a nationally-recognized accreditation program can substitute for ongoing State review.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accreditation organization (AO) that all applicable Medicare conditions are met or exceeded, we may “deem” that provider entity as having met the requirements. Accreditation by an accreditation organization is voluntary and is not required for Medicare
Section 1865(a)(3)(A) of the Act provides a statutory timetable to ensure that our review of applications for deeming authority is conducted in a timely manner. The Act provides us 210 calendar days after the date of receipt of a complete application, with any documentation necessary to make a determination, to complete our survey activities and application process. Within 60 days after receiving a complete application, we must publish a notice in the
On November 29, 2010, we published a proposed notice in the
• An onsite administrative review of AAAASF's: (1) Corporate policies; (2) financial and human resources available to accomplish the proposed surveys; (3) procedures for training, monitoring, and evaluation of its surveyors; (4) ability to investigate and respond appropriately to complaints against accredited facilities; and (5) survey review and decision-making process for accreditation.
• A comparison of AAAASF's outpatient physical therapy and speech-language pathology services accreditation standards to our current Medicare outpatient physical therapy and speech-language pathology services conditions of participation (CoPs).
• A documentation review of AAAASF's survey processes to:
+ Determine the composition of the survey team, surveyor qualifications, and AAAASF's ability to provide continuing surveyor training.
+ Compare AAAASF's processes to those of State survey agencies, including survey frequency, and the ability to investigate and respond appropriately to complaints against accredited facilities.
+ Evaluate AAAASF's procedures for monitoring organizations providing outpatient physical therapy and speech-language pathology services found to be out of compliance with AAAASF's program requirements. The monitoring procedures are used only when the AAAASF identifies noncompliance. If noncompliance is identified through validation reviews, the State survey agency monitors corrections as specified at § 488.7(d).
+ Assess AAAASF's ability to report deficiencies to the surveyed organizations and respond to the facility's plan of correction in a timely manner.
+ Establish AAAASF's ability to provide us with electronic data and reports necessary for effective validation and assessment of AAAASF's survey process.
+ Determine the adequacy of staff and other resources.
+ Review AAAASF's ability to provide adequate funding for performing required surveys.
+ Confirm AAAASF's policies with respect to whether surveys are announced or unannounced.
+ Obtain AAAASF's agreement to provide us with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
In accordance with section 1865(a)(3)(A) of the Act, the November 26, 2010 proposed notice also solicited public comments regarding whether AAAASF's requirements meet or exceed the Medicare CoPs for outpatient physical therapy and speech-pathology services. We received 2 comments in response to our proposed notice.
We compared AAAASF's outpatient physical therapy and speech-pathology services accreditation requirements and survey process with the Medicare CoPs and survey process as outlined in the State Operations Manual (SOM). Our review and evaluation of AAAASF's deeming application, which were conducted as described in section III of this final notice, yielded the following:
• AAAASF revised its standards to ensure social workers meet the requirements outlined in 42 CFR part 484 for States that do not require licensure.
• AAAASF revised its crosswalk to include the requirements that all vocational specialists must meet to comply with the requirements at § 485.705(c)(7)(i) through (iii).
• AAAASF revised its policies to ensure its survey files were complete, accurate and consistent with the Medicare requirements at § 488.6(a).
• AAAASF revised its accreditation decision letters to ensure they are accurate and contain all of the elements necessary for the CMS Regional Office to render a decision regarding deemed status of an organization that provides outpatient physical therapy and speech-language pathology services.
• AAAASF modified its policies regarding timeframes for sending and
Based on the review and observations described in section III of this final notice, we have determined that AAAASF's requirements for organizations providing outpatient physical therapy and speech-language pathology services meet or exceed our requirements. Therefore, we approve AAAASF as a national accreditation organization for organizations that provide outpatient physical therapy and speech-language pathology services that request participation in the Medicare program, effective April 22, 2011 through April 22, 2015.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
In accordance with the provisions of Executive Order 12866, this notice was not reviewed by the Office of Management and Budget.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the application of the American Society for Histocompatibility and Immunogenetics (ASHI) for re-approval as an accreditation organization for clinical laboratories under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) program for the following specialty and subspecialty areas: General Immunology; Histocompatibility; and ABO/Rh typing. We have determined that the ASHI meets or exceeds the applicable CLIA requirements. We are announcing the re-approval and grant ASHI deeming authority for a period of 5 years.
Penelope Meyers, (410) 786-3366.
On October 31, 1988, the Congress enacted the Clinical Laboratory Improvement Amendments of 1988 (CLIA) (Pub. L. 100-578). CLIA amended section 353 of the Public Health Service Act. We issued a final rule implementing the accreditation provisions of CLIA on July 31, 1992 (57 FR 33992). Under those provisions, CMS may grant deeming authority to an accreditation organization if its requirements for laboratories accredited under its program are equal to or more stringent than the applicable CLIA program requirements in 42 CFR part 493 (Laboratory Requirements). Subpart E of part 493 (Accreditation by a Private, Nonprofit Accreditation Organization or Exemption Under an Approved State Laboratory Program) specifies the requirements an accreditation organization must meet to be approved by CMS as an accreditation organization under CLIA.
In this notice, we approve ASHI as an organization that may accredit laboratories for purposes of establishing its compliance with CLIA requirements for the subspecialty of General Immunology, the specialty of Histocompatibility, and the subspecialty of ABO/Rh typing. We have examined the initial ASHI application and all subsequent submissions to determine its accreditation program's equivalency with the requirements for approval of an accreditation organization under subpart E of part 493. We have determined that the ASHI meets or exceeds the applicable CLIA requirements. We have also determined that the ASHI will ensure that its accredited laboratories will meet or exceed the applicable requirements in subparts H, I, J, K, M, Q, and the applicable sections of R. Therefore, we grant the ASHI approval as an accreditation organization under subpart E of part 493, for the period stated in the
The following describes the process used to determine that the ASHI accreditation program meets the necessary requirements to be approved by CMS and that, as such, CMS may approve ASHI as an accreditation program with deeming authority under the CLIA program. ASHI formally applied to CMS for approval as an accreditation organization under CLIA for the subspecialty of General Immunology, the specialty of Histocompatibility, and the subspecialty of ABO/Rh typing. In reviewing these materials, we reached the following determinations for each applicable part of the CLIA regulations:
The ASHI submitted its mechanism for monitoring compliance with all requirements equivalent to condition-level requirements, a list of all its current laboratories and the expiration date of their accreditation, and a detailed comparison of the individual accreditation requirements with the comparable condition-level requirements. The ASHI policies and procedures for oversight of laboratories performing laboratory testing for the subspecialty of General Immunology,
The ASHI's requirements are equal to or more stringent than the CLIA requirements at § 493.801 through § 493.865.
For the specialty of Histocompatibility, ASHI requires participation in at least one external PT program, if available, in histocompatibility testing with an 80 percent score required for successful participation and enhanced PT for laboratories that fail an event. The CLIA regulations do not contain a requirement for external PT for the specialty of Histocompatibility. For the subspecialty of General Immunology, and the subspecialty of ABO/Rh typing, ASHI's requirements are equal to the CLIA requirements.
The ASHI's requirements for the submitted subspecialties and specialties are equal to the CLIA requirements at § 493.1100 through § 493.1105.
The ASHI requirements for the submitted subspecialties and specialties are equal to or more stringent than the CLIA requirements at § 493.1200 through § 493.1299. For instance, ASHI's control procedure requirements for the test procedures Nucleic Acid Testing and Flow Cytometry are more specific and detailed than the CLIA language for requirements for control procedures. Sections 493.1256(c)(1) and (c)(2) require control materials that will detect immediate errors and monitor accuracy and precision of test performance that may be caused by test system failures, environmental conditions and variance in operator performance. ASHI standards provide detailed, specific requirements for the control materials to be used to meet these CLIA requirements.
We have determined that ASHI requirements for the submitted subspecialties and specialties are equal to or more stringent than the CLIA requirements at § 493.1403 through § 493.1495 for laboratories that perform moderate and high complexity testing. Experience requirements for Director, Technical Supervisor, and General Supervisor exceed CLIA's personnel experience requirements in the specialty of Histocompatibility.
We have determined that the ASHI requirements for the submitted subspecialties and specialties are equal to or more stringent than the CLIA requirements at § 493.1771 through § 493.1780. The ASHI inspections are more frequent than CLIA requires. ASHI performs an onsite inspection every 2 years and requires submission of a self-evaluation inspection in the intervening years. If the self-evaluation inspection indicates that an onsite inspection is warranted, ASHI conducts an additional onsite review.
The ASHI meets the requirements of subpart R to the extent that it applies to accreditation organizations. The ASHI policy sets forth the actions the organization takes when laboratories it accredits do not comply with its requirements and standards for accreditation. When appropriate, the ASHI will deny, suspend, or revoke accreditation in a laboratory accredited by the ASHI and report that action to us within 30 days. The ASHI also provides an appeals process for laboratories that have had accreditation denied, suspended, or revoked.
We have determined that the ASHI's laboratory enforcement and appeal policies are equal to or more stringent than the requirements of part 493 subpart R as they apply to accreditation organizations.
The Federal validation inspections of laboratories accredited by ASHI may be conducted on a representative sample basis or in response to substantial allegations of noncompliance (that is, complaint inspections). The outcome of those validation inspections, performed by CMS or our agents, or the State survey agencies, will be our principal means for verifying that the laboratories accredited by the ASHI remain in compliance with CLIA requirements. This Federal monitoring is an ongoing process.
Our regulations provide that we may rescind the approval of an accreditation organization, such as that of the ASHI, for cause, before the end of the effective date of approval. If we determine that the ASHI has failed to adopt, maintain and enforce requirements that are equal to, or more stringent than, the CLIA requirements, or that systemic problems exist in its monitoring, inspection or enforcement processes, we may impose a probationary period, not to exceed 1 year, in which the ASHI would be allowed to address any identified issues. Should the ASHI be unable to address the identified issues within that timeframe, we may, in accordance with the applicable regulations, revoke ASHI's deeming authority under CLIA.
Should circumstances result in our withdrawal of the ASHI's approval, we will publish a notice in the
This notice does not impose any information collection and record keeping requirements subject to the Paperwork Reduction Act (PRA). Consequently, it does not need to be reviewed by the Office of Management and Budget (OMB) under the authority of the PRA. The requirements associated with the accreditation process for clinical laboratories under the CLIA program, codified in 42 CFR part 493 subpart E, are currently approved by OMB under OMB approval number 0938-0686.
In accordance with the provisions of Executive Order 12866, this notice was not reviewed by the Office of Management and Budget.
Section 353 of the Public Health Service Act (42 U.S.C. 263a).
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) published a document in the
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019, e-mail:
In the
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. appendix 2), notice is hereby given of the following meeting:
This notice announces a forthcoming meeting of a public advisory committee of the Health Resources and Services Administration and the Administration for Children and Families. The meeting will be open to the public. This notice is being published less than 15 days prior to the meeting due to difficulties in securing adequate and accessible space to accommodate the public.
Under a government contract, the MDRC, formerly known as Manpower Demonstration Research Corporation, a nonprofit, nonpartisan education and social policy research organization, developed the design options for the evaluation of the home visiting program. These study design options for this national evaluation will be formally presented to the Committee for review. As specified in the legislation, the evaluation will provide a state-by-state analysis of the needs assessments and the States' actions in response to the assessments. Additionally, as specified in the legislation, the evaluation will provide an assessment of: (a) The effect of early childhood home visiting programs on outcomes for parents, children, and communities with respect to domains specified in the Affordable Care Act (such as maternal and child health status, school readiness, and domestic violence, among others); (b) the effectiveness of such programs on different populations, including the extent to which the ability to improve participant outcomes varies across programs and populations; and (c) the potential for the activities conducted under such programs, if scaled broadly, to enhance health care practices, eliminate health disparities, improve health care system quality, and reduce costs.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Cancer Institute (NCI), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Bradford W. Hesse, PhD, Project Officer, National Cancer Institute, NIH, EPN 4068, 6130 Executive Boulevard, MSC 7365, Bethesda, Maryland 20892-7365, or call non-toll free number 301-594-9904 or fax your request to 301-480-2198, or e-mail your request, including your address, to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, National Institute of Mental Health.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended, for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Mental Health, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the U.S. Coast Guard is forwarding Information Collection Requests (ICRs), abstracted below, to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB) requesting approval of a revision to the following collections of information: 1625-0005, Application and Permit to Handle Hazardous Materials, 1625-0024, Safety Approval of Cargo Containers, 1625-0036, Plan Approval and Records for U.S. and Foreign Tank Vessels Carrying Oil in Bulk, and 1625-0061, Commercial Fishing Industry Vessel Safety Regulations.
Our ICRs describe the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
Please submit comments on or before May 23, 2011.
You may submit comments identified by Coast Guard docket number [USCG-2011-0016] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT) or to OIRA. To avoid duplication, please submit your comments by only one of the following means:
(1) Electronic submission. (a) To Coast Guard docket at
(2) Mail or Hand delivery. (a) DMF (M-30), DOT, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. Hand deliver between the hours of
(3) Fax. (a) To DMF, 202-493-2251. (b) To OIRA at 202-395-5806. To ensure your comments are received in a timely manner, mark the fax, attention Desk Officer for the Coast Guard.
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12-140 on the West Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICRs are available through the docket on the Internet at
Commandant (CG-611), Attn Paperwork Reduction Act Manager, U.S. Coast Guard, 2100 2nd St., SW. Stop 7101, Washington DC 20593-7101.
Ms. Kenlinishia Tyler, Office of Information Management, telephone 202-475-3652 or fax 202-475-3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202-366-9826, for questions on the docket.
The Coast Guard invites comments on whether these ICRs should be granted based on it being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of information subject to the collections; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology.
Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICRs. They must also contain the docket number of this request, [USCG-2011-0016]. For your comments to OIRA to be considered, it is best if they are received on or before May 23, 2011.
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (76 FR 5815, February 2, 2011) required by 44 U.S.C. 3506(c)(2). That Notice elicited no comments.
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The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), Interior.
Notice of the Availability (NOA) of an Environmental Assessment (EA); NOA of a Record of Decision (ROD).
Pursuant to the Council on Environmental Quality (CEQ) regulation implementing the National Environmental Policy Act (NEPA) at 40 CFR 1506.6, BOEMRE announces the availability of an EA, a Finding of No New Significant Impact (FONNSI), and a ROD on whether to approve, approve with modifications, or disapprove a Construction and Operations Plan (COP) for the Cape Wind Energy Project located on the Outer Continental Shelf (OCS) in Nantucket Sound, off the coast of Massachusetts. BOEMRE prepared the EA to determine whether there are any substantial changes in the proposed action or whether there is new information since the first ROD (2010 ROD) approving the issuance of a lease to Cape Wind Associates (CWA) that would require preparation of a Supplemental Environmental Impact Statement (SEIS). This EA was also prepared to assist BOEMRE in deciding whether to approve, approve with modifications, or disapprove CWA's COP for a commercial wind facility. On the basis of the analysis contained in the EA, BOEMRE has determined that a SEIS is not required and has prepared a FONNSI supporting that determination (
Michelle Morin, BOEMRE Office of Offshore Alternative Energy Programs, 381 Elden Street, MS 4090, Herndon, Virginia 20170-4817, (703) 787-1340 or
The NOA of an EA, FONNSI, and ROD is published pursuant to 43 CFR 46.305.
In November 2001, CWA applied for a permit from the U.S. Army Corps of Engineers (USACE) under the Rivers and Harbors Act of 1899 to proceed with its proposal to construct an offshore wind power facility on the OCS in Nantucket Sound, on Horseshoe Shoal. In 2005, the Energy Policy Act of 2005 (EPAct) was passed amending the Outer Continental Shelf Lands Act (OCSLA). The OCSLA amendments granted the Secretary of the Department of the Interior (DOI) the authority to issue leases, easements, or rights-of-way for renewable energy projects on the OCS. The Secretary delegated that authority to the Minerals Management Service (now BOEMRE). During the fall of 2005, BOEMRE reviewed the CWA proposal and determined that BOEMRE would proceed with the review by preparing a Cape Wind Draft Environmental Impact Statement (DEIS).
BOEMRE published the DEIS on January 18, 2008 (73 FR 3482), which was followed by publication of the Final Environmental Impact Statement (FEIS) (74 FR 3635) on January 21, 2009. On May 4, 2010, BOEMRE published the NOA of the 2010 EA (75 FR 23798) and the NOA of the 2010 ROD, which authorized the issuance of a lease to CWA (75 FR 34152). On October 6, 2010, BOEMRE and CWA signed a lease, effective on November 1, 2010, that granted CWA the exclusive right to submit, for BOEMRE's approval, a COP detailing the construction, operation, and decommissioning of its proposed project. CWA submitted its COP to BOEMRE on October 29, 2010, and a revised version of the COP on February 4, 2011.
As detailed in the COP, the Proposed Action remains substantially the same as that described in the FEIS (FEIS, pp. 2-1 to 2-32). The Proposed Action calls for 130, 3.6 +/−MW wind turbine generators (WTG), each with a maximum blade height of 440 feet (ft), to be constructed in a grid pattern on the OCS in Nantucket Sound offshore Cape Cod, Martha's Vineyard, and Nantucket Island, Massachusetts (the Islands). With a maximum electric output of 468 MW and an average anticipated output of approximately 182 MW, the facility is projected to generate
BOEMRE prepared an EA in order to determine whether an SEIS is required and to assist BOEMRE in deciding whether to approve, approve with modifications, or disapprove CWA's application to construct, operate, and decommission a commercial wind facility in Nantucket Sound off the coast of Massachusetts as described in the FEIS and its COP. In accordance with CEQ regulations, the EA examined whether there are any “substantial changes in the proposed action that are relevant to environmental concerns” or “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action” that either were not fully discussed in the FEIS or did not exist at the time the 2010 ROD was issued (40 CFR 1502.9).
BOEMRE sought public input during its review of the Cape Wind COP by posting the COP, as well the Notice of Preparation of an EA for the purpose stated above, on the BOEMRE Web site, which announced the start of the public comment period on February 22, 2011. Consulting parties and local governments were informed of the comment period via e-mail, which provided the BOEMRE Web site and address for comments. Approximately 160 comments were received and are available at
As a result of its review described in the EA, BOEMRE found no substantial changes in the proposed action or new information that would require it to supplement the analysis in the FEIS, and prepared a FONNSI.
In preparing its decision on whether or not to approve the Cape Wind Energy Project COP, BOEMRE considered alternatives to the Proposed Action, the impacts as presented in the FEIS, and all comments received throughout the NEPA process. The FEIS assessed the physical, biological and socioeconomic impacts of the Proposed Action and 13 alternatives, including a no-action alternative. Since publication of the FEIS in January 2009, BOEMRE prepared two EAs to evaluate whether substantial changes in the proposed action that are relevant to environmental concerns or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action were either not fully discussed or did not exist at the time of the preparation of the FEIS such that BOEMRE would be required to supplement the FEIS.
After careful consideration, BOEMRE, as documented in the 2011 ROD, has decided to approve CWA's COP with modifications. The subjects of the additional terms and conditions included in the COP include: Scour and benthic monitoring; turbine foundations; compliance with other Federal laws; compliance with generally accepted industry standards; certified verification agent nomination; safety management system; contractor's responsibilities; operations and maintenance plan; avoidance of cultural resources; supplementary surveys; and sloshing dampers.
Fish and Wildlife Service, Interior.
Notice of document availability; reopening of comment period.
On September 15, 2010, we, the U.S. Fish and Wildlife Service, announced the availability of the Draft Revised Recovery Plan for the Northern Spotted Owl (
To ensure consideration, please send your written comments by May 23, 2011.
Brendan White at the above address and phone number.
On September 15, 2010, we published a
For background information on the Draft Revised Recovery Plan, see our September 15, 2010,
The revised Appendix C, which is now available for comment, describes the three-part modeling framework, which includes: A spotted owl habitat suitability model; a spotted owl conservation planning model that can be used to design habitat conservation network scenarios; and a spotted owl population simulation model to predict relative population responses to different habitat conservation network scenarios and conservation measures. To test the modeling framework's ability to evaluate the influence of habitat conservation network size and spatial distribution on spotted owl population performance, revised Appendix C also describes the results of an analysis of 10 different habitat conservation network scenarios under different conditions. We are seeking comments on the modeling process, our test results and other aspects of revised Appendix C.
We anticipate revising recovery action 4 in the Revised Recovery Plan to reflect completion of development and testing of the modeling framework as part of recovery plan development.
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 personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold personal identifying information from public review, we cannot guarantee that we will be able to do so.
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Draft Resource Management Plan (RMP) for the Cody Field Office, a Draft RMP for the Worland Field Office, and an associated Draft Environmental Impact Statement (EIS). The two Draft RMPs and the associated Draft EIS comprise the Bighorn Basin RMP Revision Project (Project). By this notice, the BLM is announcing the opening of a 90-day comment period.
To ensure that comments are considered, the BLM must receive written comments on the Draft RMPs/EIS within 90 days following the date the Environmental Protection Agency publishes its notice of the Draft RMPs/EIS in the
You may submit written comments related to the Project Draft RMPs/EIS by any of the following methods:
Copies of the Draft RMPs/EIS are available at the following locations:
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82003.
• Bureau of Land Management, Cody Field Office, 1002 Blackburn Avenue, Cody, Wyoming 82414.
• Bureau of Land Management, Worland Field Office, 101 South 23rd Street, Worland, Wyoming 82401.
Caleb Hiner, RMP Project Manager, telephone (307) 347-5171; address P.O. Box 119, 101 South 23rd Street, Worland, Wyoming 82401; e-mail
The Planning Area for the Project includes lands within the BLM Cody and Worland Field Offices' administrative boundaries, in of Big Horn, Park, Washakie Counties, and Hot Springs Counties in north-central Wyoming. The Planning Area includes all lands, regardless of jurisdiction, totaling 5.6 million acres; however, the BLM will only make decisions on lands that fall under the BLM's jurisdiction. Lands within the Planning Area under the BLM's jurisdiction make up the Decision Area. The Decision Area consists of BLM-administered surface, totaling 3.2 million acres, and the Federal mineral estate, totaling 4.2 million acres. The revised RMPs will replace the Washakie and Grass Creek RMPs in Worland, Wyoming, and the Cody RMP in Cody, Wyoming.
The Draft RMPs/EIS includes a series of management actions, within four management alternatives, including the No Action Alternative, designed to address management challenges and issues raised during scoping, including, but not limited to: Recreation, Areas of Critical Environmental Concern (ACEC), wildlife habitats, livestock grazing, energy development, air quality and global climate change, and lands with wilderness characteristics and Wild Lands. The four alternatives are:
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The Preferred Alternative has been identified as described in 40 CFR 1502.14(e). However, identification of a Preferred Alternative does not represent the final agency decision. The BLM encourages comments on all alternatives and management actions described in the Draft RMPs/EIS and will assess and consider public comments properly received.
Pursuant to 43 CFR 1610.7-2(b), this notice announces a concurrent public comment period on proposed ACECs. A total of 18 ACECs are proposed in the Draft RMPs/EIS, 9 of which are existing ACECs. The proposed ACECs and the proposed resource use limitations that will occur for each proposed ACEC if formally designated are:
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Alternative A proposes to maintain the nine existing ACECs. Alternative B proposes to establish all of the ACECs listed above, with expansions, except Paleocene and Eocene Thermal Maximum. Alternative C proposes to maintain only Spanish Point Karst and Brown/Howe Dinosaur Area as ACECs. Alternative D, the Preferred Alternative, proposes ACEC designation for Big Cedar Ridge (264 acres); Red Gulch Dinosaur Tracksite (1,798 acres); Sheep Mountain Anticline (11,528 acres); Spanish Point Karst (6,627 acres); Brown/Howe Dinosaur Area (5,517 acres); Carter Mountain (10,867 acres); Five Springs Falls (163 acres); Little Mountain (21,475 acres); Upper Owl Creek (13,057 acres); Clarks Fork Canyon (2,724 acres); Sheep Mountain (14,201 acres); and Paleocene, Eocene Thermal Maximum (14,906 acres) for a total of 103,087 acres proposed to be managed as ACECs.
The BLM initiated a Wild and Scenic Rivers (WSR) review of all BLM-administered public lands along waterways within the Worland and Cody planning areas. The BLM requests the public to submit information regarding the suitability of eligible river segments for inclusion in the National Wild and Scenic Rivers System. The BLM will use comments submitted during the announced comment period to gather additional data to determine suitability for inclusion into the National Wild and Scenic Rivers System. You may submit comments in writing to the BLM at any public meeting, or you may submit them to the BLM using one of the methods listed in the
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.
40 CFR 1506.6, 1506.10 and 43 CFR 1610.2, 1610.7-2 and 8350.
Bureau of Land Management, Interior.
Notice.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) announces that the Pinedale Anticline Working Group (PAWG) will conduct meetings and a field tour in Pinedale, Wyoming. All meetings and tours are open to the public.
The PAWG will meet on the following dates: August 3, 2011, and November 8, 2011, beginning at 9 a.m. Mountain Time at the BLM Pinedale Field Office. A field tour of the Pinedale Anticline Project Area (PAPA) will also be held on August 2, 2011 at 10 a.m. Mountain Time. Members of the public are asked to RSVP no later than 1 week prior to the field tour to Shelley Gregory, BLM Pinedale Field Office, P.O. Box 768, Pinedale, Wyoming 82941; 307-315-0612;
BLM Pinedale Field Office, 1625 West Pine Street, Pinedale, Wyoming.
Shelley Gregory, BLM Pinedale Field Office, 1625 West Pine Street, P.O. Box 768, Pinedale, Wyoming 82941; 307-315-0612;
The PAWG was established by the Environmental Impact Statement (EIS) Record of Decision (ROD) for the PAPA on July 27, 2000, and carried forward with the release of the ROD for the PAPA Supplemental EIS on September 12, 2008.
The PAWG is a FACA-chartered group which develops recommendations and provides advice to the BLM on mitigation, monitoring, and adaptive management issues as oil and gas development in the PAPA proceeds.
Additional information about the PAWG can be found at:
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Carrizo Plain National Monument Advisory Council (MAC) will meet as indicated below.
The meeting will be held on Saturday, June 25, 2011, at the Carrisa Plains Elementary School, located approximately 2 miles northwest of Soda Lake Road on Highway 58. The meeting will begin at 10 a.m. and finish at 2:15 p.m. The meeting will focus on accomplishments completed and implementation strategy for the Carrizo Plain National Monument. There will be a public comment period from 1:15 p.m. to 2:15 p.m. Lunch will be available for $8.
The BLM, attention: Johna Hurl, Monument Manager, 3801 Pegasus Drive, Bakersfield, CA 93308. Phone (661) 391-6093 or e-mail:
The nine-member MAC advises the Secretary of the Interior, through the BLM, on a variety of public land issues associated the public land management in the Carrizo Plain National Monument in Central California. At this meeting, Monument staff will present updated information on implementation planning for the RMP/EIS and accomplishments. This meeting is open to the public. Depending on the number of persons wishing to comment, and the time available, the time allotted for individual oral comments may be limited. Individuals who plan to attend and need special assistance such as sign language interpretation or other reasonable accommodations should contact the BLM as indicated above.
Bureau of Reclamation, Interior.
Notice of availability and public hearings.
The Bureau of Reclamation and the California Department of Water Resources (DWR) have prepared a joint Draft PEIS/R, for the implementation of the Stipulation of Settlement (Settlement) in
The Draft PEIS/R will be available for a 60-day public review period. Comments are due by June 21, 2011.
Four public hearings have been scheduled to receive oral or written comments on the Draft PEIS/R:
• Tuesday, May 24, 2011, 10 a.m.-12:30 p.m., Visalia, CA.
• Tuesday, May 24, 2011, 6-8:30 p.m., Fresno, CA.
• Wednesday, May 25, 2011, 6-8:30 p.m., Los Banos, CA.
• Thursday, May 26, 2011, 1:30-4 p.m., Sacramento, CA.
A presentation and open house to view project information and interact with San Joaquin River Restoration Program (SJRRP) staff will precede the public hearings.
Send written comments on the Draft PEIS/R to Alicia Forsythe, SJRRP Program Manager, Bureau of Reclamation, 2800 Cottage Way, MP-170, Sacramento, CA 95825, or via e-mail at
The public hearings will be held at the following locations:
• Visalia, CA at the Lamp Liter Inn Ballroom, 3300 West Mineral King Avenue.
• Fresno, CA at the Piccadilly Inn—University Grand Ballroom, 4961 North Cedar Avenue.
• Los Banos, CA at the Merced County Fairgrounds Germino Room, 403 F Street.
• Sacramento, CA at the Holiday Inn Capitol Plaza John Q. Ballroom, 300 J Street.
The Draft PEIS/R is available on the SJRRP Web site at
Ms. Michelle Banonis at 916-978-5457, via fax at 916-978-5469, or e-mail at
In 1988, a coalition of environmental groups, led by the Natural Resources Defense Council (NRDC), filed a lawsuit challenging the renewal of long-term water service contracts between the United States and the Central Valley Project (CVP) Friant Division contractors. After more than 18 years of litigation, this lawsuit, known as
• Restoration Goal—To restore and maintain fish populations in “good condition” in the mainstem San Joaquin River below Friant Dam to the confluence of the Merced River, including naturally reproducing and self-sustaining populations of salmon and other fish.
• Water Management Goal—To reduce or avoid adverse water supply impacts on all of the Friant Division long-term contractors that may result from the Interim and Restoration flows provided for in the Settlement.
The planning and environmental review necessary to implement the Settlement is authorized under the San
Reclamation, on behalf of the Secretary of the Interior, proposes to implement the terms and conditions of the Settlement, consistent with the Act. Additionally, the Settling Parties agreed that implementation of the Settlement will also require participation of the state of California (State). Therefore, concurrent with the execution of the Settlement, the Settling Parties entered into a Memorandum of Understanding with the State (by and through the California Resources Agency, DWR, DFG, and the California Environmental Protection Agency) regarding the State's role in the implementation of the Settlement. The “implementing agencies,” which include Reclamation, FWS, NMFS, DWR, and DFG, are responsible for the management of the program to implement the Settlement.
The Draft PEIS/R evaluates and documents numerous physical and operational actions that, when implemented, could potentially directly, indirectly, or cumulatively affect environmental conditions in the Central Valley. The Draft PEIS/R study area includes areas potentially affected by Settlement actions and involves the San Joaquin River, from Millerton Reservoir to the Sacramento-San Joaquin Delta, and the water service areas of the CVP and State Water Project, including the Friant Division.
The Draft PEIS/R considers a reasonable range of alternatives and analyzes the environmental effects of implementation of the Settlement. Seven alternatives are evaluated in the document, including a No-Action Alternative and six action alternatives. The Draft PEIS/R analyzes most activities that would be implemented at a program level. Actions analyzed at a program level in the Draft PEIS/R would require future project-specific environmental compliance. The Draft PEIS/R also analyzes the reoperation of Friant Dam to implement the Settlement at a project level. The project level review for the reoperation of Friant Dam comprises the entire NEPA analysis for this component of the Settlement. The Draft PEIS/R provides broad direction for a wide range of possible future project-level actions while allowing the opportunity for flexibility to respond to changing needs.
Copies of the Draft PEIS/R are available for public inspection and review, including the following locations:
• Bureau of Reclamation, 2800 Cottage Way, MP-170, Sacramento, California.
• Bureau of Reclamation, South-Central California Area Office, 1243 N Street, Fresno, California.
• California Department of Water Resources, South Central Region Office, 3374 East Shields Avenue, Fresno, CA.
• Visalia Branch Library, 200 West Oak Avenue, Visalia, CA.
• Central Branch, 2420 Mariposa Street, Fresno, CA.
• Sacramento Public Library, 828 I Street, Sacramento, CA.
• Merced County, Los Banos Public Library, 1312 S. 7th Street, Los Banos, CA.
If special assistance is required to participate in the public meetings, please contact Ms. Margaret Gidding at 916-978-5461, by TDD 916-978-5608, or via e-mail at
Before including your name, 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.
This document was received in the Office of the Federal Register on April 19, 2011.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the countervailing duty orders on cut-to-length carbon steel plate from India, Indonesia, Italy, and Korea and/or therevocation of the antidumping duty orders on cut-to-lengthcarbonsteel plate from India, Indonesia, Italy, Japan, and Korea would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C. 1675(c)(5)(B). For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Angela M. W. Newell (202-708-5409), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviewsare being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to extend the target date for completion of the above-captioned investigation from April 18, 2011, to June 17, 2011. The Commission is requesting supplemental briefing from the public and from the parties to the investigation with respect to certain questions set forth below.
Daniel E. Valencia, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-1999. Copies of non-confidential documents filed in connection with this investigation are or will be available for
The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted the instant investigation on December 16, 2009, based on a complaint filed by Pioneer Corporation of Tokyo, Japan and Pioneer Electronics (USA) Inc. of Long Beach, California (collectively, “Pioneer”). 74 FR 66676 (Dec. 16, 2009). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain multimedia display and navigation devices and systems, components thereof, and products containing same by reason of infringement of various claims of United States Patent Nos. 5,365,448 (“the '448 patent”), 5,424,951 (“the '951 patent”), and 6,122,592 (“the '592 patent”). The complaint named Garmin International, Inc. of Olathe, Kansas, Garmin Corporation of Taiwan (collectively, “Garmin”) and Honeywell International Inc. of Morristown, New Jersey (“Honeywell”) as the proposed respondents. Honeywell was subsequently terminated from the investigation.
On December 16, 2010, the ALJ issued his final initial determination (“ID”). In his final ID, the ALJ found no violation of section 337 by Garmin. Specifically, the ALJ found that the accused products do not infringe claims 1 and 2 of the '448 patent, claims 1 and 2 of the '951 patent, or claims 1 and 2 of the '592 patent. The ALJ found that the `592 patent was not proven to be invalid and that Pioneer has established a domestic industry under 19 U.S.C. 1337(a)(3)(C). On February 23, 2011, the Commission determined to review the final ID in part.
(1) Assuming that the evidence in the record does not show the patent asserted in a section 337 investigation to have more or less value than the rest of the patents of a portfolio, to what extent should the Commission attribute total expenses in licensing the portfolio toward the complainant's investment in exploitation of the asserted patent under section 337(a)(3)(C)? Please comment on whether the statute authorizes the Commission to allocate to the asserted patent the amount of the total expenses divided by the number of patents in the portfolio?
(2) Assuming that the statute authorizes allocation of total licensing expenses across all of the patents in the portfolio, what is the significance of evidence demonstrating that at the time the licensing expenses were incurred, the complainant did or did not present information to potential licensees that the asserted patent was being practiced or infringed by the respondent or a third party? What is the significance of evidence showing that the asserted patent was more or less important or valuable than the others in the portfolio? What is the significance of evidence indicating that, while total expenses in licensing a portfolio may be substantial, the share of the expenses allocated to the asserted patent is not?
(3) In light of any practical benefits of licensing a group of patents in a portfolio rather than licensing patents individually, does the statute permit expenses in the licensing of an entire portfolio to be considered an investment in the exploitation of the individual asserted patent?
(4) How should licensing expenses and activities relating to (a) cross-licenses and (b) global portfolio licenses (
(5) What is the nature and extent of the “nexus” between an asserted patent and a licensing expense or activity that is sufficient to prove that such expense or activity constitutes an investment in the asserted patent? What factors should be considered in determining whether the required nexus is established? What is the evidentiary showing required to prove a nexus between the asserted patent and the licensing activities and expenses in the context of a portfolio license?
(6) Is a “nexus” between an asserted patent and a licensing activity sufficient to prove that expenses associated with that licensing activity are an investment in the asserted patent under section 337(a)(3)(C) even if other patents are involved?
(7) In
(8) Please comment on the significance of whether and to what extent the complainant receives royalties under the license agreement or acquires other rights or benefits as a result of a portfolio license in assessing whether the complainant's licensing expenses and activities constitute a “substantial investment in [the asserted patent's] exploitation.”
(9) Please comment on the significance of whether and to what extent a complainant engages in ancillary exploitation activities that frequently accompany licensing efforts, such as development, engineering, or servicing of licensed articles, in assessing whether a complainant has made a “substantial investment in [the asserted patent's] exploitation” through licensing.
(10) For the parties to the investigation only:
a. Please cite and discuss the specific evidence of record in this investigation supporting your position as to each of the above questions.
b. Assuming the licensing efforts of complainant Pioneer and Discovision Associaties are viewed together, to what extent did the expenses in licensing Pioneer's navigation portfolio (before Pioneer retained outside counsel) represent Pioneer's investment in licensing the asserted patents? Please support your response with citations to the record.
c. Please comment on the weight that should be given to documents concerning complainant's licensing activities and expenses from which information has been redacted. Please discuss the significance,
Parties to the investigation and members of the public are invited to file written submissions addressing the questions set forth above regarding the domestic industry requirement of section 337(a)(3)(C). Opening submissions of the parties to the investigation are due no later than May 3, 2011. A public version of these submissions must be filed with the Secretary no later than May 10, 2011. Reply submissions of the parties to the investigation are due no later than May 17, 2011. Written submissions from members of the public will be accepted anytime on or before May 17, 2011. No further submissions on these issues will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-50).
By order of the Commission.
Employee Benefits Security Administration, Department of Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employee Benefits Security Administration is soliciting comments on the proposed extension of the collection of information included in the alternative method of compliance for certain simplified employee pensions regulation (29 CFR 2520.104-49).
A copy of the information collection request (ICR) can be obtained by contacting the individual shown in the Addresses section of this notice or at
Written comments must be submitted to the office shown in the Addresses section on or before June 21, 2011.
G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-8410, FAX (202) 693-4745 (these are not toll-free numbers).
Section 110 of the Employment Retirement Income Security Act (ERISA) authorizes the Secretary to prescribe alternative methods of compliance with the reporting and disclosure requirements of Title I of ERISA for pension plans. Simplified employee pensions (SEPs) are established in section 408(k) of the Internal Revenue Code (Code). Although SEPs are primarily a development of the Code and subject to its requirements, SEPs are also pension plans subject to the reporting and disclosure requirements of Title I of ERISA.
The Department previously issued a regulation under the authority of section 110 of ERISA (29 CFR 2520.104-49) that intended to relieve sponsors of certain SEPs from ERISA's Title I reporting and disclosure requirements by prescribing an alternative method of compliance. These SEPs are, for purposes of this Notice, referred to as “non-model” SEPs because they exclude (1) those SEPs which are created through use of Internal Revenue Service (IRS) Form 5305-SEP, and (2) those SEPs in which the employer limits or influences the employees' choice to IRAs into which employers' contributions will be made and on which participant withdrawals are prohibited. The disclosure requirements in this regulation were developed in conjunction with the Internal Revenue Service (IRS Notice
This ICR includes four separate disclosure requirements. First, at the time an employee becomes eligible to participate in the SEP, the administrator of the SEP must furnish the employee in writing specific and general information concerning the SEP; a statement on rates, transfers and withdrawals; and a statement on tax treatment. Second, the administrator of the SEP must furnish participants with information concerning any amendments. Third, the administrator must notify participants of any employer contributions made to the IRA. Fourth, in the case of a SEP that provides integration with Social Security, the administrator shall provide participants with statement on Social Security taxes and the integration formula used by the employer.
The Department of Labor (Department) is particularly interested in 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;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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, e.g., permitting electronic submissions of responses.
The Office of Management and Budget's (OMB) approval of this ICR will expire on July 31, 2011. After considering comments received in response to this notice, the Department intends to submit the ICR to OMB for continuing approval. No change to the existing ICR is proposed or made at this time.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection; they also will become a matter of public record.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on April 6, 2011, applicable to workers of Chrysler Group, LLC, Power Train Division, Mack Avenue Engine Plant #1, including on-site leased workers of Caravan Knight, Detroit, Michigan. The workers are engaged in the production of automotive engines. The notice will be published soon in the Federal Register.
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The review shows that on December 4, 2008, a certification of eligibility to apply for adjustment assistance was issued for all workers of Chrysler LLC, Mack Avenue Engine Plants 1 & 2, Power Train Division, Detroit, Michigan, separated from employment on or after October 30, 2007 through December 4, 2010. The notice was published in the
In order to avoid an overlap in worker group coverage, the Department is amending the December 16, 2009 impact date established for TA-W-75,023, to read December 5, 2010.
The amended notice applicable to TA-W-75,023 is hereby issued as follows:
All workers of Chrysler Group, LLC, Power Train Division, Mack Avenue Engine Plant #1, including on-site leased workers of Caravan Knight, Detroit, Michigan, who became totally or partially separated from employment on or after December 5, 2010, through April 6, 2013, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on August 26, 2010, applicable to workers of Polaris Industries, including on-site leased workers from Westaff, Osceola, Wisconsin. The workers are engaged in activities related to the production of components for recreational vehicles. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The company reports that workers leased from Volt Workforce Solutions were employed on-site at the Osceola, Wisconsin location of Polaris Industries. The Department has determined that these workers were sufficiently under the control of Polaris Industries to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Volt Workforce Solutions working on-site at the Osceola, Wisconsin location of Polaris Industries.
The amended notice applicable to TA-W-74,336 is hereby issued as follows:
All workers of Polaris Industries, including on-site leased workers from Westaff, Supply Technologies, Aerotek, Securitas Security Services, and Volt Workforce Solutions, Osceola, Wisconsin, who became totally or partially separated from employment on or after June 28, 2009 through August 26, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than May 2, 2011.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than May 2, 2011.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue, NW., Washington, DC 20210.
Copyright Office, Library of Congress.
Notice of specialty station filings.
The Copyright Office is publishing an initial list of television stations listed in filed affidavits in which the owner or licensee of the television station attests that the station qualifies as a specialty station in accordance with the Federal Communications Commission's (“FCC”) definition of specialty station in effect on June 24, 1981, and is requesting any objections to an owner's claim of specialty station status be filed with the Copyright Office. The final list shall be used to verify the specialty station status of those television stations identified as such by cable systems on their semi-annual statements of account.
Comments or objections must be received within May 23, 2011.
Comments or objections shall be submitted electronically. To meet accessibility standards, all filings must be uploaded in a single file in either the Adobe Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). Comments or objections should be sent via e-mail to the following address:
Ben Golant, Assistant General Counsel, and Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.
Under the cable statutory license, a cable operator may carry the signal of a television station classified as a specialty station at the base rate rather than at the higher 3.75% rate that is incurred for the carriage of a non-permitted signal. 37 CFR 256.2(c). Specialty station status is determined by reference to the former regulations of the FCC which defined a specialty station as “a commercial television broadcast station that generally carries foreign-language, religious, and/or automated programming in one-third of the hours of an average broadcast week and one-
The Copyright Office published its first specialty station list in 1990 under a procedure which allowed the owner of the station to file an affidavit with the Office attesting to the fact that the station's programming comports with the 1981 FCC definition, and hence, qualifies it as a specialty station. 55 FR 40021 (October 1, 1990). The Office agreed at that time to periodically update the list.
Accordingly, on January 28, 2011, the Copyright Office published a notice asking the owner, or a valid agent of the owner, to file a sworn affidavit stating that the station's programming satisfies the FCC's former requirements for specialty station status. 76 FR 5213 (January 28, 2011).
The Office has received affidavits from 63 broadcast stations for which the owner or licensee of the television station had filed the requested affidavit. Any party objecting to any claim to specialty station status must submit comments with the Office, per the filing instructions noted above, stating his or her objections within thirty days of publication of this Notice in the
Once the list is published, the Copyright Office Licensing examiners shall refer to it in examining a statement of account where a cable system operator claims specialty station status for a particular station. If a cable system operator claims specialty station status for a station not on the published final list, the examiner must determine whether the owner of the station has filed an affidavit since publication of the final list. Affidavits received after publication of the final annotated list shall become part of the public file maintained by the Licensing Division of the Copyright Office. Any interested party may file an objection to any such later-filed affidavit and the objection shall be filed together with the corresponding affidavit.
The National Science Board's (NSB) Task Force on Merit Review (MR), pursuant to NSF regulations (45 CFR part 614), the NSF Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of an
No change.
Briefing by Carl Wieman, OSTP.
No change.
No change.
In accordance with 5 U.S.C. 552b (e), on April 20, 2011 a majority of the Executive Committee of the NSB voted to add this agenda item to the NSB's MR teleconference meeting scheduled for April 25, 2011 at 1 p.m. The Executive Committee found that agency business requires the addition of this agenda item and that no earlier announcement was possible. Board Members Drs. Bowen, Gulari, Galloway, Benbow and Suresh participated in the vote through an e-mail polling of the Executive Committee.
Please refer to the National Science Board Web site
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC) and the U.S. Army Corps of Engineers as a cooperating agency have published a final environmental impact statement (EIS), NUREG-1939, Final Environmental Impact Statement for Combined Licenses for Virgil C. Summer Nuclear Station, Units 2 and 3:
The Draft EIS was published in April 2010; a notice of availability appeared in the
Ms. Patricia Vokoun, Environmental Projects Branch 2, Office of New Reactors, U.S. Nuclear Regulatory Commission, Mail Stop T7-E30, Washington, DC 20555-0001. Ms. Vokoun may be contacted by telephone at 301-415-3470 or via e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of license amendment request, opportunity to comment, opportunity to request a hearing, and Commission order.
Requests for a hearing or leave to intervene must be filed by June 21, 2011. Any potential party as defined in Title 10 of the Code of Federal Regulations (10 CFR) 2.4 who believe access to sensitive unclassified non-safeguards information (SUNSI) is necessary to respond to this notice must request document access by May 2, 2011.
Please include Docket ID NRC-2011-0081 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the U.S. Nuclear Regulatory Commission (NRC or the Commission) Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed. You may submit comments by any one of the following methods:
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•
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You can access publicly available documents related to this notice using the following methods:
•
•
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David Tiktinsky, Senior Project Manager, Mixed Oxide and Uranium Deconversion Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Mail Stop EBB2-C40M, Washington, DC 20555-0001, telephone: 301-492-3229; fax number: 301-492-3363; e-mail:
The NRC has received, by letter dated February 8, 2011, an amendment request from Shaw AREVA MOX Services for an amendment to the Construction Authorization No. CAMOX-001 for the Mixed Oxide Fuel Fabrication Facility currently under construction on the Savannah River Site in Aiken, South Carolina. The CAMOX-001 authorizes the construction of a plutonium processing and fuel fabrication plant. Specifically, the amendment incorporates the design bases and commitments in the License
An NRC administrative review found the application acceptable to begin a technical review. If the NRC approves the amendment, the approval will be documented in an amendment to NRC CAMOX-001. However, before reaching a decision on the proposed application, the NRC will need to make the findings required by the Atomic Energy Act of 1954 (the Act), as amended, and the NRC's regulations. These findings will be documented in a Safety Evaluation Report. This license amendment appears to qualify for a categorical exclusion at 10 CFR 51.22.
Requirements for hearing requests and petitions for leave to intervene are found in 10 CFR 2.309, “Hearing requests, petitions to intervene, requirements for standing, and contentions.” Interested persons should consult 10 CFR 2.309, which is available at the NRC's PDR, located at O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852 (or call the PDR at 1-800-397-4209 or 301-415-4737). The NRC regulations are also accessible electronically from the NRC's Electronic Reading Room on the NRC Web site at
Any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition must provide the name, address, and telephone number of the petitioner and specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest.
A petition for leave to intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings the NRC must make to support the granting of a license amendment in response to the application. The petition must also include a concise statement of the alleged facts or expert opinions which support the position of the petitioner and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. Each contention must be one that, if proven, would entitle the petitioner to relief.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board (the Licensing Board) will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Non-timely petitions for leave to intervene and contentions, amended petitions, and supplemental petitions will not be entertained absent a determination by the Commission, the Licensing Board or a presiding officer that the petition should be granted and/or the contentions should be admitted based upon a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
A State, county, municipality, Federally-recognized Indian Tribe, or agencies thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(d)(2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by June 21, 2011. The petition must be filed in accordance with the filing instructions in Section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that State and Federally-recognized Indian Tribes do not need to address the standing requirements in 10 CFR 2.309(d)(1) if the facility is located within its boundaries. The entities listed above may also seek to participate in a hearing as a nonparty pursuant to 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a party to this proceeding may request permission to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to such limits and conditions as may be imposed by the Licensing Board. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by June 21, 2011.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from April 22, 2011. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under Paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service proposal to conduct a limited market test involving a postage-refund guarantee for certain senders of First-Class Mail and Standard Mail. This document describes the proposed test, addresses procedural aspects of the filing, and invites public comment.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, 202-789-6820 or
The Commission appoints Kenneth E. Richardson to serve as Public Representative in this docket.
1. The Commission establishes Docket No. MT2011-4 for consideration of the matters raised in this Notice.
2. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons are due no later than April 29, 2011.
4. Reply comments are due no later than May 6, 2011.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
1. Rule 19b-4 (17 CFR 240.19b-4) and Form 19b-4—Filings with respect to proposed rule changes by self-regulatory organizations.
Section 19(b) of the Securities Exchange Act of 1934 (“Act”) (15 U.S.C. 78s(b)) requires each self-regulatory organization (“SRO”) to file with the Commission copies of any proposed rule, or any proposed change in, addition to, or deletion from the rules of such SRO. Rule 19b-4 (17 CFR 240.19b-4) implements the requirements of Section 19(b) by requiring the SROs to file their proposed rule changes on Form 19b-4 and by clarifying which actions taken by SROs are deemed proposed rule changes and so must be filed pursuant to Section 19(b).
The collection of information is designed to provide the Commission with the information necessary to determine, as required by the Act, whether the proposed rule change is consistent with the Act and the rules thereunder. The information is used to determine if the proposed rule change should be approved, disapproved, or if proceedings should be instituted to determine whether the proposed rule change should be approved or disapproved.
The respondents to the collection of information are self-regulatory organizations (as defined by the Act), including national securities exchanges, national securities associations, registered clearing agencies and the Municipal Securities Rulemaking Board.
Twenty-five respondents file an average total of 1,405 responses per year. Each response takes approximately 38.057 hours to complete. The total annual reporting burden for filing proposed rule changes is 53,470 hours. The respondents are required to post all proposed rule changes to their Web sites, each of which takes approximately four hours to complete. For 1,405 proposed rule changes, the total annual reporting burden for posting them to respondents' Web sites is 5,620 hours. The respondents are required to update the postings of those proposed rule changes which become effective (on average, 1,071 per year), each of which takes approximately four hours to complete. The total annual reporting burden for updating proposed rule change postings on the respondents' Web sites is 4,284 hours. Thus, the total estimated annual response burden pursuant to Rule 19b-4 and Form 19b-4 is the sum of the total annual reporting burdens for filing proposed rule changes, posting them to the respondents' Web sites, and updating the postings of those that become effective on the respondents', which is 63,374 hours.
Compliance with Rule 19b-4 is mandatory. Information received in response to Rule 19b-4 shall not be kept confidential; the information collected is public information.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your comments to: Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an e-mail to:
Securities and Exchange Commission.
Request for comment.
In connection with a study regarding financial literacy among investors as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), the Securities and Exchange Commission is requesting public comment on the effectiveness of existing private and public efforts to educate investors.
Comments should be received on or before June 21, 2011.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC
Owen Donley, Chief Counsel; or Lori J. Schock, Director, Office of Investor Education and Advocacy, at (202) 551-6500, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-2551.
Section 917 of the Dodd-Frank Act requires the Commission to conduct a study of financial literacy among investors and submit a report on the study to the Senate Committee on Banking, Housing, and Urban Affairs and the House of Representatives Committee on Financial Services no later than two years after enactment of the Dodd-Frank Act, that is, by July 21, 2012.
The study mandated by Section 917 includes a number of specific components, including that the study identify: the existing level of financial literacy among retail investors; methods to improve the timing, content, and format of disclosures to investors with respect to financial intermediaries, investment products, and investment services; and methods to increase the transparency of expenses and conflicts of interest in transactions involving investment services and products. In addition, Section 917(a)(5) requires the study to identify “the most effective existing private and public efforts to educate investors.” The Office of Investor Education and Advocacy (“OIEA”) is currently reviewing existing private and public investor education efforts of which it is aware. The Commission is soliciting public comment to help ensure that the study includes all relevant programs, as well as to better understand the details and effectiveness of these programs.
All interested parties, including those organizing or operating investor education programs and program attendees and participants, are invited to submit their views on one or more of the following questions:
(1) Have you attended, or does your organization operate, organize, sponsor, promote, or host, any investor education programs? Please describe the program, including its duration, target audience, and any measurable goals and objectives aimed at changing investor behavior. What specific topics are covered in its curriculum?
(2) What do you consider the most important characteristics of an effective investor education program?
(3) What programs do you view as most effective?
(4) Has your organization or an independent third party evaluated any of your organization's programs? If yes, please describe the findings of the evaluation, including any statistical evidence of how your program effectively changed one or more investor behaviors among participants.
(5) Are any of your organization's programs national in scope? If not, could any of these programs be replicated or expanded to reach a national audience?
(6) What types of investor behaviors or other topics do you think investor education programs should focus on? Why?
(7) Which best describes you or your organization?
(8) Do you have any other comments regarding the effectiveness of existing private and public efforts to educate investors?
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Fee Schedule to create fees for options overlying NASDAQ OMX Alpha Indexes
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on April 18, 2011.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed
The purpose of the proposed rule change is to create new fees titled “Alpha Index Options” to support options overlying certain NASDAQ OMX Alpha Indexes
The Alpha Indexes will trade on the Exchange as a Singly Listed Option.
The proposed fees for Alpha Indexes would apply to Alpha Pairs/Alpha Symbols which have been filed to list and trade on the Exchange.
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on April 18, 2011.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that the proposed fees for Alpha Indexes are equitable, reasonable and not unfairly discriminatory because the Exchange is seeking to recoup the operational and development costs associated with the Alpha Indexes product, a proprietary product of the Exchange, while also encouraging members and member organizations to trade Alpha Indexes by assessing lower fees and offering a Customer volume discount.
The Exchange has previously stated that it incurs higher costs for Singly Listed options as compared to Multiply Listed options.
The Exchange believes that the proposed fees for Alpha Indexes are equitable because all market participants would be assessed lower fees for transacting Alpha Indexes as compared to other Singly Listed indexes. Specifically, Customers would be assessed $0.15 per contract to transact Alpha Indexes as compared to $0.35 per contract for other Singly Listed index options. Professionals,
The Exchange believes that it is equitable and not unfairly discriminatory to assess lower fees to Customers because all market participants benefit from Customer order flow. The Exchange also believes that offering discounted pricing to Customers for transacting 1,000 or more options overlying Alpha Indexes further provides benefits to both Customers and other market participants. The Exchange believes it is reasonable, equitable and not unfairly discriminatory to assess a Professional, Firm and Broker-Dealer a per contract fee of $0.20 per contract for transacting Alpha Indexes because the Exchange is assessing all market participants, except Customers and market makers, the same rate to transact Alpha Indexes. The Exchange believes that the price differentiation between market makers as compared to Professionals, Firms and Broker-Dealers is justified and not unfairly discriminatory because market makers have obligations to the market, which do not apply to Firms, Professionals and Broker-Dealers.
The Exchange believes that the proposed fees are reasonable and not unfairly discriminatory because the fees are consistent with price differentiation that exists today at all option exchanges. For example, CBOE assesses different rates for certain proprietary indexes as compared to other index products transacted at CBOE. VIX options and The S&P 500® Index options (“SPX
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2011-51 and should be submitted on or before May 13, 2011.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
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The Department will accept comments from the public on or before June 21, 2011.
You may submit comments by any of the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Coreen L. Brown, Foreign Service Institute, Office of the Executive Director, Room F-2205, U.S. Department of State, Washington, DC 20522-4201, who may be reached on 703-302-6731 or at
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
Department of State.
Notice of availability.
Consistent with the National Environmental Policy Act (NEPA) of 1969, as amended, the Department of State (DOS) has prepared a supplemental draft environmental impact statement (SDEIS) for the proposed TransCanada Keystone Pipeline, LP (TransCanada) Keystone XL Project (Project). On September 19, 2008, TransCanada filed an application for a Presidential Permit for the construction, connection, operation, and maintenance of a pipeline and associated facilities at the border of the U.S. and Canada for the transport of crude oil across the U.S.-Canada international boundary. The Secretary of State is designated and empowered to receive all applications for Presidential Permits, as referred to in Executive Order 13337, as amended, for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the exportation or importation of petroleum, petroleum products, coal, or other fuels to or from a foreign country. TransCanada has requested authorization to construct and operate border crossing facilities at the U.S.-Canadian border in Phillips County, near Morgan, Montana, in connection with its proposed international pipeline project (Keystone XL Project) that is designed to transport Canadian crude oil production from the Western Canadian Sedimentary Basin (WCSB) to destinations in the south central United States, including to a new tank farm in Cushing, Oklahoma, and to delivery points in the Port Arthur and East Houston areas of Texas.
DOS served as the lead Federal agency for the environmental review of the proposed Project consistent with NEPA, and issued a draft environmental impact statement (draft EIS) for public review on April 16, 2010. The Federal and state agencies that served as cooperating agencies in the development of the draft EIS include the U.S. Department of Agriculture—Natural Resources Conservation Service, Farm Service Agency, and Rural Utilities Service; the U.S. Army Corps of Engineers; the U.S. Department of Energy, Western Area Power Administration; the U.S. Department of the Interior—Bureau of Land Management, National Park Service, and U.S. Fish and Wildlife Service; the U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety; the U.S. Environmental Protection Agency; and the Montana Department of Environmental Quality. Cooperating agencies either have jurisdiction by law or special expertise with respect to the environmental impacts assessed in connection with the proposal and are participating with DOS in analysis of those environmental impacts.
The public comment period for the draft EIS officially closed on July 2, 2010. DOS accepted written comments and verbal comments presented at over
The SDEIS includes revised information on the proposed Project facilities, including design, construction, and maintenance; additional regulatory requirements; and additional potential connected actions. The SDEIS includes additional information on existing groundwater conditions and potential impacts to groundwater that could result from an accidental discharge from the proposed Project, expanded information on the potential impacts of an accidental discharge from the proposed Project, additional alternatives to the proposed Project, and expanded environmental justice considerations. The SDEIS also includes additional information on the composition of crude oils that would be transported by the proposed Project in comparison to other heavy crude oils, potential refinery emissions, and greenhouse gas (GHG) and climate change considerations. Appendices to the SDEIS include copies of new reports and other documents relevant to the proposed Project, petroleum market impacts, lifecycle GHG emissions, and additional requirements for pipeline construction, operation, maintenance, and inspection.
Copies of the SDEIS have been mailed to interested Federal, state and local agencies; public interest groups; individuals and affected landowners who requested a copy of the SDEIS; libraries; newspapers; and other stakeholders. A list of public libraries to which copies of the SDEIS have been mailed is available online at
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DOS will publish and distribute a final EIS that will contain responses to timely and relevant comments received on the SDEIS, as well as to the comments on the draft EIS that were previously submitted to DOS. The final EIS will also include text revised in response to comments on the draft EIS and the SDEIS. From the date of issuance of the final EIS, the public will have 30 days to comment and cooperating agencies will have 90 days to comment before DOS makes a determination under Executive Order 13337 on whether issuance of this permit is in the U.S. national interest. DOS will host a public meeting in Washington, DC following issuance of the final EIS.
Additional information on the proposed Keystone XL Project in Montana is available at:
Three Notch Railway, LLC (TNRW), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Three Notch Railroad Co., Inc. (TNHR) and to operate approximately 34 miles of rail line
This transaction is related to 3 concurrently filed verified notices of exemption, as follows: Docket No. FD 35486,
The parties intend to consummate the transaction on or after May 8, 2011.
TNRW certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35488, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at
By the Board.
Wiregrass Central Railway, LLC (WCR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Wiregrass Central Railroad Company, Inc. (WGCR), and to operate approximately 21.2 miles of rail line between milepost 800.00 at Waterford and milepost 821.2 near Newton, in Coffee and Dale Counties, Ala.
This transaction is related to 3 concurrently filed verified notices of exemption, as follows: Docket No. FD 35486,
The parties intend to consummate the transaction on or after May 8, 2011.
WCR certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35489, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at
By the Board.
Conecuh Valley Railway, LLC (CVR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Conecuh Valley Railroad Co., Inc. (COEH), and to operate
This transaction is related to 3 concurrently filed verified notices of exemption, as follows: Docket No. FD 35486,
The parties intend to consummate the transaction on or after May 8, 2011.
CVR certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35487, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at
By the Board.
RailAmerica, Inc. (RailAmerica),
This transaction is related to 3 concurrently filed verified notices of exemption, as follows: Docket No. FD 35487,
The parties intend to consummate the transaction on or after May 8, 2011.
RailAmerica et al., entered into an Asset Purchase Agreement dated April 8, 2011, with Conecuh Valley Railroad Co., Inc. (COEH), Three Notch Railroad Co., Inc. (TNHR), Wiregrass Central Railroad Company, Inc. (WGCR), and Gulf & Ohio Railways, Inc. (G&O),
Fortress's noncarrier affiliate, RR Acquisition, currently owns 55% of the publicly traded shares of, and controls, noncarrier RailAmerica. The latter directly controls noncarrier Palm Beach, which directly controls RTC. Further, Fortress, on behalf of certain other equity funds managed by it and its affiliates, directly controls noncarrier
The parties represent that: (1) CVR, TNRW, and WCR will not connect with any railroads in the corporate family of RailAmerica,
Further, the parties state that: (1) The management of RailAmerica has successfully managed short line railroads for more than a decade; (2) RailAmerica intends to focus on rail operations and to use its management experience and expertise in operating short line railroads and its financial resources to provide rail freight service to communities and industries who wish to have additional transportation options; and (3) RailAmerica intends to create financially viable railroads in CVR, TNRW, and WCR.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. As a condition to the use of this exemption, any employees adversely affected by this transaction will be protected by the conditions set forth in
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35486, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Louis E. Gitomer, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at
By the Board.
Wisconsin Central Ltd. (WCL), Duluth, Missabe and Iron Range Railway Company (DMIR) and Duluth, Winnipeg and Pacific Railway Company (DWP) have jointly filed a verified notice of exemption under 49 CFR 1180.2(d)(3) for an intra-corporate family transaction. WCL is an indirect subsidiary of Grand Trunk Corporation (GTC), a holding company for the U.S. rail subsidiaries of the Canadian National Railway Company (CNR) and a direct subsidiary of CNR.
DMIR also is an indirect subsidiary of GTC. DMIR Holdings Corp. (DMIR Holdings) is the parent company of DMIR, which in turn, is owned by GTC. Applicants state that, prior to the merger transaction proposed in this notice, DMIR will be merged into DMIR Holdings, with DMIR Holdings as the surviving entity and immediately renamed as DMIR. CNR and GTC acquired control of DMIR and other related rail carriers
Applicants point out that the rail lines of WCL, DMIR and DWP connect at the Twin Ports of Duluth, Minn. and Superior, Wis., where all three rail carriers currently operate. Together, they form an important through route between the Chicago terminal and Canada.
Pursuant to an agreement and plan of merger by the applicants (consented to by GTC and WCTC), DMIR and DWP will merge with and into WCL, with WCL being the surviving corporation. According to applicants, the consolidated entity will continue all existing operations of WCL, DMIR, and DWP, but with a unified workforce, enhanced efficiencies, and elimination of interchanges in the Twin Ports.
The transaction is scheduled to be consummated no sooner than May 8, 2011, the effective date of the exemption. Applicants state that they will first negotiate or, if necessary, arbitrate implementing agreements with the operating crafts on WCL, DMIR and DWP.
The purpose of the transaction is to simplify the corporate structure and reduce overhead costs and duplication by combining the three separate rail carrier corporations. The transaction also will eliminate interchange movements in the Twin Ports area and will enhance the overall efficiency of the merged railroads.
This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1180.2(d)(3). The parties state that the transaction will not result in adverse changes in service levels, significant operational changes, or any change in the competitive balance with carriers outside the corporate family.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. As a condition to the use of this exemption, any employees adversely affected by this transaction will be protected by the conditions set forth in
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35476, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition one copy of each pleading must be served on Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606.
Board decisions and notices are available on our Web site at
By the Board.
Camden & Southern Railroad, Inc. (C&S), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to lease and operate 17,837 feet of trackage owned by Camden Area Industrial Development Corporation (CAIDC), located at Zone JH482, Yard 06, opposite milepost 463 of Union Pacific Railroad Company's Gurdon Subdivision, Camden, Ouachita County, Ark. The notice was filed on March 29, 2011 and was supplemented on April 7, 2011.
This transaction is related to a verified notice of exemption filed by Arkansas Shortline Railroads, Inc. (ASR), a noncarrier and the parent of C&S, to continue in control of C&S and Class III rail carriers Dardanelle & Russellville Railroad, Inc. and Ouachita Railroad, upon C&S becoming a Class III rail carrier.
The transaction is expected to be consummated on or shortly after May 7, 2011.
C&S certifies that its projected annual revenues as a result of the transaction will not result in C&S becoming a Class II or Class I rail carrier and further certifies that its projected annual revenue will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35483, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Richard H. Streeter, 5255 Partridge Lane, NW., Washington, DC 20016.
Board decisions and notices are available on our Web site at
By the Board.
Agricultural Marketing Service, USDA.
Final rule.
This rule establishes procedures for conducting a referendum to determine whether issuance of a proposed Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order) is favored by domestic manufacturers and importers of softwood lumber. Softwood lumber is used in products like flooring, siding and framing. The procedures will also be used for any subsequent referendum under the Order. The proposed Order is being published separately in this issue of the
Maureen T. Pello, Marketing Specialist, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 831, Beavercreek, Oregon 97004; telephone: (503) 632-8848; facsimile (503) 632-8852; or electronic mail:
This rule is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
As part of this rulemaking process, two proposed rules were published in the
This rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the 1996 Act, a person subject to an order may file a written petition with the U.S. Department of Agriculture (USDA) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.
This rule establishes procedures for conducting a referendum to determine whether domestic manufacturers and importers of softwood lumber favor issuance of a proposed softwood lumber Order. Softwood lumber is used in products like flooring, siding and framing. USDA will conduct the referendum. The program will be implemented if it is favored by a majority of domestic manufacturers and importers of softwood lumber voting in the referendum who also represent a majority of the volume of softwood lumber represented in the referendum. The procedures will also be used for any subsequent referendum under the Order. The proposed Order is being published separately in this issue of the
The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include the products of forestry, which includes softwood lumber.
The 1996 Act provides for alternatives within the terms of a variety of provisions. Paragraph (e) of section 518 of the 1996 Act provides three options for determining industry approval of a new research and promotion program: (1) By a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under an order.
USDA received a proposal for a national research and promotion program for softwood lumber from the Blue Ribbon Commission (BRC). The BRC is a committee of 21 chief executive officers and heads of businesses that domestically manufacture and import softwood lumber. Softwood lumber is used in products like flooring, siding and framing. The program would be financed by an assessment on softwood lumber domestic manufacturers and importers and would be administered by a board of industry members selected by the Secretary of Agriculture (Secretary). The initial assessment rate would be $0.35 per thousand board feet shipped within or imported to the United States and could be increased up to $0.50 per thousand board feet. Entities that domestically ship or import less than 15 million board feet would be exempt along with shipments exported outside of the United States. Assessed entities would not pay assessments on the first 15 million board feet domestically shipped or imported. The purpose of the program would be to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States.
The BRC proposed that a referendum be held among eligible domestic manufacturers and importers to determine whether they favor implementation of the program prior to it going into effect. The BRC recommended that the program be implemented if it is favored by a
The term “softwood lumber” means softwood lumber and products manufactured from softwood as described in section 804(a) within Title VIII (Softwood Lumber Act of 2008 or SLA of 2008) of the Tariff Act of 1930 (19 U.S.C. 1202-1683g), as amended by section 3301 of the Food, Conservation and Energy Act of 2008 (Pub. L. 110-246, enacted June 18, 2008) and categorized in the following Harmonized Tariff Schedule of the United States (HTSUS) numbers—4407.10.01, 4409.10.05, 4409.10.10, 4409.10.20, 4409.10.90, and 4418.90.25. Domestic product that cannot be categorized in the referenced HTSUS numbers if it were an import is not covered under this Order. Further, softwood lumber originating in the United States that is exported to another country and shipped back to the United States is covered under this Order, provided it can be categorized in the referenced HTSUS numbers. Additionally, articles brought into the United States temporarily and for which an exemption is claimed under subchapter XIII of chapter 98 of the HTSUS are not covered under this Order.
The definition for softwood lumber in this final rule was modified to better state what is subject to this proposed program. Additionally, the paragraphs in § 1217.101 for softwood and softwood lumber were reversed in this rule so that the terms appear alphabetically in the referendum procedures. Thus, in § 1217.101, the definition for softwood was changed from paragraph (l) to (k), and the definition for softwood lumber was changed from paragraph (k) to (l).
Accordingly, softwood lumber and softwood lumber products described in section 804 of the SLA of 2008 and classified under subheading 4407.10.00, 4409.10.10, 4409.10.20, and 4409.10.90 of the HTSUS are covered under this Order and described in the following paragraphs:
(1) Coniferous wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 millimeters;
(2) Coniferous wood siding (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces, whether or not planed, sanded, or finger-jointed;
(3) Other coniferous wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces (other than wood moldings and wood dowel rods) whether or not planed, sanded, or finger-jointed;
(4) Coniferous wood flooring (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces, whether or not planed, sanded, or finger jointed; and
(5) Coniferous drilled and notched lumber and angle cut lumber.
In addition, any product classified under subheading 4409.10.05 of the HTSUS that is continually shaped along its end and or side edges is covered under the SLA of 2008 and would be covered under this Order. All product classified under 4418.90.25 would also be covered under this Order.
Accordingly, this rule adds subpart B to part 1217 that establishes procedures for conducting the referendum. The procedures cover definitions, voting instructions, use of subagents, ballots, the referendum report, and confidentiality of information. The procedures are applicable for the initial referendum and future referenda.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of this final rule on small entities. Accordingly, AMS has considered the economic impact of this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (domestic manufacturers and importers) as those having annual receipts of no more than $7.0 million.
According to USDA's Forest Service, it is estimated that, between 2007 and 2009 (most recent data available to USDA), there were an average of 595 domestic manufacturers of softwood lumber in the United States annually.
According to Customs' data, it is estimated that, between 2007 and 2009, there were about 833 importers of softwood lumber annually. About 798 importers, or about 90 percent, imported less than $7.0 million worth of softwood lumber annually. Thus, the majority of domestic manufacturers and importers of softwood lumber would be considered small entities.
According to USDA's Forest Service, for 2007-2008 (most recent data available to USDA), total output (production) of softwood lumber by U.S. sawmills averaged about 29.5 billion board feet annually. Of the 29.5 billion board feet, 12.6 billion board feet were from the southern States, 14.4 billion board feet were from the western States, and 2.5 billion board feet were from the northeast and lake States. (Data for the western States is from the Western Wood Products Association
According to U.S. Department of Commerce, Census Bureau, Foreign Trade Statistics data,
This rule establishes procedures for conducting a referendum to determine whether domestic manufacturers and importers of softwood lumber favor issuance of a proposed softwood lumber Order. Softwood lumber is used in products like flooring, siding and framing. USDA will conduct the referendum. The program will be implemented if it is favored by a majority of domestic manufacturers and importers of softwood lumber voting in a referendum who also represent a majority of softwood lumber represented in the referendum. The procedures will also be used for any subsequent referendum under the Order. The procedures are authorized under paragraph (e) of section 518 the 1996 Act.
Regarding the economic impact of this rule on affected entities, eligible softwood lumber domestic manufacturers and importers will have the opportunity to participate in the referendum. The Order would exempt domestic manufacturers and importers who ship or import less than 15 million board feet annually from the payment of assessments. Exempt domestic manufacturers and importers are not eligible to participate in the referendum. Of the 595 domestic manufacturers and 883 importers, it is estimated that about 363 domestic manufacturers and 103 importers would pay assessments under the Order and thus be eligible to vote in the referendum. It is estimated that if $17.5 million were collected in assessments ($0.35 per thousand board feet assessment rate with 50 billion board feet assessed), 25 percent, or about $4 million, would be paid by importers and 75 percent, or about $13 million, would be paid by domestic manufacturers. Voting in the referendum is optional. If domestic manufacturers and importers chose to vote, the burden of voting would be offset by the benefits of having the opportunity to vote on whether or not they want to be covered by the program.
Regarding alternatives, USDA considered requiring eligible voters to vote in person at various USDA offices across the country. USDA also considered electronic voting, but the use of computers is not universal. Conducting the referendum from one central location by mail ballot will be more cost effective and reliable. USDA will provide easy access to information for potential voters through a toll free telephone line.
This action imposes an additional reporting burden on eligible domestic manufacturers and importers of softwood lumber. Eligible domestic manufacturers and importers will have the opportunity to complete and submit a ballot to USDA indicating whether or not they favor implementation of the proposed Order. The specific burden for the ballot is detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Regarding outreach efforts, USDA will keep these individuals informed throughout the program implementation and referendum process to ensure that they are aware of and are able to participate in the program implementation process. USDA will also publicize information regarding the referendum process so that trade associations and related industry media can be kept informed.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the referendum ballot, which represents the information collection and recordkeeping requirements that may be imposed by this rule, has been submitted to OMB for approval and approved under OMB Number 0581-NEW.
The information collection requirements in this rule concern the referendum that will be held to determine whether the program is favored by the industry. Domestic manufacturers and importers of 15 million or more board feet annually are eligible to vote in the referendum. The ballot will be completed by eligible domestic manufacturers and importers who want to indicate whether or not they support implementation of the program.
The ballot will be added to the other information collections approved under OMB No. 0581-NEW.
An estimated 464 respondents will provide information to USDA (363 domestic manufacturers and 103 importers). The estimated cost of providing the information to USDA by respondents is $765.60. This total has been estimated by multiplying 23.20 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.
The proposed Order's provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under other programs administered by USDA and other State programs.
A proposed rule regarding the referendum procedures was published
In the October 1, 2010, proposed rule, comments were also invited on the information collection requirements prescribed in the Paperwork Reduction Act section of this rule. Specifically, comments were solicited on: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the proposed Order and USDA's oversight of the proposed Order, including whether the information would have practical utility; (b) the accuracy of USDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) the accuracy of USDA's estimate of the principal manufacturing areas in the United States for softwood lumber; (d) the accuracy of USDA's estimate of the number of domestic manufacturers and importers of softwood lumber that would be covered under the program; (e) ways to enhance the quality, utility, and clarity of the information to be collected; and (f) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. No comments were received regarding information collection.
Pursuant to 5 U.S.C. 553, it is found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Softwood lumber, Promotion, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, Title 7, Chapter XI of the Code of Federal Regulations, is amended by adding part 1217 to read as follows:
7 U.S.C. 7411-7425; 7 U.S.C. 7401.
Referenda to determine whether eligible domestic manufacturers and importers favor the issuance, continuance, amendment, suspension, or termination of the Softwood Lumber Research, Promotion, Consumer Education, and Industry Information Order shall be conducted in accordance with this subpart.
For the purposes of this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) A husband and a wife who have title to, or leasehold interest in, a softwood lumber manufacturing entity as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and
(2) So called “joint ventures” wherein one or more parties to an agreement, informal or otherwise, contributed land, facilities, capital, labor, management, equipment, or other services, or any variation of such contributions by two or more parties, so that it results in the domestic manufacturing or importation of softwood lumber and the authority to transfer title to the softwood lumber so manufactured or imported.
(i)
(j)
(k)
(l)
(m)
(a) Each eligible domestic manufacturer and importer of softwood lumber shall be entitled to cast only one ballot in the referendum. However, each domestic manufacturer in a landlord/tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to manufacture softwood lumber, in which more than one of the parties is a domestic manufacturer or importer, shall be entitled to cast one ballot in the referendum covering only such domestic manufacturer or importer's share of ownership.
(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate domestic manufacturer or importer, or an administrator, executor, or trustee of an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.
(c) A single entity who domestically manufactures and imports softwood lumber may cast one vote in the referendum.
(d) All ballots are to be cast by mail or other means, as instructed by the Department.
The referendum agent shall conduct the referendum, in the manner provided in this subpart, under the supervision of the Administrator. The Administrator may prescribe additional instructions, consistent with the provisions of this subpart, to govern the procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the period during which ballots may be cast;
(b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter;
(c) Give reasonable public notice of the referendum:
(1) By using available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible domestic manufacturers and importers whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order. No person who claims to be eligible to vote shall be refused a ballot;
(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process;
(f) Prepare a report on the referendum; and
(g) Announce the results to the public.
The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent's functions of this subpart. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.
The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.
Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results.
The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Order and the voter list shall be strictly confidential and shall not be disclosed.
The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. is OMB control number 0581-NEW.
Agricultural Marketing Service, USDA.
Proposed rule and referendum order.
This rule proposes a Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order). Softwood lumber is used in products like flooring, siding and framing. The program would be financed by an assessment on softwood lumber domestic manufacturers and importers and would be administered by a board of industry members selected by the Secretary of Agriculture (Secretary). The initial assessment rate would be $0.35 per thousand board feet of softwood lumber shipped within or imported to the United States. The purpose of the program would be to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States. This rule also announces that the U.S. Department of Agriculture (USDA) is conducting a referendum among eligible domestic softwood lumber manufacturers and importers to determine whether they favor implementation of the program. The program would be implemented if it is favored by a majority of those voting in the referendum who also represent a majority of the volume of softwood lumber represented in the referendum. A separate final rule on referendum procedures is being published in this issue of the
The voting period is May 23 through June 10, 2011. To be eligible to vote, softwood lumber domestic manufacturers and importers must have domestically manufactured and/or imported 15 million board feet or more of softwood lumber during the representative period from January 1 through December 31, 2010. Ballots will be mailed to all known domestic manufacturers and importers of softwood lumber on or before May 16, 2011. Ballots must be received by the referendum agents no later than the close of business 4:30 p.m. (Eastern Standard Time) on June 10, 2011.
Copies of the proposed Order may be obtained from the Referendum Agent, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Room 0632-S, Stop 0244, Washington, DC 20250-0244; telephone: (202) 720-9915 or (888) 720-9917 (toll free); or facsimile: (202) 205-2800; or can be viewed at
Maureen T. Pello, Marketing Specialist, Research and Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 831, Beavercreek, Oregon 97004; telephone: (503) 632-8848; facsimile (503) 632-8852; or electronic mail:
This rule is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
As part of this rulemaking process, a proposed rule was published in the
This rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the 1996 Act, a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.
This rule proposes an industry-funded research, promotion, and information program for softwood lumber. Softwood lumber is used in products like flooring, siding and framing. The program would be financed by an assessment on softwood lumber domestic manufacturers and importers and would be administered by a board of industry members selected by the Secretary. The initial assessment rate would be $0.35 per thousand board feet of softwood lumber shipped within or imported to the United States. Entities that domestically ship or import less than 15 million board feet per fiscal year would be exempt from the payment of assessments. Additionally, assessed entities would not pay assessments on the first 15 million board feet of softwood lumber shipped domestically or imported during the year. Exports from the United States would also be exempt from assessments. The purpose of the program would be to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States. The proposal was submitted to USDA by the Blue Ribbon Commission (BRC), a committee of 21 chief executive officers and heads of businesses that domestically manufacture and import softwood lumber.
This rule also announces that USDA is conducting a referendum among eligible domestic manufacturers and importers to determine whether they favor implementation of the program. The program would be implemented if it is favored by a majority of those voting in the referendum who also represent a majority of the volume of softwood lumber represented in the referendum.
The proposed Order is authorized under the 1996 Act which authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer
The 1996 Act provides for a number of optional provisions that allow the tailoring of orders for different commodities. Section 516 of the 1996 Act provides permissive terms for orders, and other sections provide for alternatives. For example, section 514 of the 1996 Act provides for orders applicable to (1) producers, (2) first handlers and others in the marketing chain as appropriate, and (3) importers (if imports are subject to assessments). Section 516 states that an order may include an exemption of de minimis quantities of an agricultural commodity; different payment and reporting schedules; coverage of research, promotion, and information activities to expand, improve, or make more efficient the marketing or use of an agricultural commodity in both domestic and foreign markets; provision for reserve funds; provision for credits for generic and branded activities; and assessment of imports.
In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under the order. An order also may provide for its approval in a referendum based upon different voting patterns. Section 515 provides for establishment of a board or council from among producers, first handlers and others in the marketing chain as appropriate, and importers, if imports are subject to assessment.
The softwood lumber industry is comprised of sawmills that make products from softwood trees. Softwoods include the botanical group of trees that have needle-like or scale-like leaves, or conifers. Softwood lumber includes certain products manufactured from softwoods (or coniferous trees). Softwood lumber is used in products like flooring, siding, and framing.
Softwood lumber sizes are identified by the thickness and width of the board when it is first cut from the log. This is known as “rough cut” when the wood is still green and wet. Once the wood dries, it shrinks. After the wood dries, the surface of the board is smoothed to make the wood a uniform size. This is known as “planing” the wood. Once planed, the wood is considered finished. In the industry, the term nominal is used to describe the size of the rough cut board, prior to finishing. For example, a 2 x 4 board is a nominal size. The actual size of a 2 x 4 board is 1.5 inches in thickness by 3.5 inches in width. The length of the board is typically the actual length. Usually there is a
According to USDA's Forest Service, the main species of softwoods in the southern United States are pines that grow fast and can be sold for lumber in 25 to 30 years. Southern pines are often treated with preservatives. About a third of the region's lumber is sold to treaters for further processing (
Most of the northern U.S. softwood lumber industry is in Maine where the predominant species are white spruce and balsam fir. These trees are typically used for light framing such as wall studs. Second growths of red pine planted in the 1930s and later have been harvested by a few firms in the lake states. Red pine is also easy to treat and much of it is processed. White pine trees are also prevalent in the northern United States. They are used for paneling, millwork, and joinery. Millwork includes woodwork that has been made at a mill, and joinery is the trade of constructing articles by joining together pieces of wood.
The bulk of timber production in the western United States is on the coast of the Pacific Northwest. Douglas fir and hemlock trees dominate while farther south in northern California, redwood trees, suitable for outdoor structures like fences, siding and decks, are common. East of these regions, ponderosa pine dominates and is used for millwork and joinery. Northern Idaho and Montana contain lodgepole pine and other species suitable for light framing.
According
The
During normal economic conditions, single family homes comprise the largest share of the softwood lumber market in the United States. Single family home use rose from 20.2 billion board feet in 2003 to 24.5 billion board feet in 2005 and fell to 5.3 billion board feet in 2009. Single family homes comprised 38 percent of the market for softwood lumber in 2005 and 16 percent of the market by 2009.
Home building is cyclical in nature (follows a pattern of highs and lows) as compared to other end uses for softwood lumber. Residential remodeling and other uses experienced downturns between 2006 and 2009, but less severe than the market for single family homes. Softwood lumber used for residential remodeling fell from 21.4 billion board feet in 2006 to 14.2 billion board feet in 2009. As a percentage of softwood lumber market share, residential remodeling rose from 35 percent in 2006 to 44 percent in 2009.
Export
Softwood
According to U.S. Department of Commerce, Census Bureau, Foreign Trade Statistics data (Census),
Prices
Several factors contributed to the revenue changes shown in Table 2. Some mills in the interior western United States were forced to close because of constraints on the availability of timber. A dispute with Canada over lumber imports that resulted in a 15 percent export levy for some U.S.-bound shipments and quotas on others after October 2006 impacted supply.
Wood, labor, and operating costs also impact revenue. The cost of wood in the United States is negotiated between buyers and sellers. Companies often enter into long-term supply contracts with timber owners where the price is negotiated quarterly based on sales and market conditions. Labor is the second biggest component of lumber costs. According to the U.S. Department of Labor, U.S. wages have increased about 3 percent per year during this decade.
The softwood lumber industry is experiencing one of the worst markets in history. The collapse of the housing market caused prices to fall from $404 per thousand board feet in 2004 to $222 per thousand board feet in 2009. Prices rose slightly in 2010 to $284 per thousand board feet.
Additionally, at the request of the U.S. and Canadian governments, the U.S. Endowment for Forestry and Communities (Endowment) and the Binational Softwood Lumber Council (BSLC) were formed in 2006 in accordance with the 2006 Softwood Lumber Agreement. The Endowment is a non-profit organization that works with public and private sectors to advance the interests of the forestry community. The Endowment conducted a study to assess the feasibility of a softwood lumber research and promotion program. In the past, the industry attempted voluntary efforts to promote forest products, but they were sporadic, underfunded, and narrowly targeted. These campaigns did not last long enough to succeed. The Endowment recommended to the industry that Canadian and U.S. companies pursue a shared vision and achieve broad agreement on creating a unified softwood lumber research and promotion program. In 2008, the Endowment held an industry meeting in Seattle, Washington, to discuss the merits of such a program and obtain industry feedback.
As a result of the Endowment's efforts, the BRC was subsequently formed to pursue an industry research and promotion program. The BRC is comprised of 21 members representing the United States and Canada. Funding and support for the BRC's efforts come from the BSLC, a non-profit organization whose mission is to promote increased cooperation between the U.S. and Canadian softwood lumber industries and to strengthen and expand markets for softwood lumber products in both countries. The BRC submitted an initial proposal for a program to USDA in February 2010.
The BRC proposed a program that would be financed by an assessment on softwood lumber domestic manufacturers and importers and administered by a board of industry members selected by the Secretary. The initial assessment rate would be $0.35 per thousand board feet shipped within or imported to the United States and could be increased up to a maximum of $0.50 per thousand board feet. Entities that domestically ship or import less than 15 million board feet would be exempt along with shipments exported outside of the United States. Assessed entities would not pay assessments on the first 15 million board feet shipped or imported. The purpose of the program would be to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States. A referendum will be held among eligible domestic manufacturers and importers to determine whether they favor implementation of the program prior to it going into effect. A majority of domestic manufacturers and importers by both number and volume represented in the referendum must support the program for it to be implemented. The specific provisions of the program are discussed below.
Pursuant to section 513 of the 1996 Act, §§ 1217.1 through 1217.30 of the proposed Order define certain terms that would be used throughout the Order. Several of the terms are common to all research and promotion programs authorized under the 1996 Act while other terms are specific to the proposed softwood lumber Order.
Section 1217.1 would define the term “Act” to mean the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425), and any amendments thereto.
Section 1217.2 would define the term “Blue Ribbon Commission” to mean the 21-member committee representing businesses that manufacture softwood lumber in the United States or import softwood lumber to the United States formed to pursue an industry research, promotion, and information program. As specified in proposed § 1217.41, the BRC would conduct the initial nominations for the Softwood Lumber Board and submit them to the Secretary.
Section 1217.3 would define the term “Board” or “Softwood Lumber Board” to mean the administrative body established pursuant to § 1217.40, or such other name as recommended by the Board and approved by the Secretary.
Section 1217.4 would define the term “board foot” or “BF” to mean a unit of measurement of softwood lumber represented by a board 12-inches long, 12-inches wide, and 1-inch thick or its cubic equivalent. A board foot calculation for softwood lumber 1 inch or more in thickness is based on its nominal thickness and width by the actual length. Softwood lumber with a nominal thickness of less than 1 inch is calculated as 1 inch.
The term “nominal” means the size by which softwood lumber is known and sold in the marketplace. As previously mentioned, it differs from the actual size and is based on the thickness and width of a board when it is first cut from a log, or rough cut, prior to drying and planing. Nominal size would be defined in § 1217.16 of the Order. The term “planing” means the act of smoothing the surface of a board to make the wood a uniform size and would be defined in § 1217.20 of the Order.
Section 1217.6 would define the term “Customs” to mean Customs and Border Protection or CBP, an agency of the United States Department of Homeland Security.
Section 1217.8 would define the term “domestic manufacturer” to mean any person who is a first handler and is engaged in the manufacturing, sale and shipment of softwood lumber in the United States during a fiscal period and who owns, or shares in the ownership and risk of loss of manufacturing of softwood lumber or a person who is engaged in the business of manufacturing, or causes to be manufactured, sold and shipped such softwood lumber in the United States beyond personal use. The term would not include any person who re-manufactures softwood lumber that had already been subject to assessment under the Order.
Section 1217.9 would define the term “export” to mean to manufacture and ship softwood lumber from within the United States to locations outside of the United States.
Section 1217.10 would define the term “fiscal period” or “fiscal year” to mean a calendar year from January 1 through December 31, or other period as recommended by the Board and approved by the Secretary.
Section 1217.12 would define the term “information” to mean activities or programs designed to disseminate the results of research, new and existing marketing programs, new and existing marketing strategies, new and existing uses and applications, and to enhance the image of softwood lumber and the forests from which it comes. This would include consumer education, which would mean any action taken to provide information to, and broaden the understanding of, the general public regarding softwood lumber. This would also include industry information, which would mean information and programs that would enhance the image of the softwood lumber industry.
Section 1217.13 would define the term “manufacture” to mean the process of transforming softwood logs into softwood lumber.
Section 1217.14 would define the term “manufacturer for the U.S. market” to mean domestic manufacturers and importers of softwood lumber. Such importers may not have manufactured the softwood lumber, but would be importing softwood lumber that had been manufactured from softwood logs. This definition is intended to provide a common term for the domestic and importing members of the softwood lumber industry.
Section 1217.15 would define the term “marketing” to mean the sale or other disposition of softwood lumber in interstate, foreign, or intrastate commerce. The sale or disposition of softwood lumber within a state would constitute marketing.
Section 1217.18 would define the terms “part” and “subpart.” The term “part” would mean the Softwood Lumber Research, Promotion, Consumer Education, and Industry Information Order and all rules, regulations, and supplemental orders issued pursuant to the Act and the Order. The Order would be a “subpart” of the part.
Section 1217.21 would define the terms programs, plans and projects to mean research, promotion and information programs, plans, or projects established under the Order.
Section 1217.22 would define the term “promotion” to mean any action taken, including paid advertising, public relations and other communications, and promoting the results of research, that presents a favorable image of softwood lumber and the forests from which it comes to the public and to any and all consumers and those who influence consumption of softwood lumber with the intent of improving the perception, markets and competitive position of softwood lumber and stimulating sales of softwood lumber.
Section 1217.23 would define the term “research” to mean any activity that advances the position of softwood lumber in the marketplace that includes any type of test, study, or analysis designed to advance the image, desirability, use, marketability, sales, product development, or quality of softwood lumber; new applications; improving softwood lumber's position in building and fire codes; softwood lumber product testing and safety; and evaluating the effectiveness of market development and promotion efforts including life cycle studies, forestry, sustainable forest management, environmental preferability, competitiveness, efficiency, pest and disease control, water quality and other management aspects of forestry and the forests from which softwood lumber originates.
Sections 1217.25 and 1217.26 would define the terms softwood and softwood lumber, respectively. It is noted that these section numbers are reversed in this proposed rule so that the terms appear alphabetically in the Order. Thus, the definition for softwood was renumbered from § 1217.26 to § 1217.25, and the definition for softwood lumber was renumbered from § 1217.25 to § 1217.26.
Section 1217.25 would then define the term “softwood” to mean one of the botanical groups of trees that have needle-like or scale-like leaves, or conifers.
Section 1217.26 would define the term “softwood lumber” to mean softwood lumber and products manufactured from softwood as described in section 804(a) within Title VIII (Softwood Lumber Act of 2008 or SLA of 2008) of the Tariff Act of 1930 (19 U.S.C. 1202-1683g), as amended by section 3301 of the Food, Conservation and Energy Act of 2008 (Pub. L. 110-246, enacted June 18, 2008), and as assessed under § 1217.52 of this Order.
The definition for softwood lumber in this proposed rule was modified to better state what is subject to this proposed program and to make clear what softwood lumber is subject to assessment. Further, modifications were made to § 1217.52 regarding the collection of assessments in this proposed rule.
Accordingly, softwood lumber and softwood lumber products described in section 804 of the SLA of 2008 and classified under subheading 4407.10.00, 4409.10.10, 4409.10.20, and 4409.10.90 of the HTSUS and would be covered
(1) Coniferous wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 millimeters;
(2) Coniferous wood siding (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces, whether or not planed, sanded, or finger-jointed;
(3) Other coniferous wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces (other than wood moldings and wood dowel rods) whether or not planed, sanded, or finger-jointed;
(4) Coniferous wood flooring (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, v-jointed, beaded, molded, rounded, or the like) along any of its edges or faces, whether or not planed, sanded, or finger jointed; and
(5) Coniferous drilled and notched lumber and angle cut lumber.
In addition, any product classified under subheading 4409.10.05 of the HTSUS that is continually shaped along its end and or side edges is covered under the SLA of 2008 and would be covered under this Order. All product classified under 4418.90.25 would also be covered under this Order.
Sections 1217.5, 1217.7, 1217.11, 1217.17, 1217.19, 1217.24, 1217.27, 1217.28, 1217.29, and 1217.30 would define the terms “conflict of interest,” “Department or USDA,” “importer,” “Order,” “person,” “Secretary,” “State,” “suspend,” “terminate,” and “United States,” respectively. The definitions are the same as those specified in section 513 of the 1996 Act.
Pursuant to section 515 of the 1996 Act, §§ 1217.40 through 1217.47 of the proposed Order would detail the establishment and membership of the proposed Softwood Lumber Board, nominations and appointments, the term of office, removal and vacancies, procedure, reimbursement and attendance, powers and duties, and prohibited activities.
Section 1217.40 would specify the Board establishment and membership. The Board would be composed of manufacturers for the U.S. market who manufacture and domestically ship or import 15 million board feet or more of softwood lumber in the United States during a fiscal period. Seats on the Board would be apportioned based on the volume of softwood lumber manufactured and shipped within the United States by domestic manufacturers and the volume of softwood lumber imported into the United States.
The Board would be composed of 18 or 19 members, depending upon whether it is appropriate to appoint an additional importer member to the Board. Twelve members would be domestic manufacturers and would be allocated to three regions in the United States based on the volume of softwood lumber manufactured in and shipped from the respective region. Of the 12 members, 6 would be from the U.S. South Region, 5 would be from the U.S. West Region, and 1 member would be from the Northeast and Lake States Region and any other part of the United States not included in the southern and western regions. Specific areas within each domestic region would be specified in § 1217.40(b)(1) of the proposed Order.
Six members would be importers who import the majority of their softwood lumber from two regions in Canada and would be allocated based on the volume of softwood lumber imported from those two respective regions. Of the six Canadian importers, four would represent the Canadian West Region and two would represent the Canadian East Region. Specific areas within each Canadian region would be specified in § 1217.40(b)(2) of the proposed Order. An additional member would represent a region representing all countries except Canada and the United States, if appropriate.
The volume of softwood lumber imported from other countries besides Canada is relatively low, averaging about 6 percent of total imports from 2008 through 2010. Thus, the BRC recommended that, if the Secretary, at the request of the Board or on his or her own, determines that it would be consistent with the provisions of the Act, the Secretary could appoint an additional importer to the Board to represent the region outside of the regions specified for Canada. Nominees would be solicited as prescribed for other regions, and all the names of eligible candidates would be submitted to the Secretary for consideration. Such nominees would have to certify that the majority of their softwood lumber is imported from the region (which would include imports from all countries except Canada).
The BRC also opted to have no alternate Board members. It wants to ensure that industry members who seek representation and serve on the Board are committed to their service and participate in all Board meetings.
Every 5 years, but no more often than once every 3 years, the Board must review, based on a 3-year average, the geographical distribution of the volume of softwood lumber manufactured and shipped within the United States by domestic manufacturers and the volume of softwood lumber imported into the United States. If warranted, the Board would recommend to the Secretary that the Board membership be reapportioned appropriately to reflect such changes. The distribution of volumes between regions also shall be considered (domestic versus importer regions and within domestic and importing regions). The number of Board members may also be changed. Any changes in Board composition would be implemented by the Secretary through rulemaking.
Section 1217.41 of the proposed Order would specify Board nominations and appointments. The initial nominations would be submitted to the Secretary by the BRC. The BRC would publicize the nomination process, using trade press or other means it deems appropriate, and outreach to all manufacturers for the U.S. market who domestically ship and/or import 15 million board feet or more of softwood lumber per fiscal year. The BRC would use regional caucuses, mail or other methods to solicit potential nominees and would work with USDA to help ensure that all interested persons are apprised of the nomination process. The BRC would submit the nominations to the Secretary and recommend two nominees for each Board position. The Secretary would select the members of the Board from the nominations submitted by the BRC.
Regarding subsequent nominations, the Board would solicit nominations as described in the preceding paragraph. Nominees would have the opportunity to provide the Board a short background statement outlining their qualifications and desire to serve on the Board. They must domestically ship and/or import 15 million board feet or more of softwood lumber per fiscal year. Entities that are both a domestic manufacturer and an importer could seek nomination to the Board and vote in the nomination process described below depending on whether the majority of their business is domestic manufacturing or imports. Such nominees who domestically manufacture the majority of their
Domestic manufacturers who manufacture softwood lumber in more than one region could seek nomination in only the region in which they manufacture the majority of their softwood lumber. The names of domestic manufacturer nominees would be placed on a ballot by region. The ballots along with the background statements would be mailed to domestic manufacturers in each respective region for a vote. Domestic manufacturers who manufacture softwood lumber in more than one region could only vote in the region in which they manufacture the majority of their softwood lumber. The votes would be tabulated for each region with the nominee receiving the highest number of votes at the top of the list in descending order by vote. The top two candidates for each position would be submitted to the Secretary.
Importer nominees would certify that the majority of their softwood lumber was imported from the respective region for which they were seeking representation on the Board. They would provide documentation to verify this if requested by the Board. The names of importer nominees would then be placed on a ballot by region. The ballots along with the background statements would be mailed to importers in each respective region for a vote. Importers who import softwood lumber from more than one region could only vote in the region from which they import the majority of their softwood lumber. The votes would be tabulated for each region with the nominee receiving the highest number of votes at the top of the list in descending order by vote. The top two candidates for each position would then be submitted to the Secretary.
The Board would submit nominations to the Secretary at least 6 months before the new Board term begins. The Secretary would select the members of the Board from the nominations submitted by the Board.
The BRC also recommended that no two Board members be employed by a single corporation, company, partnership, or any other legal entity. This is to ensure that no one entity has control on the Board.
In order to provide the Board flexibility, the Board could recommend to the Secretary modifications to its nomination procedures. Any such modifications would be implemented through rulemaking by the Secretary.
Section 1217.42 of the proposed Order would specify the term of office for Board members. With the exception of the initial Board, each Board member would serve a three-year term or until the Secretary selected his or her successor. Each term of office would begin on January 1 and end on December 31. No member could serve more than two consecutive terms, excluding any term of office less than three years. For the initial Board, the terms of office for Board members would be staggered for two, three, and four years and would be recommended to the Secretary by the BRC.
Section 1217.43 of the proposed Order would specify criteria for the removal of members and for filling vacancies. If a Board member ceased to work for or be affiliated with a domestic manufacturer or importer or ceased to do business in the region he or she represented, such position would become vacant. Additionally, the Board could recommend to the Secretary that a member be removed from office if the member consistently refused to perform his or her duties or engaged in dishonest acts or willful misconduct. The Secretary could remove the member if he or she finds that the Board's recommendation shows adequate cause. If a position became vacant, nominations to fill the vacancy would be conducted using the nominations process for subsequent nominations as proposed in § 1217.41 of the Order. A vacancy would not be required to be filled if the unexpired term is less than six months.
Section 1217.44 of the proposed Order would specify procedures of the Board. A majority of the Board members (10) would constitute a quorum, provided that at least three of the members present were importers and six were domestic manufacturers. If participation by telephone or other means were permitted, members participating by such means would count towards the quorum requirements or other voting requirements as authorized under the Order. Proxy voting would not be permitted. A motion would carry if supported by 10 Board members, except for recommendations to change the assessment rate or to adopt a budget, both of which would require affirmation by at least two-thirds of the Board members (12 members for an 18 member Board and 13 members for a 19 member Board). If a Board has vacant positions, recommendations to change the assessment rate or to adopt a budget would have to pass by an affirmative vote of two-thirds of the Board members, exclusive of the vacant seats.
For example, if a 19 member Board had a vacancy, there would be 18 Board members, and thus 10 members would constitute a quorum and the majority needed to carry a motion except for changes to the assessment rate and the adoption of the budget where 12 members must agree.
The proposed Order would also provide for the Board to take action by mail, telephone, electronic mail, facsimile, or any other electronic means when the chairperson believes it is necessary. Actions taken under these procedures would be valid only if all members and the Secretary were notified of the meeting and all members were provided the opportunity to vote and at least 10 Board members voted in favor of the action (unless two-thirds vote were required under the Order). Additionally, all votes would have to be confirmed in writing and recorded in Board minutes.
The proposed Order would specify that Board members would serve without compensation. However, Board members would be reimbursed for reasonable travel expenses, as approved by the Board, incurred when performing Board business.
Section 1217.46 of the proposed Order would specify powers and duties of the Board. These are similar to powers and duties of boards in other promotion programs authorized under the 1996 Act. They include, among other things, to administer the Order and collect assessments; to develop bylaws and recommend regulations necessary to administer the Order; to select a chairperson and other Board officers; to create an executive committee and form other committees and subcommittees as necessary; to hire staff or contractors; to provide appropriate notice of meetings to the industry and USDA and keep minutes of such meetings; to develop programs and enter into contracts to implement programs; to submit a budget to USDA for approval 60 calendar days prior to the start of the fiscal year; to borrow funds necessary to cover startup costs of the Order; to invest Board funds appropriately; to recommend changes in the assessment rate as appropriate and within the limits of the Order; to have its books audited by an outside certified public accountant at the end of each fiscal period and at other times as requested by the Secretary; to report its activities to manufacturers for the U.S. market; to make public an accounting of funds received and expended; to receive, investigate and report to the Secretary complaints of violations of the Order; and to recommend amendments to the Order as appropriate.
Section 1217.47 of the proposed Order would specify prohibited activities that are common to all promotion programs authorized under the 1996 Act. In summary, the Board nor its employees and agents could engage in actions that would be a conflict of interest; use Board funds to lobby (influencing legislation or governmental action or policy, by local, state, national, and foreign governments or subdivision thereof, other than recommending to the Secretary amendments to the Order); and engage in any advertising or activities that may be false, misleading or disparaging to another agricultural commodity.
As an example, § 1217.60 of the proposed Order provides authority for the Board to conduct research as defined in § 1217.23 that includes projects to improve softwood lumber's position in building and fire codes. While the Board may conduct such research, it could not engage in efforts to influence government officials to modify building and fire codes or establish new codes.
Pursuant to sections 516 and 517 of the 1996 Act, §§ 1217.50 through 1217.53 of the proposed Order detail requirements regarding the Board's budget and expenses, financial statements, assessments, and exemption from assessments. At least 60 calendar days before the start of the fiscal period, and as necessary during the year, the Board would submit a budget to USDA covering its projected expenses. The budget must include a summary of anticipated revenue and expenses for each program along with a breakdown of staff and administrative expenses. Except for the initial budget, the Board's budgets should include comparative data for at least one preceding fiscal period.
Each budget must provide for adequate funds to cover the Board's anticipated expenses. Any amendment or addition to an approved budget must be approved by USDA, including shifting of funds from one program, plan or project to another. Shifts of funds that do not result in an increase in the Board's approved budget would not have to have prior approval from USDA. For example, if the Board's approved budget provided for $1 million in consumer advertising and $500,000 in research projects, a shift of $50,000 from consumer advertising to research would require USDA approval. However, a shift within the $1 million consumer advertising line item would not require prior USDA approval.
The Board would be authorized to incur reasonable expenses for its maintenance and functioning. During its first year of operation, the Board could borrow funds for startup costs and capital outlay. Any borrowed funds would be subject to the same fiscal, budget and audit controls as other funds of the Board.
The Board could also accept voluntary contributions. Any contributions received by the Board would be free from encumbrances by the donor and the Board would retain control over use of the funds. For example, the Board could receive Federal grant funds, subject to approval by the Secretary, for a specific research project. The Board would also be required to reimburse USDA for costs incurred by USDA in overseeing the Order's operations, including all costs associated with referenda.
The Board would be limited to spending no more than 8 percent of its available funds for administration, maintenance, and the functioning of the Board. This limitation would begin two fiscal years after the Board's first meeting. Reimbursements to USDA would not be considered administrative costs. As an example, if the Board received $15 million in assessments during fiscal year 5, and had available $1 million in reserve funds, the Board's available funds would be $16 million. In this scenario, the Board would be limited to spending no more than $1.28 million (.08 × $16 million) on administrative costs. While section 515 of the 1996 Act limits such spending to 15 percent of a board's budget, the BRC believes that 8 percent is appropriate.
The Board could also maintain a monetary reserve and carry over excess funds from one fiscal period to the next. However, such reserve funds could not exceed one fiscal year's budgeted expenses. For example, if the Board's budgeted expenses for a fiscal year were $15 million, it could carry over no more than $15 million in reserve. With approval of the Secretary, reserve funds could be used to pay expenses.
The Board could invest its revenue collected under the Order in the following: (1) Obligations of the United States or any agency of the United States; (2) General obligations of any State or any political subdivision of a State; (3) Interest bearing accounts or certificates of deposit of financial institutions that are members of the Federal Reserve; and (4) Obligations fully guaranteed as to principal interest by the United States.
The Board would be required to submit to USDA financial statements on a quarterly basis, or at any other time as requested by the Secretary. Financial statements should include, at a minimum, a balance sheet, an income statement, and an expense budget.
The Board's programs and expenses would be funded through assessments on manufacturers for the U.S. market, other income, and other funds available to the Board. The Order would provide for an initial assessment rate of $0.35 per thousand board feet. Domestic manufacturers would pay assessments based on the volume of softwood lumber shipped within the United States and importers would pay assessments based on the volume of softwood lumber imported to the United States.
Two years after the Order becomes effective and periodically thereafter, the Board would review the assessment rate and, if appropriate, recommend a change in the rate. At least two-thirds of the Board members would have to favor a change in the assessment rate. The assessment rate could be no less than $0.35 per thousand board feet and no more than $0.50 per thousand board feet. Any change in the assessment rate within this range would be subject to rulemaking by the Secretary. Anticipated income generated within the assessment range is addressed in the section titled Regulatory Flexibility Act Analysis.
Domestic manufacturers would be required to pay their assessments owed to the Board by the 30th calendar day of the month following the end of the quarter in which the softwood lumber was shipped. Thus, the January to December fiscal year would have four quarters ending the last day of March, June, September, and December, respectively. Assessments would be due April 30th, July 30th, October 30th, and January 30th. As an example, assessments for lumber shipped in January would be due to the Board by April 30th.
Additionally, domestic product that could not be categorized in the HTSUS numbers listed in § 1217.52(h) if it were an import would not be covered under the Order. Further, softwood lumber originating in the United States that is shipped to locations outside of the United States and then shipped back to the United States would be covered under the Order, provided it could be categorized in the HTSUS numbers listed in § 1217.52(h).
Importer assessments would be collected through Customs. If Customs did not collect the assessment from an importer, then the importer would be responsible for paying the assessment
Imported softwood lumber that would be covered under the program would have a quantity associated with it in cubic meters. To compute the assessments owed, USDA converted the quantity of softwood lumber in cubic meters to the thousand board feet equivalent, and then that number was multiplied by the applicable assessment rate. One cubic meter is equal to 423.776001 board feet. The factor used to convert one cubic meter to one thousand board feet is 423.776001 divided by 1,000, or 0.423776001. For example, if 500,000 cubic meters of softwood lumber covered under the program is imported, and the assessment rate is $0.35 per thousand board feet, the assessments owed would be $74,160.80 (500,000 × 0.423776001 × $.35).
Section 1217.52(h) of the Order would prescribe the HTSUS categories covered under the program. In the event an HTSUS number subject to assessment changed and the change is merely a replacement of a previous number and has no impact on the description of the softwood lumber involved, assessments would continue to be collected based on the new number.
Articles brought into the United States temporarily and for which an exemption is claimed under subchapter XIII of chapter 98 of the HTSUS would not be covered under this Order. If assessments are collected by Customs for these products, the importer may apply to the Board for a refund of assessments.
The Order would provide authority for the Board to impose a late payment charge and interest for assessments overdue to the Board by 60 calendar days. The late payment charge and rate of interest would be prescribed in the Order's regulations issued by the Secretary.
As previously mentioned, § 1217.52 regarding the collection of assessments has been modified in this proposed rule to make clear what softwood lumber is subject to assessment. Additionally, § 1217.52 was modified to link assessable imported product directly to HTSUS codes.
Further, all imported softwood lumber covered under the Order would have a quantity associated with it in cubic meters or an equivalent measure. Thus, the factor listed in the first proposed rule used to convert value in dollars to a quantity has been removed because it is no longer necessary.
The Order would provide for four exemptions. First, manufacturers for the U.S. market who domestically ship or import less than 15 million board feet during a fiscal year would be exempt from paying assessments. Domestic manufacturers and importers would apply to the Board for an exemption prior to the start of the fiscal year. This would be an annual exemption; entities would have to reapply each year. They would have to certify that they expect to domestically ship or import less than 15 million board feet for the applicable fiscal year. The Board could request past shipment or import data to support the exemption request. The Board would then issue, if deemed appropriate, a certificate of exemption to the eligible manufacturer for the U.S. market.
Once approved, domestic manufacturers would not have to pay assessments to the Board for the applicable fiscal year. Approved importers would present a copy of the certificate to Customs. If accepted by Customs, such imported softwood lumber would not be subject to assessments. If Customs collects the assessment, the Board would refund such importers their assessments no later than 60 calendar days after receipt of such assessments by the Board. No interest would be paid on the assessments collected by Customs.
Manufacturers for the U.S market who did not apply to the Board for an exemption and domestically shipped or imported less than 15 million board of softwood lumber during the fiscal year would receive a refund from the Board for the applicable assessments within 30 calendar days after the end of the fiscal year. Board staff would determine the assessments paid and refund the domestic manufacturer accordingly. On the other hand, manufacturers for the U.S. market who receive an exemption certificate but domestically ship or import more than 15 million board feet of softwood lumber during the fiscal year would have to pay the Board the applicable assessments owed within 30 calendar days after the end of the fiscal year and submit any necessary reports to the Board.
If an entity is a domestic manufacturer and importer of softwood lumber, such entity's domestic shipments and imports together would count towards the 15 million board foot-exemption. For example, if an entity domestically ships 12 million board feet and imports 10 million board feet during a fiscal year, the entity would pay assessments on 7 million board feet of softwood lumber.
The Board could recommend additional procedures to administer the exemption as appropriate. Any procedures would be implemented through rulemaking by the Secretary.
The second exemption under the proposed Order would be for manufacturers for the U.S. market who domestically ship or import more than 15 million board feet of softwood lumber annually. Domestic manufacturers would not pay assessments on their first 15 million board feet of softwood lumber shipped during the applicable fiscal year. Importers would receive a refund from the Board for the applicable assessments collected by Customs no later than 60 calendar days after receipt of such assessments by the Board.
The third exemption under the proposed Order would be for exports. The Board would develop procedures for approval by USDA for refunding assessments that may be inadvertently paid on such shipments and establish any necessary safeguards as appropriate. Safeguard procedures would be implemented by the Secretary through rulemaking.
If the Board determined that exports should be assessed, it would make that recommendation to the Secretary. Any such action would be implemented by USDA through rulemaking.
As previously mentioned, softwood lumber manufactured in the United States that is shipped to locations outside of the United States for minor processing and then shipped back to the United States would be subject to assessment.
The fourth exemption under the proposed Order would be for organic lumber. A domestic manufacturer who operates under an approved National Organic Program (NOP) (7 CFR part 205) system plan, only manufactures and ships softwood lumber that is eligible to be labeled as 100 percent organic under the NOP and is not a split operation would be exempt from payment of assessments. Likewise, an importer who imports only softwood lumber that is eligible to be labeled as 100 percent organic under the NOP and is not a split operation would be exempt from the payment of assessments.
Pursuant to section 516 of the 1996 Act, §§ 1217.60 through 1217.62 of the proposed Order would detail requirements regarding promotion, research and information programs, plans and projects authorized under the Order. The Board would develop and submit to the Secretary for approval programs, plans and projects regarding
The Order would also require that, at least once every five years, the Board fund an independent evaluation of the effectiveness of the Order and programs conducted by the Board. Finally, the Order would specify that any patents, copyrights, trademarks, inventions, product formulations and publications developed through the use of funds received by the Board would be the property of the U.S. Government, as represented by the Board. These along with any rents, royalties and the like from their use would be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board, and could be licensed with approval of the Secretary.
Pursuant to section 515 of the 1996 Act, §§ 1217.70 through 1217.72 specify the reporting and recordkeeping requirements under the proposed Order as well as requirements regarding confidentiality of information.
Manufacturers for the U.S. market would be required to submit periodically to the Board certain information as the Board may request. Specifically, domestic manufacturers would submit a report to the Board that would include, but not be limited to, the manufacturer's name, address, and telephone number; the board feet of softwood lumber shipped within the United States; the board feet of softwood lumber for which assessments were paid; and the board feet of softwood lumber that was exported. Manufacturers would submit this report at the same time they remit their assessments to the Board. Domestic manufacturers who received a certificate of exemption from the Board would not have to submit such a report to the Board. However, exempt domestic manufacturers who shipped over the exemption threshold of 15 million board feet during the fiscal year would have to submit such reports to the Board with the payment of assessments on a quarterly basis as specified in § 1217.53.
Likewise, importers who pay their assessments directly to the Board would be required to submit a report to the Board that would include, but not be limited to, the importer's name, address, and telephone number; the board feet of softwood lumber imported to the United States; the board feet of softwood lumber for which assessments were paid; and country of export for such softwood lumber. Importers would submit this report at the same time they remit their assessments to the Board. Importers who paid their assessments through Customs would not have to submit such reports to the Board because Customs would collect this information upon entry.
Additionally, manufacturers for the U.S. market, including those who were exempt, would be required to maintain books and records needed to verify any required reports. Such books and records must be made available during normal business hours for inspection by the Board's or USDA's employees or agents. Manufacturers for the U.S. market would be required to maintain such books and records for two years beyond the applicable fiscal period.
The Order would also require that all information obtained from persons subject to the Order as a result of proposed recordkeeping and reporting requirements would be kept confidential by all officers, employees, and agents of the Board and USDA. Such information could only be disclosed if the Secretary considered it relevant, and the information were revealed in a judicial proceeding or administrative hearing brought at the direction or at the request of the Secretary or to which the Secretary or any officer of USDA were a party. Other exceptions for disclosure of confidential information would include the issuance of general statements based on reports or on information relating to a number of persons subject to the Order, if the statements did not identify the information furnished by any person, or the publication, by direction of the Secretary, of the name of any person violating the Order and a statement of the particular provisions of the Order violated.
Pursuant to section 518 of the 1996 Act, § 1217.81(a) of the proposed Order specifies that the program would not go into effect unless it is approved by a majority of domestic manufacturers and importers voting in a referendum who also represent a majority of the volume of softwood lumber represented in the referendum who, during a representative period determined by the Secretary, were engaged in the domestic manufacturing or importation of softwood lumber into the United States. For example, if 500 domestic manufacturers and importers representing 100 million board feet of softwood lumber voted in a referendum, 251 domestic manufacturers and importers representing over 50 million board feet would have to vote in favor of the Order for it to pass in the referendum.
Section 1217.81(b) of the proposed Order specifies criteria for subsequent referenda. Under the Order, a referendum would be held to ascertain whether the program should continue, be amended, or be terminated. This section specifies that a referendum would be held 5 years after the Order becomes effective, and every 5 years thereafter, to determine whether domestic manufacturers and importers favor continuation of the Order. The Order would continue if favored by a majority of domestic manufacturers and importers voting in the referendum that also represented a majority of the volume of softwood lumber represented in the referendum.
Additionally, a referendum could be conducted at the request of the Board. A referendum could also be conducted at the request of 10 percent or more of the number of persons eligible to vote in a referendum under the Order. Finally, a referendum could be conducted at any time as determined by the Secretary.
Sections 1217.80 and §§ 1217.82 through 1217.88 describe the rights of the Secretary; authorize the Secretary to suspend or terminate the Order when deemed appropriate; prescribe proceedings after termination; address personal liability, separability, and amendments; and provide OMB control numbers. These provisions are common to all research and promotion programs authorized under the 1996 Act.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has prepared this regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small
According to USDA's Forest Service, it is estimated that, between 2007 and 2009 (most recent data available to USDA), there were an average of 595 domestic manufacturers of softwood lumber in the United States annually.
Likewise, according to Customs data, it is estimated that, between 2007 and 2009, there were about 883 importers of softwood lumber annually. About 798 importers, or about 90 percent, imported less than $7.0 million worth of softwood lumber annually. Thus, the majority of domestic manufacturers and importers of softwood lumber would be considered small entities.
Regarding value of the commodity, with domestic production averaging 29.5 billion board feet (2007 and 2008), and using an average price for those years of $268 per thousand board feet,
This rule proposes an industry-funded research, promotion, and information program for softwood lumber. Softwood lumber is used in products like flooring, siding and framing. The program would be financed by an assessment on softwood lumber domestic manufacturers and importers and would be administered by a board of industry members selected by the Secretary. The initial assessment rate would be $0.35 per thousand board feet shipped within or imported to the United States and could be increased to $0.50 per thousand board feet. Entities that ship or import less than 15 million board feet would be exempt along with shipments exported outside of the United States. No entity would pay assessments on the first 15 million board feet shipped or imported. The purpose of the program would be to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States. A referendum will be held among eligible domestic manufacturers and importers to determine whether they favor implementation of the program prior to it going into effect. A majority of entities by both number and volume would have to support the program for it to be implemented. The program is authorized under the 1996 Act.
Regarding the economic impact of the proposed Order on affected entities, softwood lumber domestic manufacturers and importers would be required to pay assessments to the Board. As previously mentioned, the initial assessment rate would be $0.35 per thousand board feet shipped within or imported to the United States and could be increased to no more than $0.50 per thousand board feet.
The Order would provide for an exemption for domestic manufacturers and importers who ship or import less than 15 million board feet annually. Of the 595 domestic manufacturers, it is estimated that about 232, or 39 percent, ship less than 15 million board feet per year and would thus be exempt from paying assessments under the proposed Order. Of the 883 importers, it is estimated that about 780, or 88 percent, import less than 15 million board feet per year and would also be exempt from paying assessments. Thus, about 363 domestic manufacturers and 103 importers would pay assessments under the Order. It is estimated that if $17.5 million were collected in assessments ($0.35 per thousand board feet assessment rate with 50 billion board feet assessed), 25 percent, or about $4 million, would be paid by importers and 75 percent, or about $13 million, would be paid by domestic manufacturers.
Regarding the impact on the industry as a whole, the proposed program is expected to grow markets for softwood lumber by stopping the erosion of market share in single family residential market, increasing the market share in multi-family residential construction, significantly increasing the use of softwood lumber in non-residential markets, and rebuilding softwood lumber's share in the outdoor living market. The BRC estimates the long-term market growth opportunity in the non-residential market and the raised wood segment of the residential market is between 10 and 12 billion board feet. USDA's Forest Service in a 2007 study estimated a more conservative potential growth at around 8 billion board feet.
Regarding alternatives, the BRC considered various options to the proposed range in assessment rates and options to the proposed exemption. The BRC believes that $20 million in assessment income is an ideal threshold for an effective program that could help to improve the market for softwood lumber. Table 3 below shows the range in assessments projected at various industry shipment levels per year.
Regarding exemption levels, the BRC explored projected assessment income at exemption levels of 15, 20, and 30 million board feet. With a 15 million board foot exemption, the BRC projected a deduction of 11.3 percent in assessment income.
Table 4 below shows the BRC's projected income levels at various assessment options in light of the proposed 15 million board foot exemption.
Ultimately the BRC concluded that an assessment rate range of $0.35 to a maximum of $0.50 per thousand board feet with an exemption threshold of 15 million board feet was appropriate and would generate sufficient income to support an effective promotion program for softwood lumber. At an initial assessment rate of $0.35 per thousand board feet, the BRC projects assessment income between $12.4 million and almost $19 million with shipment levels ranging from 40 to 60 billion board feet, respectively.
The industry explored the merits of a voluntary promotion program. Over the years, the industry organized various public outreach, education and promotion campaigns funded through voluntary assessments. Although some were partially effective, none fully accomplished their objectives and the gains either disappeared quickly or eroded over time.
This action would impose additional reporting and recordkeeping burden on domestic manufacturer and importers of softwood lumber. Domestic manufacturers and importers interested in serving on the Board would be asked to submit a nomination form to the Board indicating their desire to serve or nominating another industry member to serve on the Board. Interested persons could also submit a background statement outlining their qualifications to serve on the Board. Except for the initial Board nominations, domestic manufacturers and importers would have the opportunity to cast a ballot and vote for candidates to serve on the Board. Domestic manufacturer and importer nominees to the Board would have to submit a background form to the Secretary to ensure they are qualified to serve on the Board.
Additionally, domestic manufacturers and importers who ship or import less than 15 million board feet annually could submit a request to the Board for an exemption from paying assessments on this volume. Domestic manufacturers and importers would also be asked to submit a report regarding their shipments/imports that would accompany their assessments paid to the Board. Domestic manufacturers and importers who would qualify as 100 percent organic under the NOP and are not a split operation could submit a request to the Board for an exemption from assessments. Importers could also request a refund of any assessments paid to Customs.
Finally, domestic manufacturers and importer who wanted to participate in a referendum to vote on whether the Order should become effective would have to complete a ballot for submission to the Secretary. These forms have been submitted to the OMB for approval under OMB Control No. 0581-NEW. Specific burdens for the forms are detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Regarding outreach efforts, as previously mentioned, the Endowment conducted a study to assess the feasibility of a softwood lumber research and promotion program. According to the BRC, at the beginning of the study (early 2008), in-depth interviews were conducted among North American softwood lumber industry leaders to explore the level of interest in a generic promotion program to help grow the market for softwood lumber. The Endowment interviewed 35 companies, which included a cross section of various levels of size and ownership types within the softwood lumber industry. Of the 35 companies surveyed, 86 percent by number representing 54 percent of the volume favored exploring a mandatory promotion program for softwood lumber.
In early 2009, the BRC was formed and began a comprehensive process to develop a program. According to the BRC, its membership is diverse and represents 44 percent of softwood lumber shipments within the U.S. market. Efforts were made to inform various associations throughout the country through presentations at their meetings. Articles and notices were also published in various newspapers and newsletters about the proposed program.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS has requested approval of a new information collection and recordkeeping requirements for the proposed lumber program.
In summary, the information collection requirements under the program concern Board nominations, the collection of assessments, and referenda. For Board nominations, domestic manufacturers and importers interested in serving on the Board would be asked to submit a “Nomination Form” to the Board indicating their desire to serve or to nominate another industry member to serve on the Board. Interested persons could also submit a background statement outlining qualifications to serve on the Board. Except for the initial Board nominations, domestic manufacturers and importers would have the opportunity to submit a “Nomination Ballot” to the Board where they would vote for candidates to serve on the Board. Nominees would also have to submit a background information form, “AD-755,” to the Secretary to ensure they are qualified to serve on the Board.
Regarding assessments, domestic manufacturers and importers who ship or import less than 15 million board feet annually could submit a request, “Application for Exemption from Assessments,” to the Board for an exemption from paying assessments. Domestic manufacturers and importers would be asked to submit a “Shipment/Import Report” that would accompany their assessments paid to the Board and report the quantity of softwood lumber shipped domestically or imported during the applicable period, the quantity exported from the United States, the quantity for which assessments were paid, and the country of export (for imports). Domestic manufacturers who ship less than 15 million board feet annually and are exempt from paying assessments would not be required to submit this report. Additionally, only importers who pay their assessments directly to the Board would be required to submit this report. As previously mentioned, the majority of importer assessments would be collected by Customs. Customs would remit the funds to the Board and the other information would be available from Customs (
There would also be an additional burden on domestic manufacturers and importers voting in referenda. The referendum ballot, which represents the information collection requirement relating to referenda, is addressed in a final rule on referendum procedures which is published separately in this issue of the
Information collection requirements that are included in this proposal include:
As noted above, under the proposed program, domestic manufacturers and importers would be required to pay assessments and file reports with and submit assessments to the Board (importers through Customs). While the proposed Order would impose certain recordkeeping requirements on domestic manufacturers and importers, information required under the proposed Order could be compiled from records currently maintained. Such records shall be retained for at least two years beyond the fiscal year of their applicability.
An estimated 1,478 respondents would provide information to the Board (595 domestic manufacturers and 883 importers). The estimated cost of providing the information to the Board by respondents would be $24,387. This total has been estimated by multiplying 739 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.
The proposed Order's provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under other programs administered by USDA and other state programs.
The proposed forms would require the minimum information necessary to effectively carry out the requirements of the program, and their use is necessary to fulfill the intent of the 1996 Act. Such information can be supplied without data processing equipment or outside technical expertise. In addition, there are no additional training requirements for individuals filling out reports and remitting assessments to the Board. The forms would be simple, easy to understand, and place as small a burden as possible on the person required to file the information.
Collecting information quarterly would coincide with normal industry business practices. The timing and frequency of collecting information are intended to meet the needs of the industry while minimizing the amount of work necessary to fill out the required reports. The requirement to keep records for two years is consistent with normal industry practices. In addition, the information to be included on these forms is not available from other sources because such information relates specifically to individual domestic manufacturers and importers who are subject to the provisions of the 1996 Act. Therefore, there is no practical method for collecting the required information without the use of these forms.
The previously proposed rule concerning this action published in the
The 27 comments which supported the proposed Order with no changes noted the difficult economic conditions that the softwood lumber industry is experiencing. They stated that marketing campaigns from competing products have contributed to softwood lumber's loss of market share. Several commenters mentioned the need to promote the environmental benefits of wood and how this would likely result in a greater acceptance of lumber for residential, commercial, and outdoor construction in the United States. Several commenters also stated that a program to promote the benefits of softwood lumber and stimulate demand would benefit rural communities where many softwood lumber mills are located.
Fourteen comments which supported the proposed Order reiterated the comments in full support, but also suggested some changes. Four comments raised concerns regarding the definition of domestic manufacturer in § 1217.8 and the definition of softwood lumber in § 1217.26 and which products would be assessed. One commenter stated that domestic manufacturers do not include entities that remanufacture softwood lumber that has already been assessed, but the definition of softwood lumber includes things like coniferous wood siding and wood flooring which are remanufactured products that would likely be assessed when originally shipped from a sawmill. The commenter stated that such products should not be assessed again. The commenter also believes there is a difference in the way domestic and imported fence pickets and cedar fencing would be treated under the program, stating that imported fence pickets and cedar fencing would be exempt from assessment and that such domestically manufactured products should also be exempt. The commenter recommended that the proposed Order be clarified accordingly.
The commenter is correct in that under § 1217.8 of the proposed Order, the term domestic manufacturer would not include any person who remanufactures softwood lumber that has already been subject to assessment. Pursuant to § 1217.8, domestic manufacturers are first handlers, and a first handler is defined in the 1996 Act as the first person who buys or takes possession of an agricultural commodity like softwood lumber directly from a producer (
Additionally, if the first domestic manufacturer (first handler) manufactures softwood lumber and makes a product that would not be covered under the softwood lumber definition if it were an import, such product would not be assessed. For example, if domestic manufacturer A manufactures softwood lumber and makes cedar fence pickets or cedar fencing, such products would be exempt from assessment. However, if domestic manufacturer A manufactures softwood lumber, sells and ships the lumber to manufacturer B who makes fence pickets or cedar fencing, manufacturer A would pay assessments.
As previously mentioned, USDA has modified § 1217.26 regarding the definition of softwood lumber and § 1217.52 regarding the collection of assessments on imports. While modifications have been made to the proposed rule to facilitate program administration, no changes have been made to the proposed Order based on this comment.
Two comments raised concern that softwood lumber produced domestically that is exported for minor processing and subsequently re-imported would be exempt from assessment. The commenters expressed concern that softwood lumber manufactured in the United States for U.S. consumption would avoid assessment. USDA concurs with the comment. Accordingly, § 1217.52 has been modified to specify that softwood lumber that originates in the United States, is shipped to locations outside of the United States, and is then shipped back to the United States would be covered under the proposed Order and subject to assessments, provided it could be categorized in the HTSUS numbers listed in § 1217.52(h).
Three comments in support of the program made suggestions regarding the composition of the Board. One commenter stated that the Canadian east includes three production areas that supply the U.S. market—Ontario, Quebec, and four maritime provinces and that the Board member seats representing the Canadian East Region should be increased from two to three.
Section 1217.40(b) of the proposed Order provides that on the 18 or 19 member Board, 4 members shall import softwood lumber from the Canadian West Region, which consists of British Columbia and Alberta, and 2 members shall import softwood lumber from the Canadian East Region, which consists of the Canadian territories and all other Canadian provinces other than British Columbia and Alberta. According to Customs data, imports of softwood lumber from the proposed Canadian East Region comprised one-third or less of the total Canadian softwood lumber imports from 2008 through 2010. The proposed Order provides that 2 of the 6 Canadian importers on the Board, or one-third, shall be from the Canadian East Region. Thus, the allocation of membership reflects the current distribution of the volume softwood lumber imports between the eastern and western regions of Canada. Should this distribution change, § 1217.40(c)(2) of the proposed Order provides authority for reapportionment of the Board membership through rulemaking by the Secretary. The proposed Order requires the Board to review in each 5-year period, based on a 3-year average, the geographical distribution of the volume of softwood lumber manufactured and shipped within the United States and the volume of softwood lumber imported into the United States. The destination of volumes between regions must also be considered. Thus, no changes have been made to the proposed Order based on this comment.
One comment also recommended that members of the Board be allowed to designate an alternate with participation and voting rights in case the member is unable to participate in a meeting. The BRC recommended that the Board have no alternates. It wants to ensure that industry members who seek representation and serve on the Board are committed to their service and participate in all Board meetings. Further, the 1996 Act does not require alternates. Additionally, the proposed Order provides flexibility for the Board to permit participation in meetings by telephone or other means. Specifically, § 1217.44(a) states that, if participation by telephone or other means is permitted, members participating by such means would count as present in determining quorum or other applicable voting requirements. No changes have been made to the proposed Order based on this comment.
One comment in support of the proposed Order recommended that the lumber retail and distribution sector be represented on the Board. The commenter cited section 515 of the 1996 Act that authorizes the Secretary to appoint members and alternates to a board from among producers and first handlers and others in the marketing chain as appropriate. The commenter is correct regarding the authority in the 1996 Act. However, the BRC recommended that the Board be composed of domestic manufacturers and importers only. If at a future time the Board determined that representation from other industry sectors was warranted, the Board could make a recommendation to the Secretary. Such a change would require rulemaking by the Secretary. If other industry sectors were to also pay assessments, the Secretary would conduct a referendum among those new sectors, domestic manufacturers and importers to determine if the change was supported by the industry. Additionally, the Order provides that Board committees and subcommittees could include individuals other than Board members. Representatives from other industry sectors could serve on these committee and subcommittees. No changes have been made to the proposed Order based on this comment.
One comment in support of the program suggested several changes to various sections of the proposed Order. First, in § 1217.47(b) regarding prohibited activities, the commenter suggested adding the phrase “other than recommending to the Secretary amendments to this Order.” However, § 1217.47(b) currently reads that the Board may not engage in, and shall prohibit the employees and agents of the Board from engaging in: “* * * (b) Using funds collected by the Board under the Order to undertake any action for the purpose of influencing legislation or governmental action or policy, by local, State, national, and foreign governments or subdivision thereof, other than recommending to the Secretary amendments to the Order * * *” Thus, the language suggested by the commenter is already in proposed § 1217.47(b). Thus, no change has been made to the proposed Order based on this comment.
In § 1217.47(c), the commenter suggested adding the word “geographic” before the word “origins” so the paragraph would read as follows: “No program, plan or project including advertising shall be false or misleading or disparaging to another agricultural commodity. Softwood lumber of all geographic origins shall be treated equally.” The commenter believes this would clarify that origins refers to regions and not species. USDA concurs with the comment and has modified paragraph (c) of § 1217.47 accordingly.
Eight comments in support of the program made recommendations regarding assessments and program coverage. One comment suggested reducing the assessment rate and
One comment recommended that assessments be based on the ability of the residential market to support an increase in the cost of softwood lumber. The commenter also opined that the Order should not establish marketing, research, or promotion programs that require assessments greater than the current residential market can support. The Board may consider such information when it formulates its budget each year. The proposed Order provides for a range in the assessment rate from $0.35 to $0.50 per thousand board feet. The range is intended to provide the Board flexibility to respond to such economic conditions. Thus, there is already a mechanism in place for the Board to consider market conditions. No change has been made to the proposed Order based on this comment.
Six comments requested that the collection of assessments be delayed until January 2012 due to the economic hardship that the softwood lumber industry is currently facing. Allowing for the assessment rate to start in January 2012 would provide the industry with additional time to prepare for the program. Accordingly, assessments would be collected under the program no earlier than January 2012.
Two comments suggested making a change to § 1217.50(f) by adding the phrase “that are inconsistent with the goals of the Order” after the phrase “free from any encumbrances” so the section would read as follows: “The Board may accept voluntary contributions, and is encouraged to seek other appropriate funding sources to carry out activities authorized by the Order. Such contributions shall be free from any encumbrances that are inconsistent with the goals of this Order by the donor and the Board shall retain complete control of their use * * *” USDA has determined that this addition is not necessary because USDA would not permit any action that was inconsistent with the Order. No change has been made to the proposed Order based on this comment.
Two comments suggested that the proposed Order be revised so that the Board had the option to pursue international markets with assessment funds or in conjunction with Foreign Agricultural Service (FAS) funds. Under the proposed Order, § 1217.53(c) would exempt exports of softwood lumber from the United States from assessment. Thus, since exports would not be assessed, assessment funds could not be used to promote exports. However, this section also provides authority for the Board to recommend to the Secretary that exports be assessed if deemed appropriate. Should exports ever be assessed and covered under the program, assessment funds could then be used for international promotion. Additionally, § 1217.50(f) specifies that the Board may receive funds from outside sources, including FAS, with approval of the Secretary, for specific authorized projects. Thus, the Order as proposed has a mechanism in place to conduct international promotion in the future. No change to the proposed Order has been made based on this comment.
Four comments in support of the program expressed concern regarding the minimum quantity exemption under the proposed Order. One comment recommended lowering the exemption level of 15 million board feet to reduce the unit cost incurred by those paying into the program. The commenter referenced the term de minimis as it is used in the North American Free Trade Agreement and the World Trade Organization glossary. One commenter requested that exemption procedures be developed so that entities exempt under the Order would not pay assessments and then have their funds later refunded back. The commenter opined that this would place a heavy burden on smaller importers because Customs would collect the assessment and the funds would be tied up for about 90 days until refunded by the Board.
Finally, two comments requested assurance that companies who import and domestically manufacture softwood lumber receive only one 15 million board foot exemption.
Section 516(a)(1) of the 1996 Act provides authority for the Secretary to exempt from an order any de minimis quantity of an agricultural commodity otherwise covered by the order. However, the 1996 Act does not define the term de minimis and USDA is not limited to using the definition of de minimis as specified in another law or agreement. The de minimis quantity is defined for a particular program and industry. The BRC reviewed various options for the exemption and determined that 15 million board feet would be appropriate because such a level would still provide the Board with resources to have a program that could be successful. USDA concurs with this exemption level because this level would exempt small operations that would otherwise be burdened by the assessment.
In response to the commenters' request for assurance that a company who imports and domestically manufactures softwood lumber would only be eligible for one 15 million board foot exemption, USDA confirms that limitation. For example, if company A imports 20 million board feet of softwood lumber and domestically manufactures and ships within the United States 40 million board feet of softwood lumber during a fiscal year, company A's exemption would be limited to one 15 million board feet exemption on the total 60 million board feet assessable under this proposed program. No changes to the proposed Order have been made based on these comments.
In response to the comment about exemption procedures, USDA is working to develop a process whereby an importer could provide Customs a copy of the exemption certificate issued by the Board. However, the only available alternative at this time is for Customs to collect the assessment, and the Board to refund such importers their assessments no later than 60 calendar days after receipt of by the Board. Section 1217.53(a) has been revised accordingly.
Three comments in support of the program expressed concern with the exemption for organic softwood lumber. Two commenters were concerned with a potential loophole. One commenter requested that the exemption be removed from the proposed Order. Specifically, the commenter argued that softwood lumber cannot be labeled or marketed as organic product under the Organic Food Production Act of 1990 because it is not marketed for human or livestock consumption. The commenter referenced the cotton promotion program and exemption for organic
The reference to the term consumption under the Organic Food Production Act of 1990 includes the consumption of non-food products. For example, under the cotton research and promotion program, organic cotton products are exempt from assessment, including non-food products. Thus, organic softwood lumber would be exempt from assessment under the proposed Order. Regarding the concern about a loophole, domestic manufacturers and importers would have to provide sufficient information to the Board to warrant an organic exemption. No changes have been made to the proposed Order based on these comments.
Three comments in support of the program expressed concern with the section of the proposed Order on programs, plans, and projects. One commenter wants to ensure that the Board has the flexibility to use the Forest Products Laboratory in Wisconsin for research projects and would not be limited to certain USDA laboratories. Section 1217.60 of the proposed order provides that the Board would have such flexibility. Another comment opined that an appropriate amount of funds raised should be reinvested in marketing, research, and promotion towards the use of softwood lumber in construction, renovation and repair of residential and light commercial structures. Under proposed § 1217.60, the Board would have the flexibility to conduct such research projects as it determines are appropriate and within the scope of the Order. Another commenter argued that the proposed rule was unclear as to what programs and/or organizations would be eligible to receive Board funds. As an example, the commenter asked whether existing codes and standards activities would be eligible expenses under the program. Pursuant to § 1217.60, the Board, with approval of the Secretary, could fund projects for purposes authorized under the Order. The Board could not fund programs to influence government action such as the development of codes and standards or lobbying for changes in codes and standards. No changes have been made to the proposed Order based on these comments.
Seven comments received were opposed to the proposed program. One commenter argued that there was no need for the program to spend American tax dollars and that another Federal bureaucracy is unnecessary. The proposed program would be paid for by the softwood lumber industry through assessments on domestic manufacturers and importers of 15 million board feet or more annually. Research and promotion programs overseen by USDA are self-help programs funded by their respective industry and do not receive taxpayer funds.
One commenter opined that, with the economy today now is not the time to assess lumber companies an extra $0.35 per thousand board feet. Another commenter opined that the economic downturn in the softwood lumber industry was not due to the lack of advertising dollars spent promoting softwood lumber but is more directly related to the housing crisis in the United States. As previously discussed, the economic downturn has had an adverse effect on the softwood lumber industry. USDA also recognizes the impact of the housing crisis on the softwood lumber industry. However, USDA has received sufficient justification to warrant proceeding to a referendum so that industry members may vote as to whether a softwood lumber research and promotion program should be implemented. Additionally, as previously mentioned, USDA received several comments that referenced the state of the economy and requested that assessments be collected no earlier than January 2012. Allowing for the assessment rate to start in January 2012 would provide the industry with additional time to prepare for the program. USDA has accepted those comments and ensures that, if the program passes in referendum, assessments would be collected no earlier than January 2012.
One commenter asked why all forest product industry segments would not participate in the assessment since assessment funds would be used to promote the use of forest products. The proposed program and justification that USDA received from the BRC was for softwood lumber only and is consistent with the enabling statute. It is AMS' understanding that other forest product industry segments discussed the possibility of joining with softwood lumber segments but the decision was made to pursue promotion efforts separately.
Two commenters opined that softwood lumber is different from beef and milk (that have active promotion programs) in that the softwood lumber industry encompasses many different factions, species, and sources. They argued that it would be difficult to see a singular promotion campaign for softwood lumber (like “Got Milk?”). Other similar promotion programs administered by USDA cover commodities that are from various sources and made into multiple products. Potatoes are produced in the U.S. and imported from Canada and other places and made into French fries, potato chips, and also used in many recipes. Generic promotion programs increase the total market for a product to the benefit of an industry, even when the commodity may be made into various products.
One commenter opined that it was difficult to support an unknown program with unknown financial costs and details. The program as proposed would provide for an initial assessment rate of $0.35 per thousand board feet. The assessment rate could be raised through rulemaking by the Secretary up to a maximum of $0.50 per thousand board feet. With the 15 million board foot exemption and the initial $0.35 per thousand board foot assessment rate, it is estimated that between $12.4 and almost $19 million would be raised annually with shipment levels ranging from 40 to 60 billion board feet, respectively. While the benefits of the program are difficult to quantify prior to it going into effect, § 1217.61 of the proposed Order would require the Board to conduct at least once every 5 years an independent evaluation of the effectiveness of the Order and the programs conducted. Thus, the proposed Order would include a mechanism whereby its effectiveness would be periodically evaluated. Similar evaluations are required of other research and promotion programs overseen by USDA and can be viewed at
Two commenters stated that most of their product line is sold in a niche market and that they would not benefit from the program. They are concerned that, if they are forced to sponsor efforts in other markets, they could not survive in their own market niche. Another commenter wants to continue to have freedom of choice as to where they decide to put their funds. One commenter expressed concern that the program would favor large mills producing into the commodity markets.
Generic promotion, research, and information activities for agricultural commodities play a unique role in advancing the demand for such commodities, since such activities increase the total market for a product to the benefit of consumers and all producers. These generic activities are of particular benefit to small producers
One commenter stated that softwood lumber does not compete with other construction material like concrete and steel, which is the primary target of the program. The commenter stated further that the domestic industry does compete with imported softwood lumber, primarily from Europe and South Africa. According to USDA's Forest Service, softwood lumber competes with numerous alternatives in domestic end uses, including steel, concrete, brick, concrete block, poured concrete, vinyl, wood-plastic composite lumber, and laminated veneer.
No changes have been made to the proposed Order based on these seven opposing comments.
Three comments were received that neither supported nor opposed the program, but raised concerns or made recommendations. One comment recommended that USDA first seek funds from the BSCL to jump start the program because it already has funds from the United States and Canada. However, the 1996 Act requires promotion programs to be funded by the industry itself. Specifically, section 517 of the 1996 Act provides that while an order issued under the 1996 Act is in effect, assessment shall be paid by first handlers (domestic manufacturers) with respect to the agricultural commodity produced and marketed and by importers with respect to the agricultural commodity imported into the United States, if the imported agricultural commodity is covered by the order. Further, the Board could accept donations to conduct its programs. Thus, no change has been made to the proposed Order based on this comment.
The commenter also recommended collecting $20 million in assessments as a start-up, and then after 2 years, have an informed vote, adding that a proper assessment rate could then be justified. While the 1996 Act allows for a referendum to be conducted not later than 3 years after assessments first begin under an order, the BRC recommended that an initial referendum be conducted prior to the order going into effect. The BRC also recommended that a referendum be conducted every 5 years thereafter to determine whether the program should continue. The BRC's proposal is consistent with the 1996 Act and an initial referendum will be conducted prior to program implementation. No change has been made to the proposed Order based on this comment.
One comment raised concerns regarding imports. The commenter expressed concern with § 1217.52(g) in the proposed rule which stated that if Customs does not collect an assessment from the importer, the importer must pay the assessment directly to the Board within 30 calendar days after importation. The commenter noted that domestic manufacturers would pay assessments to the Board no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was shipped. Given this difference in payment times between domestic manufacturers and importers who pay assessments directly to the Board, USDA revised the proposed Order to require importers who submit their assessments to the Board to pay such assessments no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was imported. This would bring the payment time frame for import assessments paid directly to the Board in line with the domestic industry. Section 1217.52(g) has been renumbered as § 1217.52(j) and revised accordingly.
The commenter expressed concern with assessing the importer of record. The commenter stated that imported volume would incur additional Customs brokerage and other related charges that would disproportionately impact the importer of record. The commenter also was concerned that one company could use multiple entities for importation and circumvent the assessment by importing less than the 15 million board foot exemption threshold through each entity. The commenter is also concerned that smaller Canadian companies who ship to the United States through larger wholesalers and brokers may not receive the benefit of an exemption for their first 15 million board feet of softwood lumber imported. The commenter stated further that smaller Canadian softwood lumber producers are generally not the importer of record but are represented by brokers and wholesalers who take ownership of the product and import it into the United States. The commenter is concerned that the larger entities could pass the assessment on to the smaller Canadian producer for 100 percent of the product although the first 15 million board feet should be exempt. The commenter suggested that, while the SLA is in effect, the assessment could be applied to those Canadian producers accessing the U.S. market according to the applicable Export Import Control Bureau Number that has been assigned to Canadian companies who produce softwood lumber destined for the United States.
Section 517(a)(2) of the 1996 Act provides authority to assess importers under an order, and section 513(6) defines the term importer to mean any person who imports an agricultural commodity from outside of the United States for sale in the United States as a principal or as an agent, broker, or consignee of any person. The 1996 Act provides no authority to assess foreign producers. Transactions between foreign producers and brokers/wholesalers are outside the scope of an order. Additionally, each importer assessed under the program must be a separate entity with a separate tax identification number. Otherwise, all entities under the same tax identification number would be considered one entity subject to the Order. This information would be reviewed periodically by the Board during audits to check compliance with the program. Thus, no change has been made to the proposed Order based on this comment.
One commenter suggested that the exemption level of 15 million board feet be raised to 100 million board feet and/or that the exemption be made available to qualified Small Business Administration companies. As previously mentioned, the BRC reviewed various options for the exemption and determined that 15 million board feet would be appropriate. This level, based on the data reviewed, is not unreasonable. Furthermore, raising the exemption to 100 million board feet or another level would not generate sufficient income to fund the program. Thus, no change has been made to the proposed Order based on this comment.
One commenter suggested that USDA be more proactive to directly inform
In the October 1, 2010, proposed rule, comments were also invited on the information collection requirements prescribed in the Paperwork Reduction Act section of this rule. Specifically, comments were solicited on: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the proposed Order and USDA's oversight of the proposed Order, including whether the information would have practical utility; (b) the accuracy of USDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) the accuracy of USDA's estimate of the principal manufacturing areas in the United States for softwood lumber; (d) the accuracy of USDA's estimate of the number of domestic manufacturers and importers of softwood lumber that would be covered under the program; (e) ways to enhance the quality, utility, and clarity of the information to be collected; and (f) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. No comments were received regarding information collection.
While the proposal set forth below has not received the approval of USDA, it is determined that this proposed Order is consistent with and would effectuate the purposes of the 1996 Act.
As previously mentioned, for the proposed Order to become effective, it must be approved by a majority of domestic manufacturers and importers voting for approval in a referendum who also represent a majority of the volume of softwood lumber represented in the referendum. Referendum procedures will be published separately in this issue of the
Pursuant to the 1996 Act, a referendum will be conducted to determine whether eligible domestic manufacturers and importers favor issuance of the proposed Order. Section 518 of the 1996 Act authorizes USDA to conduct a referendum prior to the Order going into effect.
The representative period for establishing voter eligibility for the referendum shall be the period from January 1 through December 31, 2010. Domestic manufacturers must have manufactured and shipped 15 million or more board feet of softwood lumber within the United States and importers must have imported 15 million board feet or more of softwood lumber to the United States during the representative period to be eligible to vote. The Order shall become effective if it is approved by a majority of those eligible persons voting in the referendum who also represent a majority of the volume of softwood lumber represented in the referendum.
The referendum procedures that were issued pursuant to the 1996 Act shall be used to conduct the referendum (7 CFR 1217.100 through 1217.108). The referendum shall be conducted by mail from May 23 through June 10, 2011. Ballots must be received by the referendum agents no later than the close of business, 4:30 p.m. (Eastern Standard Time) on June 10, 2011, to be counted.
Maureen T. Pello of the USDA, AMS, Research and Promotion Branch is designated as the referendum agent to conduct the referendum. Prior to the first day of the voting period, the referendum agents will mail the ballots to be cast in the referendum and voting instructions to all eligible voters. Any domestic manufacturer or imporer who does not receive a ballot should contact the referendum agent cited in the
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the referendum ballot was submitted to the OMB and approved under OMB Control No. 0581-NEW.
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Softwood lumber promotion, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that Title 7, Chapter XI of the Code of Federal Regulations be amended by adding part 1217 to read as follows:
7 U.S.C. 7411-7425; 7 U.S.C. 7401.
(a) Consumer education, which means any action taken to provide information to, and broaden the understanding of, the general public regarding softwood lumber; and
(b) Industry information, which means information and programs that would enhance the image of the softwood lumber industry.
(a)
(b) The Board shall be composed of 18 or 19 members, depending upon whether an additional importer member is appointed to the Board, pursuant to paragraph (b)(2)(iii) of this section. The Board shall be established as follows:
(1)
(i) Six members shall be from the U.S. South Region, which consists of the states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas;
(ii) Five members shall be from the U.S. West Region, which consists of the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming; and
(iii) One member shall be from the Northeast and lake States Region, which consists of the states of Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Virginia, Vermont, West Virginia, Wisconsin, and all other parts of the United States not listed in paragraphs (b)(1)(i), (b)(1)(ii), or (b)(1)(iii) of this section.
(2)
(i) Four members shall import softwood lumber from the Canadian West Region, which consists of the provinces of British Columbia and Alberta; and
(ii) Two members shall import softwood lumber from the Canadian East Region, which consists of the Canadian territories and all other Canadian provinces not listed in paragraph (b)(2)(i) of this section that import softwood lumber into the United States.
(iii) If the Secretary, at the request of the Board or on his or her own, determines that it would be consistent with the provisions of the Act, the Secretary may appoint an additional importer to the Board to represent a region not otherwise specified in paragraphs (b)(2)(i) and (b)(2)(ii) of this section. Nominees would be solicited as prescribed in paragraph (b) of § 1217.41, or in the case of the Secretary acting on his or her own will be handled by the Secretary, and all the names of eligible candidates would be submitted to the Secretary for consideration. Such nominees must certify that the majority of their softwood lumber is imported from such region. In addition, representation for the region not otherwise specified in paragraphs (b)(2)(i) and (ii) of this section would be subject to the Board review and reapportionment provided for in paragraph (c) of this section.
(c) In each five-year period, but not more frequently than once in each three-year period, the Board shall:
(1) Review, based on a three-year average, the geographical distribution of the volume of softwood lumber manufactured and shipped within the United States by domestic manufacturers and the volume of softwood lumber imported into the United States; and
(2) If warranted, recommend to the Secretary the reapportionment of the Board membership to reflect changes in the geographical distribution of the volume of softwood lumber manufactured and shipped within the United States by domestic manufacturers and the volume of softwood lumber imported into the United States. The destination of volumes between regions also shall be considered. The number of Board members may also be changed. Any changes in Board composition shall be implemented by the Secretary through rulemaking.
(a) Initial nominations will be submitted to the Secretary by the Blue Ribbon Commission. Before considering any nominations, the BRC shall publicize the nomination process, using trade press or other means it deems appropriate, and shall outreach to all known manufacturers for the U.S. market who domestically manufacture and/or import 15 million board feet or more of softwood lumber per fiscal year in order to generate nominees that reflect the different operations within the softwood lumber industry. The BRC may use regional caucuses, mail or other methods to elicit potential nominees. The BRC shall submit the nominations to the Secretary and recommend two nominees for each Board position specified in paragraphs (b)(1), (b)(2)(i) and (b)(2)(ii) of § 1217.40. All nominees solicited pursuant to § 1217.40(b)(2)(iii) shall be submitted to the Secretary through the BRC. From the nominations submitted by the BRC, the Secretary shall select the members of the Board.
(b) Subsequent nominations shall be conducted as follows:
(1) The Board shall outreach to all segments of the softwood lumber industry. Softwood lumber domestic manufacturers and importers may submit nominations to the Board. Subsequent nominees must domestically manufacture and/or import 15 million board feet or more of softwood lumber per fiscal year;
(2) Domestic manufacturers and importer nominees may provide the Board a short background statement outlining their qualifications to serve on the Board;
(3) Nominees that are both a domestic manufacturer and an importer may seek nomination to the Board and vote in the nomination process as either a domestic manufacturer or an importer, but not both:
(4) Domestic manufacturers who manufacture softwood lumber in more than one region may seek nomination only in the region in which they manufacture the majority of their softwood lumber. The names of domestic manufacturer nominees shall be placed on a ballot by region. The ballots along with the background statements shall be mailed to domestic manufacturers in each respective region for a vote. Domestic manufacturers who manufacture softwood lumber in more than one region may only vote in the region in which they manufacture the majority of their softwood lumber. The votes shall be tabulated for each region with the nominee receiving the highest number of votes at the top of the list in descending order by vote. The top two candidates for each position shall be submitted to the Secretary;
(5) Importer nominees shall certify that the majority of their softwood lumber is imported from the respective region for which they are seeking to represent on the Board and shall provide documentation to verify this if requested by the Board. The names of importer nominees shall be placed on a ballot by region. The ballots along with the background statements shall be mailed to importers in each respective region for a vote. Importers who import softwood lumber from more than one region may only vote in the region from which they import the majority of their softwood lumber. The votes shall be tabulated for each region with the nominee receiving the highest number of votes at the top of the list in descending order by vote. The top two candidates for each position shall be submitted to the Secretary.
(6) The Board must submit nominations to the Secretary at least six months before the new Board term begins. From the nominations submitted by the Board, the Secretary shall select the members of the Board;
(7) No two members shall be employed by a single corporation, company, partnership, or any other legal entity; and
(8) The Board may recommend to the Secretary modifications to its nomination procedures as it deems appropriate. Any such modifications shall be implemented through rulemaking by the Secretary.
(a) With the exception of the initial Board, each Board member will serve a three-year term or until the Secretary selects his or her successor. Each term of office shall begin on January 1 and end on December 31. No member may serve more than two consecutive terms, excluding any term of office less than three years.
(b) For the initial board, the terms of Board members shall be staggered for two, three, and four years. Determination of which of the initial members shall serve a term of two, three, or four years shall be recommended to the Secretary by the Blue Ribbon Commission.
(a) In the event that any member of the Board ceases to work for or be affiliated with a domestic manufacturer or importer or ceases to do business in the region he or she represents, such position shall become vacant.
(b) The Board may recommend to the Secretary that a member be removed from office if the member consistently refuses to perform his or her duties or engages in dishonest acts or willful misconduct. The Secretary may remove the member if he or she finds that the Board's recommendation shows adequate cause. Further, without recommendation of the Board, a member may be removed by the Secretary upon showing of adequate cause, including the failure by a member to submit reports or remit assessments required under this part, if the Secretary determines that such member's continued service would be detrimental to the achievement of the purposes of the Act.
(c) If a position becomes vacant, nominations to fill the vacancy will be conducted using the nominations process set forth in this Order. A vacancy will not be required to be filled if the unexpired term is less than six months.
(a) A majority of the Board members (10) will constitute a quorum so long as at least three of the members present are importer members and six of the members present are domestic manufacturers. If participation by telephone or other means is permitted, members participating by such means shall count as present in determining quorum or other voting requirements set forth in this section.
(b) All votes at meetings of the Board and executive committee will be cast in person or by electronic voting or other means as the Board and Secretary deem appropriate to allow members participating by telephone or other electronic means to cast votes. Voting by proxy will not be allowed.
(c) Each member of the Board will be entitled to one vote on any matter put to the Board and the motion will carry if supported by 10 Board members, except for recommendations to change the assessment rate or to adopt a budget, both of which require affirmation by at least two-thirds (12 members for an 18 member Board and 13 members for a 19 member Board) of the Board members. If a Board has vacant positions, recommendations to change the assessment rate or to adopt a budget must pass by an affirmative vote of at
(d) The Board must give members and the Secretary timely notice of all Board, executive and committee meetings.
(e) In lieu of voting at a properly convened meeting, and when, in the opinion of the Board's chairperson, such action is considered necessary, the Board may take action by mail, telephone, electronic mail, facsimile, or any other means of communication. Any action taken under this procedure is valid only if:
(1) All members and the Secretary are notified and the members are provided the opportunity to vote;
(2) Ten (10) Board members vote in favor of the action (unless two-thirds vote of the Board members is required under the Order); and
(3) All votes are promptly confirmed in writing and recorded in the Board minutes.
Board members will serve without compensation. Board members will be reimbursed for reasonable travel expenses, as approved by the Board, which they incur when performing Board business.
The Board shall have the following powers and duties:
(a) To administer this Order in accordance with its terms and conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the Board and such rules, regulations as may be necessary to administer the Order, including activities authorized to be carried out under the Order;
(c) To meet, organize, and select from among its members a chairperson and, such other officers as may be necessary;
(d) To create an executive committee of five members of the Board comprised of the chairperson and four other members elected by the Board. The duties of the executive committee shall be specified in bylaws that are recommended by the Board and approved by the Secretary;
(e) To create other committees or subcommittees, which may include individuals other than Board members, as the Board deems necessary from its membership and other representatives it deems appropriate;
(f) To employ or contract with such persons, other than the members, as it may deem necessary to assist the Board in carrying out its duties, and to determine the compensation and define the duties of each;
(g) To notify manufacturers for the U.S. market of all Board meetings through press releases or other means and to give the Secretary the same notice of Board meetings, executive committee, and subcommittee meetings that is given to members in order that the Secretary's representative(s) may attend such meetings, and to keep and report minutes of each meeting to the Secretary;
(h) To develop and administer programs, plans, and projects and enter into contracts or agreements, which must be approved by the Secretary before becoming effective, for promotion, research, and information, including consumer and industry information, research and advertising designed to strengthen the softwood lumber industry's position in the marketplace and to maintain, develop, and expand markets for softwood lumber. The payment of costs for such activities shall be with funds collected pursuant to the Order, including funds collected pursuant to § 1217.50(f). Each contract or agreement shall provide that:
(1) The contractor or agreeing party shall develop and submit to the Board a program, plan, or project together with a budget that specifies the cost to be incurred to carry out the activity;
(2) The contractor or agreeing party shall keep accurate records of all of its transactions and make periodic reports to the Board of activities conducted, submit accounting for funds received and expended, and make such other reports as the Secretary or Board may require;
(3) The Secretary may audit the records of the contracting or agreeing party periodically; and
(4) Any subcontractor who enters into a contract with a Board contractor and who receives or otherwise uses funds allocated by the Board shall be subject to the same provisions as the contractor.
(i) To prepare and submit to the Secretary for approval 60 calendar days in advance of the beginning of a fiscal period, rates of assessment and a budget of the anticipated expenses to be incurred in the administration of the Order, including the probable cost of each promotion, research, and information activity proposed to be developed or carried out by the Board;
(j) To borrow funds necessary for startup expenses of the Order;
(k) To invest assessments collected and other funds received pursuant to the Order and use earnings from invested assessments to pay for activities carried out pursuant to the Order;
(l) To recommend changes to the assessment rates as provided in this part;
(m) To cause its books to be audited by a certified public accountant at the end of each fiscal period and at such other times as the Secretary may request, and to submit a report of each audit directly to the Secretary;
(n) To periodically prepare and make public and to make available to manufacturers for the U.S. market reports of its activities and, at least once each fiscal period, to make public an accounting of funds received and expended;
(o) To maintain minutes, books, and records and prepare and submit to the Secretary such reports from time to time as may be required for appropriate accounting with respect to the receipt and disbursement of funds entrusted to it, and to submit to the Secretary such information pertaining to this part or subpart as he or she may request;
(p) To act as an intermediary between the Secretary and any manufacturer for the U.S. market;
(q) To receive, investigate and report to the Secretary complaints of violations of the Order; and
(r) To develop and recommend such rules and regulations to the Secretary for approval as may be necessary for the development and execution of plans or activities to effectuate the purposes of the Act.
The Board may not engage in, and shall prohibit the employees and agents of the Board from engaging in:
(a) Any action that would be a conflict of interest;
(b) Using g funds collected by the Board under the Order to undertake any action for the purpose of influencing legislation or governmental action or policy, by local, state, national, and foreign governments or subdivision thereof, other than recommending to the Secretary amendments to the Order; and
(c) No program, plan or project including advertising shall be false or misleading or disparaging to another agricultural commodity. Softwood lumber of all geographic origins shall be treated equally.
(a) At least 60 calendar days prior to the beginning of each fiscal period, and as may be necessary thereafter, the Board shall prepare and submit to the Department a budget for the fiscal period covering its anticipated expenses and disbursements in administering this part. The budget for research, promotion
(1) A statement of objectives and strategy for each program, plan, or project;
(2) A summary of anticipated revenue, with comparative data for at least one preceding fiscal year, except for the initial budget;
(3) A summary of proposed expenditures for each program, plan, or project; and
(4) Staff and administrative expense breakdowns, with comparative data for at least one preceding fiscal year, except for the initial budget.
(b) Each budget shall provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in this Order.
(c) Subject to this section, any amendment or addition to an approved budget must be approved by the Department, including shifting funds from one program, plan, or project to another.
(d) The Board is authorized to incur such expenses, including provision for a reserve, as the Secretary finds reasonable and likely to be incurred by the Board for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this subpart. Such expenses shall be paid from funds received by the Board.
(e) With approval of the Department, the Board may borrow money for the payment of startup expenses subject to the same fiscal, budget, and audit controls as other funds of the Board. Any funds borrowed shall be expended only for startup costs and capital outlays and are limited to the first year of operation by the Board.
(f) The Board may accept voluntary contributions, and is encouraged to seek other appropriate funding sources to carry out activities authorized by the Order. Such contributions shall be free from any encumbrances by the donor and the Board shall retain complete control of their use. The Board may receive funds from outside sources (
(g) The Board shall reimburse the Secretary for all expenses incurred by the Secretary in the implementation, administration, enforcement and supervision of the Order, including all referendum costs in connection with the Order.
(h) For fiscal years beginning two years after the date the of the first Board meeting, the Board may not expend for administration, maintenance, and the functioning of the Board an amount that is greater than 8 percent of the assessment and other income received by and available to the Board for the fiscal year. For purposes of this limitation, reimbursements to the Secretary shall not be considered administrative costs.
(i) The Board may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in any reserve so established:
(j) Pending disbursement of assessments and all other revenue under a budget approved by the Secretary, the Board may invest assessments and all other revenues collected under this part in:
(1) Obligations of the United States or any agency of the United States;
(2) General obligations of any State or any political subdivision of a State;
(3) Interest bearing accounts or certificates of deposit of financial institutions that are members of the Federal Reserve System;
(4) Obligations fully guaranteed as to principal interest by the United States; or
(5) Other investments as authorized by the Secretary.
(a) The Board shall prepare and submit financial statements to the Department on a quarterly basis, or at any other time as requested by the Secretary. Each such financial statement shall include, but not be limited to, a balance sheet, income statement, and expense budget. The expense budget shall show expenditures during the time period covered by the report, year-to-date expenditures, and the unexpended budget.
(b) Each financial statement shall be submitted to the Department within 30 calendar days after the end of the time period to which it applies.
(c) The Board shall submit to the Department an annual financial statement within 90 calendar days after the end of the fiscal year to which it applies.
(a) The Board's programs and expenses shall be paid by assessments on manufacturers for the U.S. market, other income of the Board, and other funds available to the Board.
(b) Subject to the exemptions specified in § 1217.53, each manufacturer for the U.S. market shall pay an assessment to the Board at the rate of $0.35 per thousand board feet of softwood lumber except that no person shall pay an assessment on the first 15 million board feet of softwood lumber otherwise subject to assessment in a fiscal year. Domestic manufacturers shall pay assessments based on the volume of softwood lumber shipped within the United States and importers shall pay assessments based on the volume of softwood lumber imported to the United States.
(c) At least 24 months after the Order becomes effective and periodically thereafter, the Board shall review and may recommend to the Secretary, upon an affirmative vote by at least two-thirds of the Board members, a change in the assessment rate. In no event may the rate be less than $0.35 per thousand board feet nor more than $0.50 per thousand board feet. A change in the assessment rate is subject to rulemaking by the Secretary.
(d) Domestic manufacturers shall remit to the Board the amount due no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was shipped.
(e) Domestic product that cannot be categorized in the Harmomized Tariff Schedule of the United States (HTSUS) numbers listed in paragraph (h) of this section if it were an import is not covered under this Order.
(f) Softwood lumber originating in the United States that is exported to another country and shipped back to the United States is covered under this Order, provided that it can be categorized in the HTSUS numbers listed in paragraph (h) of this section.
(g) Each importer of softwood lumber shall pay through Customs to the Board an assessment on softwood lumber imported into the United States as described in section 804(a) of Title VIII of the Tariff Act of 1930, as amended (19 U.S.C. 1202-1683g), provided that it can be categorized in the HTSUS numbers listed in paragraph (h) of this section.
(h) The HTSUS categories and assessment rates on imported softwood lumber are listed in the table below. A factor shall be used to determine the equivalent volume of softwood lumber in thousand board feet. The factor used to convert one cubic meter to one thousand board feet is 0.423776001. Accordingly, the assessment rate per cubic meter is as follows.
(i) In the event that any HTSUS number subject to assessment is changed and such change is merely a replacement of a previous number and has no impact on the description of the softwood lumber involved, assessments will continue to be collected based on the new number.
(j) If Customs does not collect an assessment from an importer, the importer is responsible for paying the assessment directly to the Board no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was imported.
(k) Articles brought into the United States temporarily and for which an exemption is claimed under subchapter XIII of chapter 98 of the HTSUS are not covered under this Order. If assessments are collected by Customs for these products, the importer may apply to the Board for a refund of assessments.
(l) When a domestic manufacturer or importer fails to pay the assessment within 60 calendar days of the date it is due, the Board may impose a late payment charge and interest. The late payment charge and rate of interest shall be prescribed in regulations issued by the Secretary. All late assessments shall be subject to the specified late payment charge and interest. Persons failing to remit total assessments due in a timely manner may also be subject to actions under Federal debt collection procedures.
(m) The Board may accept advance payment of assessments from any manufacturer for the U.S. market that will be credited toward any amount for which that person may become liable. The Board may not pay interest on any advance payment.
(n) If the Board is not in place by the date the first assessments are to be collected, the Secretary shall receive assessments and shall pay such assessments and any interest earned to the Board when it is formed.
(a)
(1) Domestic manufacturers who ship less than 15 million board feet of softwood lumber within the United States in a fiscal year are exempt from paying assessments. Such manufacturers must apply to the Board, on a form provided by the Board, for a certificate of exemption prior to the start of the fiscal year. This is an annual exemption and domestic manufacturers must reapply each year. Such manufacturers shall certify that they will ship less than 15 million board feet of softwood lumber during the fiscal year for which the exemption is claimed. Upon receipt of an application for exemption, the Board shall determine whether an exemption may be granted. The Board may request past shipment data to support the exemption request. The Board will then issue, if deemed appropriate, a certificate of exemption to the eligible domestic manufacturer. It is the responsibility of the domestic manufacturer to retain a copy of the certificate of exemption.
(2) Importers who import into the United States less than 15 million board feet of softwood lumber in a fiscal year are exempt from paying assessments. Such importers must apply to the Board, on a form provided by the Board, for a certificate of exemption prior to the start of the fiscal year. This is an annual exemption and importers must reapply each year. Such importers shall certify that they will import less than 15 million board feet of softwood lumber during the fiscal year for which the exemption is claimed. Upon receipt of an application for exemption, the Board shall determine whether an exemption is granted. The Board may request past import data to support the exemption request. The Board will then issue, if deemed appropriate, a certificate of exemption to the eligible importer. It is the responsibility of the importer to retain a copy of the certificate of exemption. The importer shall present a copy of the certificate to Customs. If accepted by Customs, such imported softwood lumber shall not be subject to assessments. If Customs collects the assessment, the Board shall refund such importers their assessments no later than 60 calendar days after receipt of such assessments by the Board. No interest shall be paid on the assessments collected by Customs.
(3) Domestic manufacturers who did not apply to the Board for an exemption and shipped less than 15 million board feet of softwood lumber within the United States during the fiscal year shall receive a refund from the Board for the applicable assessments within 30 calendar days after the end of the fiscal year. Board staff shall determine the assessments paid and refund the amount due to the domestic manufacturer accordingly.
(4) Importers who did not apply to the Board for an exemption and imported less than 15 million board feet of softwood lumber during the fiscal year shall receive a refund from the Board for the applicable assessments within 30 calendar days after the end of the fiscal year.
(5) If an entity is both a domestic manufacturer and an importer, the sum of such entity's domestic shipments and imports during a fiscal year shall count towards the 15 million board feet exemption.
(6) Domestic manufacturers and importers who received an exemption certificate from the Board but shipped or imported 15 million board feet or more of softwood lumber during the fiscal year shall pay the Board the applicable assessments owed on the domestic shipments or imports over the 15 million board foot-exemption threshold within 30 calendar days after the end of the fiscal year and submit any necessary reports to the Board pursuant to § 1217.70.
(7) The Board may develop additional procedures to administer this exemption as appropriate. Such procedures shall be implemented through rulemaking by the Secretary.
(b)
(1) Domestic manufacturers who domestically ship 15 million board feet or more per fiscal year shall not pay assessments on their first 15 million board feet of softwood lumber shipped during the applicable fiscal year.
(2) Importers who import 15 million board feet or more per fiscal year shall be exempt from paying assessments on their first 15 million board feet of softwood lumber imported during the applicable fiscal year. Such importers shall receive a refund from the Board for the applicable assessments collected by Customs. The Board shall refund such importers their assessments no later than 60 calendar days after receipt by the Board.
(c)
(d)
(2) A domestic manufacturer who operates under an approved National Organic Program (NOP) (7 CFR part 205) system plan, only manufactures and ships softwood lumber that is eligible to be labeled as 100 percent organic under the NOP and is not a split operation shall be exempt from payment of assessments. To obtain an organic exemption, an eligible domestic manufacturer shall submit a request for exemption to the Board, on a form provided by the Board, at any time initially and annually thereafter on or before the start of the fiscal year as long as such manufacturer continues to be eligible for the exemption. The request shall include the following: The manufacturer's name and address; a copy of the organic operation certificate provided by a USDA-accredited certifying agent as defined in the Organic Act, a signed certification that the applicant meets all of the requirements specified for an assessment exemption, and such other information as may be required by the Board and with the approval of the Secretary. The Board shall have 30 calendar days to approve the exemption request. If the exemption is not granted, the Board will notify the applicant and provide reasons for the denial within the same time frame.
(3) An importer who imports only softwood lumber that is eligible to be labeled as 100 percent organic under the NOP and is not a split operation shall be exempt from the payment of assessments. To obtain an organic exemption, an eligible importer must submit documentation to the Board and request an exemption from assessment on 100 percent of organic softwood lumber, on a form provided by the Board, at any time initially and annually thereafter on or before the beginning of the fiscal year as long as the importer continues to be eligible for the exemption. This documentation shall include the same information as required by domestic manufacturers in paragraph (d)(2) of this section. If the importer complies with the requirements of this section, the Board will grant the exemption and issue a Certificate of Exemption to the importer. The Board will also issue the importer a 9-digit alphanumeric Harmonized Tariff Schedule of the United States (HTSUS) classification valid for 1 year from the date of issue. This HTSUS classification should be entered by the importer on the Customs entry documentation. Any line item entry of 100 percent organic softwood lumber bearing this HTSUS classification assigned by the Board will not be subject to assessments.
(4) Importers who are exempt from assessment in paragraph (d)(3) of this section shall also be eligible for reimbursement of assessments collected by Customs and may apply to the Board for a reimbursement. The importer would be required to submit satisfactory proof to the Board that the importer paid the assessment on exempt organic products.
(5) The exemption will apply immediately following the issuance of the exemption certificate.
(a) The Board shall develop and submit to the Secretary for approval programs, plans and projects authorized by this subpart. Such programs, plans and projects shall provide for promotion, research, education and other activities including consumer and industry information and advertising designed to:
(1) Maintain, develop, expand and grow markets for softwood lumber;
(2) Enhance and strengthen the image, reputation and public acceptance of softwood lumber and the forests from which it comes;
(3) Develop new markets and marketing strategies for softwood lumber;
(4) Expand the knowledge and understanding of the strength, safety and technical applications and encourage innovation in the use of softwood lumber;
(5) Transfer and disseminate the knowledge and understanding of the strength, safety, environmental and sustainable benefits and technical applications of softwood lumber; and
(6) Develop, expand and grow existing and new opportunities and applications for softwood lumber.
(b) No program, plan, or project shall be implemented prior to its approval by the Secretary. Once a program, plan, or project is so approved, the Board shall take appropriate steps to implement it.
(c) The Board must evaluate each program, plan and project authorized under this subpart to ensure that it contributes to an effective and coordinated program of research, promotion and information. The Board must submit the evaluations to the Secretary. If the Board finds that a program, plan or project does not contribute to an effective program of promotion, research, or information, then the Board shall terminate such plan or program.
At least once every five years, the Board shall authorize and fund from funds otherwise available to the Board, an independent evaluation of the effectiveness of the Order and the programs conducted by the Board pursuant to the Act. The Board shall submit to the Secretary, and make available to the public, the results of each periodic independent evaluation conducted under this paragraph.
Any patents, copyrights, trademarks, inventions, product formulations, and publications developed through the use of funds received by the Board under this subpart shall be the property of the U.S. Government, as represented by the Board, and shall along with any rents, royalties, residual payments, or other income from the rental, sales, leasing, franchising, or other uses of such patents, copyrights, trademarks, inventions, publications, or product formulations, inure to the benefit of the Board, shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board, and may be licensed subject to approval by the Secretary. Upon termination of this subpart, § 1217.83 shall apply to determine disposition of all such property.
(a) Each manufacturer for the U.S. market will be required to provide periodically to the Board such information as the Board, with the approval of the Secretary, may require. Such information may include, but not be limited to:
(1) For domestic manufacturers:
(i) The name, address and telephone number of the domestic manufacturer;
(ii) The board feet of softwood lumber shipped within the United States;
(iii) The board feet of softwood lumber for which assessments were paid; and
(iv) The board feet of softwood lumber that was exported.
(2) For importers:
(i) The name, address and telephone number of the importer;
(ii) The board feet of softwood lumber imported;
(iii) The board feet of softwood lumber for which assessments were paid; and
(iv) The country of export.
(b) For domestic manufacturers, such information shall accompany the collected payment of assessments on a quarterly basis specified in § 1217.52. For importers who pay their assessments directly to the Board, such information shall accompany the payment of collected assessments within 30 calendar days after importation specified in § 1217.52.
Each manufacturer for the U.S. market, including those exempt under § 1217.53, shall maintain any books and records necessary to carry out the provisions of this subpart and regulations issued thereunder, including such records as are necessary to verify any required reports. Domestic manufacturers who only export softwood lumber shall also retain such books and records. Such books and records must be made available during normal business hours for inspection by the Board's or Secretary's employees or agents. A manufacturer for the U.S. market must maintain the books and records for two years beyond the fiscal period to which they apply.
All information obtained from books, records, or reports under the Act, this subpart and the regulations issued thereunder shall be kept confidential by all persons, including all employees and former employees of the Board, all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Board members or other manufacturers for the U.S. market. Only those persons having a specific need for such information solely to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a judicial proceeding or administrative hearing brought at the direction, or at the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this section shall be deemed to prohibit:
(a) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected therefrom, which statements do not identify the information furnished by any person; and
(b) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this part, together with a statement of the particular provisions of this part violated by such person.
All fiscal matters, programs or projects, contracts, rules or regulations, reports, or other substantive actions proposed and prepared by the Board shall be submitted to the Secretary for approval.
(a)
(b)
(1) For the purpose of ascertaining whether manufacturers for the U.S. market favor the amendment, continuation, suspension, or termination of the Order;
(2) Five years after this Order becomes effective and every five years thereafter, to determine whether softwood lumber manufacturers for the U.S. market favor the continuation of the Order. The Order shall continue if it is favored by a majority of domestic manufacturers and importers voting in the referendum who also represent a majority of the volume of softwood lumber represented in the referendum who, during a representative period determined by the Secretary, have been engaged in the domestic manufacturing or importation of softwood lumber;
(3) At the request of the Board established in this Order;
(4) At the request of 10 percent or more of the number of persons eligible to vote in a referendum as set forth under the Order; or
(5) At any time as determined by the Secretary.
(a) The Secretary shall suspend or terminate this part or subpart or a provision thereof, if the Secretary finds that this part or subpart or a provision thereof obstructs or does not tend to effectuate the purposes of the Act, or if the Secretary determines that this subpart or a provision thereof is not favored by persons voting in a referendum conducted pursuant to the Act.
(b) The Secretary shall suspend or terminate this subpart at the end of the fiscal period whenever the Secretary determines that its suspension or termination is favored by a majority of domestic manufacturers and importers voting in the referendum who also represent a majority of the volume represented in the referendum who, during a representative period determined by the Secretary, have been engaged in the domestic manufacturing or importation of softwood lumber.
(c) If, as a result of a referendum the Secretary determines that this subpart is not approved, the Secretary shall:
(1) Not later than one hundred and eighty (180) calendar days after making the determination, suspend or terminate, as the case may be, the collection of assessments under this subpart.
(2) As soon as practical, suspend or terminate, as the case may be, activities under this subpart in an orderly manner.
(a) Upon termination of this subpart, the Board shall recommend to the Secretary up to nine of its members, representing all regions specified in § 1217.40(b), three of whom shall be importers and six of whom shall be domestic manufacturers, to serve as trustees for the purpose of liquidating the Board's affairs. Such persons, upon designation by the Secretary, shall become trustees of all of the funds and property then in the possession or under control of the Board, including claims for any funds unpaid or property not delivered, or any other existing claim at the time of such termination.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Board under any contracts or agreements entered into pursuant to the Order;
(3) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and trustees, to such person or persons as the Secretary directs; and
(4) Upon request of the Secretary execute such assignments or other instruments necessary or appropriate to vest in such persons title and right to all of the funds, property, and claims vested in the Board or the trustees pursuant to the Order.
(c) Any person to whom funds, property, or claims have been transferred or delivered pursuant to the Order shall be subject to the same obligations imposed upon the Board and upon the trustees.
(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be disposed of, to the extent practical, to one or more softwood lumber industry organizations in the United States whose mission is generic softwood lumber promotion, research, and information programs.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any regulation issued thereunder;
(b) Release or extinguish any violation of this subpart or any regulation issued thereunder; or
(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any other persons, with respect to any such violation.
No member or employee of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or employee, except for acts of dishonesty or willful misconduct.
If any provision of this subpart is declared invalid or the applicability of it to any person or circumstances is held invalid, the validity of the remainder of this subpart, or the applicability thereof to other persons or circumstances shall not be affected thereby.
Amendments to this subpart may be proposed from time to time by the Board or any interested person affected by the provisions of the Act, including the Secretary.
The control numbers assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, are OMB control number 0505-0001 (Board nominee background statement) and OMB control number 0581-NEW.