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Food and Nutrition Service (FNS), USDA.
Final rule.
This final rule incorporates into the regulations governing the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) several changes set forth in the Healthy, Hunger-Free Kids Act of 2010 (HHFK Act). These provisions address: certification periods for children participating in the WIC Program; increased emphasis on breastfeeding promotion and support; compiling and publishing data for partially and fully breastfed infants; sharing nutrition education materials with institutions participating in the Child and Adult Care Food Program (CACFP); and infant formula (and other foods) rebate management.
Debra R. Whitford, Director, Supplemental Food Programs Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 520, Alexandria, Virginia 22302; (703) 305-2746;
This final rule amends the WIC regulations to implement five nondiscretionary provisions from Public Law 111-296, the Healthy, Hunger-Free Kids Act of 2010 (HHFK Act), signed into law on December 13, 2010. FNS previously issued policy and guidance to State agencies on implementation of the legislative requirements addressed in this rulemaking because four of the five nondiscretionary provisions of the HHFK Act were effective on October 1, 2010. The fifth provision, the recording of rebate payments, becomes effective on October 1, 2011. FNS anticipates that the current rule will accomplish the goals of the HHFK Act concerning participant certification, breastfeeding support and general program administration. Specifically, the WIC provisions are as follows:
Section 131 of the HHFK Act amends section 17(d)(3) of the Child Nutrition Act (CNA) (42 U.S.C. 1786(d)(3)) to allow State agencies the option to certify participant children for a period of up to one year if the State agency electing this option ensures that participant children receive required health and nutrition assessments. Section 246.7(g)(1)(v) of the WIC regulations (7 CFR 246.7(g)(1)(v))currently provides that children participating in the WIC Program shall be certified at intervals of approximately six months, ending with the last day of the month in which a child reaches his/her fifth birthday. The new legislative provision now allows a participant child, at the State agency's option, to be certified for a period of up to one year. This increased flexibility will provide administrative relief for participant children's parents, as well as for State and local agencies. In some cases, it will also allow a local WIC agency to certify a toddler, a breastfeeding mother, and an infant in the same household for the same relative period of time, as all three categories of participants may now be certified for up to one year if the State agency ensures that health care and nutrition services are not diminished. To comply with the legislative intent of the extended certification periods,
This provision became effective on October 1, 2010, as stipulated in the HHFK Act and was implemented via a March 11, 2011 memorandum #2011-2, “Implementation of the Nondiscretionary, Non-Electronic Benefits Transfer-Related Provisions of Public Law 111-296.” This final rule amends § 246.7(g) to add the State agency option to allow certification of children for a period of up to one year, provided the local agency ensures that the participant child receives the required nutrition services. Section 246.4(a) is amended to require State agencies electing to implement this option to address in the State Plan of Operations how participants will receive required health and nutrition assessments when certified for a period of greater than six months.
A corresponding amendment is made to § 246.11(e)(3) to add that nutrition education contacts must be made available quarterly for participants certified for a period of time in excess of six months to ensure that health care and nutrition services are not diminished.
The Department has long been strongly committed to the support and promotion of breastfeeding. WIC has historically promoted breastfeeding to all pregnant women as the optimal infant feeding choice, unless medically contraindicated. Current WIC regulations (§§ 246.7(e)(1)(iii), 246.7(g)(1)(iii), 246.10(e)(7), and 246.11(c)) contain provisions to encourage women to breastfeed and to provide appropriate nutritional support for breastfeeding participants, including:
• Information provided to WIC mothers choosing to breastfeed through counseling and breastfeeding educational materials;
• Follow-up support through peer counselors;
• Eligibility to participate in WIC longer than non-breastfeeding mothers;
• Enhanced food package for mothers who exclusively breastfeed their infants; and
• Provision of breast pumps, breast shells or supplemental nursing systems to help support the initiation and continuation of breastfeeding as allowable WIC costs.
Section 231 of the HHFK Act amends several paragraphs in section 17 of the CNA to reinforce the importance of the promotion and support of breastfeeding as an integral element of WIC services and benefits. The specific changes are:
1. Section 17(a) of the CNA is amended to add references to breastfeeding promotion and support to the WIC Program's general purpose and to the benefits provided. This addition is incorporated by this rulemaking into § 246.1 and § 246.11(b) of the WIC regulations, but does not require any specific action on the part of WIC State agencies.
2. The definition of “Costs of nutrition services and administration” in Section 17(b)(4) of the CNA is amended to include “breastfeeding support and promotion.” Breastfeeding support and promotion has always been an allowable cost under nutrition services and administration (NSA) funds as defined in § 246.2; this provision now makes the definitions in the CNA and the regulations consistent, and as with the amendment to the statement of purpose for the WIC Program cited above, does not require any specific action by WIC State agencies.
3. Section 17(c)(1) of the CNA is amended to include “breastfeeding support and promotion” as one of the specific services to be provided under the WIC Program. This phrase, and close variations of it, are added throughout the WIC regulations wherever references to WIC nutrition education services are found. While breastfeeding support and promotion have always been considered to be part of the nutrition services provided through the WIC Program, the HHFK Act now ensures that such functions are specifically named. This final rule amends § 246.11(a)(1) to include breastfeeding support and promotion as a benefit of the Program, and to clarify that breastfeeding support and promotion shall be made available at no cost to participants.
4. Section 17(e)(2) of the CNA is amended to expand WIC State and local agency staff training requirements to include breastfeeding support and education. Therefore, § 246.11(c) is amended to require State agencies to include breastfeeding promotion and support as part of their responsibilities. All WIC State agencies are now expected to provide an assurance via the State Plan of Operations to the effect that any training related to nutrition education and counseling provided to State and local staff will include breastfeeding promotion and support as part of such training.
5. Section 17(f)(6)(B) of the CNA is amended to expand the limitations on State agencies' authority to provide WIC food instruments by a method other than direct pick-up at the local agency, specifically to include participants scheduled for breastfeeding counseling. Section 246.12(r)(4) is amended accordingly to require participants, parents and caretakers of infant and child participants, and proxies to pick up food instruments and cash value vouchers in person when scheduled for breastfeeding counseling. State agencies must also ensure that WIC EBT benefits will not be not loaded, nor will paper food instruments be mailed or otherwise issued to participants in some method besides face-to-face distribution at the local agency, if the participant is scheduled for nutrition education, breastfeeding counseling, or recertification.
All of these provisions became effective on October 1, 2010, as stipulated in the HHFK Act and were implemented via the March 11, 2011 memorandum, “Implementation of the Nondiscretionary, Non-Electronic Benefits Transfer-Related Provisions of Public Law 111-296.”
Section 231 of the HHFK Act also amends section 17(h)(4)(A) of the CNA (42 U.S.C. 1786(h)(4)(A)) to require USDA to compile, and to publish annually, breastfeeding performance measurements based on program participant data on the number of partially and fully breastfed infants for each WIC State agency and each local WIC agency.
This requirement became effective on October 1, 2010. WIC State agencies currently report cumulative data on the number of partially and fully breastfed infants as part of their monthly participation report. WIC local agencies provide their data on partially and fully breastfed infants to the State agency for the cumulative monthly participation report; however, the individual local-level data are currently not reported by State agencies to FNS.
The local agency data on fully and partially breastfed infants reported monthly to the State will now be compiled by the State agency, using a format provided by FNS for the annual local level data reporting. This information will then be reported to FNS and published annually by USDA. Section 246.25(a) is revised to reflect the reporting of this local level data to FNS by the State agency. No new burden is incurred since this information is currently collected by the local agency and submitted on a monthly basis to the State agency for its monthly participation report.
Nutrition education is an important component of WIC nutrition services. It is provided to all pregnant, breastfeeding and postpartum participants as well as to the parents or caregivers of infant and child participants, and when appropriate, to child participants directly. As such, the WIC Program develops a variety of nutrition education materials for use by State and local cooperators.
Section 351 of the HHFK Act amends section 17(e)(3)(B) of the CNA (42 U.S.C. 1786(e)(3)(B)) to allow local WIC agencies, at the State agency's option, to share nutrition education materials with institutions participating in the CACFP at no cost, if a written materials sharing agreement exists between WIC State or local agencies and CACFP institutions. WIC State agencies may initiate a sharing agreement with their State-level CACFP counterparts that would apply Statewide, or may authorize their local agencies or clinics to initiate a sharing agreement at the local level with their local level CACFP counterparts.
This requirement became effective on October 1, 2010, as stipulated in the HHFK Act, and was implemented via the March 11, 2011 memorandum, “Implementation of the Nondiscretionary, Non-Electronic Benefits Transfer-Related Provisions of Public Law 111-296.” This final rule amends § 246.11(c)(3) to allow State agencies the option to allow their local agencies or clinics to share nutrition education materials with CACFP entities.
Section 352(b) of the HHFK Act amends section 17(h)(8) of the CNA (42 U.S.C. 1786(h)(8)) to add a new paragraph (K) requiring WIC State agencies to report rebate payments received from manufacturers in the month in which the payments are received, rather than in the month in which the payments are earned. To assist State agencies in making the transition to this change in reporting, Section 352(f) of the HHFK Act amends section 17(i) of the CNA (42 U.S.C. 1786(i)) to add a new paragraph (8) providing for temporary adjustments in spending authority.
This provision requires State agencies to report rebate payments from manufacturers on the FNS-798 (Financial Management and Participation Report) in the month in which the payments are received, rather than in the month that rebates are earned. This change does not affect how rebates are earned and billed on rebate invoices to manufacturers, which will continue in accordance with current and future rebate contracts. Rather, this change in reporting will assist the State agency in more accurately estimating its annual amount of rebates, which is a key component in determining its need for food funds during the course of the fiscal year.
This requirement becomes effective on October 1, 2011, as stipulated in the HHFK Act. Section 246.14 is modified to incorporate the reporting change.
Section 352(c) of the HHFK Act amends section 17(h)(9) of the CNA (42 U.S.C. 1786(h)(9)) to add several new requirements for the solicitation and billing of all rebates on authorized foods, including infant formula, specifically:
A. The bid solicitation must:
○ Identify the composition of State alliances for the purposes of a cost containment measure, and
○ Verify that no additional States shall be added to the State alliance between the date of the bid solicitation and the end of the contract.
B. The State agency must have a system to ensure that rebate invoices under competitive bidding provide a reasonable estimate or an actual count of the number of units sold to WIC participants.
C. The State agency must publicly open and read all bids aloud on the day the bids are due.
D. The State agency must provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are due, unless exempted by the Secretary.
E. The State agency must extend current provisions and requirements regarding State alliances for infant formula rebates to all other authorized foods for which rebates are sought.
Rebates are offsets to food costs and allow the Program to serve a greater number of participants without increasing the annual appropriation of WIC funds by Congress. Infant formula rebates have been a very successful cost containment initiative in the WIC Program since the mid-1980's. Over the years, State agencies have also implemented rebate contracts for other foods, such as infant cereal and juice; and more recently, infant foods such as fruit, vegetables and meat. A key to the success of rebate contracts is ensuring fair and open competition for the contracts.
The rebate bid solicitation requirements became effective on October 1, 2010, as stipulated by the HHFK Act. Section 246.16a is modified to incorporate these new requirements.
In accordance with the Secretary's Statement of Policy (36 FR 13804), it is found and determined with good cause that it is unnecessary to engage in the Notice and Comment provisions of 5 U.S.C. 553 normally required before the adoption of final regulations in an FNS-sponsored program. The provisions set forth in this rulemaking are nondiscretionary,
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This final rule has been designated not significant under section 3(f) of Executive Order 12866.
This rule has been designated as not significant by the Office of Management and Budget; therefore, a Regulatory Impact Analysis is not necessary.
This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that review, it has been certified that this rule will not have a significant economic impact on a substantial number of small entities.
This rule incorporates into the regulations governing the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) several changes set forth in the Healthy, Hunger-Free Kids Act of 2010 (HHFK Act). The provisions of this rulemaking are applicable to all State and local agencies that administer the WIC Program.
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, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by 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 FNS 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 final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of Sections 202 and 205 of the UMRA.
WIC is listed in the Catalog of Federal Domestic Assistance under No. 10.557. For the reasons set forth in the final rule at 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 that 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. FNS has considered the impact of this rule on State and local governments and
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 that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the Dates paragraph of the preamble to the final rule. Prior to any judicial challenge to the application of the provisions of this rule, all applicable administrative procedures must be exhausted.
In WIC, the administrative procedures are as follows: State and local agencies, farmers, farmers' markets, and roadside stands—State agency hearing procedures issued pursuant to 7 CFR 246.18; applicants and participants—State agency hearing procedures pursuant to 7 CFR 246.18; sanctions against State agencies (but not claims for repayment assessed against a State agency) pursuant to 7 CFR 246.19—administrative appeal in accordance with 7 CFR 246.16, and procurement by State or local agencies—administrative appeal to the extent required by 7 CFR 3016.36.
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 in the WIC Program. Federal WIC regulations specifically prohibit State agencies that administer the WIC Program, and their cooperators, from engaging in actions that discriminate against any individual in any of the protected classes (see 7 CFR 246.8 for the nondiscrimination policy in the WIC Program). Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with the WIC Program regulations set forth at § 246.8.
Executive Order 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. 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 host periodic collaborative conversations with Tribal officials or their designees concerning ways to improve this rule in Indian country. We are not aware of any current Tribal laws that could be in conflict with this final rule.
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 from the public 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. While some of the provisions of this rule are related to the current collection of information for the WIC Program, this final rule has no new information collection requirements. The information collection burdens associated with collecting local agency breastfeeding data and the recording of rebates in this final rule have been previously approved under OMB No. 0584-0045,
FNS 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 to provide for citizen access to government information and services, and for other purposes. State Plan amendments regarding the implementation of the provisions contained in this rule, as is the case with the entire State Plan, may be transmitted electronically by the State agency to FNS. Also, State agencies may provide WIC Program information, as well as their financial reports, to FNS electronically.
Food assistance programs, Food donations, Grant programs—Social programs, Indians, Nutrition education, Public assistance programs, WIC.
For reasons discussed above, 7 CFR part 246 is amended as follows:
7 U.S.C. 1786.
The revisions and additions read as follows:
(a) * * *
(9) The State agency's nutrition education goals and action plans to include:
(i) A description of the methods that will be used to provide drug and other harmful substance abuse information, to promote and support breastfeeding, and to meet the special nutrition education needs of migrant farmworkers and their families, Indians, and homeless persons.
(ii) State agencies have the option to provide nutrition education materials to institutions participating in the CACFP at no cost, as long as a written agreement for sharing such materials is in place between the relevant WIC and CACFP entities. State agencies may initiate a sharing agreement with their State-level CACFP counterparts that would apply statewide, or may
(19) The State agency's plan to ensure that participants receive required health and nutrition assessments when certified for a period of greater than six months.
The revisions read as follows:
(e) * * * Nutritional risk data shall be documented in the participant's file and shall be used to assess an applicant's nutritional status and risk; tailor the food package to address nutritional needs; design appropriate nutrition education, including breastfeeding promotion and support; and make referrals to health and social services for follow-up, as necessary and appropriate.
(g) * * *
(1) * * *
The revisions and additions read as follows:
(c) * * *
(8) Determine if local agencies or clinics can share nutrition educational materials with institutions participating in the Child and Adult Care Food Program established under section 17 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1766) at no cost to that program, if a written materials sharing agreement exists between the relevant agencies.
(d) * * *
(1) Make nutrition education, including breastfeeding promotion and support, available or enter into an agreement with another agency to make nutrition education available to all adult participants, and to parents or caretakers of infant and child participants, and whenever possible and appropriate, to child participants.* * *
(2) Develop an annual local agency nutrition education plan, including breastfeeding promotion and support, consistent with the State agency's nutrition education component of Program operations and in accordance with this part and FNS guidelines. * * *
(e) * * *
(3) Nutrition education contacts shall be made available at a quarterly rate to parents or caretakers of infant and child participants certified for a period in excess of six months. Nutrition education contacts shall be scheduled on a periodic basis by the local agency, but such contacts do not necessarily need to take place in each quarter of the certification period.
The addition reads as follows:
(f)
The additions and revisions read as follows:
(c)
(i) Provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are due, unless exempted by the Secretary; and
(ii) Publicly open and read all bids aloud on the day the bids are due.
(c) * * *
(3) * * * The bid solicitation must identify the composition of the State alliances for the purpose of a cost containment measure, and verify that no additional State shall be added to the State alliance between the date of the bid solicitation and the end of the contract. * * *
(g)
(1) Provide notification to FNS by means of the State agency's State Plan.
(2) Comply with paragraphs (c)(2) and (k) of this section.
(3) Provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are due, unless exempted by the Secretary. The State must publicly open and read all bids aloud on the day the bids are due.
(4) Issue separate solicitations for authorized foods if any alliance served a monthly average of more than 100,000 infants during the preceding 12-month period.
(k)
The additions read as follows:
(b) * * *
(1) * * *
(i) * * *
(C) Actual and projected rebate payments received from manufacturers.
(2) * * *
(iii) The State agency must submit local agency breastfeeding participation data on an annual basis to FNS.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
Rick Dunham, FlightProcedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the nticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
Issued in Washington, DC, on September 16, 2011.
Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, October 20, 2011.
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Employment and Training Administration, Labor.
Final rule; delay of effective date.
The Department of Labor (Department) is postponing the effective date of the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Final Rule, 76 FR 3452, Jan. 19, 2011, (the Wage Rule). The Wage Rule revised the methodology by which we calculate the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. The effective date of the Wage Rule was set at January 1, 2012. However, the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date; Final Rule, 76 FR 45667, August 1, 2011 revised the effective date to September 30, 2011. Due to pending legal challenges, we are postponing the effective date of the Wage Rule to November 30, 2011, pursuant to the Administrative Procedure Act, 5 U.S.C. 705.
The effective date of the rule amending 20 CFR part 655 published at 76 FR 45667, August 1, 2011 is delayed until November 30, 2011.
William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
The Department published the Wage Rule on January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by which we calculate the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in the H-2B status.
The Department originally set the effective date of the Wage Rule for January 1, 2012. On January 24, 2011, the plaintiffs in
In response to the court's order, we issued a Notice of Proposed Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from the NPRM. 76 FR 37686, June 28, 2011. After a period of public comment, we published the Final Rule on August 1, 2011, which set the new effective date for the Wage Rule at September 30, 2011, without altering the substance of the Wage Rule. 76 FR 45667.
On September 7, 2011, the Louisiana Forestry Association, Inc., and others filed suit against the Department in the United States District Court for the Western District of Louisiana, Alexandria Division.
On September 19, 2011, the plaintiffs in the
On September 21, 2011, another group of employers filed a legal challenge to the Wage Rule in the United States District Court for the
The Administrative Procedure Act, at 5 U.S.C. 705, provides that “[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review.” In consideration of the two pending challenges to the Wage Rule and its new effective date, and the possibility that, in response to the
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to temporary regulations (TD 9544) that were published in the
This correction is effective on September 28, 2011 and applies to any fee on branded prescription drug sales that is due on or after September 30, 2011.
Celia Gabrysh, (202) 622-3130 (not a toll-free number).
As published August 18, 2001 (76 FR 51245), the tempoary regulations (TD 9544) contains errors that may prove to be misleading and are in need of clarification.
Drugs, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 51 is corrected by making the following correcting amendments:
26 U.S.C. 7805 * * *
(k)
(c) * * *
(2) * * * A form 2848 must be filed with the error report;
(a) * * *
(2) After the 2011 fee year, the covered entity's adjustment amount
calculated as described in § 51.5T(e);
Internal Revenue Service (IRS), Treasury.
Correction to temporary regulations.
This document contains corrections to temporary regulations that were published in the
This correction is effective on September 28, 2011 and applies to any fee on branded prescription drug sales that is due on or after September 30, 2011.
Celia Gabrysh, (202) 435-3130 (not a toll free number).
As published August 18, 2011 (76 FR 51245), the temporary regulations (TD 9544) contains errors that may prove to
Accordingly, the temporary regulations (TD 9544), that are the subject of FR Doc. 2011-21011, are corrected as follows:
1. On page 51247, column 3, in the preamble, under the paragraph heading “IV. Information Provided by the Agencies”, line 6 of the third full paragraph of the column, the language “with a specific HCPCS Code. CMS” is corrected to read “with a specific Healthcare Common Procedure Coding System (HCPCS) Code. CMS”.
2. On page 51248, column 2, in the preamble, under the paragraph heading “VI. Notice of Preliminary Fee Calculation”, line 5 from the bottom of the column, the language “9008 (a)(2); the aggregate branded” is corrected to read “9008 (b)(2); the aggregate branded”.
3. On page 51248, column 3, under the paragraph heading “VIII. Notification and Payment of Fee”, line 1 of the paragraph, the language “Section 9008(a) provides that the” is corrected to read “Section 9008(a)(2) provides that the”
4. On page 51248, column 3, under the paragraph heading “VIII. Notification and Payment of Fee”, line 4 from the bottom of the column, the language “section 9008(a)(2); the aggregate” is corrected to read “section 9008(b)(2); the aggregate”
5. On page 51255, column 1, in the signature block line 2, the language “Deputy Commissioner for Services and Enforcement.” is corrected to read “Acting Deputy Commissioner for Services and Enforcement.”
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking by cross-reference to temporary regulations.
This document contains a correction to a notice of proposed rulemaking that was published in the
Celia Gabrysh, (202) 622-3130 (not a toll free number).
As published August 18, 2011 (76 FR 51310), the notice of proposed rulemaking (REG-112805-10) contains errors that may prove to be misleading and are in need of clarification.
Accordingly, the notice of proposed rulemaking (REG-112805-10), that was the subject of FR Doc. 2011-21012, is corrected as follows:
1. On Page 51311, column 2, under the part heading PART 51—BRANDED PRESCRIPTION DRUGS, the last line of the first paragraph, the language “this issue of the
2. On page 51311, column 2, under the part heading PART 51—BRANDED PRESCRIPTION DRUGS, the first line of the last paragraph, the language “[The text of proposed § 51.6302-1 is” is corrected to read “[The text of proposed paragraphs (a) and (b) of § 51.6302-1 is”.
3. On page 51311, column 2, under the part heading PART 51—BRANDED PRESCRIPTION DRUGS, the last line of the last paragraph, the language “Register.]” is corrected to read “Register].”
4. On page 51311, column 2, in the signature block, the language “Sarah Hall Ingram, Deputy Commissioner for Services and Enforcement.” is corrected to read “Sarah Hall Ingram, Acting Deputy Commissioner for Services and Enforcement.”
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Special Local Regulation, Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility for the 2011 Fall Championship hydroplane event in Lake Sammamish, WA from 11 a.m. until 4:30 p.m. from September 30, 2011 through October 2, 2011. This action is necessary to restrict vessel movement in the vicinity of the race courses thereby ensuring the safety of participants and spectators during these events. During the enforcement period non-participant vessels are prohibited from entering the designated race areas. Spectator craft entering, exiting or moving within the spectator area must operate at speeds which will create a minimum wake.
The regulations in 33 CFR 100.1308 will be enforced from 11 a.m. until 4:30 p.m. each day from September 30, 2011 through October 2, 2011.
If you have questions on this notice, call or e-mail Ensign Anthony P. LaBoy, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206-217-6323, e-mail
The Coast Guard is providing notice of enforcement of the Special Local Regulation for Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility 33 CFR 100.1308. The Lake Sammamish area, 33 CFR 100.1308(a)(3) will be enforced from 11 a.m. until 4:30 p.m. from September 30, 2011 through October 2, 2011. These regulations can be found in the March 29, 2011 issue of the
Under the provisions of 33 CFR 100.1308, the regulated area shall be closed for the duration of the event to all vessel traffic not participating in the event and authorized by the event sponsor or Coast Guard Patrol Commander.
When this special local regulation is enforced, non-participant vessels are
This notice is issued under authority of 33 CFR 100.1308 and 5 U.S.C. 552(a). In addition to this notice in the
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to the Indiana State Implementation Plan (SIP), submitted by the Indiana Department of Environmental Management (IDEM) to EPA on July 7, 2011. The SIP revision modifies Indiana's Prevention of Significant Deterioration (PSD) program to establish appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Indiana's PSD permitting requirements for their greenhouse gas (GHG) emissions. EPA proposed approval of these regulatory revisions on June 17, 2011, and received no comments. This action affects major stationary sources in Indiana that have GHG emissions above the thresholds established in the PSD regulations.
This final rule is effective on October 28, 2011.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2010-1024. All documents in the docket are listed on the
Sam Portanova, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3189,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's final action on the Indiana SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,
Recognizing that some states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tons per year of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule, EPA published a final rule on December 30, 2010, narrowing its previous approval of PSD programs as applicable to GHG-emitting sources in SIPs for 24 states, including Indiana (PSD Narrowing Rule).
On December 3, 2010, in response to the Tailoring Rule and earlier GHG-related EPA rules, IDEM submitted a draft revision to EPA for parallel processing approval into the Indiana SIP to establish appropriate emission thresholds for determining which new
EPA's June 17, 2011, proposed approval was contingent upon Indiana providing a final SIP revision that was substantively the same as the December 3, 2010, submittal for parallel processing. Indiana provided its final SIP submittal on July 7, 2011, which included rules adopted final by IDEM on March 16, 2011. There were no differences between the December 3, 2010, draft SIP revision, and the July 7, 2011, final SIP revision.
The public comment period on the proposed approval of Indiana's SIP revision ended on July 18, 2011. EPA did not receive any comments on the proposed approval of this SIP revision.
Final approval of Indiana's July 7, 2011, SIP revision incorporates changes to 326 IAC 2-2-1 and 326 IAC 2-2-4 of the state's rules to establish the GHG emission thresholds for PSD applicability set forth in EPA's Tailoring Rule, confirming that smaller GHG sources emitting less than these thresholds will not be subject to PSD permitting requirements under the approved Indiana SIP. EPA has determined that the SIP revision approved by today's action is consistent with EPA's regulations, including the Tailoring Rule. Furthermore, EPA has determined that this SIP revision is consistent with section 110 of the CAA. Pursuant to section 110 of the CAA, EPA approves this revision into Indiana's SIP.
As result of today's action approving Indiana's incorporation of the appropriate GHG permitting thresholds into its SIP, paragraph (k) in 40 CFR 52.773, as included in EPA's PSD Narrowing Rule, is no longer necessary.
EPA is approving the revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 of Indiana's PSD regulations which were submitted by IDEM on July 7, 2011. These revisions establish appropriate emissions thresholds for determining PSD applicability with respect to new or modified GHG-emitting stationary sources in accordance with EPA's June 3, 2010, Tailoring Rule.
With this approval, EPA also amends 40 CFR 52.773 to remove paragraph (k).
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective September 28, 2011. Objections and requests for hearings must be received on or before November 28, 2011, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2010-0087. All documents in the docket are listed in the docket index available at
Shanaz Bacchus, Biopesticides and Pollution Prevention Division (7511P), 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:
• 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 provides 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 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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 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-2010-0087, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition, EPA has modified the nomenclature of the active ingredient, which was recently reclassified as
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information 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.
In 1986,
1. PFR-97
2. PFR-97
Later, Thermo Trilogy changed its name to Certis USA, LLC; Certis USA, LLC is both the petitioner and the current registrant of the aforementioned products. Since the registration of these pesticide products in 1998, they have been labeled specifically for non-food applications in greenhouses and nurseries to control various insects and mites (
After maintaining the registrations with non-food uses for 13 years, Certis USA, LLC has now petitioned EPA to establish an exemption from the requirement of a tolerance for residues of
All mammalian toxicology data requirements supporting the request for an exemption from the requirement of a tolerance for residues of
1.
2.
3.
4.
5.
6.
7.
8.
In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
Dietary exposure to this microbial pesticide may occur (more likely through food than drinking water), but the lack of acute oral toxicity, infectivity, and/or pathogenicity, as exhibited in a toxicology test on rats presented in Unit III.B., supports the establishment of a tolerance exemption for residues of
1.
2.
Non-occupational dermal and inhalation exposure to
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance exemption, EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.” These considerations include the possible cumulative effects of such residues on infants and children. EPA has not found
In considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.
Based on the acute toxicity and pathogenicity data discussed in Unit III.B., as well as use of
Moreover, based on the same data and EPA analysis as previewed in this unit, the Agency is able to conclude that there is a reasonable certainty that no harm will result to the U. S. population, including infants and children, from aggregate exposure to the residues of
An analytical method is not required for enforcement purposes since EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
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. In this context, 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.
The Codex has not established a MRL for
In the
EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of
This final rule establishes a tolerance exemption under section 408(d) of FFDCA in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not 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, EPA 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, EPA has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require EPA consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
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.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes and increases tolerances for residues of fluazifop-P-butyl in or on cotton, gin byproducts; cotton, refined oil; and cotton, undelinted seed. Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 28, 2011. Objections and requests for hearings must be received on or before November 28, 2011, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2010-0849. All documents in the docket are listed in the docket index available at
Kathryn V. Montague, 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-2010-0849 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 November 28, 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-2010-0849, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition EPA has made changes to the requested tolerances. First, EPA is raising the proposed cotton, gin byproducts tolerance from 0.8 ppm to 1.5 ppm; second, raising the established cotton, refined oil tolerance from 0.2 ppm to 1.3 ppm; and finally,
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. * * *”
In the
Cotton commodities (undelinted seed, gin byproducts, meal, and hulls) may be used as roughage or protein concentrate feedstuffs in the diets of livestock. When the Agency conducted the risk assessment in support of the February 2, 2011 tolerance action, it considered secondary residues of fluazifop-P-butyl in livestock commodities from consumption of fluazifop-P-butyl treated feed. In calculating livestock dietary burdens for fluazifop-P-butyl, EPA assumed that 100% of feed items consumed by livestock are treated with fluazifop-P-butyl. EPA also assumed residues were present in the roughage and protein concentrate components of livestock diets at the tolerance level for soybean feedstuffs of 2.5 parts per million (ppm) which is greater than the tolerances being established for cotton feedstuffs. Therefore, the Agency has determined that the establishment of a tolerance on the feed commodity cotton, gin byproducts at 1.5 ppm and raising the cotton, undelinted seed tolerance from 0.1 ppm to 1.0 ppm will not increase residues of fluazifop-P-butyl in livestock feed commodities above those calculated in the previous risk assessment conducted for the February 2, 2011 tolerance action.
The only human food item affected by this action is cotton, refined oil. This commodity was included in the most recent acute and chronic dietary exposure assessment for the February 2, 2011 tolerance action at the level of 0.2 ppm using the food consumption data from the USDA 1994-1996 and 1998 Continuing Surveys of Food Intake by Individuals (CSFII). EPA conducted additional calculations using the increased level of 1.3 ppm for cotton, refined oil to determine if any increase in dietary exposure results. For both acute and chronic analyses, identical results were obtained to three significant figures. EPA typically reports dietary exposures as a percentage of the population adjusted dose (PAD) to just two significant figures. Therefore, EPA concludes that no significant increase in human dietary exposure resulting from the establishment of the revised cotton tolerances.
Based on these considerations, EPA has determined that establishing the tolerance for fluazifop-P-butyl in cotton, gin byproducts at 1.5 ppm, raising the established cotton, refined oil from 0.2 ppm to 1.3 ppm and raising the cotton, undelinted seed tolerance from 0.1 ppm to 1.0 ppm will not affect the estimated livestock dietary burden and will not change the estimated aggregate risks resulting from use of fluazifop-P-butyl, as discussed in the February 2, 2011
Therefore, based on this information and the findings in the final rule published in the
Adequate enforcement methodology (High Performance Liquid Chromatography/Ultra-Violet Spectrometry (HPLC/UV)) is available to enforce the tolerance expression. The method is available in
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.
The Codex has not established a MRL for fluazifop-P-butyl.
EPA has revised the proposed tolerances levels. Based on the submitted cotton undelinted seed and gin byproducts data, EPA calculated that the cotton, gin byproducts tolerance should be 1.5 ppm; cotton, refined oil tolerance should be 1.3 ppm, and cotton, undelinted seed tolerance should be 1.0 ppm.
Also, EPA is retaining the current tolerance expression for fluazifop-P-butyl. The current tolerance expression makes clear that the tolerances cover residues of the herbicide fluazifop-P-butyl, including its metabolites and degradates, but that compliance with the tolerance levels is to be determined by measuring only the sum of fluazifop-P-butyl, butyl(R)-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoate, and the free and conjugated forms of the resolved isomer of fluazifop, (R)-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoic acid, calculated as the stoichiometric equivalent of fluazifop, in or on the commodity.
Therefore, tolerances are established for residues of fluazifop-P-butyl, butyl(R)-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoate, and the free and conjugated forms of the resolved isomer of fluazifop, (R)-2-[4-[[5-(trifluoromethyl)-2-pyridinyl]oxy]phenoxy]propanoic acid, expressed as fluazifop, in or on cotton, gin byproducts; cotton, refined oil; and cotton, undelinted seed at 1.5 ppm, 1.3 ppm and 1.0 ppm, respectively.
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
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) * * *
Environmental Protection Agency (EPA).
Final rule; correction amendment.
EPA issued a final rule in the
This final rule is effective September 28, 2011.
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2010-0888. All documents in the docket are listed in the docket index available in
Rita Kumar, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8291;
The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
This technical amendment adds Bushberry, subgroup 13-07B to the table in paragraph (a) to 40 CFR 180.628. On July 27, 2011 (76 FR 44815) (FRL-8875-5), the Registration Division issued in the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical amendment final without prior proposal and opportunity for comment, because this omission was a typographical error. The tolerance for Bushberry, subgroup 13-07B was included in the petitioned for tolerances, exposure and risk evaluation, determination of safety, and conclusion sections of the Final Rule, FR Doc. 2011-18708 published in the
This technical amendment adds a tolerance that was inadvertently omitted from a previously published final rule and does not otherwise change the original requirements of the final rule. Since this rule corrects an omission, this action is not subject to the statutory and Executive Order review requirements. For information about the statutory and Executive Order review requirements as they related to the final rule, see Unit VI. in the
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 part 180 is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of amisulbrom in or on grapes and tomatoes. Nissan Chemical Industries, Inc., c/o Lewis & Harrison requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 28, 2011. Objections and requests for hearings must be received on or before November 28, 2011, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2010-0186. All documents in the docket are listed in the docket index available at
Olga Odiott, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington,
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-2010-0186 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 November 28, 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-2010-0186, by one of the following methods:
•
•
•
In the
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 amisulbrom including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with amisulbrom 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.
Amisulbrom is of low acute toxicity by the oral, dermal and inhalation routes and is not irritating to the eyes and skin. Rat, mouse, and rabbit studies indicate that amisulbrom systemic toxicity is primarily characterized by decreases in body weight and body weight gain, and reduced food consumption and/or efficiency. Based on the results of the acute and subchronic oral neurotoxicity studies in rats, as well as other subchronic and chronic studies, a developmental neurotoxicity (DNT) study is not needed for amisulbrom. None of these studies indicated specific neurotoxicity responses to amisulbrom. The T-cell dependent antibody response (TDAR) assay showed no evidence of treatment-related effects in rat and mouse immunotoxicity studies. The rat
In accordance with the
In the case of amisulbrom, a cancer risk from dietary exposure is of low concern based on the following considerations:
• The liver tumors seen in male mice only were benign with no progression to malignancy;
• The liver tumors in rats seen only at excessive doses (
• The forestomach tumors seen only in female rats occurred only at an excessive dose which was greater than the Limit-Dose;
• None of these tumors resulted in reduced latency; and
• There is no concern for mutagenicity/genotoxicity.
In sum, the only evidence showing any concern for carcinogenicity is the occurrence of benign liver tumors in one sex and one species (
Specific information on the studies received and the nature of the adverse effects caused by amisulbrom 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 PAD or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for amisulbrom used for human risk assessment is shown in the following Table 1.
1.
i.
ii.
iii.
iv.
2.
3.
Amisulbrom is not registered for use in the United States; therefore, residential exposures are not expected.
4.
EPA has not found amisulbrom to share a common mechanism of toxicity with any other substances, and amisulbrom does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that amisulbrom does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for amisulbrom is complete.
ii. Neither the rat subchronic neurotoxicity screen studies or the rat multigenerational reproduction study or other subchronic or chronic studies indicated specific neurotoxicity responses to amisulbrom. Although the acute neurotoxicity study observed decreased brain weight, this effect occurred only at the very high limit dose for acute neurotoxicity testing, in only one sex, and a NOAEL was identified. Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. Based on the developmental and reproductive toxicity studies discussed in Unit III.D.2., there are no residual uncertainties with regard to prenatal and/or postnatal toxicity.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. Since there are no currently registered or proposed uses of amisulbrom in the United States and adequate food residue data are available, these assessments will not underestimate the exposure and risks posed by amisulbrom.
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. Since the subject tolerances are for residues of amisulbrom in/on imported commodities a risk assessment was conducted for exposure to amisulbrom from food only, as there are no drinking water or residential exposures associated with imported grapes and tomatoes. The acute and the chronic dietary risk estimates from food are not of concern for the general population or any other population subgroup. Exposures were equivalent to < 1% aPAD and < 1% cPAD for all population subgroups. As discussed in Unit III.C.1.iii, EPA concluded that regulation based on the chronic reference dose will be protective for both chronic and carcinogenic risks. As noted in this unit there are no chronic risks of concern.
Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to amisulbrom residues.
A Liquid Chromatography-Mass Spectrometer/Mass Spectrometer (LC-MS/MS) method (NAS 490/042294) is available as an enforcement method for the determination of amisulbrom in plant commodities. The limit of quantitation (LOQ) of the method was 0.01 ppm for amisulbrom. This method was adequately validated for data collection purposes and a successful independent laboratory validation study was conducted. Additionally, amisulbrom is amenable to analysis using FDA multi-residue methods C and E, which are also suitable confirmatory and/or enforcement methods.
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. The Codex has not established a MRL for amisulbrom.
Therefore, tolerances are established for residues of amisulbrom, 3-[(3-bromo-6-fluoro-2-methyl-1H-indole-1-yl)sulfonyl]-N,N-dimethyl-1H-1,2,4-triazole-1-sulfonamide, in or on grape at 0.40 ppm; grape, raisin at 1.0 ppm; tomato at 0.50 ppm; and tomato, paste at 1.2 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 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
GSA has adopted as final, with two changes, an interim rule amending the Federal Travel Regulation (FTR) by adding terms and definitions for “Dependent”, “Domestic partner”, and “Domestic partnership”, and by revising the definition of “Immediate family” to include “Domestic partner” and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee's household. This final rule also adds references to domestic partners and domestic partnerships, where applicable, in the FTR.
For clarification of content, contact Mr. Rick Miller, Office of Travel, Transportation, and Asset Management (MT), General Services Administration, at (202) 501-3822 or e-mail at
On June 17, 2009, President Obama signed a Presidential Memorandum on Federal Benefits and Non-Discrimination stating that “[t]he heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees.” GSA conducted its review and, as part of that review, identified a number of changes to the FTR that could be made. Subsequently, on June 2, 2010, President Obama signed a Presidential Memorandum, “Extension of Benefits to Same-Sex Domestic Partners of Federal Employees,” which directed agencies to immediately take actions, consistent with existing law, to extend certain benefits, including travel and relocation benefits, to same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees.
Pursuant to 5 U.S.C. 5707, the Administrator of General Services is authorized to prescribe necessary regulations to implement laws regarding Federal employees who are traveling while in the performance of official business away from their official stations. Similarly, 5 U.S.C. 5738 mandates that the Administrator of General Services prescribe regulations relating to official relocation. The overall implementing authority is the FTR, codified in Title 41 of the Code of Federal Regulations, Chapters 300-304 (41 CFR chapters 300-304).
Pursuant to this authority, this final rule adds the same terms and definitions, based on a published Office of Personnel Management (OPM) memorandum to agencies, dated June 2, 2010, “Implementation of the President's Memorandum Regarding Extension of Benefits to Same-Sex Domestic Partners of Federal Employees,” and guidance from 5 CFR 875, “Federal Long Term Care Insurance Program,” for “Domestic partner” and “Domestic partnership”, adds a definition for “Dependent”, and revises the definition of “Immediate family” to include “Domestic partner” and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee's household. This rule also adds references to “Domestic partners” and “domestic partnership,” where applicable, to travel and relocation allowances permitted under existing statutes. Due to current statutory restrictions, this final rule does not apply to house-hunting trip expense reimbursement, the relocation income tax allowance, the income tax reimbursement allowance, or non-Federal source travel.
GSA received 13 comments on the interim rule published in the
• Three associations and three individuals supported the rule, four
• Four individuals, including two who opposed the rule overall, asked about including opposite-sex domestic partners.
• Two individuals and one association asked about making the rule retroactive.
• Three individuals asked how partnership status will be determined.
• One association offered alternate language for two definitions included in the rule.
As previously mentioned, several comments to the interim rule noted that the changes to the FTR definition of “Immediate family” exclude opposite-sex domestic partners. As the Presidential Memoranda of June 17, 2009, and June 2, 2010, do not specifically address opposite-sex domestic partners, opposite-sex domestic partners have not been included within the definition of “Immediate family.”
In regards to the comments received suggesting retroactive application, the Presidential Memoranda did not address retroactivity; neither is there specific authority mandating GSA to do so. To assist with implementation, FTR § 302-2.3 states that relocation allowances are determined by the regulations that are in effect at the time an employee reports for duty at his or her new duty station. Thus, if orders are issued and the employee reports to the permanent duty station prior to March 3, 2011 (the effective date of the interim rule), there is no domestic partner coverage. However, if orders are issued and the employee reports to the new permanent duty station on or after March 3, 2011, there is coverage under the domestic partner benefits effective on March 3, 2011. Finally, if the orders are issued prior to March 3, 2011, and the employee does not report until after March 3, 2011, then the orders can be amended in accordance with the FTR.
As further noted above, several comments related to the status of domestic partnerships and how this status will be determined. GSA believes that the requirements listed in the new definition of “Domestic Partnership” are sufficient to determine partnership status. As Federal agencies use a wide variety of processes and systems to manage travel and relocation, GSA is deferring to individual agencies to develop their own processes for determining partnership status in accordance with the definition of “Domestic Partnership.”
Finally, one association recommended changing the definition of “Domestic Partnership.” Specifically, it was recommended that GSA change the factor, “[a]re not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which they reside” to “[a]re not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which the domestic partnership was formed”. GSA has considered this suggestion and is amending the definition of “Domestic Partnership”.
This association also recommended changing the factor “[s]hare responsibility for a significant measure of each other's financial obligations” to “[a]re financially interdependent.” GSA considered this suggestion and has chosen to continue to use the interim rule's definition in order to be consistent with the OPM definition. However, as a result of this comment, GSA is including a “Note” at the end of the definition for “Domestic Partnership,” referencing OPM's position that this criterion, requires only that there be financial interdependence between the partners, and that it should not be interpreted to exclude partnerships in which one partner stays at home while the other is the primary breadwinner (see
The same association also suggested adding the term “
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action, and therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This final rule will not have significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government employees, Relocation, Travel, and Transportation expenses.
Accordingly, the interim rule amending 41 CFR parts 300-3, 301-30, 301-31, Appendix E to Chapter 301, 302-3, 302-4, 302-6, and 303-70, which was published in the
For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, 5721-5738, and 5741-5742, 41 CFR part 300-3 is amended to read as follows:
5 U.S.C. 5707; 40 U.S.C. 121(c); 49 U.S.C. 40118; 5 U.S.C. 5738; 5 U.S.C. 5741-5742; 20 U.S.C. 905(a); 31 U.S.C. 1353; E.O. 11609, as amended; 3 CFR, 1971-1975 Comp., p. 586, Office of Management and Budget Circular No. A-126, revised May 22, 1992.
The definition of “Domestic partnership” requires that the partners “share responsibility for a significant measure of each other's financial obligations.” This criterion requires only that there be financial interdependence between the partners and should not be interpreted to exclude partnerships in which one partner stays at home while the other is the primary breadwinner.
Federal Communications Commission.
Final rule.
In this document, the Commission continues to strengthen its existing Enhanced 911 (E911) location accuracy regime for wireless carriers by retaining the existing handset-based and network-based location accuracy standards and the eight-year implementation period established in our September 2010 E911 Location Accuracy
Effective November 28, 2011, except for § 20.18(h)(2)(iv) which contains information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Patrick Donovan, Attorney Advisor, (202) 418-2413. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Judith Boley-Herman, (202) 418-0214, or send an e-mail to
This is a summary of the Commission's Third Report and Order (Third R&O) in PS Docket No. 07-114, GN Docket No. 11-117, WC Docket No. 05-196, FCC 11-107, released on July 13, 2011. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554, or online at
1. In the Third Report and Order, Second Further Notice of Proposed Rulemaking, and Notice of Proposed Rulemaking, we enhance the public's ability to contact emergency services personnel during times of crisis and enable public safety personnel to obtain accurate information regarding the location of the caller. In the Report and Order, we continue to strengthen our existing Enhanced 911 (E911) location accuracy regime for wireless carriers by retaining the existing handset-based and network-based location accuracy standards and the eight-year implementation period established in our September 2010 E911 Location Accuracy Second Report and Order but providing for phasing out the network-based standard over time. We also require new Commercial Mobile Radio Service (CMRS) networks to comply with the handset-based location criteria, regardless of the location technology they actually use. In addition, we will require wireless carriers to periodically test their outdoor E911 location accuracy results and to share the results with Public Safety Answering Points (PSAPs), state 911 offices, and the Commission, subject to confidentiality safeguards.
2. In 1996, the Commission required CMRS providers to implement basic 911 and Enhanced 911 services. Under the Commission's wireless E911 rules, CMRS providers are obligated to provide the telephone number of the originator of a 911 call and information regarding the caller's location to any PSAP that has requested that such information be delivered with 911 calls. Recently amended § 20.18(h) of the Commission's rules states that licensees subject to the wireless E911 requirements:
Shall comply with the following standards for Phase II location accuracy and reliability: (1) For network-based technologies: 100 meters for 67 percent of calls, 300 meters for 90 percent of calls; (2) For handset-based technologies: 50 meters for 67 percent of calls, 150 meters for 90 percent of calls.
3. In June 2005, the Commission released a First Report and Order and Notice of Proposed Rulemaking adopting rules requiring providers of interconnected VoIP service to supply E911 capabilities to their customers as a standard feature from wherever the customer is using the service. The rules adopted in the 2005 VoIP 911 Order apply only to providers of interconnected VoIP services, which the Commission defined as services that (1) enable real-time, two-way voice communications; (2) require a broadband connection from the user's location; (3) require Internet protocol-compatible customer premises equipment (CPE); and (4) permit users generally to receive calls that originate on the public switched telephone network (PSTN) and to terminate calls to the PSTN. Interconnected VoIP service providers generally must provide consumers with E911 service and transmit all 911 calls, including Automatic Number Identification (ANI) and the caller's Registered Location for each call, to the PSAP, designated statewide default answering point, or appropriate local emergency authority. In 2008, Congress codified these requirements and granted the Commission authority to modify them.
4. In June 2007, the Commission released the Location Accuracy NPRM, seeking comment on several issues relating to wireless E911 location accuracy and reliability requirements. Specifically, the Commission sought comment on the capabilities and limitations of existing and new location technologies; the advantages of combining handset-based and network-based location technologies (a hybrid solution); the prospect of adopting more
5. In October 2008, as required by the NET 911 Improvement Act (NET 911 Act), the Commission released a Report and Order adopting rules providing “interconnected VoIP providers rights of access to any and all capabilities necessary to provide 911 and E911 service from entities that own or control those capabilities.” In the NET 911 Improvement Act Report and Order, the Commission declined to “issue highly detailed rules listing capabilities or entities with ownership or control of these capabilities” because the nation's 911 system varies depending on the locality and “overly specific rules would fail to reflect these local variations.” The Commission also declined “to expand the applicability of the rights granted in the NET 911 Improvement Act to entities beyond those encompassed within that statute.”
6. On March 16, 2010, the Commission staff released the National Broadband Plan, which recommended that the Commission examine approaches for leveraging broadband technologies to enhance emergency communications with the public by moving towards Next Generation 911 (NG911), because NG911 will provide a “more interoperable and integrated emergency response capability for PSAPs, first responders, hospitals and other emergency response professionals.” Further, the National Broadband Plan notes that the Commission is “considering changes to its location accuracy requirements and the possible extensionof * * * ALI * * * requirements to interconnected VoIP services.” The National Broadband Plan recommends that the Commission “expand [the Location Accuracy NPRM] proceeding to explore how NG911 may affect location accuracy and ALI.”
7. On September 23, 2010, the Commission adopted the E911 Location Accuracy Second Report and Order, addressing wireless E911 location accuracy, and the Location Accuracy FNPRM and NOI, seeking comment on additional location accuracy issues affecting wireless, VoIP, and emerging broadband voice services. The E911 Location Accuracy Second Report and Order required CMRS providers to satisfy the E911 Phase II location accuracy requirements at either a county-based or PSAP-based geographic level. The order provided for implementation of this standard over an eight-year period with interim benchmarks. The Commission determined, however, that the revised location accuracy requirements would apply to outdoor measurements only and not to accuracy measurements for indoor locations. Additionally, regardless of whether a carrier employs handset-based or network-based location technology, the Commission required wireless carriers to provide confidence and uncertainty data on a per-call basis upon PSAP request. The Commission also extended the requirement to deliver confidence and uncertainty data to entities responsible for transporting this data between wireless carriers and PSAPs, including LECs, CLECs, owners of E911 networks, and emergency service providers (collectively, System Service Providers (SSPs)).
8. In the Location Accuracy FNPRM and NOI, the Commission sought comment on several issues with respect to amending the Commission's wireless 911 and E911 requirements and extending 911 and E911 requirements to additional VoIP and wireless services. In the Location Accuracy FNPRM, the Commission sought comment on a number of issues initially raised in the Location Accuracy NPRM, including: whether the Commission should consider more stringent location parameters for wireless E911 Phase II location accuracy and reliability; potential modifications to the accuracy standard, including adoption of a unitary or single standard; the methodology carriers should use to verify compliance, both initially and during ongoing testing; the format in which accuracy data should be automatically provided to PSAPs; how to address location accuracy while roaming; how to improve location information and accuracy in more challenging environments, such as indoors; and whether the Commission's location accuracy standards should include an elevation (z-axis) component. In the NOI, the Commission requested comment on a number of 911 and E911 issues related to VoIP services, including whether the Commission should require interconnected VoIP service providers to automatically identify the geographic location of a customer without the customer's active cooperation and whether the Commission should apply its E911 regulations to VoIP services that are not fully interconnected to the PSTN.
9. In March 2011, the Communications Security, Reliability, and Interoperability Council's (CSRIC's) Working Group 4C released a report entitled “Technical Options for E9-1-1 Location Accuracy.” CSRIC is a Federal Advisory Committee that was tasked with providing guidance and expertise on the nation's communications infrastructure and public safety communications. CSRIC Working Group 4C was responsible for examining E911 and public safety location technologies currently in use, identifying current performance and limitations for use in next generation public safety applications, examining emerging E911 public safety location technologies, and recommending options to CSRIC for the improvement of E911 location accuracy timelines. The CSRIC 4C Report made a number of recommendations, including that the FCC should: establish an E9-1-1 Technical Advisory Group to address specific location technology issues for 911, such as how to improve location accuracy in challenging environments, including indoor settings; actively engage in discussion on how to implement 911 auto-location for nomadic VoIP services; and consider extending E911 and location obligations to providers of over-the-top VoIP applications that are not subject to the FCC's interconnected VoIP regulations.
10. Background. In the Location Accuracy FNPRM, the Commission sought comment on whether to change the current location accuracy requirements in Section 20.18(h) of our rules, including whether to adopt a unitary standard, rather than maintaining separate standards for network- and handset-based carriers. The Commission also sought to refresh the record developed on this issue in response to the Location Accuracy NPRM, in which the Commission had tentatively concluded that it should adopt a unitary location accuracy requirement.
11. Comments. Some commenters support the adoption of a unitary
12. Other commenters oppose adoption of a unitary location accuracy standard. AT&T, Sprint Nextel, T-Mobile, the Telecommunications Industry Association (TIA), Andrew Corporation, Motorola, and CTIA contend that a unitary standard is not technically or economically feasible at this time. For instance, T-Mobile asserts that “[f]or carriers using network-based E911 solutions * * * the [E911 Location Accuracy Second Report and Order] establishes a migration path from those technologies to the handset-based A-GPS solution.” T-Mobile submits that the “[Second Report and Order] already contemplates a handset change out for all non-A-GPS-capable handsets” and urges the Commission to be “reluctant to order another handset change out, especially before it can fully evaluate the results of the [Second Report and Order].” T-Mobile contends that “[d]oing so would likely impose significant additional unnecessary costs on consumers and providers without an ascertainable benefit[,]” while “continued refinements in GPS receiver performance and location algorithms, and the likely availability of additional navigation satellite systems will improve A-GPS capabilities during the eight-year transition.” Also, TIA “encourages the Commission not to impose a single uniform standard for location accuracy rules[,]” because “[m]andating a single standard for both network and device location accuracy will drive technological innovation and investment towards meeting such a standard, rather than developing location accuracy enhancements that go beyond any new requirements.” Polaris argues that a single location accuracy standard should not be implemented “until [the Commission] adopts a hybridization timeline.”
13. Discussion. Given the Commission's recent revisions to the handset- and network-based location accuracy requirements in the E911 Location Accuracy Second Report and Order and the establishment of an eight-year implementation period for these requirements, we find that it would be premature to replace the existing location accuracy rules with a unitary location accuracy standard. To comply with the E911 Location Accuracy Second Report and Order, CMRS providers are already making substantial efforts to improve their ability to provide accurate location information. We see no reason, at this time, to alter the amount of time provided to carriers under the E911 Location Accuracy Second Report and Order to comply with the rules adopted there.
14. Nevertheless, the record in this proceeding clearly signals that the wireless industry is engaged in a broad migration away from the dichotomy between network- and handset-based approaches to location accuracy. Current handset-based carriers are increasingly combining A-GPS technologies with refinements based on location determinations using network-based technologies. For instance, Sprint uses “a combination of handset-based and network-based location technologies,” and while its “Phase II E-911 solution for its CDMA network has been categorized as a handset-based solution,” it also deploys “network-based components.” Similarly, Verizon Wireless submits that it uses a mix of technologies, including “A-GPS (network-assisted), Hybrid (A-GPS & AFLT), AFLT, and several default location technologies (cell sector with timing, mixed cell sector, cell sector) to provide location information for 9-1-1 calls.” T-Mobile adds that besides “A-GPS improvements, carriers have also made improvements in the use of the timing and triangulation technologies that serve as fallback location technologies implemented today as complements to A-GPS.”
15. As network-based carriers migrate to A-GPS and increase the penetration of A-GPS-capable handsets in accordance with our implementation benchmarks for location accuracy, the technological distinctions between handset- and network-based wireless E911 solutions will continue to diminish. We concur with T-Mobile that “[a]s carriers transition to A-GPS, they will also transition from network-based accuracy standards to handset-based standards, moving toward a de facto unified standard” and that “the likely result * * * at least for major nationwide carriers, is that all will be using similar A-GPS E911 location technologies across nearly their entire subscriber base by the end of the ordered eight-year transition.”
16. Therefore, we decide not to alter the rules adopted in the E911 Location Accuracy Second Report and Order as they apply to existing wireless carriers and networks. Rather, we conclude that the network-based standard should sunset at an appropriate point after the end of the eight-year implementation period, at which point all carriers would be obligated to meet the handset-based location accuracy standard in the Commission's current rules. In adopting this approach, we assess the benefits of requiring, at a later date, the handset-based location accuracy standard as the unitary standard. The handset-based standard is more stringent than the network-based standard. This stricter standard is consistent with the Commission's chief objective of “ensur[ing] that PSAPs receive accurate and meaningful location information” while considering that “compliance timeframes, limitations, and exemptions * * * provide carriers with a sufficient measure of flexibility to account for technical and cost-related concerns.” With the more precise handset-based standard as the unitary standard, we expect it to be easier for first responders to locate wireless customers in emergency situations. It is reasonable to expect that the more accurate location information under the handset-based location accuracy parameters will lead to more direct and quicker response by first responders addressing wireless 911 calls, and that expediting their response time will have significant public safety benefits. For instance, we note that, in cardiac arrest emergencies, reducing response times by even three minutes improves a victim's chances of survival “almost four-fold.”
17. There are substantial benefits to retaining the existing location accuracy rules with the eight-year implementation periods for both handset-based and network-based location accuracy solutions. The record shows convincing support from wireless carriers and the public safety community for retaining the Commission's current bifurcated approach for cost reasons. We agree with T-Mobile that adopting a unitary location accuracy standard now “would likely impose significant additional unnecessary costs on consumers and providers without an ascertainable benefit.” AT&T adds that “mandating a specific technology or standard would prevent carriers from implementing E911 solutions that fully leverage their unique network characteristics,” especially since, as we note above, carriers are currently taking initial steps to comply with our first location accuracy benchmarks. Also, although NENA supports a unitary location accuracy standard, it recognizes that the bifurcated regulatory regime in effect “represent[s] a reasonable compromise between cost [and] capability.” We thus
18. The phasing out of the network-based standard that we are adopting will allow carriers using network-based technologies to spread over the eight-year implementation period their actions to comply with the location accuracy benchmarks. Because in 2010 almost all 2G and 3G handsets shipped by manufacturers were equipped withGPS-chips, by the end of the eight-year implementation period, network-based carriers will likely have complied with their location accuracy benchmarks by “blending in” such location-capable handsets. Therefore, the costs of meeting the handset-based standard within a reasonable sunset period after 8 years should be minimal. Moreover, the fact that the eight-year benchmark permits “a network-based carrier to comply * * * using only handset-based measurements, as long as it has achieved at least 85% A-GPS handset penetration among its subscribers” should provide incentives to network-based carriers to achieve 85 percent A-GPS handset penetration by the end of the eight years and thereby contribute to minimizing subsequent costs. Nevertheless, given the constantly evolving nature of location technologies, we recognize that it is premature to adopt a specific sunset date at this time. Instead, we will seek comment on selecting a sunset date and on considering the costs and benefits associated with a particular sunset date at a later time. We believe that as the end of the eight-year period draws closer, the public safety community, wireless carriers, location technology vendors and other stakeholders will have a significantly better understanding of how much time network-based carriers will need following the conclusion of the eight-year implementation period to come into compliance with the handset-based standard.
19. In addition, we conclude that all new CMRS network providers that meet the definition of covered CMRS providers in Section 20.18 must comply with the handset-based location accuracy standard. We concur with Verizon and Verizon Wireless that due to the broad migration toward use of A-GPS-capable handsets, it is reasonable to harmonize our location accuracy requirements with regard to new CMRS networks. We define a “new CMRS network” as a CMRS network that is newly deployed subsequent to the effective date of this Report and Order and that is not associated with an existing CMRS network. In other words, our definition of “new CMRS network” excludes network changes or deployments that are part of an upgrade or expansion of an existing CMRS network. In adopting this definition, our intent is to require covered CMRS providers that are launching new stand-alone networks to meet the handset-based location accuracy standard from the start, rather than to accelerate the eight-year implementation period for existing covered CMRS providers that opt to upgrade their networks during the implementation period.
20. We find that requiring all new CMRS network providers to comply with our handset-based location accuracy standard is consistent with the regulatory principle of ensuring technological neutrality. Providers deploying new CMRS networks are free to use network-based location techniques, or to combine network and handset-based techniques, to provide 911 location information, provided that they meet the accuracy criteria applicable to handset-based providers. Given the long-term goal of universal support for one location accuracy standard, we believe that such a mandate allows appropriate planning and ensures that new technology will comply with the most stringent location accuracy standard that applies to existing technology. Additionally, as A-GPS-capable handsets become more widely available, and as consumer demand increases for handsets that provide GPS-based navigation and location-based services, new CMRS providers will have substantial incentive to provide such handsets to most if not all of their customers, thus minimizing the incremental cost to such carriers of complying with the Commission's handset-based location accuracy standard.
21. In April 2000, the Commission's Office of Engineering and Technology (OET) issued Bulletin No. 71 (OET Bulletin 71) to provide assistance in determining whether wireless licensees are in compliance with the location accuracy standards set by the Commission. The bulletin stated that compliance with the OET guidelines would establish “a strong presumption that appropriate means have been applied to ensure that an [automatic location identification] (ALI) system complies with the Commission's Rules.”
22. Background. In the Location Accuracy FNPRM, the Commission sought comment on whether it should make wireless location accuracy compliance testing mandatory and whether to establish a mandatory testing schedule. The Commission also sought comment on whether OET Bulletin 71 should serve as the basis for a mandatory testing methodology, and the Commission sought to refresh the record on testing methodologies developed in response to the Location Accuracy NPRM.
23. Comments. A number of commenters support mandatory periodic testing of CMRS providers' compliance with the Commission's location accuracy rules. NENA argues that “[s]uch testing is the PSAP's only real assurance that emergency services personnel will be able to locate callers in times of distress.” NENA, however, acknowledges “that compliance testing is an expensive and burdensome process for carriers” and therefore proposes that the “baseline compliance testing interval should be five years.” NENA also advocates that in PSAP service areas where Phase II service capabilities have been deployed, new or upgraded base stations should undergo compliance testing before entering service. NENA reasons that without such a requirement, current rules “could permit carriers to delay testing of location accuracy for newly-deployed base stations (or sectors in these areas) for up to six months” and that this risks “the creation of `islands' where E9-1-1 Phase II level service is unavailable to consumers who have a reasonable expectation of service.” NENA also recommends that “[m]aterial changes to the wireless operational environment within a PSAP service area should trigger localized out-of-cycle testing.” Finally, NENA argues that carriers should be required to share test results with relevant PSAPs and State 9-1-1 offices, “subject to stringent confidentiality provisions,” to foster collaboration between carriers and public safety agencies and to improve PSAPs' situational awareness.
24. APCO also supports mandatory accuracy testing but does not propose a specific schedule or timeframe. APCO argues that “[c]ompliance testing must * * * be repeated within a reasonable time frame,” as “wireless system updates such as `re-homing' a cellular network or modifying internal databases have been known to have a negative impact on location and 9-1-1 delivery.” APCO urges the Commission to “seriously consider mandating that
25. TruePosition also recommends periodic mandatory accuracy testing. TruePosition argues that “[t]o identify the impact of the numerous changes that occur over time * * * it is necessary to characterize system performance periodically.” TruePosition argues that “such testing often turns up hidden problems that can usually be rectified quickly once discovered” and that periodic testing “also has the benefit of identifying common issues such that procedures can be put in place to address them on an on-going basis.” Further, TruePosition argues that “test calls from a specific cell site should be weighted according to the percentage of 911 calls originating on that cell site” and that “[w]hile accuracy is the main criteria for compliance, it is meaningless unless yield is also taken into account.”
26. Texas 9-1-1 Agencies argue that “[w]ireless carriers must be required to do initial pre-deployment testing of Phase 2 service before turning up any new towers with live traffic or any new coverage areas with live traffic in 9-1-1 authority areas that have full Phase 2 service.” Texas 9-1-1 Agencies argue further that “[Section] 20.18 should not be interpreted to create an automatic loophole extension of up to six-months for wireless carriers to deploy Phase 2 service at a later date after they start handling live end user traffic.”
27. The Alliance for Telecommunications Industry Solutions' (ATIS) Emergency Services Forum (ESIF), an organization with wireless carriers as members, has developed and published several industry-accepted methodologies related to testing. In particular, ATIS's ESIF has published a technical report (ATIS Report) that specifies events that should trigger maintenance testing. These events include: (1) Major network changes that may significantly impact location accuracy; (2) problems such as unexplained significant degradation of service, systematic failed delivery of service and catastrophic events; and (3) every two years, at a minimum, consistent with NRIC VII Focus Group 1A recommendations. ATIS states that examples of major network changes that should trigger location accuracy testing include:
(a) Changes to core location technology;
(b) Major system software upgrades that impact location algorithms;
(c) Changes in radio frequency (RF) configuration that would result in a significant impact to location accuracy in the area being considered; and
(d) Natural disasters that alter the topology of a significant portion of the infrastructure in an area of consideration.”
According to AT&T, the ATIS report “should be the starting point for [an advisory group] evaluation.”
28. Carrier commenters generally oppose mandatory testing. T-Mobile argues that periodic testing is not necessary because “once initial data is collected indicating certain accuracy levels have been achieved, that data does not lose validity. In fact, performance generally tends to improve rather than degrade over time.” T-Mobile further contends that “[r]equiring periodic re-testing would * * * be unnecessary and impose a huge burden. At a minimum, the Commission is obligated by the Paperwork Reduction Act to evaluate the Second Report and Order mechanisms before imposing additional information collection requirements.” AT&T also opposes a testing requirement, arguing that “[t]he NPRM's discussion of these topics ignores the Commission's decision in the Second R&O to trend uncertainty data to validate accuracy in an ongoing manner.” T-Mobile similarly contends that “trending of confidence and uncertainty data * * * provides a way of better targeting areas where remedial measures may be needed,” while “[n]etworkwide accuracy retesting is a costly and unnecessary burden absent any clear evidence of need.”
29. However, according to NENA, confidence and uncertainty trends are not sufficient proxies for location accuracy testing because “reported confidence and uncertainty data are themselves subject to systemic error.” NENA disputes T-Mobile's claim that network performance does not materially change with time, noting that “routine changes in deployed networks can adversely affect location accuracy.”
30. Commenters also urge caution regarding using OET Bulletin 71 as the basis for testing procedures, arguing that the bulletin is outdated and further work on testing criteria is required. Andrew Corporation supports mandatory testing but cautions that “in order to ensure that such testing is as meaningful as possible, the compliance verification methodology should be based on empirical test data collected at a statistically significant number of test points representative of calling patterns in the targeted compliance area.” Andrew Corporation also argues that “compliance testing parameters should account for the fact that performance among individual handset models may vary for handset-based location methods and can strongly influence measured results for GPS-based location technology.”
31. Discussion. We conclude that requiring CMRS providers to periodically test their outdoor location accuracy results and to share these results with PSAPs within their service areas, state 911 offices in the states or territories in which they operate, and the Commission, subject to confidentiality safeguards, is important to ensure that our location accuracy requirements are being met. Indeed, as NENA, APCO, and TruePosition note, the current lack of available data on location accuracy results has made it difficult for public safety entities, the Commission, and the public to assess whether the Commission's rules are effectively ensuring that CMRS providers are providing meaningful location information to PSAPs. The lack of available data has also made it difficult to assess the effects of emerging technologies on location accuracy results and has negatively affected the ability of public safety personnel to have confidence in the location information they do receive.
32. As noted, there is disagreement in the record regarding the need for periodic testing of carriers' networks. T-Mobile contends that only initial test data on accuracy levels is necessary and that periodic retesting yields no public safety benefit. Other commenters, including NENA and TruePosition, cite examples of common environmental and network changes that can affect the reliability of previous test results, such as new construction or development, new Phase II capabilities, re-homing of cellular networks, and rectifying problems discovered in previous testing. They argue that in the absence of periodic retesting, these changes can result in degradation of location accuracy performance that would not be identifiable based on initial test results.
33. We find that periodic testing is important to ensure that test data does not become obsolete as a result of environmental changes and network reconfiguration. Indeed, even ATIS, which is comprised of wireless carriers, notes that “major network change * * * could significantly impact location accuracy and trigger accuracy maintenance testing.” In addition, carrier disclosure to PSAPs and 911 offices will enable them to better gauge whether they are receiving accurate location information from CMRS providers and thus base their responses to emergencies accordingly. Disclosure of the information to the Commission
34. No entity has suggested a means other than periodic testing to ensure the accuracy of location information. However, further work is needed to develop approaches to testing criteria, procedures, and timeframes that are reasonable and cost-effective. We also agree with commenters that basing testing criteria and procedures on the current OET Bulletin 71, developed eleven years ago, would be inappropriate at this time. Rather, we conclude that development of these issues should be referred to the newly re-chartered CSRIC. More specifically, the CSRIC should be tasked with making recommendations to the Commission within six months regarding cost-effective and specific approaches to testing requirements, methodologies, and implementation timeframes that will substantially meet the goals articulated above, including appropriate updates to OET Bulletin 71. The Commission will then subject these recommendations to further notice and comment prior to implementing specific testing requirements and procedures.
35. We encourage the CSRIC to consider the feasibility of flexible testing criteria and methodologies. To the extent that any stakeholders have concerns about the potential expense of periodic testing, we expect them to substantiate such concerns by providing the CSRIC with detailed cost data relating to particular testing methodologies. Overall, the CSRIC's recommendations should attempt to find cost-effective testing solutions.
36. We act pursuant to well-established legal authority. Since 1996, the Commission has required CMRS providers to implement basic 911 and E911 services. As the Commission has explained before, sections 301 and 303(r) of the Act give us the authority to require CMRS providers to implement these services. E911 requirements also further the Commission's mandate to “promot[e] safety of life and property through the use of wire and radio communication.” Our actions in this item enhance E911 service to “promote safety of life and property” and fall within this authority.
37. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to
38. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The FRFA is set forth in Appendix B of the document.
39. The Report and Order contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding.
40. We note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
41. The Commission will send a copy of the Third R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).
42. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the
43. Accordingly,
44.
Communications common carriers, Communications equipment.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows:
47 U.S.C. 154, 160, 201, 251-254, 301, 303, 316, and 332 unless otherwise noted. Section 20.12 is also issued under 47 U.S.C. 1302.
(h) * * *
(2) * * *
(iv) Providers of new CMRS networks that meet the definition of covered CMRS providers under paragraph (a) of this section must comply with the requirements of paragraphs (h)(2)(i) through (iii) of this section. For this purpose, a “new CMRS network” is a CMRS network that is newly deployed subsequent to the effective date of the Third Report and Order in PS Docket No. 07-114 and that is not an expansion
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Correcting amendments.
This document contains corrections to the final rule regulations (49 CFR 535.6), which were published in the
Lily Smith, Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
NHTSA and EPA published in the
As published, the final regulations inadvertently contained incorrect conversion factors for determining fuel consumption values that resulted from a typographical error. The correct value that should have been used in the document is a factor of 8,887 grams of CO
Fuel efficiency.
Accordingly, 49 CFR part 535 is corrected by making the following correcting amendments:
49 U.S.C. 32902; delegation of authority at 49 CFR 1.50.
(a) * * *
(4) * * *
(ii) Calculate the equivalent fuel consumption test group results as follows for spark-ignition vehicles and alternative fuel spark-ignition vehicles. CO
(c) * * *
(4) * * *
(ii) Calculate equivalent fuel consumption FCL values for spark-ignition engines and alternative fuel spark-ignition engines. CO
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by non-American Fisheries Act (AFA) crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2011 Pacific cod sideboard limit established for non-AFA crab vessels harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), September 25, 2011, through 2400 hrs, A.l.t., December 31, 2011.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2011 Pacific cod sideboard limit established for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA is 1,747 metric tons (mt), as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (75 FR 11111, March 1, 2011).
In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2011 Pacific cod sideboard limit established for non-AFA crab vessels harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 1,700 mt, and is setting aside the remaining 47 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 22, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 680.22 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other rockfish” in the Aleutian Island subarea of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary because the 2011 total allowable catch (TAC) of “other rockfish” in the Aleutian Island subarea of the BSAI has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), September 24, 2011, through 2400 hrs, A.l.t., December 31, 2011.
Josh Keaton, 907-586-7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2011 TAC of “other rockfish” in the Aleutian Island subarea of the BSAI is 500 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11139, March 1, 2011) and apportionment of non-specified reserves (76 FR 53840, August 30, 2011).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2011 TAC of “other rockfish” in the Aleutian Island subarea of the BSAI has been reached. Therefore, NMFS is requiring that “other rockfish” caught in the Aleutian Island subarea of the BSAI be treated as prohibited species in accordance with § 679.21(b).
“Other rockfish” in the Aleutian Island subarea of the BSAI means all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, shortraker and rougheye rockfish.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of “other rockfish” in the Aleutian Island subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 22, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of sharks in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary because the 2011 total allowable catch (TAC) of sharks in the BSAI has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), September 24, 2011, through 2400 hrs, A.l.t., December 31, 2011.
Josh Keaton, 907-586-7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2011 TAC of sharks in the BSAI is 50 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11139, March 1, 2011) and apportionment of non-specified reserves (76 FR 53840, August 30, 2011).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2011 TAC of sharks in the BSAI has been reached. Therefore, NMFS is requiring that sharks caught in the BSAI be treated as prohibited species in accordance with § 679.21(b).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of sharks in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 22, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of skates in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary because the 2011 total allowable catch (TAC) of skates in the BSAI has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), September 24, 2011, through 2400 hrs, A.l.t., December 31, 2011.
Josh Keaton, 907-586-7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2011 TAC of skates in the BSAI is 16,500 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11139, March 1, 2011) and apportionment of non-specified reserves (76 FR 53840, August 30, 2011).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2011 TAC of skates in the BSAI has been reached. Therefore, NMFS is requiring that skates caught in the BSAI be treated as prohibited species in accordance with § 679.21(b).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of skates in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 22, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Privacy Office, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the “Department of Homeland Security/U.S. Citizenship and Immigration Services-015 Electronic Immigration System-2 Account and Case Management System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before October 28, 2011.
You may submit comments, identified by docket number DHS-2011-0086, by one of the following methods:
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For general questions please contact: Donald K. Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) proposes to establish a new DHS system of records titled, “DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records.”
DHS/USCIS is creating a new electronic environment known as the Electronic Immigration System (USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit to register online and submit certain benefit requests through the online system. This system will improve customer service; increase efficiency for processing benefits; better identify potential national security concerns, criminality, and fraud; and create improved access controls and better auditing capabilities.
DHS and USCIS are promulgating the regulation “Immigration Benefits Business Transformation, Increment I” (August 29, 2011, 76 FR 53764) to make it possible for USCIS to transition to an electronic environment. This regulation will assist USCIS in the transformation of its operations by removing references and processes that inhibit the use of electronic systems or constrain USCIS's ability to respond to changing workloads, priorities, or statutory requirements.
Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to the Applicant (Co-Applicants); and their attorneys and representatives accredited by the Board of Immigration Appeals (Representatives) may create individualized online accounts. These online accounts help Applicants and their Representatives file for benefits, track the status of open benefit requests, schedule appointments, change their addresses and contact information, and receive notices and notifications regarding their cases. Through USCIS ELIS, individuals may submit additional information and/or evidence electronically. Once an individual provides biographic information in one benefit request, USCIS ELIS uses that information to pre-populate any future benefit requests filed by the same individual. This eases the burden on an individual so he or she does not have to repeatedly type in the same information and decreases the opportunity for error.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records. Some information in Electronic Immigration System-2 Account and Case Management (USCIS ELIS Account and Case Management) relates to official DHS national security, law enforcement, and immigration activities. The exemptions are required to preclude subjects from compromising an ongoing law enforcement, national security or fraud investigation; to avoid disclosure of investigative techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; and to ensure DHS's ability to obtain information from third parties and other sources.
This system is exempted from the following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in this system require
The exemptions proposed here are standard for agencies where the information may contain investigatory materials compiled for law enforcement purposes. These exemptions are exercised by executive Federal agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the overall law enforcement process, the applicable exemptions may be waived on a case-by-case basis.
A notice of system of records for DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records is also published in this issue of the
The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for Part 5 continues to read as follows:
Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to Part 5, the following new paragraph “61”:
61. The DHS/USCIS-016 Electronic Immigration System-2 Account and Case Management System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/USCIS-016 Electronic Immigration System-2 Account and Case Management is a repository of information held by USCIS to serve its mission of processing immigration benefits. This system also supports certain other DHS programs whose functions include, but are not limited to, the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; and national security and intelligence activities. The DHS/USCIS-016 Electronic Immigration System-2 Account and Case Management System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other Federal, state, local, Tribal, foreign, or international government agencies. This system is exempted from the following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in this system require retrieving records from law enforcement systems. Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions in accordance with this rule. Exemptions from these particular subsections are justified, on a case-by-case basis determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and/or reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of Federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules) because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures withrespect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records, or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system, would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
U.S. Citizenship and Immigration Services, DHS.
Proposed rule.
The Department of Homeland Security (DHS) is proposing to amend its regulations governing the employment creation (EB-5) immigrant classification. This rule only proposes requirements and procedures for special determinations on the applications and petitions of qualifying aliens whose employment-creation immigrant petitions were approved by the former Immigration and Naturalization Service (INS) after January 1, 1995 and before August 31, 1998. This rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act.
You must submit written comments on or before November 28, 2011.
You may submit comments, identified by DHS Docket No. DHS-2009-0029, by one of the following methods:
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Alexandra Haskell, Adjudications Officer, Business, Employment and Trade Services, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Mailstop 2060, Washington, DC 20529-2060, telephone: (202) 272-8410.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The Department of Homeland Security (DHS) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
The employment creation immigrant classification is one of five employment-related bases for obtaining permanent residence in the United States.
Obtaining lawful permanent residence under the EB-5 immigrant classification is a multi-step process. First, the alien must file and obtain approval of an Immigrant Petition by Alien Entrepreneur, Form I-526 (or successor form).
The last procedural step is triggered 90 days before the second anniversary of the alien entrepreneur's conditional resident status. INA section 216A(d)(2), 8 U.S.C. 1186b(d)(2). During this 90-day period, the alien entrepreneur must submit to USCIS a Petition by Entrepreneur to Remove Conditions, Form I-829 (or successor form).
In 1998, the Immigration and Naturalization Service (INS), the predecessor agency to USCIS, issued four precedent decisions addressing the eligibility requirements for EB-5 petitions.
In 2002, Congress enacted special legislation to provide a small group of aliens whose EB-5-related petitions or applications were pending at the time of the precedent decisions with an opportunity to perfect their original investments or make additional business investments in the United States and create the requisite jobs so that they can remain in the United States as lawful permanent residents.
Public Law 107-273 requires publication of implementing regulations. Until implementing regulations are effective, USCIS may not take adverse action against “eligible aliens.”
Public Law 107-273 contains very detailed requirements for the review and adjudication of pending applications and petitions for eligible aliens. Section 11031 describes the procedures applicable to eligible aliens who obtained lawful permanent resident status on a conditional basis but who have not had their conditions removed. Section 11032 describes the procedures applicable to eligible aliens whose applications for permanent residence on a conditional basis had not been approved at the time of enactment of Public Law 107-273.
For eligible aliens with pending I-829 petitions, section 11031 of Public Law 107-273 requires the Secretary of Homeland Security (Secretary) to make an initial determination whether the Form I-829 as filed by the eligible alien is approvable. If the petition is approvable, the conditions on the alien's permanent residence will be removed. If the petition is determined to be deficient following the initial determination, the eligible alien and the accompanying spouse and children of the alien will be granted a second two-year period of conditional residence unless the adverse determination is based on a finding of material misrepresentation. During this period of conditional residence, the eligible alien has an opportunity to remedy the deficiencies in his or her petition and make additional investments in the commercial enterprise listed on the pending Form I-829 and/or in other commercial enterprises to comply with the capital investment and job creation requirements of the EB-5 program. At the end of this two-year period, the eligible alien must file a new Form I-829 petition with the Secretary of Homeland Security seeking to remove the conditions from his or her permanent residence. If the eligible alien's second petition is approvable, the conditional basis of the alien's permanent residence and that of the alien's accompanying spouse and children will be removed. If an eligible alien's second petition is determined to be deficient, the eligible alien's permanent resident status and that of the alien's accompanying spouse and children will be terminated. If, at any stage of the process, it is determined that an eligible alien has made a material misrepresentation on any of the petitions, the alien's status and that of the alien's accompanying spouse or children may be terminated. Finally, section 11031 provides for administrative and judicial review of each of the statutory determinations.
Section 11032 of Public Law 107-273 provides for the approval of an eligible alien's application for adjustment of status or an immigrant visa and the grant of a two-year period of conditional residence. At the completion of the two-year period of conditional residence, eligible aliens must file Form I-829 to remove the conditions from their permanent residence and that of their accompanying spouse and children. Although the procedures used to adjudicate the petitions filed by eligible aliens under section 11032 of Public Law 107-273 are governed by INA section 216A, substantial compliance with the capital investment and job creation requirements need not be related to the commercial enterprise described in their Forms I-526. Rather, eligible aliens may submit evidence related to capital investment and job creation in any commercial enterprise in the United States. If an eligible alien is determined to have complied with the capital investment and job creation
The remainder of the Supplementary Information describes sections 11031 and 11032 of Public Law 107-273 in more detail and explains the corresponding proposed amendments to DHS regulations.
As summarized above, a conditional resident must fall within the statutory definition of “eligible alien” under sections 11031(b)(1) and (2) of Public Law 107-273 to receive the determinations on a previously denied or currently pending Form I-829 required by section 11031(c) of Public Law 107-273. The determinations required by section 11031(c) of Public Law 107-273 (hereinafter “section 11031(c) determinations”) are comprised of an initial determination and a second determination. Public Law 107-273 at section 11031(c). An “eligible alien” is an alien who obtained LPR status on a conditional basis as a result of filing a Form I-526 petition pursuant to section 203(b)(5) of the INA, 8 U.S.C. 1153(b)(5), that was approved after January 1, 1995 and before August 31, 1998.
In the event that an otherwise eligible alien's timely filed Form I-829 was denied prior to November 2, 2002, the alien still may be deemed to be eligible if he or she filed a motion to reopen not later than January 1, 2003. Public Law 107-273 at section 11031(b)(2)(A). If such an eligible alien is no longer physically present in the United States, the Secretary of Homeland Security, if necessary, may parole the alien into the United States to obtain the section 11031(c) determinations. Public Law 107-273 at section 11031(b)(2)(B). The Secretary of Homeland Security, however, may not parole any alien into the United States who is inadmissible or deportable on any grounds, or if the alien's Form I-829 was denied due to a material misrepresentation of any of the facts and information described in INA section 216A(d)(1), 8 U.S.C. 1186b(d)(1), and alleged in the Form I-829 petition with respect to a commercial enterprise. Public Law 107-273 at section 11031(b)(2)(B)(i)-(ii). Under these circumstances, USCIS does not consider such alien “eligible” for the section 11031(c) determinations. In making the material misrepresentation determination, the applicable “facts and information” include, but are not limited to:
(A) Whether the alien established the commercial enterprise(s) underconsideration; and
(B) Whether the alien invested or was actively in the process of investing the requisite capital.
(C) The alien sustained the actions described in (A) and (B) throughout the period of the alien's residence in the United States.
A motion to reopen filed pursuant to Public Law 107-273 by otherwise eligible aliens who are in deportation or removal proceedings by reason of the denial of the I-829 petition also constitutes a motion to reopen proceedings.
• Any order of deportation or removal should be vacated, and
• The alien should be granted the status of an alien lawfully admitted for permanent residence unconditionally or on a conditional basis, by reason of the section 11031(c) determinations made by the Secretary of Homeland Security.
The statutory provisions of Public Law 107-273 are detailed; therefore, this proposed rule does not restate them. This proposed rule focuses primarily on limitations on eligibility and eligibility of aliens with denied petitions.
Under this rulemaking, in accordance with section 11031(b)(2)(C) of Public Law 107-273, aliens who are in deportation or removal proceedings and who are deportable or removable on grounds other than the denied Form I-829 would be ineligible for special determinations on their Form I-829 applications under Public Law 107-273. Proposed 8 CFR 216.7(a)(2)(i). Such aliens are statutorily barred from obtaining benefits under this law pursuant to section 11031(b)(2)(C) of Public Law 107-273.
Since the enactment of Public Law 107-273, DHS has received and acknowledged requests from several aliens eligible to receive section 11031(c) determinations to withdraw their Forms I-829. In other instances, some aliens have executed Abandonment of Lawful Permanent Residence Status, Form I-407 (or successor form). Either the withdrawal of the Form I-829 or the execution of the Form I-407 constitutes the voluntary abandonment of the alien's conditional lawful residence status. In addition, some aliens may have since acquired lawful permanent residence or another immigration status on a different basis. Public Law 107-273 does not address these scenarios. This rule proposes to exclude such aliens from “eligibility” for section 11031(c) determinations. Proposed 8 CFR 216.7(a)(2)(ii) and (iii). The actions of such aliens demonstrate that these aliens are no longer interested in pursuing LPR status based on the EB-5 immigrant classification under the provisions of Public Law 107-273. In order to be eligible to obtain status by another means, an eligible alien would have had to abandon status as an alien admitted for permanent residence on a conditional basis or have had such status terminated by USCIS.
For these reasons, DHS deems otherwise eligible aliens who have withdrawn their Forms I-829, executed Form I-407, or adjusted to LPR status on other grounds to have abandoned any claim to benefits under Public Law 107-273. DHS is proposing in this rule to exclude these aliens from the definition of eligible alien.
Aliens who timely filed a Form I-829 petition that was denied on the merits prior to November 2, 2002, may still be deemed an “eligible alien.”
Note that an alien whose Form I-829 was denied on procedural grounds does not qualify as an “eligible alien.”
Section 11031(b)(2)(A) of Public Law 107-273 required aliens with denied petitions to file a motion to reopen by January 1, 2003 to obtain the benefits offered by the statute. DHS has identified 31 such motions to reopen. DHS has granted such motions and the petitions are now considered to be pending. This rule does not further address motions to reopen since the statutory time period for filing such motions has expired.
Of the 31 motions to reopen that DHS received, none appear to have been filed by aliens who were not physically present in the United States. Moreover, in its review of all Public Law 107-273 petitions, DHS has not found that physical presence of the alien is necessary in order for USCIS to make its initial determinations. Therefore, this rule does not propose provisions governing the parole of overseas aliens with denied Forms I-829.
DHS considers a motion to reopen a denied Form I-829 pursuant to section 11031(b)(2)(A) of Public Law 107-273 to be the same as a motion to reopen deportation or removal proceedings. Public Law 107-273 at section 11031(b)(2)(C). Immigration courts have terminated or administratively closed deportation or removal proceedings in these cases to give USCIS the opportunity to make its section 11031(c) determinations After USCIS makes these determinations, section 11031(b)(2)(C) of Public Law 107-273 requires that the Attorney General must make the decision to grant LPR status conditionally or unconditionally in proceedings. Therefore, after USCIS makes the initial 11031(c) determination, DHS must file a motion to re-calendar the proceedings. Proposed 8 CFR 216.7(a)(3). The immigration judge will take further action on the alien's status in deportation or removal proceedings, including, as appropriate:
• Removal of the conditions and termination of proceedings,
• Extension of conditional resident status pursuant to section 11031(c)(1)(F)(ii), and
• Administrative closure so that jurisdiction shifts back to DHS for the second 11031(c) determination.
Public Law 107-273 requires the Secretary of Homeland Security to make an “initial determination” on the pending Forms I-829 of eligible aliens. The Secretary also must make a “second determination” for certain eligible aliens who file new petitions to remove conditions 2 years later.
Under section 11031(c)(1)(A) of Public Law 107-273, the Secretary of Homeland Security must make an initial determination on each eligible alien's Form I-829 regarding three issues. First, the Secretary must determine whether the Form I-829 contains any material misrepresentation in the facts and information described in INA section 216A(d)(1), 8 U.S.C. 1186b(d)(1), and alleged in the Form I-829 with respect to a commercial enterprise. The facts and information described in INA section 216A(d)(1), 8 U.S.C. 1186b(d)(1), pertain to the establishment of an investment in the commercial enterprise for the duration of the conditional resident period. This determination regarding material misrepresentation must be made without regard to whether such enterprise is a limited partnership, or whether the alien entered the enterprise after its formation.
Second, the Secretary must determine whether the commercial enterprise created full-time jobs for 10 or more qualifying employees. The jobs have to exist or existed on any of the following dates:
• The date on which the Form I-829 was filed;
• Six months after that date; or
• The date on which DHS makes the determination.
The creation of 10 or more direct or indirect jobs will satisfy this requirement if the alien has made the required investment within an approved regional center.
Third, the Secretary must determine whether the eligible alien is in substantial compliance with the capital investment requirement described in INA section 216A(d)(1)(B), 8 U.S.C. 1186b(d)(1)(B), on any of the three dates listed above.
If the Secretary determines that the alien has met the job creation and capital investment requirements outlined by Public Law 107-273, and there is no material misrepresentation with respect to Form I-829, the Secretary of Homeland Security must notify the alien and, if the alien is not in deportation or removal proceedings, remove the conditional basis of the alien's status as of the second anniversary of the alien's lawful admission for permanent residence. The Secretary of Homeland Security will also remove the conditional status of the alien's accompanying spouse and children as of that same date.
If the Secretary of Homeland Security makes an adverse determination regarding material misrepresentation, job creation, or capital investment, the Secretary must provide the alien with notice of this adverse determination and an opportunity to submit evidence to rebut the adverse determination.
If no such reversal takes place, the Secretary of Homeland Security (or the Attorney General if the alien is in deportation or removal proceedings) must continue the conditional basis of the alien's permanent resident status and that of the alien's spouse and children for a two-year period, but only if the adverse determination is based upon the capital investment or job creation requirements and does not involve a finding of material misrepresentation. Public Law 107-273 at sections 11031(c)(1)(F)(ii) and 11031(b)(2)(C). When an adverse determination is based upon the existence of a material misrepresentation, and the alien's rebuttal does not lead to reversal of that determination, the alien's conditional resident status and that of the alien's spouse and children must be terminated, subject to review of the adverse determination in deportation or removal proceedings.
For any adverse determination, and prior to a subsequent decision regarding the alien's status, the alien may seek administrative review of the determination by the BIA. If the BIA denies the petition, the alien may seek judicial review. During any period of administrative or judicial review, the alien's conditional residence, along with the conditional residence of the alien's accompanying spouse and children, would continue. Public Law 107-273 at section 11031(c)(1)(F)(iv). The law provides that the procedures for judicial review are the same as the procedures for the judicial review of a final order of removal.
In this rule, USCIS is proposing several steps leading up to its initial determination. USCIS would first make a determination on the initial Form I-829 pursuant to section 11031(c)(1) of Public Law 107-273 based on the evidence previously submitted with Form I-829. USCIS would not request additional evidence or an interview.
If USCIS makes a favorable determination such that the conditions on permanent resident status should be removed, USCIS would provide written notice to the alien and, unless the alien is in removal or deportation proceedings, remove conditions. Proposed 8 CFR 216.7(a)(4)(i). If USCIS makes an adverse determination, the alien will be afforded an opportunity for the alien to update the evidence in the record. Following is a discussion of USCIS's specific proposals in this rulemaking.
Eligible aliens may receive removal of the conditions on their permanent resident status if the Secretary of Homeland Security determines that there was no material misrepresentation on the Form I-829 and that the job creation and capital investment requirements have been met. Public Law 107-273 at section 11031(c)(1)(E). For eligible aliens who are in deportation or removal proceedings or who are overseas, additional steps may apply to effect the removal of conditions.
For aliens in deportation or removal proceedings, the decision to remove conditions must take place in those proceedings. Public Law 107-273 at section 11031(b)(2)(C). Therefore, after the Secretary of Homeland Security makes a favorable determination on an eligible alien's Form I-829, jurisdiction shifts back to the immigration judge for a decision on whether the alien's conditions may be removed. To shift jurisdiction back to the immigration judge, this rule provides that DHS must file a motion to re-calendar proceedings with the immigration judge. Proposed 8 CFR 216.7(a)(4)(i). The motion to re-calendar serves to reopen the proceedings, which previously were administratively closed. The immigration judge will issue an order terminating proceedings or vacating the order of deportation or removal and remove the conditions from an eligible alien's permanent resident status where the alien is not inadmissible or deportable on other grounds. Public Law 107-273 at section 11031(b)(2)(C). If the immigration judge determines that removal of conditions is not warranted, such as when the alien is found to be inadmissible, then deportation or removal proceedings will continue.
Public Law 107-273 is silent with respect to the procedures for removing the conditions on the permanent status of overseas aliens who were not paroled into the United States for the special determination process. DHS is not aware of any potential eligible aliens currently residing abroad and has not, therefore, included any procedures for parole in this rulemaking. Should such a case arise, USCIS will notify the overseas alien of the favorable determination and removal of conditions and direct such alien to the appropriate U.S. consular office for the procedures by which he or she can secure documentation for admission to the United States. Note that if an alien with conditional resident status has been absent from the United States for 180 days or more or departed from the United States while in removal proceedings, he or she will be subject to inspection and, therefore, a determination of admissibility. INA section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C).
USCIS is proposing in this rule a 12-week period within which an alien may submit evidence to disprove the adverse determination(s). Proposed 8 CFR 216.7(a)(4)(ii). In rebuttal, aliens would be able to submit evidence of investments in and job creation resulting from enterprises other than the commercial enterprise named in the initial Form I-829 and qualifying Form I-526.
Public Law 107-273 represents a significant departure from the strict rules normally applicable to the removal of conditions from an alien entrepreneur's permanent resident status. This legislation applies to a very limited group of individuals whose Form I-829 petitions were either pending at the time of the enactment of Public Law 107-273 or were reopened pursuant to the terms of that law. It was intended to redefine the standards applicable to this limited group and provide these eligible aliens who had failed to comply with these strict requirements of the existing EB-5 statutes and regulations an opportunity to cure the deficiencies of their initial petitions. Section 11031(c)(1)(A) does not preclude the consideration of capital investment in or job creation from commercial enterprises not identified in the initial Form I-829. Accordingly, consistent with the unique provisions and ameliorative purpose of Public Law 107-273, DHS will consider evidence of additional, qualifying investments and resulting job creation at the initial determination stage under section 11031(c)(1)(A), an option that ordinarily is not available to EB-5 conditional resident aliens. Additional investments and resulting job creation must be documented by completing a new supplement to Form I-829 and providing the evidence described in proposed 8 CFR 216.7(a)(5)(i)(C).
As more fully described below, permitting consideration of evidence of investment in commercial enterprises that are not listed in the initial Form I-829 could create instances where an eligible alien has made capital investments in commercial enterprises that are located within a targeted employment area (TEA), while also making capital investments in commercial enterprises not located in a TEA which require at least $1,000,000 in capital investment. Under these circumstances, the pro-rating process described at proposed 8 CFR 216.7(a)(5)(iii) will be applied to determine the total amount of capital that must be invested in such instances.
The 12-week period for submitting rebuttal evidence, including the Supplement for investments in additional commercial enterprises (if applicable), would run from the date of an adverse determination notice.
Whether or not the alien submits rebuttal evidence during the 12-week period, USCIS would render a decision on whether to reverse its adverse determination(s). Proposed 8 CFR 216.7(a)(4)(ii). DHS is proposing this requirement given the age of the petitions and evidence that USCIS will be reviewing and because treatment of the alien's conditional resident status (if USCIS determines that it will not reverse the adverse determination(s)) depends on the basis of the adverse determination. If the adverse determination is based on material misrepresentation, Public Law 107-273 requires termination of conditional resident status. Public Law 107-273 at section 11031(c)(1)(F)(iii). If the adverse determination(s) is based on failure to meet the job creation or capital investment requirements, Public Law 107-273 requires continuation of conditional resident status. Public Law 107-273 at section 11031(c)(1)(F)(ii). Given these considerations, DHS prefers to proceed with its initial determination cautiously.
Public Law 107-273 requires that if all adverse determination(s) are reversed based on the rebuttal, then the alien must receive notice of this reversal. Public Law 107-273 at section 11031(c)(1)(F)(i). This rule proposes that USCIS must send written notice of its decision whether USCIS reverses the adverse determination or does not reverse the adverse determinations. Proposed 8 CFR 216.7(a)(4)(iii). The date of the notice would determine the period for administrative or judicial appeal of USCIS' adverse determinations, and when the continuation of conditional residence begins for purposes of a second determination.
If USCIS determines that reversal of adverse determinations is appropriate, then the procedures proposed for favorable determinations at proposed 8 CFR 216.7(a)(4)(i) would apply. If USCIS determines that reversal of adverse determination is not appropriate, then the procedures that apply would depend on whether the alien is or is not in deportation or removal proceedings.
Regardless of whether the alien is in proceedings or not, DHS is proposing to require that the notice affirming the adverse determinations must contain the reasons for the decision, as well as USCIS's determination (if applicable) regarding the number of qualifying jobs created, amount of capital investment made, and the date described in section 11031(c)(1)(D) of Public Law 107-273 that USCIS applied to each determination. Proposed 8 CFR 216.7(a)(4)(iii). In the case of multiple investors, jobs would be allocated among the investors.
As required by section 11031(c)(1)(F)(iv) of Public Law 107-273, an alien may seek administrative review with the BIA of an adverse determination, and during the period in which the adverse determinations are pending with the BIA or circuit court, this rule provides that the conditional basis of the alien's permanent resident status and that of any accompanying spouse and/or children be continued automatically.
Section 11031(c)(1)(F)(ii) of Public Law 107-273 provides for the continuation of conditional resident status for an additional two-year period after an adverse determination based on failure of the alien to meet the job
Consistent with removal of conditions following favorable determinations, this rule proposes that either USCIS or an immigration judge (if the alien is in deportation or removal proceedings) may continue conditional residence for a new two-year period.
The starting date for the new two-year period of conditional residence will vary, depending upon several factors. This rule proposes that if the alien is not in deportation or removal proceedings, the date of USCIS's decision following receipt of rebuttal evidence, or, if no evidence is submitted, the date of the close of the rebuttal period, would trigger the new two-year period. Proposed 8 CFR 216.7(a)(4)(v)(C). However, if the alien seeks review of the adverse USCIS determinations by the BIA or the federal courts, DHS does not believe the two-year period should begin until after there is a final decision by the highest appellate body. Therefore, this rule proposes that the two-year period should begin after the alien has exhausted the avenues for appellate review by the BIA or the federal courts.
Section 11031(c)(1)(F)(iii) of Public Law 107-273 provides for the termination of conditional resident status upon an adverse determination based on material misrepresentation if rebuttal evidence does not result in reversal of the adverse determination. After termination of status, the underlying adverse determination is subject to review in removal proceedings. Public Law 107-273 at section 11031(d). Since, in addition to the rebuttal review process following an adverse determination, section 11031(c)(1)(F)(iv) of Public Law 107-273 also provides for a review process by the BIA and the federal courts, this proposed rule provides that termination of conditional resident status is appropriate after completion of both the rebuttal process and any BIA or judicial review, if such review is sought.
This proposed rule maintains the same distinction made in section 11031(b)(2)(C) of Public Law 107-273 regarding the division of authority to terminate conditional resident status for aliens who are in deportation or removal proceedings and those who are not. Only the Attorney General has authority to terminate status for aliens who are in deportation or removal proceedings. For aliens who are not in such proceedings, this rule is consistent with the procedures for terminating status under the normal process described in 8 CFR 216.6(d)(2). This rule proposes that if the alien is not in deportation or removal proceedings and receives an adverse determination based upon material misrepresentation, status will be terminated automatically, effective on the date of the notice of decision following the rebuttal period.
Following automatic termination, DHS (USCIS or ICE) will issue a Notice to Appear (NTA) to commence removal proceedings. An alien can seek review of the adverse determinations in those proceedings. Since status has been terminated, the rule requires the alien and the accompanying spouse and/or children to surrender their evidence of conditional resident status (Form I-551, Permanent Resident Card, formerly known as an Alien Registration Receipt Card) to DHS. While there is no appeal following automatic termination of status, aliens whose status has been terminated may seek review of the adverse USCIS determination in removal proceedings.
For aliens who are already in deportation or removal proceedings, termination of status under section 11031(c)(1)(F)(iii) of Public Law 107-273 is not automatic since section 11031(b)(2)(C) of Public Law 107-273 requires such decisions to be made in proceedings. So that jurisdiction over such aliens rests with the immigration judge following the USCIS adverse determination process, this rule provides that DHS file a motion to re-calendar proceedings.
For eligible aliens whose conditional residence was continued for a new two-year period due to an adverse determination relating to the job creation or capital investment requirements, section 11031(c)(2) of Public Law 107-273 provides a process for removing those conditions. To remove conditions, the eligible immigrant investor must file a petition within the 90-day period before the second anniversary of the continuation of conditional resident status. Public Law 107-273 at section 11031(c)(2)(B) and (C). If a petition is filed after the 90-day period, the law provides that, with good cause and extenuating circumstances, this late filing may be excused by the Secretary of Homeland Security.
• Whether the petition contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in the petition.
• If the initial determination was adverse with respect to the job creation requirement, whether all the enterprises considered together, including the number of jobs found to have been created at the initial determination stage, created 10 or more full-time jobs for qualifying individuals, and whether those jobs exist on the date of the determination.
• If the initial determination was adverse with respect to the capital investment requirement, whether the eligible alien is in substantial compliance with the capital investment requirement described in INA section 216A(d)(1)(B), 8 U.S.C. 1186b(d)(1)(B), on the date that the determination is made. Any capital amount that was determined to have been invested in the initial determination must be subtracted from the required capital amount at the time of the second determination.
Consistent with the initial determination process, a favorable determination at the second stage of review results in the removal of the conditions on permanent resident status for the alien and any accompanying spouse and child.
This rule proposes to implement section 11031(c)(2) of Public Law 107-273 by:
• Establishing procedures for filing the second petition to remove conditions;
• Describing supporting evidence;
• Defining the scope of the determination; and
• Describing DHS favorable and adverse determinations.
These proposals are discussed below and are proposed in 8 CFR 216.7(a)(5).
This rule proposes that the alien's petition to remove conditions from the second period of conditional residence must be filed on Form I-829 in accordance with the form instructions and with appropriate fee as stated in those instructions. Proposed 8 CFR 216.7(a)(5)(i). DHS has determined that the Form I-829 remains an appropriate form to remove conditions at the end of the second two-year period because the same action—removal of conditions—is being requested by the alien. DHS also is proposing that the alien file a supplement to Form I-829 with the second Form I-829. The purpose of the supplement to Form I-829 would be to provide a means within the petition for the eligible alien to state the facts and information described in sections 216A(d)(1)(A) and (B) of the INA with respect to any commercial enterprise which the alien wants to have considered, regardless of whether the enterprise is a limited partnership, the alien entered the enterprise after its formation, or the enterprise was created before or after the initial determination was made. This is the same supplement proposed for the initial determination stage.
Failure to timely file the second Form I-829 results in termination of conditional resident status and the institution of removal proceedings.
This rule proposes that failure to timely file the Form I-829 results in the automatic termination of conditional resident status. Proposed 8 CFR 216.7(a)(5)(ii). DHS will provide the alien with notice of termination and issue and serve an NTA to aliens to institute removal proceedings or DHS will move to re-calendar administratively closed deportation or removal proceedings for aliens already in deportation or removal proceedings.
In order for DHS to be equipped to make determinations on the second Form I-829, USCIS must examine the evidence supporting the petition as it does for Forms I-829 filed by aliens under the normal (non-Pub. L. 107-273) process. This rule proposes to require the alien to submit any documentation in support of the second Form I-829 that is necessary for meeting the requirements of section 11031(c)(2) of Public Law 107-273 and the implementing regulations. The proposed rule also specifies particular documentary evidence that the alien must submit with the petition. Proposed 8 CFR 216.7(a)(5)(i)(A)-(D). DHS bases the proposed list of required evidence on the evidence that EB-5 aliens are required to submit with their petitions to remove conditions under the normal (non-Pub. L. 107-273) process. This evidence includes:
• Evidence that the alien invested or was actively in the process of investing the requisite capital, such as an audited financial statement or other probative evidence; and
• Evidence that the alien created, or can be expected to create within a reasonable time, ten full-time jobs for qualifying employees.
In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien entrepreneur would be required to submit evidence that the commercial enterprise maintained the number of existing employees at no fewer than the pre-investment level for the period of conditional permanent residence commencing on the effective date of the initial determination. Such evidence could include payroll records, relevant tax documents, and Employment Eligibility Verification forms (Form I-9 or successor form).
To make determinations on the second Form I-829, USCIS must consider in particular: The scope of the second determination, as authorized by Public Laws 107-273; the commercial enterprises and investments that the alien wants USCIS to consider; qualifying jobs; and substantial compliance with the capital investment requirement.
At the second determination stage, Public Law 107-273 requires consideration of material misrepresentation in the petition and
With respect to the types of evidence DHS is proposing for the second determination stage, if the adverse determination at the initial stage was based on failure to meet the job creation requirement, the rule proposes to require the alien to submit evidence of the number of qualifying jobs created since conditional resident status was continued and the beginning and ending dates of when the jobs existed. Proposed 8 CFR 216.7(a)(5)(i)(A). For example, the alien may include with the petition payroll records, tax documents, and Forms I-9 to evidence the additional qualifying jobs that were created.
Note that if the eligible alien has invested in a troubled business, documentation would be necessary to accompany the Form I-829 demonstrating that the level of employment on the date of the second determination was maintained at no less than the pre-employment level. Public Law 107-273 at section 11031(c)(2)(E)(ii)(II) (cross referencing section 11031(c)(1)(C)). If the eligible alien's qualifying investment is within an approved regional center, the eligible alien would need to submit evidence of indirect job creation if the alien is relying on indirect jobs to demonstrate that he or she has met the job creation requirement.
If the adverse determination at the initial stage was based on failure to meet the capital investment requirement, this rule proposes to require the alien to provide evidence of his or her capital investment in one or more commercial enterprises since conditional resident status was continued. Proposed 8 CFR 216.7(a)(5)(i)(B). Such evidence could include audited financial statements, federal tax returns, bank statements, bank wire transfers, or escrow agreements.
b.
Regardless of whether the initial adverse determinations were based on only the job creation or capital investment requirements, Public Law 107-273 requires the Secretary of Homeland Security to consider for the second determination any capital investments in commercial enterprises in the United States. Public Law 107-273 at section 11031(c)(2)(A) and (B). Such investments include those that were made before or after the initial adverse determination and in commercial enterprises other than the one considered for the initial determination that were created at any time before or after the initial adverse determination and regardless of whether the alien entered the enterprise after its formation.
To implement section 11031(c)(2)(A) and (B) of Public Law 107-273, DHS is proposing to require the alien to provide evidence of the capital investments and corresponding commercial enterprises that he or she wants USCIS to consider for its second determination.
The type of evidence of the alien's capital investments that DHS is proposing to require is based on the type of evidence that was required to be submitted with the initial Form I-829 pursuant to 8 CFR 216.6(a)(4). The evidence that this proposed rule would require for each commercial enterprise which the alien desires to have considered includes:
• Audited financial statements, or other probative evidence of the alien's capital investment for each commercial enterprise to be considered; and
• Evidence of each commercial enterprise's formation and current ownership structure including, but not limited to: Articles of incorporation, certificate of merger or consolidation, partnership agreement, joint venture agreement, business trust agreement, or other similar organizational document for the commercial enterprise; and a certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require such a certificate, a statement to that effect.
There may be instances where an eligible alien has made capital investments in commercial enterprises that are located within a targeted employment area (TEA) which require at least $500,000 in capital investment, while also making capital investments in commercial enterprises not located in a TEA which require at least $1,000,000 in capital investment. Section 203(b)(5)(C) of the INA, 8 U.S.C. 1153(b)(5)(C), and 8 CFR 204.6(f) define and describe the amount of investment capital required in both targeted (TEA) and non-targeted locations within the United States. These provisions, however, contemplate the consideration of capital investments in only one commercial enterprise. Sections 11031(c)(2)(A) & (B) of Public Law 107-273 do not discuss how capital investments in commercial enterprises located both within and without a TEA must be evaluated in total at the time of the second determination to meet the capital investment requirements. This rule describes at 8 CFR 216.7(a)(5)(iii) the prorating approach that DHS proposes to use to determine the total amount of capital that must be invested in such instances. DHS proposes to utilize a multi-step process as follows to make such determinations:
• The creditable amount of an eligible alien's capital investments in all of the commercial enterprises located within a TEA would be determined by USCIS. If the eligible alien has complied with the $500,000 capital investment requirement, then the capital investment requirement under Public Law 107-273 will be met. If the eligible alien has not complied with the $500,000 capital investment requirement, then the amount of the eligible alien's creditable capital investment in all commercial enterprises located within a TEA would be divided by 500,000 to determine the prorated percentage of the eligible alien's capital investment based on capital investments in commercial enterprises located in a TEA.
• The creditable amount of an eligible alien's capital investments in all of the commercial enterprises that are not located within a TEA would be determined by USCIS. If the eligible alien has complied with the $1,000,000 capital investment requirement, then the capital investment requirement under Public Law 107-273 will be met. If the eligible alien has not complied
• The prorated percentage of the eligible alien's capital investment in commercial enterprises located in a TEA would be combined with the prorated percentage of the eligible alien's capital investment in commercial enterprises that are not located within a TEA to arrive at the eligible alien's total creditable capital investment. This total creditable capital investment will be represented as a percentage, and the percentage must equal or exceed 100% in order for the alien to meet the statutory capital investment requirement.
As an example, if an eligible alien's creditable capital investment in a commercial enterprise located within a TEA was $300,000, then the prorated percentage of the eligible alien's capital investment in the commercial enterprise would be 60% ($300,000/500,000 × 100 = 60%). In order for that eligible alien to meet the statutory capital investment requirements based upon an additional capital investment in a commercial enterprise that is not located within a TEA, he or she would have to be credited with an additional capital investment of $400,000 ($400,000/1,000,000 × 100 = 40%). In this example, the $300,000 capital investment and the additional $400,000 capital investment would constitute 100% of the capital investment requirement by utilizing a combination of capital investments in commercial enterprises located both within and without a TEA.
If the failure to meet the capital investment requirement was the basis for the initial adverse determination, eligible aliens must demonstrate that, on the date of the second determination, they are in substantial compliance with the capital investment requirement for the second determination.
Favorable determinations on the second Form I-829 result in the removal of conditions for the alien and accompanying spouse and children as of the second anniversary of the continuation of conditional resident status. Public Law 107-273 at section 11031(c)(2)(F). This rule proposes that upon a favorable determination by USCIS warranting removal of conditions, USCIS will remove the conditions on the alien's permanent resident status if the alien is not in deportation or removal proceedings, and will send the alien written notice of these decisions. Proposed 8 CFR 216.7(a)(5)(v). Removal of conditions would be effective on the second anniversary of the continuation of conditional residence.
An adverse determination on the alien's second Form I-829 leads to termination of conditional resident status. Public Law 107-273 at section 11031(c)(2)(G)(ii). However, prior to termination, the alien may submit evidence to rebut the adverse determinations so that the adverse determinations are reversed.
Similar to the process for rebutting initial adverse determinations, this rule proposes a 12-week period within which the alien may submit a written rebuttal to USCIS after receiving written notice from USCIS of the adverse determinations. Proposed 8 CFR 216.7(a)(5)(vi)(A). USCIS would render a decision on the rebuttal evidence after receiving the rebuttal evidence. If USCIS determines that the rebuttal evidence is not sufficient to reverse its adverse determinations, USCIS would terminate the alien's conditional status and that of his or her accompanying spouse and/or children. If the alien is not already in deportation or removal proceedings, USCIS would issue an NTA to commence removal proceedings regardless of the ground on which the adverse determinations were based. Proposed 8 CFR 216.7(a)(5)(vi)(B)(
If USCIS does not receive rebuttal evidence during the 12-week period, this rule proposes that the alien's conditional resident status and that of his or her accompanying spouse and/or children will be automatically terminated, even if the alien is in deportation or removal proceedings. Proposed 8 CFR 216.7(a)(5)(vi)(B)(
At the initial determination stage, Public Law 107-273 requires termination of conditional resident status only if the adverse determination is based on material misrepresentation. Public Law 107-273 at section 11031(c)(1)(F)(iii). Public Law 107-273 requires continuation of conditional resident status if the adverse
The termination of conditional resident status under proposed 8 CFR 216.7(a)(5)(vi)(B)(
The rule proposes to define several statutory terms, in some cases for ease of reference and, in other cases, to better explain the statutory terms. The rule proposes to define the following terms for ease of reference and it relieves the regulations from cumbersome descriptions or cross-references to Public Law 107-273 each time the regulations refer to these terms:
• Denied initial Form I-829: an initial Form I-829 that was denied by an INS director on the merits of the petition.
• Initial Form I-829: a Form I-829 that was timely filed before November 2, 2002 by an eligible alien.
• Qualifying Form I-526: a Form I-526 that was approved after January 1, 1995 and before August 31, 1998.
• Second petition to remove conditions: a petition to remove conditions (Form I-829 or successor form) timely filed by an eligible alien following an initial adverse determination.
DHS also is proposing to define the following substantive terms relating to petitions to remove conditions (either under section 11031 or 11032(e) of Pub. L. 107-273):
An adverse determination made on a petition to remove conditions based on “material misrepresentation” leads to termination of conditional resident status. Public Law 107-273 sections 11031(c)(1)(F)(iii), 11031(c)(2)(G)(2), and 11032(e). DHS is proposing in this rule to define material misrepresentation to mean a statement or representation in a petition to remove conditions, as originally filed or supplemented, or in any accompanying documentation, which, as a matter of discretion, is determined to be both false and one to which importance would reasonably be attached for determining whether to grant the petition, without regard to the petitioner's or any other person's intent or to whether or not there was detrimental reliance upon the statement or representation. Proposed 8 CFR 216.7(c)(1);
Public Law 107-273 requires DHS to consider whether the eligible alien is in “substantial compliance” with the capital investment requirement. Public Law 107-273 sections 11031(c)(1)(A)(iii), 11031(c)(2)(E)(iii), and 11032(e)(2)(C). By contrast, removing the conditions from permanent resident status of an alien entrepreneur typically requires aliens to demonstrate that they invested, or were actively in the process of investing, the requisite amount of capital.
Accordingly, this rule defines substantial compliance as meaning that that the alien has invested nearly all the requisite amount (
(1) The date on which the Form I-829 was filed (not applicable to petitions to remove conditions considered under section 11031(c)(2) of Public Law 107-273, relating to the second determination;
(2) Six months after that date (limited to petitions to remove conditions considered under section 11031(c)(1) of Pub. L. 107-273); or
(3) The date upon which the determinations are made (applicable to petitions to remove conditions considered under sections 11031(c)(1) and (2) and 11032).
DHS has determined that assigning a rigid numerical standard to define “substantial compliance” would not fairly take into account the unique circumstances of each investment. Because several years have passed since the enactment of Public Law 107-273 and the law's deadline for completing the initial determinations, DHS believes that requiring eligible aliens to demonstrate that they have made “nearly all” the required capital investment is reasonable.
This rule proposes to exclude from consideration any funds returned to the alien or required to be returned to the alien (provided by legally enforceable documents or contracts relating to the enterprise) in the form of guaranteed interest payments or as redemption for his or her capital investment interest, or otherwise diverted. Returned funds would not have been made available to the commercial enterprise for the purposes of creating qualifying jobs.
In making its initial and second determinations on petitions to remove conditions under section 11031(c) of Public Law 107-273, the Secretary of
If the eligible alien is deceased, this rule proposes that the accompanying spouse and/or children will qualify as eligible aliens provided they meet the requirements of section 11031 of Public Law 107-273 for the removal of conditions in place of the principal.
In addition to providing special treatment for certain aliens who previously attained conditional resident status, Public Law 107-273 also provides for the special treatment of “eligible aliens” who have not yet become conditional residents. Specifically, section 11032(a) of Public Law 107-273 requires DHS or the Secretary of State to grant conditional residence status to eligible aliens meeting the following criteria:
• The alien filed a Form I-526 that was approved after January 1, 1995 and before August 31, 1998;
• Pursuant to this approval, the alien timely filed a Form I-485 or an application for an immigrant visa (DS-230) prior to the date of enactment of Public Law 107-273, November 2, 2002; and
• The alien is not inadmissible or deportable.
If the qualifying Form I-526 was revoked following approval, the alien may still be eligible for conditional resident status if the basis for the revocation was failure to meet the job creation requirement in INA section 203(b)(5)(A)(ii), 8 U.S.C. 1153(b)(5)(A)(ii).
As the authority of DHS only extends to the adjudication of Form I-485 adjustment applications filed by aliens physically present in the United States, this rule only discusses the applicability of section 11032(c) of Public Law 107-273 to eligible aliens who filed such applications. This rule does not extend to applications for immigrant visas, since such applications are processed by the Department of State.
In this rule, DHS is proposing procedures eligible aliens must follow to request USCIS to consider them for conditional residence under Public Law 107-273. DHS also is proposing to describe how USCIS will make eligibility determinations, including determinations for special cases involving overseas aliens. Finally, DHS is proposing the approval and denial processes.
Before outlining the required procedures, this rule proposes several definitions of terms used in the proposed provisions to avoid repeated cross-references to section 11032(c) of Public Law 107-273 or lengthy descriptions. At proposed 8 CFR 245.25(a), DHS is proposing definitions for the following terms: application for adjustment of status; qualifying Form I-485; qualifying Form I-526; and Form I-485 that is no longer pending. The definitions track the statutory language in Public Law 107-273. For the term, “Form I-485 that is no longer pending,” DHS is proposing an additional clarification. Under this rule, the phrase “no longer pending” would mean that DHS terminated for reasons of abandonment or denied the alien's Form I-485 on or before November 2, 2002, the date of enactment of Public Law 107-273. DHS will disregard the denial or termination without the need for the alien to file a motion to reopen or take other procedural steps.
DHS is proposing in this rule that aliens seeking to qualify for conditional resident status under section 11032 of Public Law 107-273 must, in accordance with the form instructions, file with USCIS a newly completed Form I-485 or succeeding form, without fee, and with any documentary evidence of continued eligibility that is signed and dated after the date that a final rule is effective and on or before the date that is 180 days from date of such effective date. Proposed 8 CFR 245.25(b). The alien would be required to subsequently appear when requested by USCIS to submit certain biometric information (with fee) and for an interview as part of the determination process if USCIS determines that an interview is necessary. Proposed 8 CFR 245.25(b)(1)(iii).
DHS is also proposing the submission of additional documentation with the new Form I-485 in cases where:
• The alien's qualifying Form I-485 is no longer pending or
• The alien's qualifying Form I-526 was revoked.
Without this information, USCIS would not be equipped to make a determination on whether a revoked petition should be disregarded or a denied or terminated application for adjustment of status should be reopened.
If the alien's Form I-485 was no longer pending as of November 2, 2003, DHS is proposing to require the alien to submit evidence to show the reasons why the Form I-485 is no longer pending. To qualify for benefits under section 11032 of Public Law 107-273, the alien must demonstrate that his or her I-485 is no longer pending due to a determination by INS that the alien either failed to satisfy the job creation requirement or departed the United States without advance parole while the Form I-485 was pending. Proposed 8 CFR 245.25(b)(3). The primary evidence would be a decision from INS denying or terminating the Form I-485. However, USCIS would accept secondary evidence, including a sworn statement from the alien regarding the basis for the denial, termination, withdrawal, or abandonment.
Otherwise eligible aliens whose qualifying Forms I-526 were revoked may still be able to receive the benefits of Public Law 107-273 and obtain conditional resident status.
In order for USCIS to be equipped to make determinations regarding the revoked petition, USCIS would need information regarding the revocation. Therefore, if the alien is seeking consideration for conditional residence under section 11032 of Public Law 107-273 notwithstanding the revocation of his or her qualifying Form I-526, DHS is proposing to require the alien to submit evidence demonstrating that USCIS should disregard the revocation. Proposed 8 CFR 245.25(b)(4). The primary evidence would be a copy of the revocation decision where the sole stated reason for the decision is failure of the alien to meet the job creation requirement. However, if the alien lost the decision or no longer has the decision for some other reason, USCIS would accept secondary evidence including a sworn statement of the alien regarding the reasons for the revocation and additional supporting evidence. Using the information submitted by the alien, USCIS would be able to confirm the information contained in its own records.
The procedures and requirements in proposed 8 CFR 245.25(b)(1) would provide USCIS with up-to-date information regarding the alien so that USCIS can make a determination on whether such aliens are currently inadmissible or deportable and, in turn, ineligible for conditional resident status under section 11032(b)(3) of Public Law 107-273. Therefore, failure to follow these requirements would result in denial of the alien's qualifying Form I-485 because USCIS would not be able to determine whether the alien qualifies for conditional residence under Public Law 107-273. Proposed 8 CFR 245.25(b). The requirements would also provide USCIS with information regarding which aliens with qualifying EB-5 petitions are still interested in pursuing conditional residence through the EB-5 program on the basis of such petitions.
Under this rule, aliens who are not physically present in the United States may still qualify for conditional residence under section 11032(c)(2)(B) of Public Law 107-273. Proposed 8 CFR 245.25(b)(2). DHS is proposing that such aliens follow the procedures in proposed 8 CFR 245.25 and timely file a new Form I-485 and any supporting documentation in order for USCIS to consider their cases. However, with respect to the requirement to appear for biometric information capture and an interview, DHS is proposing that USCIS would notify aliens who are not physically present in the United States following receipt of the new Form I-485 to make any required appearances at the DHS office located outside the United States having jurisdiction over the alien's foreign residence. Proposed 8 CFR 245.25(b)(2). After considering the new Form I-485 and information obtained through the biometric capture and interview at the DHS office overseas, USCIS would be better able to make a determination as to whether it is necessary to parole the alien for adjustment of status pursuant to section 11032(c)(2)(B).
At proposed 8 CFR 245.25(b)(5), DHS is proposing to require spouses and children accompanying or following to join principal EB-5 aliens pursuant to section 203(d) of the INA, 8 U.S.C. 1153(d), as permitted under Public Law 107-273, to each file an application for adjustment of status. Applications should be filed with the principal EB-5 alien's application for adjustment of status. However, in case circumstances change between the time that the principal alien files his or her own application for adjustment of status and the date USCIS makes a decision on the principal's application, this rule would permit applications for accompanying and following to join spouses and children to be filed up until the date of decision. Applications filed for accompanying or following to join spouses and children would be required to include evidence of eligibility and, in particular, evidence of the qualifying relationship, such as marriage and birth certificates. For spouses and children who are overseas and seeking to join the principal EB-5 alien
DHS is proposing that prior to approving or denying the qualifying Form I-485 under section 11032 of Public Law 107-273, USCIS would make determinations on whether the alien qualifies as an eligible alien. Proposed 8 CFR 245.25(c). DHS is further proposing to create an intermediate step, described more fully below, to accommodate eligible aliens and their spouses and children who are overseas and may need to be paroled into the United States to be granted conditional resident status.
To determine whether an alien qualifies for conditional resident status, USCIS would review the qualifying Form I-485, the new Form I-485, and any information based on the recent collection of biometric information, interview, any Form I-526 revocation proceedings, and any previous denial of Form I-485 if no longer pending. At this stage, USCIS would determine whether all of the requirements in section 11032(a), (b), and (c) are met, such as:
• Whether the revocation of the alien's qualifying Form I-526 was based on failure of the alien to meet the job creation requirement and, therefore, should be disregarded;
• Whether a ground of inadmissibility or deportability applies to the alien; and
• Whether the alien's denied or terminated Form I-485 should be reopened because the denial was based on failure to meet the job creation requirement.
An additional consideration would be whether the alien obtained permanent residence on other grounds. In such a case, there would be no need for USCIS to apply section 11032 of Public Law 107-273 and grant conditional residence. Proposed 8 CFR 245.25(c)(1). Another consideration would be whether the eligible alien departed the United States while his or her qualifying Form I-485 was pending. An alien would not qualify for conditional residence under section 11032 of Public Law 107-273 if he or she departed without advance parole. Proposed 8 CFR 245.25(c)(2). This consequence applies to adjustment of status applicants under regular procedures applicable to Forms I-485. DHS does not believe that a different rule should apply to adjustment applicants seeking benefits under section 11032 of Public Law 107-273.
Finally, for principal aliens and their spouses and children who are not physically present in the United States, DHS is proposing that following a determination of eligibility, USCIS would send such aliens a notice requiring them, by a specific date, to apply for parole to return to the United States at a DHS office located in the jurisdiction of their overseas residence. Proposed 8 CFR 245.25(c)(3). Applicants can learn which DHS office services their residence by viewing the USCIS Office and Service Locator at
If USCIS determines that an alien who is overseas does not qualify as an eligible alien or for conditional resident status under section 11032 of Public Law 107-273, USCIS will terminate processing of the alien's Form I-485 and that of any accompanying spouse and children. Proposed 8 CFR 245.25(c) and (e). Likewise, if USCIS determines that an alien who is overseas does qualify as an eligible alien for conditional residence under section 11032 of Public Law 107-273, but that a spouse or child does not qualify for conditional resident status, USCIS will terminate processing of the respective spouse's or child's Form I-485. Proposed 8 CFR 245.25(c) and (e). There is no administrative appeal of a decision to terminate processing of any application of an alien who is overseas.
After USCIS makes a determination of eligibility, USCIS would make a decision on the Form I-485. Upon approval of the new Form I-485, USCIS would grant the alien conditional residence under section 216A of the INA, 8 U.S.C. 1186b, as of the date of the approval. USCIS would also approve Forms I-485 filed for the principal alien's accompanying spouse and children, if their Form I-485 is properly filed in accordance with proposed 8 CFR 245.25(b)(5) and the spouse or child is eligible to receive a visa under section 203(d) of the INA, 8 U.S.C. 1153(d). Proposed 8 CFR 245.25(d). USCIS will send written notice of the approval to the eligible alien(s). Note that prior to approval, USCIS must ensure that a visa number is available for each eligible alien from the Department of State under sections 201(d) and 203(b)(5) of the INA. 8 U.S.C. 1151(d) and 1153(b)(5).
Under this proposed rule, USCIS would be required to deny qualifying applications for adjustment of status to conditional residence if it determines that the eligible alien did not meet the requirements in section 11032 of Public Law 107-273 and the regulatory requirements in proposed 8 CFR 245.25. Proposed 8 CFR 245.25(e). In particular, USCIS would deny conditional residence:
• When USCIS cannot disregard the revocation of the eligible alien's qualifying Form I-526;
• When USCIS cannot reopen the eligible alien's Form I-485 that is no longer pending;
• If USCIS determines that the eligible alien is inadmissible or deportable on any ground; or
• If the eligible alien is no longer physically present in the United States and is not timely paroled into the United States if DHS requires such parole.
Section 216A of the INA, 8 U.S.C. 1186b, governs the entire removal of condition process for EB-5 aliens who do not fall within the scope of Public Law 107-273. Section 11032(e) of Public Law 107-273 modifies part of the regular process for removing conditions after USCIS grants conditional residence pursuant to Public Law 102-273.
Just as under the regular process, an alien granted conditional resident status under section 11032(a) of Public Law 107-273 must file a petition to remove conditions within 90 days prior to the second anniversary of becoming a conditional resident. Public Law 107-273 at section 11032(e)(1). The petition must demonstrate that:
• The alien invested or is actively in the process of investing the requisite capital of $1 million or $500,000,
• He or she has sustained the investment during the period of residence in the United States, and
• He or she is otherwise conforming to the requirements of the EB-5 visa classification.
Unlike the regular process, however, section 11032(e) of Public Law 107-273 provides that the petition can be based on any commercial enterprise in the United States in which the alien has made a capital investment at any time. Public Law 107-273 at section 11032(e)(1). In making a determination on the petition to remove conditions, section 11032(e) of Public Law 107-273 requires that three determinations be made. These are similar to the determinations required for eligible aliens seeking removal of conditions under section 11031 of Public Law 107-273:
1. A determination must be made as to whether the petition contains any material misrepresentation in the facts and information alleged in the petition with respect to the commercial enterprises included in the petition. Public Law 107-273 at section 11032(e)(2)(A).
2. A determination must be made as to whether all commercial enterprises included in the petition together created full-time jobs for 10 or more qualifying individuals and that those jobs exist or existed on either of the following dates: The date on which the investor's initial application for adjustment of status or immigrant visa was filed, or the date on which the determination on the Form I-829 is made.
3. A determination must be made as to whether, considering the alien's investments in enterprises on either or both of the dates described above, the alien is or was in substantial compliance with the capital investment requirement.
Because the requirements in section 11032(e) of Public Law 107-273 are based on the requirements applicable to the regular process for removing conditions in section 216A(c) and (d) of the INA, 8 U.S.C. 1186b(c) and (d), DHS is proposing that the regulations governing the regular removal of condition process at 8 CFR 216.6 also apply to section 11032(e) cases, except where specifically covered by the provisions proposed by this rule.
• The dates on which jobs created by the commercial enterprise existed;
• All commercial enterprises in which the eligible alien invested and upon which a determination will be made; and
• Whether the alien is or was in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the INA, 8 U.S.C. 1186b(d)(1)(B).
The rule does not propose special provisions governing the processes for requiring appearances by the alien, issuing a decision on the petition, granting or terminating status, and providing avenues for review of adverse decisions since the current regulations adequately cover these areas.
The special benefits of Public Law 107-273 extend to the spouses and children of eligible aliens. In addition, section 11031(e) of Public Law 107-273 provides that an alien who obtained conditional resident status before November 2, 2002 by virtue of being a child of an eligible alien will be considered to be a child for purposes of this section notwithstanding any subsequent change in age or marital status. Likewise, under section 11032(f) of Public Law 107-273, an alien who was a child on the date that Form I-485 or application for an immigrant visa (DS-230) was filed will be considered to be a child for purposes of this section notwithstanding any subsequent change in age or marital status.
DHS has determined that regulations implementing sections 11031(e) and 11032(f) of Public Law 107-273 are not necessary because the statutory provisions are sufficiently detailed. However, DHS invites comments from the public regarding whether there are issues that should be addressed in the regulations.
The Regulatory Flexibility Act (RFA) mandates that an agency conduct an RFA analysis when an agency is “required by 5 U.S.C. 553 * * *, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for interpretative rule involving the internal revenue laws of the United States. * * *” DHS has reviewed this regulation in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is that this rule applies to individuals who file petitions and applications under the EB-5 program. The impact is on these persons in their capacity as individuals, so that they are not, for purposes of the RFA, within the definition of small entities established by 5 U.S.C. 601(6).
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, this rule is not subject to the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this rule has not been submitted to the Office of Management and Budget for review. DHS has considered the benefits and costs associated with the changes proposed in this rule and has determined that the benefits justify the costs.
The majority of changes being proposed describe how USCIS would apply adjudication practices to the alien investor population covered by Public Law 107-273. The alien investor population covered by Public Law 107-273 filed petitions with USCIS during the period January 1, 1995 thru August 31, 1998. There are two distinct groups of aliens to which this rule applies: Those who have already obtained permanent resident status on a conditional basis are covered by section 11031 of Public Law 107-273, and those who have never obtained permanent resident status are covered by section 11032 of Public Law 107-273.
Pursuant to section 11031, DHS is proposing to reconsider alien investor petitions for removal of conditions filed during the applicable timeframe that meet the statutory eligibility requirements specified in section 11031 Public Law 107-273. Generally, DHS would apply adjudication standards that are similar to current practices in alien investor adjudication, while offering a few flexibilities. DHS estimates that 581 principal alien investors would be covered under this provision. Under the proposed rule, these covered alien investors would have further opportunity to satisfy their investment criteria in order to qualify for the removal of conditions on their lawful permanent residence. Most significantly, these principal alien investors would have the ability to count investment activities beyond the scope of their original investment. These enhanced flexibilities would represent significant qualitative benefits to the alien investor and their qualifying family members.
Principal alien investors seeking to benefit under section 11031 of Public Law 107-273 would be permitted to complete a Supplement to Form I-829 Petition by Entrepreneurs to Remove Conditions. Currently, there is no fee for the Supplement; thus the compliance cost to alien investors is directly attributable to the opportunity cost of completing the Supplement. According to the form instructions, the Supplement takes approximately 22 minutes to complete. Given the importance of the proposed accommodations, DHS assumes that investors will choose to have the form completed by an attorney. The Bureau of Labor Statistics 2009 Occupational Employment Statistics, reports the average hourly wage of an attorney at $62.03.
DHS believes that most cases would be resolved during this initial determination stage. Though unlikely, the highest cost scenario would be if all 581 alien investor cases were not able to be resolved at the initial stage. In this case, the statute provides that these alien investors would be granted a two-year extension or reprieve after which they have the option of petitioning for reconsideration. At the completion of the two-year extension, the investors would have the option of filing a new Petition by Entrepreneur to Remove Conditions, Form I-829, with associated biometrics collection. Additionally, these investors would be permitted to file the optional Supplement, if appropriate, for consideration of investment activities outside the scope of the original petition. DHS assumes that investors that would take advantage of this benefit of the two-year time extension would most likely file the Supplement along with Form I-829.
Additionally, investors that choose to take advantage of this benefit by filing Form I-829 would be required to travel to the nearest USCIS Application Support Center (ASC) for the collection of biometrics. While travel times and distances will vary, DHS estimates the average round-trip to an ASC will be 20 miles, and that the average time for that trip will be an hour. It will take an average of one hour for an applicant to wait for service, and to have his or her biometrics collected, for a total of compliance time of 2 hours. According to the Bureau of Labor Statistics, the 2009 average hourly wage for all occupations was $20.90, which results in $29.89 per hour in burdened wages.
Under the highest-cost scenario, where all 581 investors covered under section 11031 would have to undergo both the initial and secondary determination to have their conditions on permanent residence removed, the total opportunity cost imposed by this rule is $128,528. Additionally, the rule would impose over $2.2 million in fees, under the highest-cost scenario.
Section 11032 of Public Law 107-273 also provides benefits for certain individuals and their qualifying family members who applied for admission or adjustment of status on an EB-5 visa prior to the enactment of the legislation.
Under these circumstances, the fee for Form I-485 would be waived; thus the compliance cost to alien investors and family members is directly attributable to the opportunity cost of completing Form I-485. According to the form instructions, Form I-485 takes approximately 6 hours and 15 minutes to complete. In addition, applicants will also be required to travel to the nearest ASC for the collection of biometrics. Therefore, the total time for each applicant to comply with Form I-485 filing and biometric collection requirements is 8 hours and 15 minutes. Using a fully burdened wage rate of $29.89 per hour, USCIS calculates the opportunity cost to be $246.59.
In light of the significant qualitative benefits associated with the proposed rule, DHS has determined the benefits justify the compliance costs of the rule. We request public comment on any costs of the rule that we may not have considered.
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The information collection requirements (Form I-526, I-829, Form I-485, and Form I-131) contained in this rule have been previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The OMB control numbers for these information collections are: 1615-0026, 1615-0045, 1615-0023, and 1615-0013, respectively.
USCIS will be creating a supplement to the Form I-829 to accommodate special information that eligible aliens under Public Law 107-273 must provide to establish eligibility. The supplement will require the conditional resident to provide information regarding all commercial enterprises in the United States in which he or she has invested, the number of jobs created with respect to each commercial enterprise, and, where applicable, credits for previous investments that were made and jobs that were created.
Accordingly, the Form I-829 is being revised to include the new supplement. This revision is subject to review by the OMB under the Paperwork Reduction Act of 1995. Written comments are encouraged and will be accepted until November 28, 2011. When submitting comments on the information collection, your comments should address one or more of the following four points.
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the 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 the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
All comments and suggestions or questions regarding the Form I-829 and supplement should be directed to the Regulatory Products Division, Office of the Executive Secretariat, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020.
Administrative practice and procedure, Aliens.
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code of Federal Regulations as follows:
1. The authority citation for part 216 continues to read as follows:
8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b; and 8 CFR part 2.
2. Section 216.7 is added to read as follows:
(a)
(1)
(2)
(i) Any otherwise eligible alien who has been placed into deportation or removal proceedings and who is deportable or removable on grounds other than the denial of Form I-829;
(ii) An eligible alien who has obtained lawful permanent resident status (whether subject to conditions or not) on a basis unrelated to the conditional resident status at issue in the initial Form I-829. Such alien's dependent spouse and children will also no longer be deemed eligible aliens;
(iii) An eligible alien who makes or has previously made a written request to withdraw his or her initial Form I-829 will no longer be deemed an eligible alien upon the written notice by USCIS acknowledging the withdrawal request. Such alien's dependent spouse and children will also no longer be deemed eligible aliens. The conditional resident status of such alien(s) will terminate as of the date of the notice; or
(iv) Any alien who has abandoned his or her conditional residence by filing the Abandonment by Alien of Status as Lawful Permanent Resident form (Form I-407 or successor form) or an attestation in writing asserting the alien's abandonment of his or her status, regardless of whether he or she withdrew the petition to remove conditions on lawful permanent resident status or obtained lawful permanent resident status by any other means.
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(A)
(B)
(C)
(D)
(vi)
(5)
(A) If an adverse determination was based on failure to meet the job creation requirement of section 11031(c)(1)(A)(ii) of Public Law 107-273, evidence of the number of qualifying jobs created since conditional resident status was continued and the beginning and ending dates of the jobs. Evidence may include, but is not limited to, payroll records, tax documents, and Employment Eligibility Verification (Forms I-9 or any successor forms).
(B) If the adverse determination was based on failure to meet the capital investment requirement of section 11031(c)(1)(A)(iii) of Public Law 107-273, evidence of the alien's capital investment in one or more commercial enterprises since conditional resident status was continued establishing that the alien is in substantial compliance with the capital investment requirement described in section 216A(d)(1)(B) of the Act as of the date of USCIS' second determination. Such evidence may include, but is not limited to, audited financial statements, federal tax returns, bank statements, bank wire transfers, or escrow agreements, or other probative evidence.
(C) Regardless of the bases for the adverse determination, evidence of any commercial enterprise that the alien wants USCIS to consider (except any evidence previously submitted in connection with the initial Form I-829 or initial determination), including, but not limited to, its formation and current ownership and such other evidence as:
(
(
(
(D) In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), evidence that the
(ii)
(A) Failure to properly file the second petition to remove conditions within the 90-day period before the second anniversary of the continuation of the conditional basis will result in the automatic termination of the alien's permanent resident status and the initiation of removal proceedings unless such late filing is excused under paragraph (a)(5)(ii)(B) of this section. No appeal will lie from this decision. USCIS will send a written notice of termination and, as appropriate, issue an NTA or file a motion to re-calendar proceedings with the immigration judge pursuant to 8 CFR 216.7(a)(4)(iv). The alien may request a review of the determination in proceedings.
(B) The second petition to remove conditions may be considered, at USCIS's discretion, to be filed prior to the second anniversary of the continuation of the alien's conditional resident status and accepted as a late petition if USCIS determines that failure to timely file was for good cause and due to extenuating circumstances. If the late petition is filed prior to jurisdiction vesting with the immigration judge (whether by issuance of an NTA or motion to re-calendar) in removal proceedings and USCIS excuses the late filing, USCIS will restore the alien's conditional permanent resident status and adjudicate the petition on the merits pursuant to this paragraph. If the second petition to remove conditions is not filed until after jurisdiction vests with the immigration judge and USCIS excuses the late filing, DHS and the alien may file a joint motion with the immigration judge to administratively close or terminate proceedings as appropriate. USCIS will then restore the alien's conditional permanent resident status and adjudicate the petition on the merits pursuant to this paragraph.
(iii)
(iv)
(v)
(vi)
(A)
(B)
(
(
(6)
(b)
(1)
(2)
(i) Evidence that all eligible enterprises, considered together, in which the alien invested created full-time jobs for not fewer than 10 qualifying employees, and that such jobs exist or existed on either of the dates described in section 11032(e)(3) of Public Law 107-273. Such evidence may include payroll records, relevant tax documents, and Employment Eligibility Verification forms (Forms I-9 or any successor forms);
(ii) In the case of a “troubled business” as defined in 8 CFR 204.6(e), evidence that the number of existing employees is at no fewer than the pre-investment level for the conditional resident period. Such evidence may include payroll records, relevant tax documents, and Employment Eligibility Verification forms (Forms I-9 or any successor forms);
(iii) In the case of an investment within an approved regional center, evidence that the alien's investment created full-time jobs, either directly or indirectly, for not fewer than 10 qualifying employees. Such evidence may include payroll records, relevant tax documents, and Employment Eligibility Verification forms (Forms I-9 or any successor forms);
(iv) Evidence of the dates on which the jobs existed;
(v) Considering the alien's investment in all enterprises on either of the dates cited in section 11032(e)(3) of Public Law 107-273 or on both such dates, evidence that the alien is or was in substantial compliance with the requirement to invest or is actively in the process of investing the requisite capital. If the petition to remove conditions is based upon commercial enterprises located both within and outside of a TEA, the investment amount must comply with proposed 8 CFR 216.7(a)(5)(iii). Such evidence may include, but is not limited to, audited financial statements, federal tax returns, bank statements, bank wire transfers, escrow agreements, or other material evidence;
(vi) Evidence of any commercial enterprise in the United States in which the eligible alien made a capital investment and the formation and current ownership structure of such commercial enterprise including, but not limited to:
(
(
(C)
(c)
(2)
(3)
3. The authority citation for part 245 continues to read as follows:
8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; Title VII of Pub. L. 110-229; 8 CFR part 2.
4. Section 245.25 is added to read as follows:
(a)
(b)
(1)
(i) In accordance with the form instructions, file (without fee) a newly completed application for adjustment of status (Form I-485 or succeeding form) with supporting documentation signed and dated after the effective date when
(ii) Include payment of a biometrics fee with each application for adjustment of status; and
(iii) Appear as requested by USCIS for the capture of biometric information and, if USCIS determines it to be necessary, an interview.
(2)
(3)
(4)
(5)
(c)
(1)
(2)
(3)
(d)
(e)
(2) If USCIS determines that an alien who is not physically present in the United States is not an eligible alien, USCIS will terminate processing of the request for benefits pursuant to this section. If USCIS determines that an alien who is overseas does qualify as an eligible alien, but that the spouse or child of the eligible alien does not qualify for benefits pursuant to this section, USCIS will terminate processing of the request for benefits. There is no administrative appeal of this decision.
(f)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Isolated manufacturing deviations have been reportedly found on the threads of a certain batch of fuel pressure regulators, Part Number (P/N) 887130, installed on Rotax 914 F series engines.
This condition, if not corrected, could lead to a fuel leak and in-flight fire which would necessitate an engine shut-down, possibly resulting in a forced landing, with consequent damage to the aeroplane and injury to occupants.
These affected fuel pressure regulators may have non-conforming threads in the banjo bolt fitting for the fuel return line to the fuel tank from original manufacture. These non-conforming threads could result in fuel leakage during engine operation. We are proposing this AD to prevent fuel leaks, which could result in an in-flight fire and damage to the aircraft.
We must receive comments on this proposed AD by November 14, 2011.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0082, dated May 10, 2011 (referred to after this as “the MCAI”), to correct an unsafe
Isolated manufacturing deviations have been reportedly found on the threads of a certain batch of fuel pressure regulators, Part Number (P/N) 887130, installed on Rotax 914 F series engines.
This condition, if not corrected, could lead to a fuel leak and in-flight fire which would necessitate an engine shut-down, possibly resulting in a forced landing, with consequent damage to the aeroplane and injury to occupants.
These affected fuel pressure regulators may have non-conforming threads in the banjo bolt fitting for the fuel return line to the fuel tank from original manufacture. These non-conforming threads could result in fuel leakage during engine operation, in-flight fire, and damage to the airplane.
For the reasons described above, this proposed AD would require the replacement of all affected P/N 887130 fuel pressure regulators with parts eligible for installation. You may obtain further information by examining the MCAI in the AD docket.
This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require the replacement of all affected P/N 887130 fuel pressure regulators with parts eligible for installation, within 100 flight hours after the effective date of the proposed AD.
The EASA AD requires replacing the fuel pressure regulator within 100 flight hours (FH) or 6 months after the effective date of that AD, whichever occurs first. This proposed AD would require replacing the fuel pressure regulator within 100 FH after the effective date of this proposed AD.
We estimate that this proposed AD would affect about 75 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $180 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $26,250.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 14, 2011.
(b) None.
(c) This AD applies to BRP—Powertrain GMBH & CO KG 914 F2, 914 F3, and 914 F4 reciprocating engines with certain fuel pressure regulators, part number (P/N) 887130 installed.
(d) This AD results from:
Isolated manufacturing deviations have been reportedly found on the threads of a certain batch of Fuel pressure Regulators, Part Number (P/N) 887130, installed on Rotax 914 F series engines.
This condition, if not corrected, could lead to a fuel leak and in-flight fire which would necessitate an engine shut-down, possibly resulting in a forced landing, with consequent damage to the aeroplane and injury to occupants.
We are issuing this AD prevent to fuel leaks, which could result in an in-flight fire and damage to the aircraft.
(e) Within 100 flight hours (FH) after the effective date of this AD, replace fuel pressure regulators listed in Table 1 of this AD with a fuel pressure regulator that is not listed in Table 1 of this AD, and is eligible for installation.
(f) After the effective date of this AD, do not install any fuel pressure regulator P/N 887130 onto any engine, if the fuel pressure regulator has a serial number (S/N) listed in Table 1 of this AD.
(g) After the effective date of this AD, do not install any Rotax 914 F series engine on any airplane if it has installed in it a fuel pressure regulator P/N 887130 with a S/N listed in Table 1 of this AD.
(h) This AD differs from the Mandatory Continuing Airworthiness Information (MCAI) by the compliance time. The MCAI requires replacing the fuel pressure regulator within 100 FH or 6 months after the effective date of EASA AD 2011-0082, dated May 10, 2011. This AD requires replacing the fuel pressure regulator within 100 FH after the effective date of this AD.
(i) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(j) Refer to MCAI Airworthiness Directive 2011-0082, dated May 10, 2011, for related information.
(k) Contact Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
Occupational Safety and Health Administration (OSHA), Labor.
Proposed rule; Notice of reopening of rulemaking record.
OSHA is reopening the rulemaking record to allow interested persons to comment on OSHA's proposal to update Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation and the proposed requirement to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. The docket is being reopened in response to a request made by the National Automobile Dealers Association. The record will remain open for 30 days.
All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at
Electronic copies of this
OSHA's current regulation at Section 1904.2 partially exempts certain lower-hazard industries classified in Standard Industrial Classification (SIC) codes 52 through 89 from injury and illness recordkeeping requirements. Lower hazard industries are those industries with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. The DART rate represents the total non-fatal injuries and illnesses resulting in days away from work, restricted work activity, and/or job transfer per 100 full-time employees for a given period of time (usually 1 year). The current list of partially exempt industries, which is included in Appendix A to Subpart B, is based on injury and illness data compiled by the Bureau of Labor Statistics (BLS) for 1997, 1998 and 1999.
OSHA is proposing to revise the list of partially exempt industries in Appendix A using the North American Industry Classification System (NAICS). The revised list in proposed Appendix A is based on DART rates compiled by BLS for 2007, 2008 and 2009. Industries listed in proposed Appendix A would still be required to keep records if requested to do so by BLS in connection with its Annual Survey (29 CFR 1904.42), or by OSHA in connection
OSHA is also proposing to revise Section 1904.39, which currently requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations.
This regulation was developed in accordance with the principles of Executive Order 12866 and Executive Order 13563. Executive Order 12866 requires that OSHA estimate the benefits, costs, and net benefits of proposed regulations. The Agency estimates the regulation will cost approximately $8.5 million, on an annualized basis. As discussed elsewhere in this preamble, the Agency believes the annual benefits, while unquantified, are significantly in excess of the annual costs.
On June 22, 2011 OSHA proposed to update Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation. See 76 FR 36414. The Notice of Proposed Rulemaking (NPRM) also contained a proposed requirement to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. The comment period for the NPRM ran through September 20, 2011. On September 16, 2011 OSHA received a request to extend the comment period through October 20, 2011. The National Automobile Dealers Association requested this extension to provide them more time to evaluate the Bureau of Labor Statistics injury and illness data used for the proposed industry exemption analysis. OSHA has agreed to this request. The docket is being reopened for comment for an additional 30 days.
OSHA invites comment on all aspects of the proposed rule. OSHA specifically encourages comment on the questions raised in the issues and potential alternatives sections of this preamble. Interested persons must submit comments by October 28, 2011. The Agency will carefully review and evaluate all comments, information, and data, as well as all other information in the rulemaking record, to determine how to proceed.
You may submit comments in response to this document (1) electronically at
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA docket office at (202) 693-2350 (TTY (877) 889-5627).
Comments in response to this
Electronic copies of this
This document was prepared under the direction of Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under Sections 8 and 24 of the Occupational Safety and Health Act (29 U.S.C. 657, 673), 5 U.S.C. 553, and Secretary of Labor's Order 4-2010 (75 FR 55355, 9/10/2010).
Copyright Office, Library of Congress.
Notice of proposed rulemaking and request for comments.
The Copyright Office is issuing this Notice of Proposed Rulemaking to solicit public comment on proposals to update its interim regulations governing the designation by online service providers of agents to receive notifications of claimed copyright infringement as provided for in the Copyright Act.
Written comments are due November 28, 2011. Reply comments are due December 27, 2011.
The Copyright Office strongly prefers that comments be submitted electronically. A comment page containing a comment form is posted on the Copyright Office Web site at
Robert Kasunic, Deputy General Counsel, Copyright Office, GC/I&R, P.O. Box 70400, Washington, DC 20024.
In 1998, the Online Copyright Infringement Liability Limitation Act (Title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860 (Oct. 28, 1998)) amended chapter 5 of the Copyright Act, Title 17 of the United States Code, to provide limitations on liability for online service providers relating to material on their systems. With respect to material residing, at the direction of a user, on a system or network controlled or operated by or for the service provider, the limitations of liability under section 512 are available only if the service provider has satisfied certain conditions, one of which is the designation of an agent to receive notification of claimed copyright infringement to the Copyright Office, and through the service provider's Web site in a publicly accessible location. The Copyright Office is required to maintain an online directory of designated agents. 17 U.S.C. 512(c)(2). Although this takedown notification process is detailed in subsection 512(c) and is a condition precedent for the limitations of liability under that subsection, the notification process and the elements of notification set forth in subsection 512(c)(3) are also referenced in subsections 512(b) and (d), relating to system caching and information location tools respectively.
Because that Act was effective on its date of enactment and a procedure to enable the designation of agents needed to be in place immediately thereafter, the Copyright Office issued, without opportunity for comment, interim regulations governing the designation by service providers of agents to receive notifications of claimed infringement. 63 FR 59233 (Nov. 3, 1998). The Office made clear that the interim regulations would be replaced by more complete regulations to be promulgated following notice and opportunity for comment. The interim regulations have functioned satisfactorily for many years, but issues have arisen with respect to the currency and accuracy of the information in the directory, and the Office also intends to implement an electronic process by which service providers may designate agents to receive notifications of claimed infringement and an electronic database to search for designated agents of online service providers. This notice provides a general overview of the Office's vision for the new system and seeks public comment on proposed rules that would govern the submission and updating of information relating to designated agents.
In order to access the electronic designation of agent form, the Office proposes to require service providers to establish accounts with the Copyright Office, obtaining a username and password, through the Copyright Office's Web site. There would be no charge for establishing an account. The account must be used in order to periodically validate designation information or to make changes to designation information. The account will serve as a means of authenticating the person or entity entitled to validate or amend a service provider's designation of agent information. The Office seeks comment on this requirement.
While the Copyright Office is willing to consider allowing a service provider to delegate this responsibility to an agent or other designee, there may be reasons to be concerned about the accuracy of amendments or validations of existing designation information that are not provided by the service provider itself. If the designated agent were permitted to do so, the service provider nevertheless would bave to assume all responsibility for the acts of the agent. The Office seeks public comment on the costs and/or benefits of allowing service providers to delegate, to persons other than their employees, responsibility for maintaining their designated agent information. The current proposed regulation requires that the designation, or any validation or updating of the information in the designation as described below, be submitted by the service provider itself.
The Office's online system would automatically generate, at specific periods of time (
As is discussed further below (“
The Office proposes to also require contact information for the person filing the designation if that information is different from contact information for the online service provider, to be used in case the Office has any questions regarding the designation or the designated agent. The Office invites comments as to whether such information should be displayed in the online directory. Moreover, because of the likelihood that over time, a person responsible for the filing and updating of a designation may no longer be employed by the service provider, the proposed regulation would require alternate name and contact information for another person connected with the service provider in the event that the person filing the designation cannot be contacted.
Currently, the interim regulations require a service provider to submit an entire new designation if any of its information has changed. This requirement has created some confusion and has led to the unintentional elimination of some information because some service providers submitted only the new or changed information (
Amendment of a designation will require the payment of a fee (to be determined) and will generate an e-mail from the Office to the old e-mail address and any new e-mail address(es) provided as a means of reducing the likelihood of unauthorized changes. Even though there will be a fee associated with amending a designation in the Copyright Office's directory, it is prudent for online service providers to maintain current and accurate information, since courts may find that incorrect or outdated information constitutes a material failure to comply with the statutory requirements necessary for invoking the limitations on liability in section 512.
The Office also intends the amendment process to serve as a means of correcting any mistakes in a previous submission. However, as with all amendments, a fee will be required to correct any mistakes and the previous designation containing the mistakes will be maintained in the Office's archived records.
Of course, situations may arise (and have already arisen) in which two different service providers have the same name. This is particularly likely with respect to alternative names (
At the same time, the Office recognizes the possibility of fraudulent (or negligent) filings and solicits comment on whether and how it might resolve such situations without having to engage in the adjudication of disputes over who has the right to designate an online service provider's agent.
Alternatively, problems caused by overlapping designations could possibly be eliminated if the organizing principle of the directory were to be shifted to focus on service provider's web address. See the discussion below (“
Upon adoption of the electronic system, an approximately one year transition period will begin. During the transition period, the existing paper-generated database will be maintained. At the same time, the new designated agent database will begin to be populated and no new paper designations will be accepted. During the transition period, a listing in either database will satisfy the requirements of section 512(c)(2) and parties seeking to locate a service provider's designated agent will need to search both databases. Approximately one year after the effective date of the final rule, all paper-submitted designations will become invalid and only those designations contained in the new electronically-submitted directory will satisfy the statutory requirement for designating an agent with the Copyright Office.
Section 512(c)(2)(A) specifies that the limitation of liability under subsection (c) is contingent on substantially providing “the name, address, phone number and electronic mail address of the agent.” The legislative history explains that: “The substantial compliance standard in subsections (c)(2) and (c)(3) are intended to be applied so that technical errors (such as misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, or supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of a copyright owner) do not disqualify service providers and copyright owners from the protections afforded under subsection (c). It is expected that the parties will comply with the functional requirements of the notification provisions—such as providing sufficient information so that a designated agent or the complaining party submitting a notification may be contacted efficiently—in order to ensure that the notification and take down procedures set for in this subsection operate smoothly.” Staff of House Committee on the Judiciary, 105th Cong., Section-By-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, (Rep. Coble) (Comm. Print 1998), at 31-32. Accord: Report of the House Committee on Commerce on the Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at 56 (1998).
The only judicial decision to address whether Congress's use of the word “name” requires a personal name or may be interpreted broadly to encompass a position or title, in dictum, stated that “[n]othing in the DMCA mandates that service providers must designate the name of a person as opposed to a specialized department to receive notifications of claimed infringement.”
The Office invites public comment on the question of whether an online service provider must provide the actual name of a natural person or whether the name of a specific position or title will satisfy this requirement.
The Office is also inclined to permit a service provider to designate as an agent a position or individual within the service provider's organization itself rather than requiring the agent to be an unrelated third party. Since there are arguably both benefits and drawbacks to having a third party or an internal representative serve as the agent, the Office is inclined to permit each service provider to make the decision that best suits its needs. The Office is not, however, inclined to permit the designation of multiple agents, as doing so would unjustifiably complicate the statutory process. Although the Office is sensitive to the concern that multiple agents would be helpful in case of personnel turnover, the Office believes that the ability to name a position or title rather than an individual adequately addresses this issue.
The Office is also taking this opportunity to clarify that a designated agent's address can be outside of the United States; because a copyright owner is permitted to give notice of claimed infringement via e-mail, the copyright owner bears no additional expense or burden in giving notice to an agent located in a foreign country. The Office also permits a service provider to list a foreign address for itself. Although the limitations on liability in the United States Copyright Act may not apply to a particular foreign entity, the Office believes that if a U.S. court finds cause to assert jurisdiction over a foreign service provider pursuant to the U.S. Copyright Act, then no reason exists why the Copyright Office's regulations should prohibit that service provider from having filed a designation of agent as a condition precedent to receiving the benefits of the limitations of liability afforded by section 512.
If the Office permits joint designations, the service providers named on a joint designation would be required to have and state a legally recognized relationship (
The Office seeks comment on whether requiring a separate designation for each web address is the preferable means of organizing the directory. If so, a further question arises as to whether service providers should continue to be able to identify additional names by which they are known, which would be searchable in the directory. Conceivably, the web address is the primary or even the only name that a person searching the directory would need to ascertain who the designated agent of a service provider is.
However, further thought needs to be given to what is meant by “web address.” As a general proposition, this would be the basic domain (
If using web addresses as the organizing principle for the directory makes sense, the Office also seeks comment on whether, as an alternative to a web address, a service provider
The Copyright Office invites comments on any and all aspects of the proposed regulations and of the proposed new system for processing online service provider agent designations discussed above.
Copyright, General provisions.
In consideration of the foregoing, the Copyright Office proposes to amend 37 CFR part 201 as follows:
1. The authority citation for part 201 continues to read as follows:
17 U.S.C. 702.
2. Revise § 201.38 to read as follows:
(a)
(b)
(c)
(1) The full legal name and physical street address of the service provider and, if desired, any related entity that has a legally recognized relationship with the service provider and that shares the same physical street address. A post office box will not be accepted, unless in exceptional circumstances and upon written request by the service provider, the Register of Copyrights determines that the circumstances warrant a waiver of this requirement;
(2) Alternative names, if any, under which the service provider, and any related entity, is doing business; The service provider should include any names that it expects members of the public would be likely to use if engaging in a search in the Copyright Office's electronic directory for its designation of an agent to receive notification of claimed infringement.
(3) The name of the agent (either an individual, a specific position, or a title) designated to receive notification of claimed infringement. An agent may be a third party or an employee of the service provider, but must be a natural person or a position occupied by an individual, rather than a business or office name. Multiple agents may not be named;
(4) The physical mail address (street address or post office box), telephone number, and e-mail address of the agent designated to receive notification of claimed infringement;
(5) An e-mail address of the online service provider for receipt of e-mail notifications from the Copyright Office regarding the recurring validation process or amendments to the service provider's directory information;
(6) The full legal name, title, physical mail address, telephone number, and e-mail address of the person submitting the designation of agent on behalf of the service provider.
(7) The full legal name, title, physical mail address, telephone number, and e-mail address of another person affiliated with the service provider, who can be contacted by the Copyright Office in the event that the person who submitted the designation of agent cannot be contacted.
(8) An attestation by the person submitting the designation of agent that he or she has the appropriate authority of the service provider, including any related entities listed, if applicable, to submit the designation of agent on its or their behalf.
(d)
For a period of one year after the effective date of this regulation, the Copyright Office will maintain two directories of designated agents which in combination will satisfy the requirements of section 512(c)(2): the directory consisting of notifications submitted before [the effective date of this amendment] (the “old directory”) and the directory consisting of notifications submitted electronically on or after [the effective date of this amendment] (the “new directory”). During this transition period, any new designation of an agent must be submitted via the electronic submission process, and only designations submitted via that process may be amended. The directories of designated agents will be available on the Copyright Office's Web site at:
(e)
A service provider that has filed a designation of agent on or after [INSERT the effective date of this amendment] is required either to validate the accuracy of the information contained in its designation or to amend the information as appropriate and validate the accuracy of the amended information within two years after the later of (1) The filing of the designation of agent or (2) the most recent amendment of the designation that has been submitted by the service provider. If a service provider does not validate or amend its designation within that two-year period, the designation of agent will expire and will be removed from the Office's directory.
(f)
At any time after a service provider has designated an agent with the Copyright Office, the service provider may amend the filing online to correct or update information. The Copyright Office will maintain all versions of electronic designations, including validations or amendments, for evidence in litigation, but only the current information in the directory will be available online.
(g)
The Copyright Office's general fee schedule, located at section 201.3 of title 37 of the Code of Federal Regulations, sets forth the applicable fees for the online filing of a service provider's designation of agent to
Environmental Protection Agency (EPA).
Withdrawal of proposed rule.
Because EPA has discovered additional information which we believe is pertinent for consideration in this decision, we are withdrawing the proposed rule to grant an exclusion for Republic Services, Inc./BFI Gulf West Landfill (Gulf West) located in Anahuac, TX, published on January 28, 2011. This notice removes the proposed rule published in 76 FR 5110 (January 28, 2011) for public review and comment.
Michelle Peace by mail at U.S. EPA Region 6, Multimedia Planning and Permitting Division, Corrective Action and Waste Minimization Section (6PD-C), 1445 Ross Avenue, Dallas, TX 75202, by phone at (214) 665-7430 or by e-mail at
Because EPA has discovered additional information pertinent to the final disposition of the petition, we are withdrawing the proposed rule for Republic Services, Inc./BFI Gulf West Landfill (Gulf West) located in Anahuac, TX, published on January 28, 2011 (76 FR 5110). EPA subsequently received information after the comment period which highlighted several deficiencies in the data submitted by Gulf West. EPA will return the December 2009 petition submitted by Gulf West. No further action will be taken on this petition. A new petition will be required for this waste stream.
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Federal Emergency Management Agency, DHS.
Proposed rule.
Comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this proposed rule is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.
Comments are to be submitted on or before December 27, 2011.
The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community is available for inspection at the community's map repository. The respective addresses are listed in the table below.
You may submit comments, identified by Docket No. FEMA-B-1220, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes rules to implement provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) that mandate rules for closed captioning of certain video programming delivered using Internet protocol (“IP”). The Commission seeks comment on rules that would apply to the distributors, providers, and owners of IP-delivered video programming, as well as the devices that display such programming.
Comments are due on or before October 18, 2011; reply comments are due on or before October 28, 2011. Written PRA comments on the proposed information collection requirements contained herein must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before November 28, 2011.
You may submit comments, identified by MB Docket No. 11-154 by any of the following methods:
•
•
•
•
In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act proposed information collection requirements contained herein should be submitted to the Federal Communications Commission via e-mail to
For additional information on this proceeding pertaining to Section 202 of the CVAA, contact Diana Sokolow,
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 11-138, adopted and released on September 19, 2011. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-257, Washington, DC 20554. This document will also be available via ECFS at
This document contains proposed information collection requirements. 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(s). Public and agency comments are due November 28, 2011.
Comments should address: (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; and (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. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
To view or obtain a copy of this information collection request (ICR) submitted to OMB: (1) Go to this OMB/GSA Web page:
Pursuant to proposed 47 CFR 79.4(c)(1)(i), video programming owners must send program files to video programming distributors and providers either with captions as required by Section 79.4, or with a dated certification that captions are not required for a specified reason.
Pursuant to proposed 47 CFR 79.4(c)(1)(ii), video programming owners must provide video programming distributors and providers with any revised certifications and newly required captions (if captions were not previously delivered) within seven days of the underlying change.
Pursuant to proposed 47 CFR 79.4(c)(2)(ii), video programming distributors and providers must retain all certifications received from video programming owners pursuant to proposed 47 CFR 79.4(c)(1)(i)-(ii) for so long as the video programming distributor or provider makes the certified programming available to end users through a distribution method that uses IP and thereafter for at least one calendar year.
Pursuant to proposed 47 CFR 79.4(e), a video programming provider or owner may petition the Commission for a full or partial exemption from the closed captioning requirements for IP-delivered video programming based upon a showing that they would be economically burdensome.
Petitions for exemption must by filed with the Commission, placed on Public Notice, and be subject to comment from the public.
Pursuant to proposed 47 CFR 79.4(f)(1), a complaint alleging a violation of the closed captioning rules for IP-delivered video programming may be filed with the Commission. Proposed 47 CFR 79.4(f)(1) would require such a complaint to be in writing, and to include:
The name and address of the complainant;
The name and postal address, Web site, or e-mail address of the video programming distributor, provider, and/or owner against whom the complaint is alleged, and information sufficient to identify the video programming involved;
Information sufficient to identify the software or device used to view the program;
A statement of facts sufficient to show that the video programming distributor, provider, and/or owner has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;
The specific relief or satisfaction sought by the complainant; and
The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), e-mail, or some other method that would best accommodate the complainant).
The Commission is seeking OMB approval for the proposed information collection requirements.
1. The Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) requires the Federal Communications Commission (“Commission”) to revise its regulations to mandate closed captioning on certain video programming delivered using Internet protocol (“IP”).
2. Closed captioning is an assistive technology that provides individuals who are deaf or hard of hearing with access to television programming. Closed captioning displays the audio portion of a television signal as printed words on the television screen. Existing regulations require the use of closed captioning on television.
3. The CVAA also required the Chairman of the Commission to establish an advisory committee known as the Video Programming Accessibility Advisory Committee (“VPAAC”).
(A) A recommended schedule of deadlines for the provision of closed captioning service.
(B) An identification of the performance objectives for protocols, technical capabilities, and technical procedures needed to permit content providers, content distributors, Internet service providers, software developers, and device manufacturers to reliably encode, transport, receive, and render closed captions of video programming, except for consumer generated media, delivered using Internet protocol.
(C) An identification of additional protocols, technical capabilities, and technical procedures beyond those available as of the date of enactment of the [CVAA] for the delivery of closed captions of video programming, except for consumer generated media, delivered using Internet protocol that are necessary to meet the performance objectives identified under subparagraph (B).
(D) A recommendation for technical standards to address the performance objectives identified in subparagraph (B).
(E) A recommendation for any regulations that may be necessary to ensure compatibility between video programming, except for consumer generated media, delivered using Internet protocol and devices capable of receiving and displaying such programming in order to facilitate access to closed captions.
Public Law 111-260, § 201(e)(1).
We consider below revisions to our rules that would implement the requirements of Sections 202(b) and 203 of the CVAA, as well as the conforming amendment set forth in Section 202(c) of the CVAA. These proposals could fulfill Congress' goal of enabling consumers who are deaf or hard of hearing to have access to IP-delivered video programming. As discussed below, we seek comment on rule changes that would:
• Specify the obligations of entities subject to Section 202(b) by:
• Requiring video programming owners to send required caption files for IP-delivered video programming to video programming distributors and video programming providers along with program files;
• Requiring video programming distributors and video programming providers to enable the rendering or pass through of all required captions to the end user; and
• Requiring the quality of all required captioning of IP-delivered video programming to be of at least the same quality as the captioning of the same programming when shown on television;
• Create a schedule of deadlines by which:
○ All prerecorded and unedited programming subject to the new requirements must be captioned within six months of publication of the rules in the
○ All live and near-live programming subject to the new requirements must be captioned within 12 months of publication of the rules in the
○ All prerecorded and edited programming subject to the new requirements must be captioned within 18 months of publication of the rules in the
• Craft procedures by which video programming providers and video programming owners may petition the Commission for exemptions from the new requirements based on economic burden;
• Establish a mechanism to make information about video programming subject to the CVAA available to video programming providers and distributors, by requiring video programming owners to provide programming for IP delivery either with captions, or with a certification that captions are not required for a stated reason;
• Decline to adopt particular technical standards for IP-delivered video programming;
• Decline to treat a
• Adopt procedures for complaints alleging a violation of the new requirements.
5. Captions first appeared on television in the early 1970s in an “open captioning format” by which the text was transmitted with the video in a manner that was visible to all viewers.
6. The Television Decoder Circuitry Act of 1990 (“TDCA”)
7. In the Telecommunications Act of 1996, Congress added a new section entitled “Video Programming Accessibility” to the Act.
8. Today, IP-delivered video programming takes a number of forms, such as programming delivered to a personal computer, tablet device, cellular telephone, game console, Blu-ray player, or set top box. The Commission previously recognized that the Internet has become a powerful method of video programming distribution, and that the amount of video content available on the Internet is continuing to increase significantly each year, as consumers increasingly utilize the Internet for this purpose.
9. Through the CVAA, Congress sought to “update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.”
10. The CVAA applies broadly to the distributors, providers, and owners of IP-delivered video programming. Specifically, Section 202(b) of the CVAA amends Section 713 of the Act to require the Commission's regulations to “include an appropriate schedule of deadlines for the provision of closed captioning, taking into account whether such programming is prerecorded and edited for Internet distribution, or whether such programming is live or near-live and not edited for Internet distribution.
Congress also determined that the objectives of the CVAA could not be met unless the devices that consumers use to view video programming, including those devices that may be small and portable, are able to display closed captions. Therefore, it enacted Section 203(a), requiring “that [the] devices consumers use to view video programming are able to display closed captions.”
12. Taken together, these statutory provisions seek to encompass many devices on which consumers view video, such as portable media players, personal computers, televisions, and the devices consumers connect to their televisions to access programming via the Internet and other sources. As in Section 202(b), the Commission is required to prescribe regulations within six months of the VPAAC Report and to provide that entities may meet the requirements of these provisions through “alternate means.”
13. The VPAAC's first meeting was held at the Commission on January 13, 2011, and a second meeting was held on May 5, 2011. During the first meeting, the VPAAC was divided into four working groups; Working Group 1 took on the task of examining “issues involved in transferring closed captions provided on television programs to the online environment.”
14. As noted above, the VPAAC submitted its report on July 12, 2011. The VPAAC Report provided suggestions for how the Commission's regulations on IP closed captioning should address caption completeness, placement, accuracy, and timing, as well as specific technical requirements that a user's Internet-connected media players should support.
Various provisions of Section 202(b) of the CVAA reference “video programming distributors” (“VPDs”), “video programming providers” (“VPPs”), and “video programming owners” (“VPOs”). We seek comment on how the Commission should define these terms.
16. The CVAA requires the Commission to “describe the responsibilities of video programming providers or distributors and video programming owners.”
17. In addition to requiring the presence of captions, we seek comment on whether our rules for closed captioning of IP-delivered video programming should include any required performance objectives. It is important that, in considering this issue, the Commission balances the interests of users of closed captioning against the concern that overly burdensome standards may cause VPDs/VPPs to refrain from posting videos online. The VPAAC Report made a number of proposals regarding the quality of captions of IP-delivered video programming:
(1) That the Commission require IP-delivered captions to be complete, such that “[n]othing must be lost in transcoding when converting captions between conventional broadcast captioning formats and Internet;”
(2) That “[f]or Internet-delivered caption content, the positioning information as originally authored shall be made available to the consumer device;”
(3) That the accuracy of IP-delivered video programming must be “equal to or greater than the accuracy of captions shown on television;”
(4) That the Commission require IP-delivered captions to possess sufficient timing, such that “[a]ll processing through the distribution chain, including transcoding, must provide a timing experience that is equal to or an improvement to the timing of captions
(5) That a user's Internet-connected media players should support the ability to change character color, opacity, size, font, background color and opacity, character edge attributes, window color, and language.
We note that Part 15 of the Commission's rules currently contains certain required user controls for television closed captions, including the ability to change text color, opacity, size, font, background color and opacity, character edge attributes, and window color.
18. It appears that Congress intended, at a minimum, that captions of IP-delivered video programming should be of at least the same quality as captions shown on television. Accordingly, we propose to adopt a rule requiring the captioning of IP-delivered video programming to be of at least the same quality as the television captions for that programming. An evaluation of “quality” could include the consideration of such factors as completeness, placement, accuracy, and timing, all of which the VPAAC suggested that we consider. We seek comment as to whether the inclusion of any of these factors would lead to unintended consequences such as requiring a large amount of resources to be expended to comply. We contemplate that a requirement for captions of IP-delivered video programming to be of at least the same quality as captions of television programming would require IP-delivered captions to include the same user tools, such as the ability to change caption font and size. These proposals are consistent with the VPAAC's recommendation that captions of IP-delivered video programming should provide consumers with an experience that is equal to or better than the comparable television experience.
19. In meetings with Commission staff, certain VPDs/VPPs expressed concern that they would be unable to provide captions that are “better than” those available on television because improving the captions would violate the VPO's copyright. Under our proposal, however, VPDs/VPPs would not be
20. Section 202(a) of the CVAA defines “video programming” as “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media (as defined in section 3).”
21. We propose to apply the captioning requirements of Section 202(b) to full-length programming, and not to video clips or outtakes.
22. We seek comment on whether IP-delivered content that has aired on television only in another country, and not in this country, is exempt from the CVAA's captioning requirements. Although not explicitly stated in the CVAA, it appears that the best reading of the statute requires closed captioning on IP-delivered video programming that was published or exhibited on television
23. Pursuant to the CVAA, the Commission must, by January 12, 2012, “revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions after the effective date of such regulations.”
24. The VPAAC proposed to define “live programming” as “programming created and presented on television and simulcast for Internet distribution to the end user as it airs on television.”
25. In addition, given the VPAAC's use of the word “simulcast” in its proposed definition of “live programming,” we also seek comment on whether there are additional difficulties in providing captioning of IP-delivered video programming, when the programming is shown on television and the Internet simultaneously. If so, should we provide a lengthier deadline by which simulcast programming must comply with Section 202(b)?
26. The VPAAC proposed to define “near-live programming” as “any programming that was produced from start to finish within 12 hours of being published or exhibited on television.”
27. The VPAAC proposed definitions for programming that is “prerecorded and edited for Internet distribution to the end user,”
28. The VPAAC proposed the following schedule of deadlines for compliance with the new requirements for closed captioning of IP-delivered video programming that is published or exhibited on television with captions after the effective date of the new rules: (1) For programming that is prerecorded and not edited for Internet distribution, a compliance deadline of six months after the rules are published in the
29. In the CVAA, Congress amended Section 713(d)(3) of the Act by replacing the term “undue burden” with the term “economically burdensome.” Specifically, Section 202(c) of the CVAA contains a conforming amendment providing details on an exemption process by which:
30. We propose to create a process by which VPPs and VPOs may petition the Commission for a full or partial exemption of their captioning obligations based on economic burden, comparable to the Commission's procedures for exemptions based on undue burden applicable to our television closed captioning rules.
31. Regarding the exemption process, we propose to require the petitioner to file with the Commission an original and two copies of a petition requesting an exemption based on the economically burdensome standard, and all subsequent pleadings. Should we instead require electronic filing? We further propose that the Commission place the petition on public notice, with comments or oppositions due within 30 days of the public notice, and the petitioner's reply to any comments or oppositions due within 20 days of the close of the comment period. Next, we propose that parties filing comments or oppositions serve the petitioner with a copy and include a certification that the petitioner was served with a copy, and that parties filing replies to comments or oppositions serve the commenting or opposing party with a copy and include a certification that the party was served with a copy. We propose that parties filing petitions and responsive pleadings include a detailed, full showing, supported by affidavit, of any facts or considerations relied on. We propose codifying the statutory requirement that the Commission consider the VPP or VPO subject to an exemption request to be exempt from the IP closed captioning requirements while the exemption petition is pending.
32. In addition to case-by-case exemptions discussed above, the CVAA permits the Commission to “exempt any service, class of service, program, class of program, equipment, or class of equipment for which the Commission has determined that the application of such regulations would be economically burdensome for the provider of such service, program, or equipment.”
33. The CVAA also permits the Commission to delay or waive the applicability of its IP closed captioning rules to live programming “to the extent the Commission finds that the application of the regulation to live video programming delivered using Internet protocol with captions after the effective date of such regulations would be economically burdensome to providers of video programming or program owners.”
34. The CVAA requires the Commission to “establish a mechanism to make available to video programming providers and distributors information on video programming subject to the [CVAA] on an ongoing basis.”
35. Accordingly, we seek comment on the “mechanism” that should be used to make available to VPDs/VPPs information on video programming that must be captioned when delivered via IP. We presume that VPOs are in the best position to know if captions are required for a particular program (
36. We also propose to require VPDs/VPPs to retain all such VPO certifications for as long as they make the certified programming available to end users through a distribution method that uses IP and at least one calendar year thereafter. Because the CVAA provides that the Commission shall consider a VPD/VPP “in compliance if such entity enables the rendering or pass through of closed captions and makes a good faith effort to identify video programming subject to the [CVAA] using the mechanism,” it seems that generally a VPD/VPP would not be subject to an enforcement action if it relied in good faith on a VPO's erroneous certification that captioning was not required for a particular program and did not know or have reason to know (at any time) that the certification was erroneous. If a VPP/VPD knew or should have known that a certification was erroneous,
37. In the alternative to the certification proposal discussed above, we seek comment on other types of “mechanisms” the Commission could adopt to ensure that VPDs/VPPs know which programming is required to be captioned. For example, should we simply permit the relevant parties to effectuate a mechanism through private contracts?
38. Still another approach would be for the Commission to rely on independent third parties to provide databases containing information on all video programming that is shown on television with captions after the effective date of the new rules. For example, we know that there are companies today that already collect this information and it is available for purchase by the Commission and other parties.
39. CEA-608 is the technical standard used for analog closed captioning, and CEA-708 is the technical standard used for digital closed captioning.
40. We seek comment on whether to specify a particular standard for the interchange format or delivery format of IP-delivered video programming subject to Section 202(b) of the CVAA. We note that closed captions are included on certain IP-delivered video programming today, even in the absence of a single standard for the interchange format or the delivery format. Accordingly, we propose to refrain from specifying any particular standard for the interchange format or delivery format of IP-delivered video programming at this time, in order to foster the maximum amount of technological innovation. We seek comment on this proposal. How necessary is it for the Commission to select an interchange and delivery format standard? If we decide to deem a particular standard compliant, what should that standard be? After considering several standards, the VPAAC recommended the Society of Motion Picture and Television Engineers (“SMPTE”) Timed Text (“SMPTE-TT”) standard for the interchange format because it “best meets all the requirements” and because it “is already being employed in production environments to repurpose television content for Internet use.”
41. Section 202(b) of the CVAA requires the Commission's regulations to “provide that
42. Congress determined in the CVAA that an entity may meet the requirements of Section 202(b) of the CVAA “through alternate means than those prescribed by regulations * * * if the requirements of this section are met, as determined by the Commission.”
43. We propose to adopt procedures for complaints alleging a violation of the IP closed captioning rules that are analogous to the procedures the Commission uses for complaints alleging a violation of the television closed captioning rules.”
44. We seek comment on whether to apply comparable procedures to complaints alleging a violation of the closed captioning rules for IP-delivered video programming. Is 60 days the appropriate timeframe within which to require a complaint about a captioning problem? Unlike television, where programs are exhibited at specific times, Internet programming is available continuously to any viewer. Given this, we seek comment on when this 60-day period should begin to run. Should it begin to run from the latest date on which the program was available on the Internet to consumers without required captions? How should we handle intermittent problems where closed captioning may not be transmitted continuously or with every streaming session? Would the best course be to eliminate the 60-day filing window altogether as unenforceable in the IP-delivered video programming market?
45. In addressing complaints alleging a violation of the IP closed captioning rules, we propose that the Commission will forward complaints to the named VPD/VPP and/or VPO, as well as to any other VPD/VPP and/or VPO that Commission staff determines may be involved. Upon receipt of a consumer complaint, should we require the VPD/VPP or VPO to attempt to resolve the dispute with the complainant, before proceeding with the Commission's complaint process? We further propose to permit the Commission to request additional information from any relevant parties when, in the estimation of Commission staff, such information is needed to investigate the complaint or adjudicate potential violation(s) of Commission rules.
46. Complaints alleging a violation of the television closed captioning requirements can be filed online,
47. Section 79.1(i) of our television closed captioning rules requires video programming distributors, as that term is defined in the context of television closed captioning, to provide certain contact information. Specifically, television video programming distributors must provide contact information by which consumers may contact them immediately, at the time that a captioning problem is discovered.
48. Section 203 of the CVAA seeks to extend closed captioning requirements to the devices consumers use to access video programming.
49.
50. Therefore, we seek comment on how to determine whether hardware is primarily designed for receiving or playing back video programming transmitted simultaneously with sound, and how to determine whether hardware derives its essential utility from receiving and playing back video. The legislative history expanded on the availability of waivers by stating that the Commission may waive the Section 203 closed captioning requirements “where, for instance, a consumer typically purchases a product for a primary purpose other than viewing video programming, and access to such programming is provided on an incidental basis.”
51. We also seek comment on whether apparatus also includes software. To what extent is hardware that is designed to receive or play back video programming dependent on software for its functionality? For example, consumers view programming intended to be covered by Section 202 on personal computers and cellular telephones. Both a computer and a cellular phone can be viewed as a single apparatus or several working together, such as the processor, memory, and storage, the display and other peripheral components, and the operating system and applications. If software is considered an apparatus, we seek comment on how the Commission can ensure compliance, particularly when software is provided over the Internet directly to the end user.
52.
53.
54.
55.
56. In this
57. We seek comment on what standards, if any, the Commission should mandate to implement the goals of Section 203 of the CVAA. In particular, we seek comment on whether we should adopt a particular delivery file format that devices must support. The VPAAC Report discusses three use cases of how content can be distributed via the Internet to consumer devices: Use Case 1, where content is delivered to an unaffiliated device; Use Case 2, where content is delivered to a Web browser; and Use Case 3, where content is delivered to a managed device or application.
58.
59.
60. While the CVAA specifies that the Commission must promulgate rules within six months of the submission of the VPAAC Report, it does not specify the timeframe by which those regulations must become effective.
61. In conclusion, in this
62. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),
63. The Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) requires the Federal Communications Commission (“Commission”) to revise its regulations to mandate closed captioning on certain video programming delivered using Internet protocol (“IP”).
64. Closed captioning is an assistive technology that provides individuals who are deaf or hard of hearing with access to television programming. Closed captioning displays the audio portion of a television signal as printed words on the television screen. Existing regulations require the use of closed captioning on television.
65. The CVAA also required the Chairman of the Commission to establish an advisory committee known as the Video Programming Accessibility Advisory Committee (“VPAAC”).
66. The
Additionally, we seek comment on the appropriate requirements for devices subject to the closed captioning requirements of Section 203.
67. The proposed action is authorized pursuant to Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617.
68. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
69.
70.
71.
72.
73.
74.
75. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
76. The second category,
77.
78. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89. In this category, the SBA has deemed an Internet publisher or Internet broadcaster or the provider of a Web search portal on the Internet to be small if it has fewer than 500 employees.
90.
91. The first category of
92. The second category of
93. The
94. The
95. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
96. We note that our discussion of alternatives is circumscribed because of the specificity of Sections 202(b), (c) and 203 of the CVAA. The CVAA does, however, recognize the special concerns of small entities by creating an exemption process where compliance with the rules would be economically burdensome. In furtherance of this statutory requirement, the
97. Overall, in proposing rules governing the closed captioning of IP-delivered video programming, we believe that we have appropriately balanced the interests of individuals who are deaf or hard of hearing against the interests of the entities who will be subject to the rules, including those that are smaller entities. Our efforts are consistent with Congress' goal of “updat[ing] the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.”
98. None.
99. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
100.
101.
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to Room TW-A325 at FCC Headquarters, 445 12th Street, SW., Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
102.
103.
104.
105. Accordingly,
106.
Communications equipment, Labeling, and Reporting and recordkeeping requirements.
Cable television operators, Multichannel video programming distributors (MVPDs), Satellite television service providers, Television broadcasters.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 15 and 79 as follows:
1. The authority citation for part 15 is revised to read as follows:
47 U.S.C. 154, 302(a), 303, 304, 307, 330, 336, 544a, 549, and 617.
2. Section 15.119 is amended by revising paragraph (a) to read as follows:
(a)(1) Effective July 1, 1993, all TV broadcast receivers with picture screens 33 cm (13 in) or larger in diameter shipped in interstate commerce, manufactured, assembled, or imported from any foreign country into the United States shall comply with the provisions of this section.
This paragraph places no restriction on the shipping or sale of television receivers that were manufactured before July 1, 1993.
(2) Effective [Effective Date of the rule], all television receivers shipped in interstate commerce, manufactured, assembled, or imported from any foreign country into the United States shall comply with the provisions of this section, except for television receivers with picture screens measuring less than 13 inches diagonally for which this is not achievable.
3. Section 15.122 is amended by revising paragraph (a)(1) to read as follows:
(a)(1) Effective [Effective Date of the rule], all digital television receivers and all separately sold DTV tuners shipped in interstate commerce, manufactured or imported for use in the United States
4. Add § 15.125 to read as follows:
(a) Effective [Effective Date of the rule], all apparatus designed to receive or play back video programming transmitted simultaneously with sound manufactured or imported for use in the United States and not subject to § 15.119 or § 15.122 of these rules, or is not a display-only video monitor with no playback capability shall comply with the provisions of this section.
(b)
(1) All apparatus shall implement “pop-on,” “roll-up,” and “paint-on” presentation of captions.
(2) All apparatus shall make available semantically significant formatting, such as italics, text color and underlining.
(3) All apparatus shall implement consumer selectability of caption availability, including turning captions on and off, selecting font size, selecting style, selecting color, and selecting background color and background opacity.
(4) All apparatus shall provide for the user selection of language, where available multiple languages or caption versions are available.
(5) All apparatus shall preserve original caption information regarding position, font, formatting, color, style, background, opacity, and presentation mode and display captions with such attributes where consumer selection of alternative attributes has not occurred or where consumer selection of default attributes has occurred.
(6) All apparatus shall maintain user selection among video viewing session and provide the ability to preview selection of options in this section.
5. Add § 15.126 to read as follows:
(a) Effective [Effective Date of the rule], all apparatus designed to record video programming transmitted simultaneously with sound manufactured or imported for use in the United States and not subject to § 15.119 or § 15.122 of these rules shall comply with the provisions of this section, if achievable.
(b) All devices must enable the rendering of captions consistent with § 15.125 or enable the pass-through of closed-captioning data utilizing closed-captioning standards for transmission or closed-captioning capable interconnection mechanisms.
6. The authority citation for part 79 continues to read as follows:
47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613.
7. Add § 79.4 to read as follows:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(b)
(1) As of [Date six months after the rule is published in the
(2) As of [Date 12 months after the rule is published in the
(3) As of [Date 18 months after the rule is published in the
(c)
(1)
(i) Send program files to video programming distributors and providers either with captions as required by this section, or with a dated certification that captions are not required for a specified reason.
(ii) Provide video programming distributors and providers with any revised certifications and newly required captions (if captions were not previously delivered) within seven days of the underlying change.
(2)
(i) Enable the rendering or pass through of all required captions to the end user.
(ii) Retain all certifications received from video programming owners
(iii) Make required captions available within five days of the receipt of an updated certification pursuant to § 79.4(c)(1)(ii).
(3) A video programming provider or owner's
(4) A video programming distributor, provider, or owner may meet the requirements of this section through alternate means if the requirements of this section are met, as determined by the Commission.
(d)
(e)
(2) The petitioner must support a petition for exemption with sufficient evidence to demonstrate that compliance with the requirements for closed captioning of video programming delivered via Internet protocol would be economically burdensome. The term “economically burdensome” means imposing significant difficulty or expense. The Commission will consider the following factors when determining whether the requirements for closed captioning of Internet protocol-delivered video programming would be economically burdensome:
(i) The nature and cost of the closed captions for the programming;
(ii) The impact on the operation of the video programming provider or owner;
(iii) The financial resources of the video programming provider or owner; and
(iv) The type of operations of the video programming provider or owner.
(3) In addition to these factors, the petitioner must describe any other factors it deems relevant to the Commission's final determination and any available alternatives that might constitute a reasonable substitute for the closed captioning requirements of this section including, but not limited to, text or graphic display of the content of the audio portion of the programming. The Commission will evaluate economic burden with regard to the individual outlet or programming.
(4) The petitioner must file an original and two (2) copies of a petition requesting an exemption based on the economically burdensome standard in this paragraph, and all subsequent pleadings, in accordance with § 0.401(a) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the petition within 30 days of the public notice of the petition. Within 20 days of the close of the comment period, the petitioner may reply to any comments or oppositions filed.
(7) Persons that file comments or oppositions to the petition must serve the petitioner with copies of those comments or oppositions and must include a certification that the petitioner was served with a copy.
Parties filing replies to comments or oppositions must serve the commenting or opposing party with copies of such replies and shall include a certification that the party was served with a copy.
(8) Upon a finding of good cause, the Commission may lengthen or shorten any comment period and waive or establish other procedural requirements.
(9) Persons filing petitions and responsive pleadings must include a detailed, full showing, supported by affidavit, of any facts or considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a petition for an economic burden exemption from the closed captioning requirements of this section. The Commission shall act to deny or approve any such petition, in whole or in part, within 6 months after the Commission receives such petition, unless the Commission finds that an extension of the 6-month period is necessary to determine whether such requirements are economically burdensome.
(11) During the pendency of an economic burden determination, the Commission will consider the video programming provider or owner subject to the request for exemption as exempt from the requirements of this section.
(f)
(i) The name and address of the complainant;
(ii) The name and postal address, Web site, or e-mail address of the video programming distributor, provider, and/or owner against whom the complaint is alleged, and information sufficient to identify the video programming involved;
(iii) Information sufficient to identify the software or device used to view the program;
(iv) A statement of facts sufficient to show that the video programming distributor, provider, and/or owner has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;
(v) The specific relief or satisfaction sought by the complainant; and
(vi) The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), e-mail, or some other method that would best accommodate the complainant).
(2) The Commission will forward complaints to the named video programming distributor, provider, and/or owner, as well as to any other video programming distributor, provider, and/or owner that Commission staff determines may be involved. The video programming distributor, provider, and/or owner must respond to the complaint in writing, to the Commission and the complainant, within the time that the Commission specifies when forwarding the complaint, generally within thirty (30) days. The Commission may specify response periods longer than 30 days on a case-by-case basis.
(3) In response to a complaint, video programming distributors, providers, and/or owners shall file with the Commission sufficient records and documentation to prove that the responding entity was (and remains) in compliance with the Commission's rules. Conclusory or insufficiently supported assertions of compliance will not carry a video programming distributor's, provider's, or owner's burden of proof.
(4) The Commission will review all relevant information provided by the complainant and the subject video programming distributors, providers, and/or owners, as well as any additional information the Commission deems relevant from its files or public sources. The Commission may request additional information from any relevant parties when, in the estimation of Commission staff, such information is needed to investigate the complaint or adjudicate potential violation(s) of Commission
(5) To demonstrate closed captioning compliance, video programming distributors or providers may rely on certifications from video programming owners, as provided for in § 79.4(c)(1)(i) and (ii), unless, at any time, the video programming distributor or provider seeking to rely upon the certification knew or should have known that the certification was false or erroneous. The Commission may take enforcement action against video programming distributors, providers, or owners with respect to false or erroneous certifications.
(6) If the Commission finds that a video programming distributor, provider, or owner has violated the closed captioning requirements of this section, it may employ the full range of sanctions and remedies available under the Act against any or all of the violators.
(g)
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the June 9, 2011, proposed rule to revise the listing and critical habitat designation for
We will consider comments received on or before October 28, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.
You may submit written comments by one of the following methods:
(1)
(2)
We will post all comments on
Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We will accept written comments and information during this reopened comment period on our proposed revised designation of critical habitat for
(1) Specific information regarding our recognition of
(2) Any available information on known or suspected threats and proposed or ongoing development projects with the potential to threaten either
(3) The effects of potential threat factors to both
(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(4) Specific information regarding impacts of fire on
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act for
(6) Specific information on:
(a) The amount and distribution of
(b) What areas that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these species, should be included in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change, and
(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(7) Information that may assist us in identifying or clarifying the physical and biological features essential to the conservation of
(8) How the proposed critical habitat boundaries could be refined to more closely or accurately circumscribe the areas identified as containing the physical and biological features essential to the conservation of
(9) How we could improve or modify our design of critical habitat units, particularly our criteria for width of essential habitat for
(10) Information on pollinators of
(11) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(12) Information on the projected and reasonably likely impacts of climate change on the two species and the proposed critical habitat.
(13) Information on any quantifiable economic costs or benefits of the proposed designation of critical habitat.
(14) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(15) Whether any specific areas we are proposing for critical habitat designation for
(16) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
(17) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.
(18) Whether the DEA appropriately identifies all costs and benefits that could result from the designation.
If you submitted comments or information on the proposed rule (76 FR 33880) during the initial comment period from June 9, 2011, to August 8, 2011, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning listing
You may submit your comments and materials concerning this proposed rule or DEA by one of the methods listed in the
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on
In the proposed rule (76 FR 33880; June 9, 2011), we recognized the taxonomic split of
The Act defines “endangered species” as any species which is “in danger of
Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined “species”:
Consistent with that interpretation, and for the purposes of this proposed rule, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: a species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species shall be listed as endangered or threatened, respectively, and the Act's protections shall be applied across the species' entire range.
We conclude, for the purposes of this proposed rule, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this proposed rule, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this proposed rule, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this proposed rule, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether,
We recognize that this definition of “significant” establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to
The definition of “significant” used in this proposed rule carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant
As described in the proposed rule (76 FR 88330), we found the stressors affecting
Decisions by Ninth Circuit Court of Appeals in
We evaluated whether the best available information indicates that the range of
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency.
All critical habitat units for
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. If we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, we may then exercise our discretion to exclude an area from critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of
The final decision about whether to exercise our discretion to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see
Section 4(b)(2) of the Act requires that we designate critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.
The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for
The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the species (
The DEA also discusses the potential benefits associated with the designation of critical habitat, but does not monetize these benefits. The incremental impacts are the impacts we may consider in the final designation of critical habitat relative to areas that may be excluded under section 4(b)(2) of the Act.
The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for
The DEA concludes that critical habitat designation is not likely to affect levels of economic activity or conservation measures being implemented within the proposed critical habitat area. Unless changes occur to existing conservation measures or the management of land use activities, the incremental impacts of critical habitat designation would be limited to additional administrative costs of section 7 consultations for Federal agencies associated with considering the potential for adverse modification of critical habitat. The DEA estimates that 50 percent of incremental impacts will be related to urban development, and 50 percent will be related to transportation projects.
The DEA estimates total potential incremental economic impacts in areas
The proposed critical habitat area is unlikely to generate economic impacts beyond administrative costs of section 7 consultation for several reasons. Sixty percent of the proposed designation already receives protection through the MSCP subarea plans, and all units are occupied by the plant and thus will require consultation regardless of the designation. Additionally, project modifications necessary to avoid adverse modification of critical habitat are indistinguishable from those necessary to avoid jeopardizing the species.
In conclusion, the Service does not foresee a circumstance in which critical habitat designation will change the outcome of future section 7 consultations. Any conservation measures implemented to minimize impacts to the species would coincidentally be sufficient to minimize impacts to critical habitat. Therefore, we do not believe any additional conservation measures would be needed solely to minimize impacts to critical habitat. Based on this reasoning, we also do not anticipate critical habitat designation to result in any appreciable incremental economic impacts. Any economic impacts related to conservation activities would result from the listing of the species, rather than the designation of critical habitat, and would fall within the economic baseline.
As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exercise our discretion to exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
In our proposed rule that published in the
Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed critical habitat for
In summary, we have considered whether the proposed designation
The primary authors of this notice are the staff members of the Carlsbad Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and Wildlife Service (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice.
This notice lists the newspapers that Ranger Districts, Forests, and the Regional Office of the Alaska Region will use to publish legal notice of all decisions subject to appeal under 36 CFR 215 and to publish legal notices for public comment on actions subject to the notice and comment provisions of 36 CFR 215, as updated on June 4, 2003. The intended effect of this action is to inform interested members of the public which newspapers will be used to publish legal notice of actions subject to public comment and decisions subject to appeal under 36 CFR 215, thereby allowing them to receive constructive notice of a decision or proposed action, to provide clear evidence of timely notice, and to achieve consistency in administering the appeals process.
Publication of legal notices in the listed newspapers begins on October 1, 2011. This list of newspapers will remain in effect until it is superceded by a new list, published in the
Robin Dale, Alaska Region Group Leader for Appeals, Litigation and FOIA; Forest Service, Alaska Region; P.O. Box 21628; Juneau, Alaska 99802-1628.
Robin Dale; Alaska Region Group Leader for Appeals, Litigation and FOIA; (907) 586-9344.
This notice provides the list of newspapers that Responsible Officials in the Alaska Region will use to give notice of decisions subject to notice, comment,
The newspapers to be used for giving notice of Forest Service decisions in the Alaska Region are as follows:
Decisions of the Alaska Regional Forester: Juneau Empire, published daily except Saturday and official holidays in Juneau, Alaska; and the Anchorage Daily News, published daily in Anchorage, Alaska.
Decisions of the Forest Supervisor and the Glacier and Seward District Rangers: Anchorage Daily News, published daily in Anchorage, Alaska.
Decisions of the Cordova District Ranger: Cordova Times, published weekly in Cordova, Alaska.
Decisions of the Forest Supervisor and the Craig, Ketchikan/Misty, and Thorne Bay District Rangers: Ketchikan Daily News, published daily except Sundays and official holidays in Ketchikan, Alaska.
Decisions of the Admiralty Island National Monument Ranger, the Juneau District Ranger, the Hoonah District Ranger, and the Yakutat District Ranger: Juneau Empire, published daily except Saturday and official holidays in Juneau, Alaska.
Decisions of the Petersburg District Ranger: Petersburg Pilot, published weekly in Petersburg, Alaska.
Decisions of the Sitka District Ranger: Daily Sitka Sentinel, published daily except Saturday, Sunday, and official holidays in Sitka, Alaska.
Decisions of the Wrangell District Ranger: Wrangell Sentinel, published weekly in Wrangell, Alaska.
Supplemental notices may be published in any newspaper, but the timeframe for making comments or filing appeals will be calculated based upon the date that notices are published in the newspapers of record listed in this notice.
National Agricultural Statistics Service, USDA.
Notice of suspension of data collection and publication.
This notice announces the intention of the National Agricultural Statistics Service (NASS) to suspend a currently approved information collection, the 2011 Postharvest Chemical Use Survey, and its associated publication.
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333, or through the NASS OMB Clearance Officer at
Abstract: The primary objective of the National Agricultural Statistics Service (NASS) is to conduct surveys in order to prepare national, State, and county estimates of crop and livestock production, disposition, prices, and collect information on related environmental and economic factors. The Postharvest Chemical Use Survey is a part of the NASS chemical use program. This survey is used to collect and publish data on pesticide usage on selected crops after harvesting has been completed. The summarized data is available to other government agencies as well as the public. The surveys contain questions relating to the types of pesticides that are applied to selected crops after harvesting, how the chemicals are applied, when they are applied and how much was applied. Additional pest management practices are also studied. This information can be used when making decisions on food and worker safety issues.
NASS will suspend this information collection as of September 28, 2011 due to budget constraints. Also, NASS will not publish a Postharvest Chemical Use report in the Spring of 2012 unless there is a change in the anticipated budget shortfall.
Authority: These data were collected under authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents.
Estimate of Burden: There will be no further public reporting burden for this collection of information.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The program revision involves the number copies submitted by applicants. They are now required to submit original and three copies instead of the previously required original and twelve copies.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, Fax number (202) 395-5167 or via the Internet at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, Fax number (202) 395-7285 or via the Internet at
Import Administration, International Trade Administration, Department of Commerce.
On May 24, 2011, the Department of Commerce published the preliminary results of the 2009/2010 administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand. We gave interested parties an opportunity to comment on the preliminary results. Based on our analysis of the comments received and an examination of our calculations, we have made certain changes for the final results. The final weighted-average dumping margins for the respondents are listed below in the “Final Results of Review” section of this notice.
Bryan Hansen or Dustin Ross, AD/CVD
On May 24, 2011, the Department of Commerce (the Department) published
We invited parties to comment on the
We have conducted this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to the antidumping duty order is polyethylene retail carrier bags (PRCBs) which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and free of charge by retail establishments,
Imports of the subject merchandise are currently classifiable under statistical category 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS). Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
All issues raised in the case briefs by parties to this review are addressed in the Issues and Decision Memorandum for the Antidumping Duty Administrative Review of Polyethylene Retail Carrier Bags from Thailand for the Period of Review August 1, 2009, through July 31, 2010 (Decision Memo), which is dated concurrently with this notice and hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded is in the Decision Memo and attached to this notice as an Appendix. The Decision Memo, which is a public document, is on file in the Department's Central Records Unit of the main Commerce building, Room 7046, and is accessible on the Web at
As discussed in the
For our calculation of TPBI's margin for the final results, we revised the general and administrative and financial expenses of TPBI to reflect data in its 2010 financial statements. See the memoranda to the file entitled “Polyethylene Retail Carrier Bags from Thailand—Thai Plastic Bags Industries Co., Ltd. (TPBI), Final Results Analysis Memorandum” dated September 21, 2011, and “Cost of Production and Constructed Value Calculation Adjustments for the Final Results—Thai Plastic Bags Industries Co. (TPBI), Ltd.” dated September 21, 2011, for details regarding these changes.
For our calculation of Landblue's margin for the final results, we made the following changes: (1) We adjusted Landblue's general and administrative (G&A) expense ratio to include in the numerator the unreconciled difference between the administrative expenses from the 2010 financial statements and those reflected in the 2010 trial balance, (2) we revised Landblue's G&A ratio to reflect the cost of goods sold from the 2010 financial statements, (3) we set Landblue's negative interest expense ratio to zero, (4) for constructed value (CV) selling expenses we used publicly available total selling expenses from a company not currently under review, Thantawan Industry Public Company Limited (Thantawan), adjusted to reflect Landblue's ratio of indirect expenses to total selling expenses, (5) we used data from the record of Thantawan's 2010 financial statements to calculate a revised ratio for CV profit which reflects Landblue's profit as a percentage of total costs for bag products only, and (6) we included management-benefits expenses from Thantawan's 2010 financial statements in the denominator of the revised ratio for CV profit for Landblue. See the memoranda to the file entitled “Polyethylene Retail Carrier Bags from Thailand—Landblue (Thailand) Co., Ltd., Final Results Analysis Memorandum” dated September 21, 2011, and “Constructed Value Calculation Adjustments for the Final Results—Landblue Thailand Co., Ltd.” dated September 21, 2011, for details regarding these changes.
We have corrected the spelling of the company name for “Hi-Pak Company Limited” which in the
As explained in the
As a result of our review, we determine that the following percentage weighted-average dumping margins exist for PRCBs from Thailand for the period August 1, 2009, through July 31, 2010:
The Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries.
We calculated importer/customer-specific duty-assessment amounts with respect to sales by Landblue and TPBI by dividing the total dumping margins (calculated as the difference between normal value and the export price) for each importer or customer by the total number of kilograms Landblue and TPBI sold to that importer or customer. We will direct CBP to assess the resulting per-kilogram dollar amount against each kilogram of merchandise on each of that importer's or customer's entries during the period of review. See 19 CFR 351.212(b)(1).
Because the order on PRCBs from Thailand was revoked in part with respect to TPBI effective July 28, 2010, we will instruct CBP to assess antidumping duties with respect to TPBI on entries made through July 27, 2010. For further information, see
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the period of review produced by Landblue, TPBI, Hi-Pak Company Limited, and ITW Minigrip (Thailand) Co., Ltd., for which they did not know that the merchandise they sold to an intermediary (
For the companies which were not selected for individual examination and which did not submit statements of no shipments, we will instruct CBP to apply the rates listed above to all entries of subject merchandise produced and/or exported by such firms.
We intend to issue liquidation instructions to CBP 15 days after publication of these final results of review.
With the exception of TPBI as a result of the revocation, the following deposit requirements will be effective upon publication of these final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication consistent with section 751(a)(1) of the Act: (1) The cash-deposit rates for the companies subject to the review will be the rates shown above; (2) for previously investigated or reviewed companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this or a previous review or the original less-than-fair-value (LTFV) investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) the cash-deposit rate for all other manufacturers or exporters will be 4.69 percent, the all-others rate from the amended final determination of the LTFV investigation revised as a result of the Section 129 determination published on August 12, 2010. See
These deposit requirements shall remain in effect until further notice.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
Import Administration, International Trade Administration, Department of Commerce.
On June 1, 2011, the Department of Commerce (the Department) initiated the second sunset review of the antidumping duty order on certain tin mill products from Japan, pursuant to section 751(c) of the Tariff
Angelica Mendoza or David Cordell, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone (202) 482-3019 or 202-482-0408 respectively.
On June 1, 2011, the Department initiated the second sunset review of the antidumping duty order on certain tin mill products from Japan pursuant to section 751(c) of the Act.
The products covered by the antidumping duty order are tin mill flat-rolled products that are coated or plated with tin, chromium or chromium oxides. Flat-rolled steel products coated with tin are known as tin plate. Flat-rolled steel products coated with chromium or chromium oxides are known as tin-free steel or electrolytic chromium-coated steel. The scope includes all the noted tin mill products regardless of thickness, width, form (in coils or cut sheets), coating type (electrolytic or otherwise), edge (trimmed, untrimmed or further processed, such and scroll cut), coating thickness, surface finish, temper, coating metal (tin, chromium, chromium oxide), reduction (single- or double-reduced), and whether or not coated with a plastic material. All products that meet the written physical description are within the scope of the order unless specifically excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of the order:
The merchandise subject to the order is classified in the Harmonized Tariff Schedule of the United States (HTSUS), under HTSUS subheadings 7210.11.0000, 7210.12.0000, 7210.50.0000, 7212.10.0000, and 7212.50.0000 if of non-alloy steel and under HTSUS subheadings 7225.99.0090, and 7226.99.0180 if of alloy steel. Although the subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
All issues raised in this sunset review are addressed in the “Issues and Decision Memorandum” from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated September 29, 2011 (Decision Memorandum), which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit of the main Department building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at
We determine that revocation of the antidumping duty order on certain tin mill products from Japan would likely lead to continuation or recurrence of dumping at the following percentage weighted-average margins:
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
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 November 28, 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 Lauren Wenzel, (301) 563-1136 or
This request is for extension of a currently approved information collection.
Executive Order 13158 directs the Department of Commerce (DOC) and the Department of the Interior (DOI) to work with partners to strengthen the protection of U.S. oceans and coastal resources by developing a national system of marine protected areas (MPAs). These departments are working closely with state, territorial, local, and tribal governments, as well as other stakeholders, to identify and inventory the nation's existing MPAs. Toward this end, the DOC's National Oceanic and Atmospheric Administration (NOAA) and DOI have created the Marine Protected Areas Inventory, an online spatial database that provides detailed information on MPAs nationwide. The inventory stores data on over 1,600 sites, across different management programs and all levels of government. In order to keep this data resource current and accurate with the latest status and information on MPAs nationwide, the MPA Center has created an online site data form, posted at
The information will be collected via an online data form.
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 public meetings and hearings.
The Western Pacific Fishery Management Council (Council) will hold meetings of its 108th Scientific and Statistical Committee (SSC) and its 152nd Council meeting to take actions on fishery management issues in the Western Pacific Region.
The SSC will meet on October 17-19, 2011, between 8:30 a.m. and 5 p.m.; the Council's Executive and Budget Standing Committee will meet on October 19, 2011, between 8 a.m. and 10 a.m.; the Pelagic and International Fisheries Standing Committee will meet on October 19 between 10 a.m. and 12 noon; the 152nd Council meeting will meet on October 19-22, 2011. The 152nd Council Meeting will be held between 2 p.m. and 6 p.m. on October 19, 2011, between 9 a.m. and 6 p.m. on October 20-21, 2011, and between 8:30 a.m. and 1 p.m. on October 22, 2011. All meetings will be held in Honolulu.
For specific times and agendas, see
The 108th SSC meeting, Council Executive and Budget Standing Committee and Pelagic and International Fisheries Standing
Kitty M. Simonds, Executive Director;
In addition to the agenda items listed here, the SSC and Council will hear recommendations from Council advisory groups. Public comment periods will be provided throughout the agendas. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business.
1. Introductions.
2. Approval of Draft Agenda and Assignment of Rapporteurs.
3. Status of the 107th SSC Meeting Recommendations.
4. Report from the Pacific Islands Fisheries Science Center Director.
5. Program Planning.
A. Specification of Acceptable Biological Catches (ACTION ITEM).
1. Species with No Maximum Sustainable Yield (MSY), Existing Quota, or Reference Points (Tier 5).
a. Coral Reef Fish for All Island Areas.
b. Vulnerable Species for All Island Areas.
c. Mollusks, Crustaceans, Other Invertebrates for All Island Areas.
2. Species with MSY, Existing Quota, or Reference Points (Tier 3 and 4).
a. Coastal Pelagics in Hawaii.
b. Non-Finfish for All Island Areas.
i. Lobster.
ii. Kona Crab.
iii. Deepwater Shrimp.
iv. Black Corals.
v. Precious Corals.
c. Bottomfish.
i. Bottomfish Management Unit Species (BMUS) in American Samoa, Guam, CNMI.
ii. Non Deep-7 BMUS for Hawaii.
B. Alternatives for Non-commercial Data Collection in Hawaii.
C. Report on Western Pacific Fisheries Information Network (WPacFIN) Program Data Review.
D. Essential Fish Habitat (EFH) and Habitat of Particular Concern (HAPC).
1. EFH/HAPC for Commonwealth of the Northern Mariana Islands (CNMI), Guam and American Samoa.
2. Hawaii Bottomfish EFH/HAPC draft Amendment (ACTION ITEM).
E. Status of Fisheries Ecosystem Plan (FEP) Amendments.
F. Review of the Council 5 Year Research Priorities.
G. Cooperative Research Priorities.
H. Report on Marianas Trench Marine National Monument Science and Expo Workshop.
I. Non-Commercial Fisheries Data Advisory Committee Recommendations.
J. Public Comment.
K. SSC Discussion and Recommendations.
6. Pelagic Fisheries.
A. Action Items.
1. Amendment Options for American Samoa Swordfish Longline Fishery.
B. Information on Yellowfin Tuna Around the Hawaiian Islands—Management Implications.
C. Striped Marlin Catch Limit.
D. American Samoa and Hawaii Longline Quarterly Report.
E. International Fisheries Meetings.
1. Kobe III Meeting.
2. Kobe III Bycatch Working Group.
3. Western and Central Pacific Fisheries Commission (WCPFC) Science Committee.
4. WCPFC Northern Committee.
5. WCPFC Technical and Compliance Committee.
6. Inter-American Tropical Tuna Commission 82nd Meeting.
7. North Pacific Regional Fishery Management Organization Preparatory Conference (NPRFMO-PrepCon).
F. Public Comment.
G. SSC Discussion and Recommendations.
7. Protected Species.
A. Loggerhead Turtle Final Listing Rule and New Biological Opinion.
B. False Killer Whale Take Reduction Plan Proposed Rule and Take Reduction Team Meeting.
C. Proposed 2012 List of Fisheries and Draft 2011 Stock Assessment Report.
D. Analysis of Leatherback Turtle Bycatch Patterns in the Hawaii Longline Fishery.
E. Public Comment.
F. SSC Discussion and Recommendations.
8. Other Meetings & Workshops.
A. Report on National SSC Workshop.
9. Other Business.
A. 109th SSC Meeting.
B. Future Format of the SSC.
C. Future SSC Membership.
10. Summary of SSC Recommendations to the Council.
Executive and Budget Standing Committee.
Pelagic and International Standing Committee.
1. Introductions.
2. Approval of the 152nd Agenda.
3. Approval of the 151st Meeting Minutes.
4. Executive Director's Report.
5. Agency Reports.
A. National Marine Fisheries Service.
1. Pacific Islands Regional Office.
2. Pacific Islands Fisheries Science Center.
B. NOAA Regional Counsel.
C. U.S. Fish and Wildlife Service.
D. Enforcement.
1. U.S. Coast Guard.
2. NMFS Office for Law Enforcement.
3. NOAA General Counsel for Enforcement and Litigation.
E. Public Comment.
F. Council Discussion and Action.
6. Program Planning and Research.
A. Specification of Acceptable Biological Catches (ACTION ITEM).
1. Species with No MSY, Existing Quota, or Reference Points (Tier 5).
a. Coral Reef Fish for All Island Areas.
b. Vulnerable Species for All Island Areas.
c. Mollusks, Crustaceans, Other Invertebrates for All Island areas.
2. Species with MSY, Existing Quota, or Reference Points (Tier 3 and 4).
a. Coastal Pelagics in Hawaii.
b. Non-Finfish for All Island Areas.
i. Lobster.
ii. Kona Crab.
iii. Deepwater Shrimp.
iv. Black Corals.
v. Precious Corals.
c. Bottomfish.
i. BMUS in American Samoa, Guam, CNMI.
ii. Non Deep 7 BMUS for Hawaii.
B. Report on EFH Review for American Samoa, Guam, Commonwealth of the Northern Mariana Islands (CNMI) Bottomfish and Other Management Unit Species (MUS).
C. Coastal Marine Spatial Planning.
1. Regional Initiatives.
2. Report on Coastal Marine Spatial Planning Workshop.
3. Indigenous Climate Change Summit.
D. Review of the Council 5-Year Research Priorities.
E. Cooperative Research Priorities.
F. Community Development Plan Proposal: Traditional Fishing Training Program and Exemption to the MHI Pelagic Longline Closed Area (Action Item).
G. Report on NMFS Bio-Sampling Program.
H. Update on National/Regional Marine Recreational Fishing.
I. Hawaii, Regional, National & International Education and Outreach.
J. SSC Recommendations.
K. Hawaii Plan Team and Bottomfish Advisory Review Board Recommendations.
L. Public Hearing.
M. Council Discussion and Action.
7. Marianas Archipelago.
A. Arongo Flaeey.
B. Isla Informe.
C. Legislative Report.
D. Enforcement Issues.
E. Report on Marianas Trench Marine National Monument Science and Expo Workshop.
F. Community Activities and Issues.
1. Marianas Military Range Complex Environmental Impact Statement (EIS) Scoping.
2. Education and Outreach Initiatives.
H. SSC Recommendations.
I. Public Comments.
J. Council Discussion and Action.
8. American Samoa Archipelago.
A. Motu Lipoti.
B. Fono Report.
C. Enforcement Issues.
D. Update on Community Fisheries Development.
E. Community Activities and Issues.
F. Education and Outreach Initiatives.
G. SSC Recommendations.
H. Public Comments.
I. Council Discussion and Action.
9. Public Comment on Non-Agenda Items.
10. Hawaii Archipelago.
A. Moku Pepa.
B. Legislative Report.
C. Enforcement Issues.
D. Recommendations on Hawaii Non-Commercial Data Collection (ACTION ITEM).
E. Bottomfish.
1. Update on Bottomfish Life History Information.
2. Draft Amendment for Hawaii Bottomfish EFH (ACTION ITEM).
F. Community Projects, Activities and Issues.
1. Report on Hawaii Regulatory Review Initiative.
2. Maunalei Ahupua'a Restoration Project.
3. Report on the Kona Integrated Ecosystem Assessment Workshop.
4. Report on Community Fish Aggregating Devices (FADs).
5. Update from State on Shark Fining Policy.
6. Report on Open Ocean Aquaculture Project.
G. Non-Commercial Fisheries Data Advisory Committee and Hawaii Plan Team Recommendations.
H. SSC Recommendations.
I. Public Hearing.
J. Council Discussion and Action.
11. Pelagic & International Fisheries.
A. Recommendations on American Samoa Swordfish Fishery (ACTION ITEM).
B. Striped Marlin Catch Limits (ACTION ITEM).
C. Information on Yellowfin Tuna Around the Hawaiian Islands—Management Implications.
D. American Samoa and Hawaii Longline Quarterly Reports.
E. International Fisheries Meetings.
1. Kobe III.
2. Kobe III Bycatch Working Group.
3. Western and Central Pacific Fishery Commission (WCPFC). Science Committee.
4. WCPFC Northern Committee.
5. WCPFC Technical and Compliance Committee.
6. North Pacific Regional Fishery Management Organization Preparatory Conference (NPRFMO PrepCon).
7. International Scientific Committee 11th Meeting.
F. Disapproved Amendments.
G. SSC Discussion and Recommendations.
H. Pelagics Standing Committee Recommendations.
I. Public Hearing.
J. Council Discussion and Action.
12. Protected Species.
A. Loggerhead Turtle Final Listing Rule and New Biological Opinion.
B. False Killer Whale Take Reduction Plan Proposed Rule and Take Reduction Team Meeting.
C. Proposed 2012 List of Fisheries and Draft 2011 Stock Assessment Report.
D. Endangered Species Act Section 4 (Listing and Critical Habitat) Update.
E. Update on Council Turtle Program.
F. SSC Recommendations.
G. Public Comment.
H. Council Discussion and Action.
13. Administrative Matters.
A. Financial Reports.
B. Administrative Reports.
C. Standard Operating Practices and Procedures (SOPP) Review and Changes.
D. Council Family Changes.
E. Meetings and Workshops.
F. Other Business.
G. Standing Committee Recommendations.
H. Public Comment.
I. Council Discussion and Action.
14. Appointment of Council Officers.
15. Other Business.
Non-Emergency issues not contained in this agenda may come before the Council for discussion and formal Council action during its 152nd meeting. However, Council action on regulatory issues will be restricted to those issues specifically listed in this document and any regulatory issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
United States Africa Command, Department of Defense (DoD).
Notice of conference.
This document announces that U.S. Africa Command (AFRICOM) will convene their annual Joint Europe Africa Deployment and Distribution Conference (JEADDC), featuring a keynote address, panel discussions, and
Monday, December 5, 2011 (`icebreaker' social—6 p.m.-9 p.m.). Tuesday, December 6, 2011 (opening remarks, keynote address, and panel discussions—8:15 a.m.-5 p.m.). Wednesday, December 7, 2011 (working groups—8:30 a.m.-5 p.m.). Thursday, December 8, 2011 (working groups working groups and out brief —8:30 a.m.-5 p.m.).
The JEADDC will be held at the Edelweiss Lodge and Resort at St. Martin Strasse 120, 82467 Garmisch-Partenkirchen, Germany. Instructions will be provided after registration to ensure non-installation pass holders may access the installation.
AFRICOM Deployment and Distribution Operations Center +49 711-729-3669, or at
The agenda for JEADDC will be announced at a later date on the JEADDC Web site. There is no registration fee for the event. For attendees staying at the Edelweiss Lodge and Resort, the conference fee is included in the room rate when reservation code 1112JEADDC is used. Attendees using other accommodations will be charged $22.00 for the Monday, December 5, 2011 icebreaker event and a $42.50/day conference fee by the resort (the daily conference fee does not include any meals). Interested parties are requested to register for JEADDC by Tuesday, November 1, 2011. Attendees wishing to stay at the Edelweiss Lodge and Resort must reserve a room by Monday, October 3, 2011 using reservation code 1112JEADDC. Due to the overwhelming interest to attend past JEADDCs, each company is requested to limit their company's registrations to no more than three participants, in order to afford equal representation from all members of the defense deployment and distribution community. Uniform/dress for military attendees is uniform of the day (UOD-ABU/ACU) and business casual (tie optional) for civilian attendees. Hotel accommodations must be reserved separately from the conference registration. Hotel information: Edelweiss Lodge & Resort, +49 8821-9440, $190.50/night Monday, December 5, 2011 and $178.50/night Tuesday, December 6, 2011 through Friday, December 9, 2011—Edelweiss room rates include conference attendance, Monday evening `icebreaker', and breakfast and lunch Tuesday, Wednesday, and Thursday.
Department of Defense, Office of the Secretary of Defense (Health Affairs)/TRICARE Management Activity.
Notice of a TRICARE demonstration project for the Philippines.
This notice is to advise interested parties of a Military Health System demonstration project entitled “TRICARE Demonstration Project for the Philippines.” The purpose of this demonstration is to validate an alternative approach to providing healthcare services for those beneficiaries covered under the TRICARE Standard option in the Philippines, controlling costs, eliminating any balance billing issues, and ensuring that the billing practices comply with regulatory requirements. Under this demonstration, the overseas contractor in the Philippines will establish a dedicated list of providers in the Philippines who will file their claims with the contractor and be reimbursed under an established fee schedule. The providers will adhere to the quality of care requirements of the overseas contract. The beneficiaries will have overall lower costs because these providers will no longer require payments at the time of service nor will they subject beneficiaries to balanced billing of charges. Because of the geographic conditions in the Philippines and the realization that providers of the required specialties are not available in all areas, the contractor will not be required to develop a list of providers in all areas. However, in those areas where the contractor is able to develop a sufficient list of providers then all TRICARE Standard beneficiaries residing in those areas of the Philippines will be required to use these providers in order for their claims to be paid. Notice will be provided to the beneficiaries informing them of the areas participating and not participating in this demonstration.
TRICARE Management Activity (TMA), TRICARE Policy and Operations Directorate, 5111 Leesburg Pike, Suite 810, Falls Church, VA 22041-3206.
Mr. Mike Talisnik, Office of the ASD (HA)—TMA, (703) 681-8723.
TRICARE has recognized the unique circumstances existing in the Philippines which made the provision of medical care to TRICARE beneficiaries through the TRICARE Overseas program operated in other overseas locations challenging. TRICARE has experienced dramatic increases in the amount billed for healthcare services rendered in the Philippines from $15 million in 1999 to $59 million in 2009 while the number of beneficiaries has remained constant. Administrative controls such as the validation of providers, implementation of a fee reimbursement schedule, duplicate claims edits and the impact of the cost-shares and deductibles have limited actual TRICARE expenditures to $17 million in 2009 for only approximately 11,000 beneficiaries.
In addition to these administrative controls, fraud and abuse activities in the Philippines have been a growing concern that necessitated prompt investigation and actions to reduce the number of fraudulent or abusive incidences. Measures were taken to prevent or reduce the level of fraud and abuse against TRICARE while concurrent investigations and prosecutions were conducted. In April 2008, seventeen individuals were convicted of defrauding the TRICARE program of more than $100 million.
As a result, prepayment review of claims is conducted to identify excessive charges and aberrant practices. Prepayment review is a tool typically used on a limited basis. Nevertheless, these efforts alone are not expected to control and eliminate the rising costs in the Philippines.
Because of this concern, the purpose of this demonstration is to validate an
TMA proposes, utilizing the new overseas contract as the vehicle, to conduct a demonstration in the Philippines to validate that use of a well-certified and limited set of approved providers in overseas locations will result in a significant reduction in the level of claims billing issues, including beneficiaries being liable for balanced billing amounts and fraud by providers, while ensuring beneficiaries have sufficient access to high quality care. The demonstration would be conducted under 10 U.S.C. 1092.
Under the demonstration, the overseas contractor will establish an approved list of providers and inpatient facilities. The contractor will select these providers on the basis of their quality of care, cost of services, and lack of past fraudulent billing practices. The overseas contractor will apply the quality standards under the new overseas contract to providers seeking to be on the approved list. To be included on the approved list, a provider must agree to accept reimbursement at the lower of the usual and customary charges and the established fee schedule. They must agree to submit their claims to the overseas contractor for reimbursement and to charge TRICARE beneficiaries only the normal Standard deductible and copayment amounts. They must acknowledge they can be removed from the approved list and will have the right to appeal their removal to the Director, TRICARE Management Activity (TMA) or designee using a format and process determined by the Director, TMA.
TRICARE Standard beneficiaries who choose to access providers from the approved list will pay only their TRICARE annual deductible and cost-share amounts. Beneficiaries choosing to use a health care provider not on the approved list will, unless first obtaining an approved waiver from the overseas contractor, be responsible for all charges and will not be reimbursed by TRICARE.
TMA will provide the overseas contractor a list of those locations in the Philippines where eligible Standard beneficiaries reside and will specify areas where the contractor must establish an approved list of providers for them. To the extent practical, the overseas contractor will be required to ensure that Standard beneficiaries have access to primary care, specialty care, and inpatient services. A waiver process will be available for areas where the contractor is unable to find sufficient primary and/or specialty providers to care for the beneficiaries. Additionally, beneficiaries may seek waivers from the overseas contractor for care from providers not on the approved list.
This demonstration is not an expansion of the Prime benefit and beneficiaries are not entitled to benefits not otherwise payable under the TRICARE Standard program. Specifically, the overseas contractor will perform no beneficiary enrollment functions, no referral management services for specialty care, and no care authorizations for inpatient admissions except for the normal utilization management, benefits review and pre-authorizations required by all contractors for all Standard beneficiaries. The overseas contractor will merely develop the list of approved providers from which the beneficiaries may make their selection. The overseas contractor will also approve any waivers of the requirement to use providers on this list when approved providers are not available in a particular geographic location and will process and pay claims submitted by providers.
The government will require the overseas contractor to submit an implementation plan 180 days before the start of health care delivery under the demonstration. The implementation plan will consist of the contractor's strategy to develop a list of approved providers, including providers in all of the locations specified by the government; a quality assessment program which will meet, at a minimum, the requirements set forth by the overseas contract, and a description of the requirement to access only approved providers to be used for educating beneficiaries and providers regarding this initiative. The plan will list the number of providers (primary, specialty, and institutional), by location, the contractor intends to place on the approved list. The contractor's plan will also include the use of requests for waivers of the demonstration requirements for any areas on the Government's specified list where an approved provider list must be established. In those areas where the contractor will not have providers on the approved list, the contractor will provide the geographical areas where waivers will be granted. The contractor will provide TMA the approved list of providers by 120 days before the start of health care delivery under the demonstration. The Government, in conjunction with the contractor, will develop and implement a communication plan to inform and educate beneficiaries about the demonstration at least 60 days before the demonstration commences.
This demonstration will begin 240 days after publication of the demonstration notice and will run for three years after implementation.
This demonstration is limited to TRICARE Standard beneficiaries residing in the Philippines.
This demonstration will be evaluated using a combination of administrative and survey measures to determine adequacy of the access to health care by the beneficiaries. In addition, a cost analysis will be conducted to determine the impact to the costs for both the beneficiaries and the government. TRICARE beneficiaries will be asked to comment on the quality of their experiences getting the health care that they need. Costs under the demonstration will be compared to costs in the Philippines before implementation of the project. A review of the occurrence of fraudulent claims submitted by providers on the approved provider list compared to fraudulent claims submissions before the demonstration will be conducted.
Department of the Army, Department of Defense (DoD).
Notice to delete a system of records.
The Department of the Army 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 October 28, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
•
Follow the instructions for submitting comments.
•
Mr. Leroy Jones, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905, or by phone at (703) 428-6185.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Department of the Army proposes to delete one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
The A0621-1 DAPE, Army Continuing Education Program is now covered under a new system of records notice, A0621-1a DAPE, Student Loan Repayment Program Records, (September 6, 2011, 76 FR 55057-55059) due to major changes in system. The notice can therefore be deleted.
Department of Education (ED).
Notice of Proposed Information Collection Requests.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507(j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by 10/07/2011. A regular clearance process is also beginning. Interested persons are invited to submit comments on or before November 28, 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 Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
Comment Request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management 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 October 28, 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.
In the summer of 2007, the Colorado League of Charter Schools (the League) launched its Facilities 2010 Task Force, which was established to address charter school facility needs. One of the initiatives of the Facilities 2010 Task Force was to develop a questionnaire that inventoried the facilities landscape in Colorado. This questionnaire has since been customized and administered in several additional states. ED is looking to use and administer this questionnaire in additional states and compile the data from all states into a national facilities database. ED has plans to conduct this survey in approximately three to four states per year. ED will use the information from the questionnaire to include in a national database that will provide comprehensive information about the facilities for charter schools and the issues that charter school face in trying to obtain adequate facilities. The data will then be used to develop a report and an analysis.
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.
Department of Education.
Comment Request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing
Interested persons are invited to submit comments on or before November 28, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Secretary of Energy Advisory Board (SEAB). SEAB was reestablished pursuant to the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) (the Act). This notice is provided in accordance with the Act.
Wednesday, October 12, 2011: 8 a.m.-3 p.m.
Lawrence Livermore National Laboratory, 7000 East Avenue, Livermore, CA 94550.
Amy Bodette, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; telephone (202) 586-0383 or facsimile (202) 586-1441; e-mail at:
Those not able to attend the meeting or have insufficient time to address the committee are invited to send a written statement to Amy Bodette, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington DC 20585, or e-mail to:
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open teleconference.
This notice announces a teleconference call of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92-463; 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, October 20, 2011, 3:30 p.m. to 4:30 p.m.(To receive the call-in number and passcode, please contact the Board's Designated Federal Officer (DFO) at the address or phone number listed below.)
Gil Sperling, STEAB Designated Federal Officer, Senior Management Technical Advisor, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Ave., SW., Washington, DC, 20585. Phone number is (202) 287-1644.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 8, 2011, the Southeastern Power Administration submitted its Rate Order No. SEPA-54 concerning rate and repayment data for the Jim Woodruff System, for confirmation and approval on a final basis, effective September 20, 2011, and ending September 19, 2016.
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
Take notice that on September 14, 2011, the Southeastern Power Administration submitted its Rate Order No. SEPA-55 concerning rate and repayment data for the Cumberland System, for confirmation and approval on a final basis, effective October 1, 2011, and ending September 30, 2013.
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
The Commission will hold a Government to Government/Tribal Consultation meeting on September 28, 2011, at 9:30 a.m. The meeting will be held at the following location: Seneca Allegheny Administration Building, 90 Ohio:yo' Way, Salamanca, NY 14779.
The meeting will be transcribed by a court reporter, so that the transcript can be placed in the record of this proceeding.
If you have any questions, contact Gaylord Hoisington at (202) 502-6032 or
On August 9, 2011, Bellwood Hydro, LLC, 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 Bellwood Pumped Storage Project to be located on Tipton Run in Blair County, Pennsylvania. 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: (1) A new 3,700-foot-long, 275-foot-high rock or earth fill main dam and a new 2,500-foot-long, 60-foot-high rock or earth fill saddle dam forming an upper reservoir having a surface area of 101 acres and a total storage capacity of 10,600 acre-feet at a normal maximum operating elevation of 2,440 feet mean sea level (msl); (2) a new 1,530-foot-long, 185-foot-high rock or earth fill dam forming a lower reservoir having a surface area of 120 acres and a total storage capacity of 9,400 acre-feet at a normal maximum operating level of 1,460 feet msl; (3) a 30-foot-diameter, 2,570-foot-long steel or concrete power tunnel that extends from the upper reservoir to a 1,200-foot-long vertical shaft connecting the power tunnel to the penstock; (4) a 1,000-foot-long steel-lined penstock; (5) a 290-foot-long by 140-foot-wide by 120-foot-high underground powerhouse containing three turbine units with a rated capacity of 250 megawatts each; (6) a 40-foot-diameter, 4,000-foot-long tailrace tunnel connecting the turbine draft tubes with the lower reservoir; (7) a 500-kilovolt, 7.3-mile-long transmission line; and (8) appurtenant facilities. The project would have an annual generation of 1,973 gigawatt-hours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that on September 9, 2011, Tennessee Gas Pipeline Company (Tennessee), 1001 Louisiana Street, Houston, Texas 77002 filed a prior notice request in accordance with sections 157.205, 157.216(b) of the Federal Energy Regulatory Commission's (Commission) Regulations under the Natural Gas Act and Tennessee's authorization in Docket No. CP82-413-000, to abandon in place and by removal an inactive supply lateral designated as Line No. 524C-900 (Supply Lateral) and associated meters and appurtenances located in Lafourche Parish, Louisiana and extending into the state waters of offshore Louisiana in the Bay Marchand Area, all as more fully set forth in the application, which is open to the public for inspection. The filing may also be viewed on the web at
Any questions regarding the application should be directed to Thomas G. Joyce, Manager, Certificates & Compliance, Tennessee Gas Pipeline Company, 1001 Louisiana Street, or telephone (713) 420-3299, or fax (713) 420-160 or by e-mail
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
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 via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
The staff of the Federal Energy Regulatory Commission (Commission) will hold a conference on November 17, 2011, to discuss the Penalty Guidelines, which the Commission issued on September 17, 2010.
The purpose of the conference is to discuss the impact of the Penalty Guidelines on compliance and enforcement matters. More information on the topics to be explored and the number and composition of the panels will be provided in subsequent notices.
All interested persons are invited to attend the conference, and there is no registration fee to attend. The conference will not be transcribed but will be webcast. A free webcast of this event will be available through
FERC conferences and meetings are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
Questions about the technical conference may be directed to Jeremy Medovoy by e-mail at
National Nuclear Security Administration (NNSA), U.S. Department of Energy (DOE).
Notice of intent to prepare a supplemental environmental impact statement and conduct public scoping meetings.
The Council on Environmental Quality's implementing regulations for the National Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations require the preparation of a supplement to an environmental impact statement (EIS) when there are substantial changes to a proposal or when there are significant new circumstances or information relevant to environmental concerns. DOE may also prepare a SEIS at any time to further the purposes of NEPA. Pursuant to these provisions, the NNSA, a semi-autonomous agency within DOE, intends to prepare a SEIS to update the environmental analyses in DOE's 1999 EIS for the Production of Tritium in a Commercial Light Water Reactor (CLWR EIS; DOE/EIS-0288). The CLWR EIS addressed the production of tritium in Tennessee Valley Authority (TVA) reactors using tritium-producing burnable absorber rods (TPBARs). In the Record of Decision (ROD) for the CLWR EIS, NNSA selected TVA's Watts Bar Unit 1 and Sequoyah Units 1 and 2, located in Spring City and Soddy-Daisy, Tennessee, respectively, for tritium production. TVA has been producing tritium for NNSA at Watts Bar Unit 1 since 2004.
After several years of tritium production experience at TVA's Watts Bar Unit 1, NNSA has determined that tritium permeation through TPBAR cladding into the reactor cooling water occurs at a higher rate than previously projected. The proposed SEIS will analyze the potential environmental impacts associated with increased tritium permeation levels observed since 2004; DOE's revised estimate of the maximum number of TPBARs required to support the current Nuclear Posture Review tritium supply requirements; and proposed changes to TVA facilities that may be used for future tritium production. TVA will be participating as a cooperating agency in the preparation of the SEIS. Any other agency that would like to be a cooperating agency in the preparation of the SEIS is requested to contact the SEIS Document Manager as noted in this Notice under
NNSA invites comments on the scope of the SEIS. The public scoping period starts with the publication of this Notice in the
The public scoping meeting will be held at the Southeast Tennessee Trade and Conference Center, Athens, TN. NNSA will publish additional notices on the date, time, and location of the scoping meeting in local newspapers in advance of the scheduled meeting. Any necessary changes will be announced in the local media. The scoping meeting will provide the public with an opportunity to present comments, ask questions, and discuss issues with NNSA officials regarding the SEIS.
Written comments or suggestions concerning the scope of the SEIS or requests for more information on the SEIS and public scoping process should be directed to: Mr. Curtis Chambellan, Document Manager for the SEIS, U.S. Department of Energy, National Nuclear Security Administration, Box 5400, Albuquerque, New Mexico 87185-5400; facsimile at 505-845-5754; or e-mail at:
For general information on the NNSA NEPA process, please contact: Ms. Mary Martin, NNSA NEPA Compliance Officer, U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585, or telephone 202-586-9438. For general information about the DOE NEPA process, please contact: Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585, or telephone 202-586-4600, or leave a message at 1-800-472-2756. Additional information about the DOE NEPA process, an electronic archive of DOE NEPA documents, and other NEPA resources are provided at
NNSA is responsible for supplying nuclear materials for national security needs and ensuring that the nuclear weapons stockpile remains safe and reliable. Tritium, a radioactive isotope of hydrogen, is an essential component of every weapon in the U.S. nuclear weapons stockpile. Unlike other nuclear materials used in nuclear weapons, tritium decays at a rate of 5.5 percent per year. Accordingly, as long as the Nation relies on a nuclear deterrent, the tritium in each nuclear weapon must be replenished periodically. The last reactor used for tritium production during the Cold War was shut down in 1988. Since then, tritium requirements for the stockpile have largely been met from the existing original inventory through the harvest and recycle of tritium gas during the dismantlement of weapon systems, and the replacement of tritium-containing weapons components as part of Limited Life Component Exchange programs. In December 1999, a new tritium production capability was established through an Interagency Agreement with TVA in which TPBARs are irradiated in the Watts Bar Unit 1 commercial nuclear power reactor and undergo extraction at the Tritium Extraction Facility (TEF) located at DOE's Savannah River Site (SRS) in South Carolina. In order to continue to provide the required supply, irradiation will increase from today's 544 TPBARs per fuel cycle to a projected steady state rate of approximately 1,700 TPBARs per fuel cycle,
To provide sufficient capacity to ensure the ability to meet projected future stockpile requirements, NNSA and TVA anticipate requesting authorization for TPBAR irradiation to be increased in fiscal year 2016 to a level that is beyond currently licensed rates for one reactor. Meeting the increased demand will require a license amendment from the Nuclear Regulatory Commission (NRC) to permit the irradiation of a greater number of TPBARs per reactor than can currently be irradiated at either the Watts Bar or Sequoyah site. License amendments are reactor specific. NNSA and TVA will supplement the 1999 CLWR EIS with analyses supporting the anticipated license amendment requests that also evaluate a higher level of tritium permeation through TPBAR cladding into the reactor cooling water than was previously analyzed. The tritium releases associated with the proposed increase in the number of TPBARs that could be irradiated at Watts Bar, Sequoyah, or both sites (compared to the number currently authorized by the NRC) would remain below Environmental Protection Agency (EPA) and NRC regulatory limits. Subsequently, TVA plans to adopt the SEIS for use in obtaining the necessary NRC license amendment(s).
The production of tritium in a CLWR is technically straightforward. All of the Nation's supply of tritium has been produced in reactors. Most commercial pressurized water reactors were designed to utilize 12-foot-long rods containing an isotope of boron (boron-10) in ceramic form. These rods are sometimes called burnable absorber rods. The rods are inserted in the reactor fuel assemblies to absorb excess neutrons produced by the uranium fuel in the fission process for the purpose of controlling power in the core at the beginning of an operating cycle. DOE's tritium program developed TPBARs in which neutrons are absorbed by a lithium aluminate ceramic rather than boron ceramic. While the two types of rods function in a very similar manner to absorb excess neutrons in the reactor core, there is one notable difference: When neutrons strike the lithium aluminate ceramic material in a TPBAR, tritium is produced inside the TPBAR. These TPBARs are placed in the same locations in the reactor core as the standard boron burnable absorber rods. There is no fissile material (uranium or plutonium) in the TPBARs. Tritium produced in TPBARs is captured almost instantaneously in a solid zirconium material in the rod, called a “getter.” The getter material that captures the tritium is very effective. During each reactor refueling cycle, the TPBARs are removed from the reactor and transported to SRS. At SRS, the TPBARs are heated in a vacuum at the TEF to extract the tritium from the getter material.
DOE's May 1999 Consolidated Record of Decision for Tritium Supply and Recycling (64 FR 26369) announced the selection of TVA's Watts Bar Unit 1, Sequoyah Unit 1 and Sequoyah Unit 2 for use in irradiating TPBARs and stated that a maximum of approximately 3,400 TPBARs would be irradiated per reactor during each 18-month fuel cycle. Since then, the projected need for tritium has decreased significantly. NNSA has determined that tritium demand to supply the Nuclear Weapons Stockpile could be satisfied using a maximum of approximately 2,500 TPBARs per fuel cycle, with a projected steady state number of approximately 1,700 TPBARs per fuel cycle.
Although NNSA's projected need for tritium to support the nuclear weapons stockpile today is less than originally planned, a higher than expected rate of permeation of tritium from TPBARs into reactor coolant water and subsequent release to the environment has restricted the number of TPBARs irradiated at TVA's Watts Bar Unit 1. Before TVA increases tritium production rates to meet expected national security requirements, the environmental analyses in the CLWR EIS are being updated to analyze and evaluate the effects of the higher tritium permeation, as well as any potential effects related to other changes in the regulatory and operating environment since publication of the original CLWR EIS.
As a cooperating agency in the preparation of the SEIS, TVA plans to use the SEIS in pursuing NRC licensing amendments to increase TPBAR
The CLWR EIS assessed the potential impacts of irradiating up to 3,400 TPBARs per reactor unit operating on 18 month fuel cycles. It included TPBAR irradiation scenarios using multiple reactor units to achieve a maximum level of 6,000 TPBARs every 18 months. Subsequently, tritium production requirements have been reduced such that irradiation of approximately 1,700 TPBARs every reactor fuel cycle is expected to be sufficient to fulfill current requirements, consistent with the 2010 Nuclear Posture Review. To provide flexibility in future tritium supply decisions, the revised environmental analysis is expected to consider irradiation of up to a total of 2,500 TPBARs every 18 months. This approach would provide sufficient reserve capacity to accommodate potential future changes in requirements and to allow for production above currently expected annual requirement levels for short durations (i.e., several years) to recover from potential future shortfalls should that become necessary.
In the CLWR EIS, the permeation of tritium through the TPBAR cladding into the reactor coolant systems of potential tritium production reactors was estimated to be less than or equal to one tritium curie/TPBAR/year. After several years of tritium production experience at Watts Bar Unit 1, NNSA has determined that tritium permeation through TPBAR cladding is approximately three to four times higher than this estimate; nevertheless, tritium releases have been below regulatory limits. To conservatively bound the potential environmental impacts, the SEIS will assess the impacts associated with tritium production in CLWRs based on a permeation rate of approximately five tritium curies/TPBAR/year.
An assessment of tritium mitigation and management measures will be included as part of the environmental analyses in the SEIS. Mitigation and management measures include an assessment of technologies commercially available to treat tritiated effluents, transportation of tritiated effluents and/or low level radioactive waste streams, and other applicable effluent management actions.
The SEIS, which will supplement the 1999 CLWR EIS, will support agency deliberations regarding potential changes in the tritium production at NRC licensed TVA facilities in order to meet the requirements of TVA's agreement with NNSA. These changes also require TVA to pursue an NRC license amendment request for these facilities. Accordingly, the SEIS is expected to substantially meet NRC requirements for an environmental report necessary to support TVA's license amendment request(s) for tritium production at the Watts Bar and/or Sequoyah Nuclear Plants.
NNSA has tentatively identified the issues for analysis in the SEIS. Additional issues may be identified as a result of the scoping comment process. The SEIS will analyze the potential impacts on:
1. Air, water, soil, and visual resources.
2. Plants and animals, and their habitats, including state and Federally-listed threatened or endangered species and their critical habitats.
3. Irretrievable and irreversible consumption of natural resources and energy, including transportation issues.
4. Cultural resources, including historical and pre-historical resources and traditional cultural properties.
5. Infrastructure and utilities.
6. Socioeconomic conditions.
7. Human health under routine operations and accident conditions, including potential impacts from seismic events.
8. Minority and low-income populations (Environmental Justice).
9. Intentional Destructive Acts, including terrorist acts.
10. Other past, present, and reasonably foreseeable actions (cumulative impacts).
SEIS Process and Invitation to Comment. The SEIS scoping process provides an opportunity for the public to assist the NNSA in determining issues and alternatives to be addressed in the SEIS. One public scoping meeting will be held as noted under
After the close of the public scoping period, NNSA will begin preparing the Draft SEIS. NNSA expects to issue the Draft SEIS for public review in 2012. A
Issuance of the Final SEIS is currently anticipated to take place in 2013. NNSA
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before November 28, 2011.
Submit your comments, identified by Docket ID number OAR-2002-0091, by one of the following methods:
•
•
•
•
Laurie Trinca, Air Quality Assessment Division, Environmental Protection Agency;
The EPA has established a public docket for this ICR under Docket ID No. EPA-OAR-2002-0091, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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 submission of responses. In particular, the EPA is requesting comments from very small businesses (those that employ less than 25 people) on examples of specific additional efforts that the EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by the EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
This ICR reflects revisions of the previous ICR update of 2009, and it covers the period of 2012-2014. The number of monitoring stations, sampling parameters, and frequency of data collection and submittal is expected to remain stable for 2012-2014.
The data collected through this information collection consist of ambient air concentration measurements for the seven air pollutants with national ambient air quality standards (i.e., ozone, sulfur dioxide, nitrogen dioxide, lead, carbon monoxide, and particulate matter (PM
The U.S. EPA and others (e.g., state and local air quality management agencies, tribal entities, environmental groups, academic institutions, industrial groups) use the ambient air quality data for many purposes. Some of the more prominent uses include informing the public and other interested parties of an area's air quality, judging an area's (e.g., county, city, neighborhood) air quality in comparison with the established health or welfare standards (including both national and local standards), evaluating an air quality management agency's progress in achieving or maintaining air pollutant levels below the national and local standards, developing and revising State Implementation Plans (SIPs) in accordance with 40 CFR part 51, evaluating air pollutant control strategies, developing or revising national control policies, providing data for air quality model development and validation, supporting enforcement actions, documenting episodes and initiating episode controls, air quality trends assessment, and air pollution research.
The state and local agencies and tribal entities with responsibility for reporting ambient air quality data and information as requested in this ICR submit these data electronically to the U.S. EPA's Air Quality System (AQS) database. Quality assurance/quality control records and monitoring network documentation are also maintained, by each state and local agency, in AQS electronic format where possible.
Although the state and local air pollution control agencies and tribal entities are responsible for the operation of the air monitoring networks, the EPA funds a portion of the total costs through federal grants. These grants generally require an appropriate level of contribution, or “match,” from the state/local agencies or tribal entities. The costs shown in this renewal are the total costs incurred for the monitoring program regardless of the source of the funding. This practice of using the total cost is consistent with prior ICR submittals and renewals.
This Information Collection is estimated to involve 168 respondents for a total cost of approximately $195,490,206 (total capital, and labor and non-labor operation and maintenance) plus a total burden of 2,105,714 hours. The labor cost associated with the hours is $125,341,493. Included in the total are other costs of non-labor operations and maintenance of $12,347,105 and equipment and contract costs of $57,801,607. In addition to the costs at the state and local air pollution control agencies and tribal entities, there is a burden to the EPA of 135,793 hours and $13,204,166.
The ICR provides a detailed explanation of the agency's estimate, which is only briefly summarized here:
The EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to the OMB for review and approval pursuant to 5 CFR 1320.12. At that time, the EPA will issue another
Environmental Protection Agency (EPA).
Notice.
EPA's Endocrine Disruptor Screening Program (EDSP) is announcing the availability of a final guidance document titled, “Weight-of-Evidence: Evaluating Results of EDSP Tier 1 Screening to Identify the Need for Tier 2 Testing.” This weight-of-evidence (WoE) guidance document was revised based on public and peer review comments and existing peer-reviewed EPA guidelines. This guidance document provides basic principles and criteria for application of a WoE approach to evaluate results from the battery of Tier 1 screening assays along with other scientific and technical information relevant to Tier 1 screening to determine whether or not a chemical has the potential to interact with the estrogen, androgen, or thyroid (E, A, or T) hormonal pathways of the endocrine system. The combined results and information will also be used to identify which tests and information may be needed for Tier 2 testing.
This action is directed to the public in general. You may be potentially affected by this action if you produce, manufacture, use, consume, work with, or import pesticide chemicals. To determine whether you or your business may be affected by this action, you should carefully examine section 408(p) of FFDCA, 21 U.S.C. 346a(p).
Potentially affected entities may include, but are not limited to:
• Chemical manufacturers, importers and processors (NAICS code 325),
• Pesticide, fertilizer, and other agricultural chemical manufacturers (NAICS code 3253),
• Scientific research and development services (NAICS code 5417),
This listing is not intended to be exhaustive, but rather provides 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 technical person listed under
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPPT-2010-0877; FRL-8890-7. All documents in the docket are listed in the docket index available at
The Agency submitted a draft WoE guidance document for evaluating the results of EDSP Tier 1 screening for public review and comment as described in a
1. Tier 1 battery of assays.
2. Assay endpoints.
3. Other scientifically relevant information.
4. WoE analysis.
Environmental protection, Endocrine disruptors, Screening assays, Weight-of-evidence.
Environmental Protection Agency.
Notification of public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the U.S. Environmental Protection Agency (EPA) hereby provides notice that the National Environmental Justice Advisory Council (NEJAC) will meet on the dates and times described below. All meetings are open to the public. Members of the public are encouraged to provide comments relevant to the specific issues being considered by the NEJAC. For additional information about registering for public comment, please see
The NEJAC meeting will convene Tuesday, October 25, 2011, from 9 a.m. until 10 p.m.; and will reconvene on Wednesday, October 26, 2011, from 9 a.m. to 5 p.m. All noted times are in Mountain Time.
One public comment period relevant to the specific issues being considered by the NEJAC (see
The NEJAC meeting will be held at The Albuquerque Marriott Hotel located at 2101 Louisiana Boulevard, NE., Albuquerque, New Mexico 87110.
Questions concerning the meeting should be directed to Mr. Aaron Bell, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., (MC2201A), Washington, DC 20460; by telephone at 202-564-1044, via e-mail at
Registration is required for all participants. Pre-registration by Noon Mountain Time, Friday, October 7, 2011, for all attendees is highly recommended. To register online, visit the Web site address above. Registration forms should be faxed to Ms. Estela Rosas, EPA Contractor, APEX Direct, Inc., at 877-773-0779, or e-mailed to
The Charter of the NEJAC states that the advisory committee shall provide independent advice to the EPA Administrator about areas that may include, among other things, “advice about broad, cross-cutting issues related to environmental justice, including environment-related strategic, scientific, technological, regulatory, and economic issues related to environmental justice.”
The meeting shall be used to receive comments, and discuss and provide recommendations regarding these primary areas: (1) Implementation of EPA Plan EJ 2014; (2) EPA's tribal program; (3) EPA's hazardous waste rules, and (4) the U.S.-Mexico Environmental Program (Border 2020).
A. Public Comment: Individuals or groups making oral presentations during the public comment periods will be limited to a total time of five minutes. To accommodate the large number of people who want to address the NEJAC, only one representative of a community, organization, or group will be allowed to speak. The suggested format for written public comments is as follows: Name of Speaker; Name of Organization/Community; City and State; E-mail address; and a brief description of the concern and what you want the NEJAC to advise EPA to do. Written comments received by Noon Mountain Time, Friday, October 7, 2011, will be included in the materials distributed to the members of the NEJAC. Written comments received after that date and time will be provided to the NEJAC as time allows. All information should be sent to the mailing address, e-mail address, or fax number listed in the
B. Information about Services for Individuals with Disabilities: For information about access or services for individuals with disabilities, please contact Ms. Estela Rosas, EPA Contractor, APEX Direct, Inc., at 877-773-0779 or
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an applications to register new uses for pesticide products containing currently registered active ingredients, pursuant to the provisions of section 3(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. EPA is publishing this notice of such application, pursuant to section 3(c)(4) of FIFRA.
Comments must be received on or before October 28, 2011.
Submit your comments, identified by the docket identification (ID) number specified in Unit II., by one of the following methods:
•
•
•
The contact person is listed in Unit II., and may be contacted by telephone or e-mail. The mailing address is: 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:
• 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 provides 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
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA received applications as follows to register pesticide products containing currently registered active ingredients pursuant to the provisions of section 3(c) of FIFRA, and is publishing this Notice of such applications pursuant to section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Tables 1, 2, and 3 of Unit II., pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This cancellation order follows an August 5, 2011
The cancellations are effective September 28, 2011.
Maia Tatinclaux, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-1017. Publicly available docket materials are available either in the electronic docket at
This notice announces the cancellation, as requested by registrants, of 45 products registered under FIFRA section 3. These registrations are listed in sequence by registration number in Tables 1, 2, and 3 of this unit.
Table 4 of this unit includes the names and addresses of record for all registrants of the products in Tables 1, 2, and 3 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Tables 1, 2, and 3 of this unit.
During the public comment period provided, EPA received no comments in response to the August 5, 2011
Pursuant to FIFRA section 6(f), EPA hereby approves the requested cancellations of the registrations identified in Tables 1, 2, and 3 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Tables 1, 2, and 3 of Unit II. are cancelled. The effective date of the cancellations that are subject of this notice is September 28, 2011. Any distribution, sale, or use of existing stocks of the products identified in Tables 1, 2, and 3 of Unit II. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI. will be a violation of FIFRA.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be cancelled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. Upon cancellation of the products identified in Tables 1, 2, and 3 of Unit II., EPA will allow existing stocks provisions as follows:
The Agency will allow registrants to sell and distribute existing stocks of these products until September 28, 2012. Thereafter, registrants are prohibited from selling or distributing the pesticides identified in Table 1 of Unit II., except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
The Agency will allow registrants to sell and distribute existing stocks of these products through September 30, 2011. Thereafter, registrants are prohibited from selling or distributing these pesticide products, except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
The effective date of cancellation of these products is September 28, 2011. The registrants are allowed to sell and distribute existing stocks until December 31, 2011. Thereafter, registrants are prohibited from selling or distributing these pesticide products, except for export consistent with FIFRA section 17 or for proper disposal.
Persons other than the registrant will be allowed to sell and distribute existing stocks through April 30, 2012. After this date, remaining existing stocks may be
The effective date of cancellation of these products is September 28, 2011. EPA will not allow the continued sale and distribution of existing stocks of these products after the effective date of this cancellation for several reasons. First, there are currently no tolerances in effect for any of the food or feed crops associated with the domestic use of these products, and there have been none since the 2009 tolerance revocations took effect on December 31, 2009 (May 15, 2009, 74 FR 23046; FRL-8413-3). In addition, the Agency believes that little, if any existing stock remains in the hands of retailers, based on the sole registrant's repeated representation that no carbofuran products have been released for shipment since January 2010, and that they have offered to buy back unused carbofuran products. Consequently, sale of existing stocks of carbofuran is prohibited as of September 28, 2011. Users may only use those carbofuran products labeled for non-food use (ornamentals, spinach grown for seed, and pine seedlings) on those specific crops and in accordance with all geographical restrictions. Any food or feed crops with carbofuran residues after this date will be considered adulterated and subject to seizure.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request in the
The deletions in Table 2 are effective March 26, 2012, and the deletion in Table 1 is effective October 28, 2011. If the Agency receives a written withdrawal request on or before March 26, 2012 for the pesticides in Table 2 or October 28, 2011 for the pesticide in Table 1, the deletions will not become effective. The Agency will consider a withdrawal request postmarked no later than March 26, 2012 for the deletions in Table 2, and no later than October 28, 2011 for the deletion in Table 1.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before March 26, 2012 for the products in Table 2, or October 28, 2011 for the product in Table 1.
Submit your withdrawal request, identified by docket identification (ID) number EPA-HQ-OPP-2011-0553, by one of the following methods:
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•
Christopher Green, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
This action is directed to the public in general. Although, this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the information in this notice, consult the person listed under
EPA has established a docket for this action under docket ID number EPA-HQ-OPP-2011-0553. Publicly available docket materials are available either in the electronic docket at
This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 of this unit by registration number, product name, active ingredient, and specific uses deleted.
The request listed in the following Table 1 has a 30-day comment period because the registrant requested a waiver of the 180-day comment period.
The requests listed in the following Table 2 have a 180-day comment period.
Users of the products in Table 2 who desire continued use on crops or sites being deleted should contact the applicable registrant before March 26, 2012 and users of the product in Table 1 who desire continued use on crops or sites being deleted should contact the registrant before October 28, 2011, to discuss withdrawal of the application for amendment. This 180-day or 30-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.
Table 3 of this unit includes the names and addresses of record for all registrants of the products listed in Tables 1 and 2 of this unit, in sequence by EPA company number.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. The FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for use deletion must submit the withdrawal in writing to Christopher Green using the methods in
The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests.
Federal Accounting Standards Advisory Board.
Notice.
The Technical Bulletin is available on the FASAB Web site at
Copies of Technical Bulletin 2011-2 can also be obtained by contacting FASAB at (202) 512-7350.
Wendy Payne, Executive Director, at (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before November 28, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to the Federal Communications Commission via e-mail to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
In order to control interference between stations and assure adequate community coverage, AM stations must conduct various engineering measurements to demonstrate that the antenna system operates as authorized. The following rule sections are included with this information collection.
Federal Housing Finance Agency.
Notice of Order.
Section 1127 of the Housing and Economic Recovery Act of 2008 (HERA) amended section 1326 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) by requiring that, subject to privacy considerations as described in section 304(j) of the Home Mortgage Disclosure Act of 1975 (HMDA), the Director of the Federal Housing Finance Agency (FHFA) shall make public certain data related to high-cost single-family loans purchased and securitized by the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises) collected by the Director under section 1324(b)(6) of the Safety and Soundness Act, as amended by HERA.
FHFA has adopted an Order that implements the changes required by HERA by revising the single-family matrix in FHFA's Public Use Database (PUDB) to include data fields for the high-cost single-family securitized loans data in a new National File C, effective for 2010 and beyond. The Order also makes technical changes to the single-family and multifamily data matrices of the PUDB, effective for 2010 and beyond, to conform the data fields to existing PUDB data reporting practices and HERA changes. This Notice of Order sets forth FHFA's Order with accompanying Appendix containing the revised single-family and multifamily matrices, and describes the new and revised data fields.
For questions on data or methodology,
The Enterprises are government-sponsored enterprises chartered by Congress for the purpose of establishing secondary market facilities for residential mortgages.
FHFA is responsible for ensuring that the Enterprises operate in a safe and sound manner, including maintenance of adequate capital and internal controls, that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities.
On September 6, 2008, the Director of FHFA (Director) appointed FHFA as conservator of the Enterprises in accordance with the Safety and Soundness Act, as amended by HERA, to maintain the Enterprises in a safe and sound financial condition and to help assure performance of their public mission. The Enterprises remain under conservatorship at this time.
Section 1127 of HERA amended section 1326 of the Safety and Soundness Act by adding a new paragraph (d) which states that, subject to the privacy restrictions described in section 304(j) of HMDA,
Section 1323, as amended, also includes a new paragraph (d) which states that data submitted under this section by an Enterprise shall be made publicly available no later than September 30 of the year following the
HERA also amended the Safety and Soundness Act to make changes to the Enterprise housing goals and related definitions. The previous low- and moderate-income housing goal, special affordable housing goal, and underserved areas housing goal are no longer effective commencing in 2010.
The PUDB matrices are data dictionaries that describe the data fields provided in the public release of the data in the PUDB. The PUDB contains Enterprise single-family and multifamily mortgage loan-level data reported to FHFA by the Enterprises, including data elements that have been determined to lose their proprietary character when categorized in ranges or otherwise adjusted or recoded. For single-family mortgage data, there currently are three separate files: A Census Tract File that identifies the census tract location of the mortgaged properties; a National File A containing loan-level data on owner-occupied one-unit properties but without census tract identifiers; and a National File B containing unit-level data on all single-family properties without census tract identifiers. For multifamily data, there are two separate files: A Census Tract File that identifies the census tract location of the mortgaged properties; and a National File that does not identify the location of the mortgaged properties but contains mortgage-level data and unit class-level data on all multifamily properties. The Enterprises also separately report to FHFA certain single-family and multifamily mortgage data for safety and soundness and other regulatory purposes.
FHFA has adopted the Order below which revises the PUDB single-family matrix to incorporate a new National File C containing new data fields applicable to 2010 and subsequent years for the single-family high-cost securitized loans purchased and securitized by the Enterprises. Specifically, National File C contains the following data fields related to the section 1324(b)(6) high-cost securitized loan characteristics: Purchase Price; Loan-to-Value Ratio (LTV) at Origination (also released in National File A); Product Type; Term of Mortgage at Origination; Amortization Term; Interest Rate at Origination; Credit Score; Portfolio Flag; and Percent Repurchased. In addition, National File C includes the following other relevant data fields also released in mortgage-level National File A: Enterprise Flag; Loan Number; 2000 Census Tract—Percent Minority; Tract Income Ratio; Borrower Income Ratio; Purpose of Loan; and Federal Guarantee. A more detailed discussion of National File C is contained in Section III. below.
In addition, the Order makes technical changes to the single-family and multifamily data matrices of the PUDB applicable to 2010 and subsequent years to conform the data fields to existing PUDB data reporting practices and HERA changes.
Both the Order and Appendix containing the revised single-family and multifamily matrices are set forth at the end of this Notice of Order. PUDB Data Dictionaries that further describe the revised single-family PUDB files and the new National File C, along with the revised multifamily PUDB files, will be made available on FHFA's public Web site at
As discussed above, sections 1324(b)(6) and 1326(d)(2) of the Safety and Soundness Act require FHFA to publicly disclose the following data characteristics of single-family high-cost loans purchased and securitized by the Enterprises that are not held on portfolio, or are retained on portfolio or repurchased by the Enterprises: (A) The purchase price of the property that secures the mortgage; (B) the loan-to-value ratio of the mortgage, which shall reflect any secondary liens on the relevant property; (C) the terms of the mortgage; (D) the creditworthiness of the borrower; and (E) any other relevant data, as determined by the Director. Section 1324(b)(6) does not define the term “high-cost” or the other loan characteristic terms in paragraphs (A) through (D), necessitating that FHFA define the terms in order to implement the requirements of HERA. The data fields added in National File C for these high-cost loans and their definitions are described below.
The new data fields are not subject to regulatory and statutory processes for proprietary determinations that might otherwise apply to the release of such data, since the disclosure of these data is explicitly required by HERA. However, certain data fields are recoded differently from other single-family PUDB Files, or disclosed in National File C by ranges or categories, in order to minimize the possibilities for cross-linking of data elements with data fields in the other single-family PUDB Files and any resulting disclosure of confidential or proprietary information or personally identifiable information.
The Safety and Soundness Act, as amended by HERA, does not define the term “high-cost.” Accordingly, FHFA has discretion to define the term. There is no direct HERA legislative history providing guidance on the meaning of the term from which FHFA might draw in exercising that discretion. There are a variety of loan attributes in FHFA's databases that could be used, singularly or in some combination, to define the “high-cost” loans selected for inclusion in the PUDB. These loan characteristics include the HMDA rate spread, original mortgage interest rate, LTV, and borrower credit score. Another option is to define “high-cost” loan using the Home Ownership and Equity Protection Act (HOEPA) “high-cost mortgage” definition.
After considering these various options, FHFA has decided to define “high-cost” loans by reference to the HMDA rate spread. The HMDA rate spread is a data field reported by lenders pursuant to HMDA that is released annually by the Federal Financial Institutions Examination Council (FFIEC). These loans are identified in Federal Reserve Board (FRB) analyses as “higher-priced”
FHFA has adopted the HMDA rate spread definition as the definition of “high-cost” because it has a logical relation to heightened cost by virtue of being a rate spread, is simple and widely understood, and because the Enterprises have purchased significant numbers of such loans, it appears to divide loans into categories in a way that meaningfully implements the statutory purpose.
Based on the data reported by the Enterprises, in 2010, Freddie Mac did not purchase and securitize any first mortgages with a HMDA rate spread at or above 1.5 percent. Fannie Mae purchased and securitized a total of 13,841 first mortgages (with an unpaid principal balance (UPB) of $2.08 billion) with a HMDA rate spread. Of these total loans, 834 loans (with a UPB of $139.9 million) were repurchased as of year-end, and 13,007 loans (with a UPB of $1.94 billion) were not repurchased as of year-end. The 834 loans repurchased represent 6 percent of the total loans (6.7 percent of UPB) with a validly identified rate spread that were purchased and securitized during 2010.
FHFA considered whether to define “high-cost” loan according to the HOEPA “high-cost mortgage” definition in section 103(aa) of the Truth in Lending Act (TILA), as added by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
However, the Enterprises do not, and, at the time HERA was under consideration in Congress, did not, acquire HOEPA loans other than the few loans purchased through lender errors, which are then subject to recourse.
FHFA also considered whether to define “high-cost” loan based on some appropriate combination of high original mortgage interest rate, low credit score, and high LTV, which data is available in FHFA's databases. For example, a “high-cost” loan could be defined as a loan with an interest rate above 6 percentage points, a borrower credit score below 660, and an LTV greater than 80 percent. These loan characteristics, at specific cutoff values, can be associated with loans that would be considered high-cost by many analysts. However, this definition would not conform with either the HOEPA “high-cost mortgage” or the HMDA “higher-priced” loan definitions, and may differ from industry usage of the term. The specific cutoff values adopted by FHFA would be subjective, and other cutoff values may be equally defensible. The current economic environment may also influence the selection of the cutoffs,
Section 1324(b)(6)(A), in conjunction with section 1326(d)(2), requires public disclosure of the purchase price of the property with respect to the high-cost securitized loan. New data field 61 in National File C designates the purchase price of the property for the high-cost securitized loan, as reported by the Enterprises to FHFA. Where the purchase price is not available, FHFA will attempt to estimate the purchase price by dividing the origination unpaid principal balance (UPB) field by the LTV at origination. The reported or estimated values will be rounded to the nearest $1,000, consistent with the release of HMDA data fields in the PUDB. The value “999999999=Missing” will be used where the purchase price cannot be obtained through either method and is then considered missing.
Section 1324(b)(6)(B), in conjunction with section 1326(d)(2), requires public
In recent years, the Enterprises' purchases of single-family secondary liens have been statistically insignificant in number as they have purchased few, if any, such liens. Secondary liens are priced and underwritten very differently from first liens, and their LTVs are not always available or reported by originators in a consistent manner. In addition, inclusion of secondary lien LTVs in National File C could allow for cross-linking with other single-family PUDB Files and the potential release of personally identifiable information. For these reasons, FHFA is not including single-family secondary liens in National File C.
Section 1324(b)(6)(C), in conjunction with section 1326(d)(2), requires public disclosure of “the terms of the mortgage” with respect to the high-cost securitized loan. The terms of a mortgage in the housing finance industry are generally based on product type, interest rate, and duration (term of mortgage at origination and amortization term). Accordingly, data based on product type, interest rate and duration will be released in the PUDB under the data fields further described below.
Data field 26, released in National File C, designates the product type for the high-cost securitized loan, which will be released using the following values: 1 = Fixed-Rate Mortgage; 2 = ARM (Adjustable Rate Mortgage); 3 = Other; 9 = Missing. “Other” can include products such as graduated equity or graduated payment mortgages, balloon mortgages, and home equity conversion mortgages.
Data field 29, released in National File C, designates the term of the high-cost securitized loan at origination, which will be released using the following values: 1 = 30-year; 2 = 15-year; 3 = Other terms; 9 = Missing.
Data field 30, released in National File C, designates the amortization term of the high-cost securitized loan, which will be released using the following values: 1 = 30-year; 2 = 15-year; 3 = Other terms including non-amortizing loans; 9 = Missing.
New data field 62, released in National File C, designates the contract interest rate of the high-cost securitized loan at origination, which will be released as ranges using the following values: 1 = less than 4.00%; 2 = 4.00-<4.50%; 3 = 4.50-<5.00%; 4 = 5.00-<5.50%; 5 = 5.50-<6.00%; 6 = 6.00-<6.50%; 7 = 6.50-<7.00%; 8 = 7.00-<7.50%; 9 = 7.50-< 8.00%; 10 = 8.00% or greater; 99 = Missing. The Enterprises collect and report the note's original interest rate.
Section 1324(b)(6)(D), in conjunction with section 1326(d)(2), references “creditworthiness of the borrower” as a loan characteristic required to be publicly disclosed with respect to the high-cost securitized loan. FHFA believes that borrower credit score best captures the concept of creditworthiness of the borrower, as the common regulatory and industry definitions of creditworthiness gravitate towards the use of proprietary credit scores computed by credit reporting companies.
FHFA currently receives multiple borrower credit score information in the form of credit scores from the Enterprises, representing each borrower, credit reporting agency and date associated with the credit score issuance. New data field 60, released in National File C, designates the borrower credit score most applicable to the high-cost securitized loan. This credit score is derived by first selecting from all of the borrower's credit scores only the scores between 300 and 1000, which FHFA views as a reasonable range of credit score values. The earliest credit score date of those scores,
Section 1324(b)(6)(E), in conjunction with section 1326(d)(2), requires public disclosure of any other relevant data with respect to the high-cost securitized loan, as determined by the Director. Inclusion in National File C of certain fields that are also included in other PUDB Files will allow useful comparisons of the high-cost securitized loan data to data in those other Files.
Specifically, the following fields will be released in National File C: Data field 0: Enterprise Flag (indicating whether the loan was purchased by Fannie Mae or Freddie Mac); data field 1: Loan Number (released as Sequential Number); data field 11: 2000 Census Tract-Percent Minority (minority population in the census tract where the property securing the loan is located); data field 14: Tract Income Ratio (ratio of tract median income to the applicable AMI); data field 17: Borrower Income Ratio (ratio of borrower's income to the applicable area median income); data field 22: Purpose of Loan (home purchase or refinance/other); and data field 27: Federal Guarantee (conventional loan or Federally guaranteed or insured).
The data will be included in National File C without providing sufficient linking variables to associate the more sensitive data (credit score and interest rate) to loans at the tract level in the Census Tract File. In particular, the HMDA rate spread field will not be released in National File C as this field is already released in the Census Tract File as required by HERA.
Section 1324(b)(6) requires FHFA to compare the characteristics discussed above of high-cost loans purchased and securitized, where such securities are not held on portfolio to loans purchased and securitized, where such securities are either retained on portfolio or repurchased by the Enterprise.
New data field 63, released in National File C, designates the following values:
1 = Not held on portfolio: Indicates the security backed by the high-cost loan was sold in its entirety by the Enterprise during the calendar year and not repurchased as of year-end.
2 = Retained on portfolio: Indicates the security backed by the high-cost loan was sold in its entirety by the Enterprise during the calendar year, but that all or a portion of the security collateralized by such high-cost loan was repurchased by the Enterprise during such calendar year and held at year-end.
These two data field values are intended to categorize the universe of loans with a HMDA rate spread that are purchased and securitized by the Enterprises.
To accurately reflect the economic value of the high-cost securitized loans retained on portfolio, new data field 64, released in National File C, identifies the percentage of the outstanding balance of the security collateralized by the high-cost loan that the Enterprise repurchased during the calendar year and held at year-end. Where the Enterprise did not repurchase any portion of the security (portfolio flag = 1), the value will be 0. Where the Enterprise repurchased all of the security (portfolio flag = 2), the value will be 1. Where the Enterprise repurchased a portion of the security collateralized by the high-cost loan (portfolio flag = 2), the value will be the percentage of the security repurchased by the Enterprise represented as a decimal between 0 and 1.
FHFA has made technical revisions to certain data fields in the PUDB matrices to conform the data fields to existing PUDB data reporting practices, as further discussed below.
This data field identifies single-family housing units that are part of a cooperative building secured by a mortgage or “blanket loan.” FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnote (7) to this data field in the single-family matrix indicates that this data field is not applicable for 2010 and beyond.
This data field identifies loans purchased by the Enterprises that were made by the Resolution Trust Corporation (RTC) or the Federal Deposit Insurance Corporation (FDIC) and met certain other statutory criteria. FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnote (7) to this data field in the single-family matrix indicates that the data field is not applicable for 2010 and beyond.
These data fields identify the name, city and state of the lender that sold the loan to the Enterprise. FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnotes (7) and (5) to this data field in the single-family and multifamily matrices, respectively, indicate that this data field is not applicable for 2010 and beyond.
This data field identifies mortgages purchased under Enterprise-specific landing programs. FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnote (7) to this data field in the single-family matrix indicates that this data field is not applicable for 2010 and beyond.
This data field identifies properties owned by an Enterprise as a result of foreclosure or other impairment. FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnotes (7) and (5) to this data field in the single-family and multifamily matrices, respectively, indicate that the data field is not applicable for 2010 and beyond.
This data field identifies the type of public subsidy, if applicable, provided in connection with a multifamily loan purchased by an Enterprise. FHFA no longer requires the Enterprises to report this data for housing goals purposes. Accordingly, footnote (5) to this data field in the multifamily matrix indicates that this data field is not applicable for 2010 and beyond.
This data field identifies the ratio of the borrower's annual income (data field 15) to the AMI (data field 16). Effective for 2010 and beyond, HERA eliminated the previous low- and moderate-income housing goal (100 percent of AMI or below) and special affordable housing goal (which includes units affordable at 60 percent of AMI or below) and, among other things, established new single-family housing goals for low-income families (80 percent of AMI or below) and very low-income families (defined by HERA as 50 percent of AMI). Accordingly, footnote (7) to data field 17 in the single-family matrix indicates that the pre-HERA income categories therein are not applicable to 2010 and beyond. FHFA has revised the income categories in data field 17a to reflect the new HERA income limits effective for 2010 and beyond, as indicated in footnote (8) of the single-family matrix.
This data field identifies loans purchased by an Enterprise secured by multifamily properties having a mix of other affordable units such that those units in the property affordable at more than 60 percent but at or below 80 percent of AMI received credit under the pre-HERA special affordable housing goal regardless of property location. Specifically, category 1 of the data field specifies: >=20% are especially-low-income, and <40% are very-low-income. Prior to HERA, the term “especially-low-income” was defined by regulation as 50 percent or less of AMI.
This data field identifies categories of seasoned (originating at least 365 days prior to acquisition by the Enterprise) loans eligible for the special affordable housing goal. Effective for 2010 and beyond, HERA eliminated the special affordable housing goal and the provisions on giving full housing goals credit under the goal to Enterprise purchases or refinancings of existing, seasoned portfolios of loans in conjunction with the origination of additional goals-eligible loans. Accordingly, footnotes (7) and (5) to this data field in the single-family and multifamily matrices, respectively, indicate that the data field is not applicable for 2010 and beyond. In light of the HERA changes, the obsolete regulatory cites in the data fields have also been removed.
This data field identifies the source of the Federal guarantee or insurance of the loan acquired by the Enterprise. In light of changes made by HERA, the obsolete regulatory cites in the data fields have been removed.
This data field identifies whether a loan purchased by an Enterprise is located in an area defined to be “underserved,” for purposes of meeting the underserved areas housing goal. HERA eliminated the underserved areas housing goal effective for 2010 and beyond. Accordingly, footnotes (7) and (5) to this data field in the single-family and multifamily matrices, respectively, indicate that the data field is not applicable for 2010 and beyond.
FHFA has determined that the new National File C should apply to the Enterprises for 2010 and subsequent years. The Enterprises' HMDA rate spread submissions for 2008-2009 indicate that the HMDA rate spread field is of questionable value for those years because some lenders reported actual APR instead of HMDA rate spread.
For the convenience of the affected parties, the Order is recited below in its entirety. You may access this Order from FHFA's Web site at
1. The matrices in FHFA's PUDB are revised, as set forth in the attached Appendix which is incorporated herein by reference, to include: (a) A new single-family National File C containing new data fields applicable to 2010 and subsequent years for the high-cost securitized single-family loan data; and (b) revised data fields in the single-family and multifamily matrices applicable to 2010 and subsequent years to conform to changes made by HERA and existing PUDB reporting practices;
2. The Enterprises shall provide FHFA with the mortgage data required to populate the data fields described in the revised single-family and multifamily matrices in the Appendix; and
3. This Order modifies the FHFA Order of July 1, 2010 (75 FR 41180, 41189 (July 15, 2010)) and shall be effective until such time as FHFA determines that it is necessary and/or appropriate to withdraw or modify it.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
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 October 13, 2011.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Federal Trade Commission (FTC or Commission).
Notice and request for comment.
In compliance with the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501-3521, the FTC is seeking public comments on its proposal to extend through October 31, 2014, the current PRA clearance for information collection requirements contained in its Trade Regulation Rule entitled Power Output Claims for Amplifiers Utilized in Home Entertainment Products (“Amplifier Rule” or “Rule”), 16 CFR part 432 (OMB Control Number 3084-0105). That clearance expires on October 31, 2011. The FTC will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review.
Comments must be received on or before October 28, 2011.
Interested parties may submit written comments by following the instructions in the Request for Comment part of the
Requests for copies of the collection of information and supporting documentation should be addressed to Jock K. Chung, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, M-8133, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326-2984.
On July 11, 2011, the Commission sought comment on the information collection requirements associated with the Amplifier Rule. 76 FR 40731. No comments were received. Pursuant to the OMB regulations, 5 CFR part 1320, that implement the PRA, the FTC is providing this second opportunity for public comment while seeking OMB approval to renew the pre-existing clearance for the Rule.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 28, 2011. Write “Amplifier Rule: FTC File No. P974222”
Because your comment will be made public, you are solely responsible for making sure that your comment doesn't include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment doesn't include any sensitive health information, like medical records or other individually identifiable health information. In addition, don't include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential * * *, ” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don't include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Amplifier Rule: FTC File No. P974222” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex J), 600 Pennsylvania Avenue, NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
Comments on the information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street, NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5167.
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 trade agreements certificate. Two comments were received.
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.
Two comments were received. One comment is not relevant to this collection. The other comment supports the extension of this collection.
Submit comments on or before October 28, 2011.
Submit comments identified by Information Collection 9000-0025, Trade Agreements Certificates, by any of the following methods:
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•
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Cecelia Davis, Procurement Analyst, Acquisition Policy Division, GSA (202) 219-0202 or e-mail
Under the Trade Agreements Act of 1979, unless specifically exempted by statute or regulation, agencies are required to evaluate offers over a certain dollar limitation not to supply an eligible product without regard to the restrictions of the Buy American program. Offerors identify excluded end products on this certificate.
The contracting officer uses the information to identify the offered items which are domestic end products. Items having components of unknown origin are considered to have been mined, produced, or manufactured outside the United States, a designated country, Caribbean Basin country or Free Trade Agreement Country.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding a revision 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 the Buy American Act certificate. This information collection requirement collects data for compliance with 41 U.S.C., Buy American.
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 October 28, 2011.
Submit comments identified by Information Collection 9000-0024, Buy American Act Certificate, by any of the following methods:
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Cecelia Davis, Procurement Analyst, Acquisition Policy Division, GSA (202) 219-0202 or e-mail
The Buy American Act requires that only domestic end products be acquired for public use unless an exception is specifically authorized by statute or regulation, provided that the cost of the domestic products is reasonable. FAR provision 52.225-2, Buy American Act Certificate, as prescribed at 25.1101(a)(2), requires the offeror to certify that all end products are domestic end products, except for foreign end products listed in paragraph (b). For other than commercially available off-the-shelf items, components of unknown origin are considered to have been supplied from outside the United States.
The contracting office uses the information to determine compliance with 41 U.S.C. chapter 83, Buy American.
A request for public comments was published in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for a 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 currently approved information collection requirement concerning Standard Form 28, Affidavit of Individual Surety. A request for public comments was published in the
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before October 28, 2011.
Submit comments identified by Information Collection 9000-0001, Standard Form 28, Affidavit of Individual Surety, by any of the following methods:
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Cecelia Davis, Procurement Analyst, Federal Acquisition Policy Division, GSA (202) 219-0202 or
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.
The information on SF 28 is used to assist the contracting officer in determining the acceptability of individuals proposed as sureties.
A notice published in the
The decrease in the total burden hours is a result of the change in the “Response per Respondent” and “Hours per Response” categories. The 1.43, responses per respondent, has been lowered to 1. to adequately reflect this category. A respondent has to respond completely not partially when submitting this form. The “Hours per Response” category has been decreased to .3 (18 minutes) from .4 (24 minutes) to reflect the benefit of the electronic capability of fillable-fileable forms. Respondents no longer have to print, scan, and then electronically submit or print and then physically mail forms through the post office, they can now submit electronically.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice creates an expansion to an existing award under the Money Follows the Person
The need for additional funds is the result of an increase in the number of Money Follows the Person (MFP) State Grantees through the Patient Protection and Affordable Care Act (Affordable Care Act) (Pub. L. 111-148, enacted on March 23, 2010). Fifteen additional States received new MFP funds in January, 2011 under the Affordable Care Act. The increase in the number of States and programs resulting from the Affordable Care Act place more demand on the need for technical assistance to States developing and implementing quality improvement strategies, particularly given the complexity and vulnerability of the populations being served in MFP and the Congress' commitment to the Grant Program's success. The expansion was not calculated in the original National Quality Enterprise (NQE) budget because at the time of the original award, the Affordable Care Act money was not included in CMS' budget allocation.
The additional resources are necessary to assure the success of the individual placements, specifically, by facilitating sufficient quality mechanisms to address the unique needs of the populations with disabling and chronic conditions. These are the most vulnerable populations and a lack of quality and oversight mechanisms in place, may place individuals at risk.
We solicited a proposal from Thomson Reuters Healthcare to expand the National Home and Community-Based Services (HCBS) Quality Enterprise beyond the grant's present scope. The expansion was created by section 2403 of the Affordable Care Act, which amended section 6071 of the Deficit Reduction Act of 2005, the Money Follows the Person Rebalancing Demonstration. The provision expanded previous legislation to support State and CMS efforts to improve quality in a “rebalanced” long-term support system, and to demonstrate the ongoing benefits from and need for an effective HCBS QI Enterprise. The grant offered $1.2 million over 2 years through a program expansion supplement.
We requested that the Thomson Reuters Healthcare submit an abbreviated application addressing the expansion of the existing grant. The Grantee provided an updated quality technical assistance model and work plan focused on the following four major goals:
• Development of a process demonstrating consistency between the Grantee and CMS, and across all Grantee staff and subcontractors for providing technical assistance (Project Management, 1.1).
• The provision of technical assistance to states related to quality in home and community-based services programs (Technical Assistance, 2.1b).
• The provision of technical assistance to CMS staff related to the oversight of quality in HCBS programs (Technical Assistance, 2.1c).
• The ongoing development and maintenance of a national HCBS quality web-based technical assistance site and quality TA manuscripts (Technical Assistance, 2.1d and e).
As part of the application, based on the four major goals listed above, the Grantee submitted a 3 page project narrative describing the activities, and an accompanying budget revision, related to Grant #1LICMS030329/01, entitled “The National HCBS Quality Enterprise: Assisting States to Achieve Enhanced Quality in a Rebalanced Environment”.
The documents included the following:
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Section 6071 Deficit Reduction Act of 2005.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447,
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden 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 within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by October 28, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB,
Juanmanuel Vilela,Office of Information Management,Food and Drug Administration,1350 Piccard Dr.,PI50-400B,Rockville, MD 20850,301-796-7651,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under Section 501(a)(2)(B) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 351(a)(2)(B)), a drug is adulterated if the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with Current Good Manufacturing Practices (CGMPs) to ensure that such drug meets the requirements of the FD&C Act as to safety, and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess.
The FDA has the authority under Section 701(a) of the FD&C Act (21 U.S.C. 371(a)) to issue regulations for the efficient enforcement of the FD&C Act regarding CGMP procedures for manufacturing, processing, and holding drugs and drug products. The CGMP regulations help ensure that drug products meet the statutory requirements for safety and have their purported or represented identity, strength, quality, and purity characteristics. The information collection requirements in the CGMP regulations provide FDA with the necessary information to perform its duty to protect public health and safety. CGMP requirements establish accountability in the manufacturing and processing of drug products, provide for meaningful FDA inspections, and enable manufacturers to improve the quality of drug products over time. The CGMP recordkeeping requirements also serve preventive and remedial purposes and provide crucial information if it is necessary to recall a drug product.
The general requirements for recordkeeping under part 211 (21 CFR part 211) are set forth in § 211.180. Any production, control, or distribution record associated with a batch and required to be maintained in compliance with part 211 must be retained for at least one year after the expiration date of the batch and, for certain OTC drugs, three years after distribution of the batch (§ 211.180(a)).
All part 211 records must be readily available for authorized inspections during the retention period (§ 211.180(c)), and such records may be retained either as original records or as true copies (§ 211.180(d)). In addition, 21 CFR 11.2(a) provides that “for records required to be maintained but not submitted to the Agency, persons may use electronic records in lieu of paper records or electronic signatures in lieu of traditional signatures, in whole or in part, provided that the requirements of this part are met.” To the extent this electronic option is used, the burden of maintaining paper records should be substantially reduced, as should any review of such records.
In order to facilitate improvements and corrective actions, records must be maintained so that data can be used for evaluating, at least annually, the quality standards of each drug product to determine the need for changes in drug product specifications or manufacturing or control procedures (§ 211.180(e)). Written procedures for these evaluations are to be established and include provisions for a review of a representative number of batches and, where applicable, records associated with the batch; provisions for a review of complaints, recalls, returned or salvaged drug products; and investigations conducted under § 211.192 for each drug product.
The specific recordkeeping requirements provided in table 1 of this document are as follows:
Section 211.34—Consultants advising on the manufacture, processing, packing, or holding of drug products must have sufficient education, training, and experience to advise on the subject for which they are retained. Records must be maintained stating the name, address, and qualifications of any consultants and the type of service they provide.
Section 211.67(c)—Records must be kept of maintenance, cleaning, sanitizing, and inspection as specified in §§ 211.180 and 211.182.
Section 211.68—Appropriate controls must be exercised over computer or related systems to assure that changes in master production and control records or other records are instituted only by authorized personnel.
Section 211.68(a)—Records must be maintained of calibration checks, inspections, and computer or related system programs for automatic, mechanical, and electronic equipment.
Section 211.68(b)—All appropriate controls must be exercised over all computers or related systems and control data systems to assure that changes in master production and control records or other records are instituted only by authorized persons.
Section 211.72—Filters for liquid filtration used in the manufacture, processing, or packing of injectable drug products intended for human use must not release fibers into such products.
Section 211.80(d)—Each container or grouping of containers for components or drug product containers or closures must be identified with a distinctive code for each lot in each shipment received. This code must be used in recording the disposition of each lot. Each lot must be appropriately identified as to its status.
Section 211.100(b)—Written production and process control procedures must be followed in the execution of the various production and process control functions and must be documented at the time of performance. Any deviation from the written procedures must be recorded and justified.
Section 211.105(b)—Major equipment must be identified by a distinctive identification number or code that must be recorded in the batch production record to show the specific equipment used in the manufacture of each batch of a drug product. In cases where only one of a particular type of equipment exists in a manufacturing facility, the name of the equipment may be used in lieu of a distinctive identification number or code.
Section 211.122(c)—Records must be maintained for each shipment received of each different labeling and packaging material indicating receipt, examination, or testing.
Section 211.130(e)—Inspection of packaging and labeling facilities must be made immediately before use to assure that all drug products have been removed from previous operations. Inspection must also be made to assure that packaging and labeling materials not suitable for subsequent operations have been removed. Results of inspection must be documented in the batch production records.
Section 211.132(c)—Certain retail packages of OTC drug products must bear a statement that is prominently placed so consumers are alerted to the specific tamper-evident feature of the package. The labeling statement is required to be so placed that it will be unaffected if the tamper-resistant feature of the package is breached or missing. If the tamper-evident feature chosen is one that uses an identifying characteristic, that characteristic is required to be referred to in the labeling statement.
Section 211.132(d)—A request for an exemption from packaging and labeling requirements by a manufacturer or packer is required to be submitted in the form of a citizen petition under 21 CFR 10.30.
Section 211.137—Requirements regarding product expiration dating and compliance with 21 CFR 201.17 are set forth.
Section 211.160(a)—The establishment of any specifications, standards, sampling plans, test procedures, or other laboratory control mechanisms, including any change in such specifications, standards, sampling plans, test procedures, or other laboratory control mechanisms, must be drafted by the appropriate organizational unit and reviewed and approved by the quality control unit. These requirements must be followed and documented at the time of performance. Any deviation from the written specifications, standards, sampling plans, test procedures, or other laboratory control mechanisms must be recorded and justified.
Section 211.165(e)—The accuracy, sensitivity, specificity, and reproducibility of test methods employed by a firm must be established and documented. Such validation and documentation may be accomplished in accordance with § 211.194(a)(2).
Section 211.166(c)—Homeopathic drug product requirements are set forth.
Section 211.173—Animals used in testing components, in-process materials, or drug products for compliance with established specifications must be maintained and controlled in a manner that assures their suitability for their intended use. They must be identified, and adequate records must be maintained showing the history of their use.
Section 211.180(e)—Written records required by part 211 must be maintained so that data can be used for evaluating, at least annually, the quality standards of each drug product to determine the need for changes in drug product specifications or manufacturing or control procedures. Written procedures must be established and followed for such evaluations and must include provisions for a representative number of batches, whether approved or unapproved or rejected, and a review of complaints, recalls, returned or salvaged drug products, and investigations conducted under § 211.192 for each drug product.
Section 211.180(f)—Procedures must be established to assure that the responsible officials of the firm, if they are not personally involved in or immediately aware of such actions, are notified in writing of any investigations, conducted under § 211.198, 211.204, or 211.208, any recalls, reports of inspectional observations issued, or any regulatory actions relating to good manufacturing practices brought by FDA.
Section 211.182—Specifies requirements for equipment cleaning records and the use log.
Section 211.184—Specifies requirements for component, drug product container, closure, and labeling records.
Section 211.186—Specifies master production and control records requirements.
Section 211.188—Specifies batch production and control records requirement.
Section 211.192—Specifies the information that must be maintained on the investigation of discrepancies found in the review of all drug product production and control records by the quality control staff.
Section 211.194—Explains and describes laboratory records that must be retained.
Section 211.196—Specifies the information that must be included in records on the distribution of the drug.
Section 211.198—Specifies and describes the handling of all complaint files received by the applicant.
Section 211.204—Specifies that records be maintained of returned and salvaged drug products and describes the procedures involved.
Written procedures, referred to here as standard operating procedures (SOPs), are required for many Part 211 records. The current SOP requirements were initially provided in a final rule published in the
Section 211.22(d)—Responsibilities and procedures of the quality control unit;
Section 211.56(b)—Sanitation procedures;
Section 211.56(c)—Use of suitable rodenticides, insecticides, fungicides, fumigating agents, and cleaning and sanitizing agents;
Section 211.67(b)—Cleaning and maintenance of equipment;
Section 211.68(a)—Proper performance of automatic, mechanical, and electronic equipment;
Section 211.80(a)—Receipt, identification, storage, handling, sampling, testing, and approval or rejection of components and drug product containers or closures;
Section 211.94(d)—Standards or specifications, methods of testing, and methods of cleaning, sterilizing, and processing to remove pyrogenic properties for drug product containers and closures;
Section 211.100(a)—Production and process control;
Section 211.110(a)—Sampling and testing of in-process materials and drug products;
Section 211.113(a)—Prevention of objectionable microorganisms in drug products not required to be sterile;
Section 211.113(b)—Prevention of microbiological contamination of drug products purporting to be sterile, including validation of any sterilization process;
Section 211.115(a)—System for reprocessing batches that do not conform to standards or specifications, to insure that reprocessed batches conform with all established standards, specifications, and characteristics;
Section 211.122(a)—Receipt, identification, storage, handling, sampling, examination and/or testing of labeling and packaging materials;
Section 211.125(f)—Control procedures for the issuance of labeling;
Section 211.130—Packaging and label operations, prevention of mixup and cross contamination, identification and handling of filed drug product containers that are set aside and held in unlabeled condition, and identification of the drug product with a lot or control number that permits determination of the history of the manufacture and control of the batch;
Section 211.142—Warehousing;
Section 211.150—Distribution of drug products;
Section 211.160—Laboratory controls;
Section 211.165(c)—Testing and release for distribution;
Section 211.166(a)—Stability testing;
Section 211.167—Special testing requirements;
Section 211.180(f)—Notification of responsible officials of investigations, recalls, reports of inspectional observations, and any regulatory actions relating to good manufacturing practice;
Section 211.198(a)—Written and oral complaint procedures, including quality control unit review of any complaint involving specifications failures, and serious and unexpected adverse drug experiences;
Section 211.204—Holding, testing, and reprocessing of returned drug products; and
Section 211.208—Drug product salvaging.
In addition, the following regulations in parts 610 and 680 (21 CFR Parts 610 and 680) reference certain CGMP regulations in part 211: §§ 610.12(h), 610.13(a)(2), 610.18(d), 680.2(f), and 680.3(f). In table 1 of this document, the burden associated with the information collection requirements in these regulations is included in the burden estimates under §§ 211.165, 211.167, 211.188, and 211.194, as appropriate.
Although most of the CGMP provisions covered in this document were created many years ago, there will be some existing firms expanding into new manufacturing areas and startup firms that will need to create SOPs. As provided in table 1 of this document, FDA is assuming that approximately 100 firms will have to create up to 25 SOPs for a total of 2,500 records, and the Agency estimates that it will take 20 hours per recordkeeper to create 25 new SOPs for a total of 50,000 hours.
In the
The comment, from a plasma protein therapies association, stated that data from their association members may be higher than FDA's estimates and provided some examples of differences between their numbers and FDA's estimates. The comment stated that table 1 in the notice provides averages, but does not give data range. The comment requested that FDA provide data ranges so they could better assess if their members' high data are factored into the Agency's averages.
The burden estimates in the 60-day notice were compiled by FDA personnel (including field personnel who visit sites and review records) familiar with the records and the time it takes to assemble and maintain these records. The estimates are not expressed in ranges of data. The burden estimates are published every 3 years in the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Applications for Premarket Review of New Tobacco Products.” The draft guidance is intended to assist persons submitting applications for new tobacco products under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The draft guidance explains, among other things, for new tobacco product applications, who submits, when and how to submit, what information the FD&C Act requires applicants to submit, and what information FDA recommends that applicants submit.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit written or electronic comments on the draft guidance by December 27, 2011.
Submit electronic comments on the draft guidance, including comments on the proposed collection of information, to
Submit written comments on the draft guidance, including comments regarding the proposed collection of information, to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Submit written requests for single copies of the draft guidance document entitled “Applications for Premarket Review of New Tobacco Products” to the Center for Tobacco Products, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850-3229. Send one self-addressed adhesive
FDA is announcing the availability of a draft guidance entitled “Applications for Premarket Review of New Tobacco Products.” This guidance, when finalized, will provide industry with information on how to submit an application for premarket review of a new tobacco product as required by section 910 of the FD&C Act (21 U.S.C. 387j). On June 22, 2009, the President signed the Tobacco Control Act (Pub. L. 111-31) into law. The Tobacco Control Act amends the FD&C Act and grants FDA authority to regulate the manufacture, marketing and distribution of tobacco products to protect public health generally and to reduce tobacco use by minors. Section 910 of the FD&C Act requires that FDA issue a market authorization order before a tobacco product may be introduced into interstate commerce when the tobacco product is new or modified in any way. Where a new tobacco product is not substantially equivalent to a tobacco product commercially marketed in the United States as of February 15, 2007, or exempt from the requirement to obtain a substantial equivalence determination under regulation, applicants must submit a premarket tobacco product application (PMTA) under section 910(b) of the FD&C Act and receive a marketing authorization order under section 910(c)(1)(A)(i) of the FD&C Act prior to marketing the product.
The draft guidance is intended to assist persons seeking a marketing authorization order under section 910 in submitting a PMTA. The guidance discusses, among other things, the statutory requirement to submit a PMTA, definitions, who submits a PMTA, when a PMTA should be submitted, how a PMTA should be submitted, how FDA will review a PMTA, contents of a PMTA, information to support a public health finding, exemptions for investigational use of new tobacco products, and confidentiality issues.
FDA is issuing this draft guidance document consistent with FDA's good guidance practices regulations (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on “Applications for Premarket Review of New Tobacco Products.” It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Under the Paperwork Reduction Act (the PRA) (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA is announcing the availability of the draft guidance entitled “Applications for Premarket Review of New Tobacco Products.” This guidance, when finalized, will provide industry with information on how to submit an application for premarket review of new tobacco products as required by section 910 of the FD&C Act.
On June 22, 2009, the President signed the Tobacco Control Act into law. The Tobacco Control Act grants FDA authority to regulate the manufacture, marketing, and distribution of tobacco products to protect public health generally and to reduce tobacco use by minors. Section 910(a)(1) of the FD&C Act requires persons who either create a new tobacco product that was not commercially marketed in the United States as of February 15, 2007, or modify a tobacco product in any way after February 15, 2007, “including a change in design, any component, any part, or any constituent, including a smoke constituent, or in the content, delivery, or form of nicotine, or any other additive or ingredient,” to submit a premarket tobacco product application and obtain an order from FDA authorizing the marketing of the product before the product may be introduced or delivered for introduction into interstate commerce, unless the product has been shown to be substantially equivalent to a tobacco product commercially marketed in the United States as of February 15, 2007, or exempt from a substantial equivalence determination under regulation.
The draft guidance entitled “Applications for Premarket Review of New Tobacco Products” explains the requirements and provides recommendations for the contents of an application for premarket review of a new tobacco product including a cover letter, an executive summary, full reports of all investigations of health risks, a full statement of all components, ingredients, additives, and properties, and of the principle or principles of operation of such tobacco product, a full description of methods of manufacturing and processing, a listing of all manufacturing, packaging, and control sites for the product, an explanation of how the product complies with applicable tobacco product standards, samples and components; and proposed labeling. As part of the application, if an applicant does not submit information on any of
FDA also encourages persons who would like to study their new tobacco product to meet with the Office of Science at the Center for Tobacco Products (CTP) to discuss their investigational plan prior to distributing the product for investigational purposes. The request for a meeting should be sent in writing to the Director of CTP's Office of Science and should include adequate information for FDA to assess the potential utility of the meeting and to identify FDA staff necessary to discuss proposed agenda items.
FDA is required to deny a PMTA and issue an order that the product may not be introduced or delivered for introduction into interstate commerce under section 910(c)(1)(A)(ii) of the FD&C Act if FDA finds that the manufacturer has not shown that the product is appropriate for the protection of the public health, the manufacturing methods, facilities, or controls do not conform to manufacturing regulations issued under section 906(e) (21 U.S.C. 387f(e)) of the FD&C Act, the proposed labeling is false or misleading, or the manufacturer has not shown that the product complies with any tobacco product standard in effect under section 907 of the FD&C Act (21 U.S.C. 387g).
Under section 902(6)(A) (21 U.S.C. 387b(6)(A)), a tobacco product is deemed adulterated if it is a new tobacco product and does not have an order in effect under section 910(c)(1)(A)(i) of the FD&C Act, as necessary under section 910(a) of the FD&C Act. Under section 301(a) of the FD&C Act (21 U.S.C. 331(a)), the introduction or delivery for introduction into interstate commerce of any adulterated tobacco product is a prohibited act. Violations of section 910 are subject to regulatory and enforcement action by FDA, including, but not limited to, seizure and injunction.
FDA estimates the burden of this collection of information as follows:
FDA estimates that each respondent will take approximately 5,000 hours to complete the information required in table 1 of this document to obtain an order from FDA allowing the marketing of a new tobacco product. FDA's estimate includes anticipated burden for the writing of an application, including intracompany edits and approvals, of approximately 200 hours. In addition, FDA expects that conducting the necessary scientific investigations for a new tobacco product will require, on average, 4,800 hours. FDA also estimates the number of PMTA applications that FDA expects to receive annually will be 20.
FDA anticipates that 18 potential respondents to this collection of information may need to meet with CTP's Office of Science to discuss their investigational plans. To request this meeting, applicants must compile and submit information to FDA for meeting approval. FDA estimates that it will take approximately 4 hours to compile this information, for a total of 72 hours additional burden (18 respondents × 4 burden hours).
FDA also estimates that 20 potential respondents will take approximately 12 hours to prepare and submit an environmental assessment under part 25 (21 CFR part 25) in accordance with the requirements of § 25.40, as referenced in 21 CFR 1107.1(b)(9).
The total burden for this collection of information is estimated to be 100,312 hours ((20 respondents multiplied by 5,000 per response) plus (18 respondents multiplied by 4 hours per response) plus (20 respondents multiplied by 12 hours per response)). These burden estimates were computed using FDA staff expertise and by reviewing comments received from recent FDA information collections for other tobacco-related initiatives.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain an electronic version of this guidance document at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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,
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Tumor Microenvironment Study Section, October 13, 2011, 8 a.m. to October 14, 2011, 5 p.m., Doubletree Hotel Washington, 1515 Rhode Island Ave, NW., Washington, DC 20005 which was published in the
The meeting will be held at the Hilton Alexandria Mark Center, 5000 Seminary Road, Alexandria, VA 22311. The meeting date and time remain the same. The meeting is closed to the public.
The National Institutes of Health (NIH) announces the persons who will serve on the NIH Senior Executive Service 2011 Performance Review Board. This action is being taken in accordance with Title 5, U.S.C., Section 4314(c)(4), which requires that members of performance review boards be appointed in a manner to ensure consistency, stability, and objectivity in performance appraisals and requires that notice of the appointment of an individual to serve as a member be published in the
The following persons will serve on the NIH Performance Review Board, which oversees the evaluation of performance appraisals of NIH Senior Executive Service (SES) members:
For further information about the NIH Performance Review Board, contact the Office of Human Resources, Workforce Relations Division, NIH, Building 31, Room B3C07, Bethesda, Maryland 20892, telephone 301-402-9203 (not a toll-free number).
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of
Submit comments on or before October 28, 2011. This new system will be effective October 28, 2011.
You may submit comments, identified by docket number DHS-2011-0087 by one of the following methods:
• Federal e-Rulemaking Portal:
•
•
•
•
For general questions please contact: Donald K. Hawkins (202-272-8030), Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW., Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS)/U.S. Citizenship and Immigration Services (USCIS) proposes to establish a new DHS system of records titled, “DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions System of Records.”
DHS/USCIS is creating a new electronic environment known as the Electronic Immigration System (USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit to register online and submit certain benefit requests through the online system. This system will improve customer service; increase efficiency for processing benefits; better identify potential national security concerns, criminality, and fraud; and create improved access controls and better auditing capabilities.
DHS and USCIS are promulgating the regulation “Immigration Benefits Business Transformation, Increment I” (August 29, 2011, 76 FR 53764) to allow for USCIS to transition to an electronic environment. This regulation will assist USCIS in the transformation of its electronics operations by removing references and processes that inhibit the use of electronic systems or constrain USCIS's ability to respond to changing workloads, priorities, and statutory requirements.
Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to the Applicant (Co-Applicants); and their attorneys and representatives accredited by the Board of Immigration Appeals (Representatives) may create individualized online accounts. These online accounts help Applicants and their Representatives file for benefits, track the status of open benefit requests, schedule appointments, change their addresses and contact information, and receive notices and notifications regarding their particular cases. Through USCIS ELIS, individuals may submit evidence electronically. Once an individual provides biographic information for one benefit request, USCIS ELIS uses that information to pre-populate any future benefit requests by the same individual. This eases the burden on an individual so he or she does not have to repeatedly type in the same information and also reduces the number of possible errors.
USCIS is publishing three System of Records Notices (SORNs) to cover the following three distinct processes of this new electronic environment and the privacy and security protections incorporated into USCIS ELIS:
1.
2.
3.
Electronic Immigration System-3 Automated Background Functions (USCIS ELIS Automated Background Functions) uses biographic information stored in Electronic Immigration System-2 Account and Case Management (USCIS ELIS Account and Case Management) to run a series of automated rules on that information, generating results, and assigning confidence and severity levels to the results to assist USCIS personnel reviewing the results. The results of all USCIS ELIS Automated Background Functions are returned to the account or case and are used and shared according to the Electronic Immigration System-2 Account and Case Management SORN. USCIS ELIS Automated Background Functions use this information to detect duplicates and related records, and to identify national security concerns, criminality, and fraud to ensure that serious or complex cases receive additional scrutiny.
In order to identify duplicate USCIS ELIS accounts, other USCIS records pertaining to the individual, and relationships among individuals with USCIS records, USCIS ELIS Automated Background Functions maintain a copy of biographical information from USCIS ELIS accounts and cases (described in the Electronic Immigration System-2 Account and Case Management SORN), as well as the following legacy USCIS systems: Alien File/Central Index System; Benefits Processing of Applicants other than Petitions for Naturalization, Refugee Status, and Asylum (CLAIMS 3); Computer Linked Application Information Management System (CLAIMS 4); Refugees, Asylum, and Parole System (RAPS); and Fraud Detection and National Security Data System (FDNS-DS).
USCIS ELIS Automated Background Functions automatically perform background checks when new information is received by querying several DHS, Federal Bureau of Investigation (FBI), and other agencies” law enforcement and/or immigration systems, as appropriate, to identify national security and/or law enforcement concerns.
Results from the de-duplication and relationship analysis and background checks are run against a set of USCIS analyst-derived rules to assign confidence levels indicating how strongly the information in one record matches another record, as well as a severity level indicating possible criminal, national security, or fraudulent activity. Each result will have a summary which will include the rule used to produce the result and any alerts or flags to control subsequent processing. Once the rules have returned results and confidence and severity levels are assigned, USCIS ELIS Automated Background Functions will route the case to the appropriate USCIS personnel based on the nature of the results.
Information is shared outside of DHS to perform system queries as part of USCIS ELIS Automated Background Functions. USCIS shares biographic information with the Department of State (DOS) and receives visa information in return. USCIS provides biometric and biographic information to, and receives criminal history information from, the FBI. USCIS provides biographic information to, and receives biographic and immigration court data from, the Department of Justice (DOJ) Executive Office of Immigration Review (EOIR).
The proposed routine uses are compatible with the purpose of the original collection. The routine uses have been tailored to ensure that the information within the system is shared through USCIS Automated Background Functions when an individual requests a benefit. Generally, all other sharing will occur out of the Electronic Immigration System-2 Account and Case Management SORN. However, pursuant to (b)(1) of the Privacy Act, this information may be shared with other parts of DHS if the individual has a need to know the information pursuant to his mission within the Department.
USCIS collects, uses, and maintains benefit request eligibility results pursuant to 8 U.S.C. 1103 and 8 U.S.C. 1225.
Consistent with DHS's information sharing mission, information stored in USCIS ELIS Automated Background Functions may be shared with other DHS components, as well as appropriate federal, state, local, tribal, territorial, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need-to-know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.
DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2), elsewhere in the
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions.
Unclassified, sensitive, for official use only, law enforcement sensitive.
Records are maintained at the United States Citizenship and Immigration
USCIS ELIS Automated Background Functions stores and/or uses information about individuals who previously received or petitioned for benefits in USCIS ELIS, or have information in USCIS legacy systems described under “records source,” under the Immigration and Nationality Act (INA), as amended. These individuals include: Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependants or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to the Applicant (Co-Applicants); attorneys and representatives accredited by the Board of Immigration Appeals (Representatives); and individuals that assist in the preparation of the benefit request.
• ELIS Account Number.
• Name.
• Date of Birth.
• Place of Birth.
• Country of Citizenship.
• Gender.
• Social Security Number, if applicable.
• Alien Number.
• Marital Status.
• Family Relationships.
• Current and Past Address Information.
• Current and Past Telephone Information.
• Case ID Number (specific to the benefit application).
• Application Type.
• Passport Information.
• Drivers License Number.
• E-mail Address.
• Eye Color.
• Hair Color.
• Height.
• Attorney or Accredited Representative Information.
• Employment Information.
• FBI Number, if available.
• Entry/Exit Data.
• Rules used to generate results, assign confidence and severity levels, assign system flags, and route cases.
8 U.S.C. 1103 and 8 U.S.C. § 1225.
The purpose of USCIS ELIS Automated Background Functions is to assist USCIS personnel in detecting duplicate and related accounts; identifying potential national security concerns, criminality, and fraud; as well as ensuring that serious or complex cases receive additional scrutiny.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To DOJ, including U.S. Attorney Offices, or other federal agencies conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. any employee of DHS in his/her official capacity;
3. any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. the U.S. or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To the Department of Justice (DOJ) Executive Office of Immigration Review (EOIR) in the processing of petitions or applications for benefits under INA, and all other immigration and nationality laws including treaties and reciprocal agreements.
H. To DOS in the processing of petitions or applications for benefits under INA, and all other immigration and nationality laws including treaties and reciprocal agreements.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.
Records may be retrieved by any of the data elements listed above or combination thereof.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
USCIS is currently in negotiations with NARA for approval of the USCIS ELIS data retention and archiving plan. USCIS proposes retaining the copy of biographic data stored in USCIS ELIS Automated Background Functions as long as the records exist in the source system. However, USCIS is reviewing its needs for the information as it transitions to a fully electronic environment and may amend its retention, as needed.
USCIS proposes that, in compliance with NARA General Records Schedule 24, section 6, “User Identification, Profiles, Authorizations, and Password Files,” internal user accounts will be destroyed or deleted six years after the user account is terminated, or when no longer needed for investigative or security purposes, whichever is later.
The DHS system manager is the Chief, Records Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it may maintain law enforcement information. However, DHS/USCIS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the National Records Center, FOIA/PA Office, P.O. Box 648010, Lee's Summit, MO 64064-8010. Specific FOIA contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are retrieved through, but not stored in, the USCIS ELIS Automated Background Functions from the following USCIS, DHS, and other federal agency systems of records:
• DHS/USCIS-015—Electronic Immigration System-2—Account and Case Management System of Records;
• DHS/USCIS-001—Alien File, Index, and National File Tracking System of Records;
• DHS/USCIS-007—Benefits Information System (BIS);
• DHS/USCIS-010—Asylum Information and Pre-Screening;
• DHS/USCIS-006—Fraud Detection and National Security Data System (FDNS-DS);
• DHS/CBP-011—U.S. Customs and Border Protection TECS;
• DHS/ICE-001—Student and Exchange Visitor Information System (SEVIS);
• DHS/ICE-011—Immigration Enforcement Operational Records System (ENFORCE);
• DHS/USVISIT-001—Arrival and Departure Information System (ADIS);
• DHS/USVISIT-0012—DHS Automated Biometric Identification System (IDENT);
• Department of State Consular Consolidated Database (CCD);
• JUSTICE/EOIR-001—Records and Management Information System;
• JUSTICE/FBI-002—FBI Central Records System; and
• JUSTICE/FBI-009—Fingerprint Identification Records System (FIRS).
In order to resolve identity and relationships, records stored in USCIS ELIS Automated Background Functions are obtained from the following USCIS systems of records: Electronic Immigration System-2 Account and Case Management; Alien File, Index, and National File Tracking; Fraud Detection and National Security Data System; Benefits Information System; and Asylum Information and Pre-Screening.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in this system require retrieving records from law enforcement systems. Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions in accordance with this rule.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to establish a new Department of Homeland Security system of records titled, “Department of Homeland Security/U.S. Citizenship and Immigration Services-014 Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests System of Records.” This system of records allows the Department of Homeland Security/U.S. Citizenship and Immigration Services to collect and maintain records on an individual as he or she creates a temporary electronic account and/or drafts a benefit request for submission through U.S. Citizenship and Immigration Services Electronic Immigration System. This newly established system will be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before October 27, 2011. This new system will be effective October 27, 2011.
You may submit comments, identified by docket number DHS-2011-0084 by one of the following methods:
•
•
•
•
•
For general questions please contact: Donald K. Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) proposes to establish a new DHS system of records titled, “DHS/USCIS-014 Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests System of Records.”
DHS/USCIS is creating a new electronic environment known as the Electronic Immigration System (USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit to register online and submit certain benefit requests through the online system. This system will improve customer service; increase efficiency for processing benefits; better identify potential national security concerns, criminality, and fraud; and create improved access controls and better auditing capabilities.
DHS and USCIS are promulgating the regulation “Immigration Benefits Business Transformation, Increment I” (August 29, 2011, 76 FR 53764) to allow USCIS to transition to an electronic environment. This regulation will assist USCIS in the transformation of its operations by removing references and processes that inhibit the use of electronic systems or constrain USCIS's ability to respond to new requirements.
Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to an Applicant (Co-Applicants); and their attorneys and representatives accredited by the Board of Immigration Appeals (Representatives) may create individualized online accounts. These online accounts help Applicants and their Representatives file for benefits, track the status of open benefit requests, schedule appointments, change their addresses and contact information, and receive notices and notifications regarding their cases. Through USCIS ELIS, individuals may submit evidence electronically. Once an individual provides biographic information in one benefit request, USCIS ELIS uses that information to pre-populate any future benefit requests. This eases the burden on an individual so he or she does not have to repeatedly type in the same information. USCIS is publishing three SORNs to cover the three distinct phases of the benefit request process of this new electronic environment and the privacy and security protections incorporated into USCIS ELIS. The SORNs address the new electronic environment in the following different processes:
1. Temporary Accounts and Draft Benefit Requests: The Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests SORN (DHS/USCIS-014) addresses temporary data provided by Applicants or Representatives. This temporary data includes temporary accounts for first-time Applicants and draft benefit request data from first-time Applicants, Applicants with permanent accounts, and Representatives. Applicants first interact with USCIS ELIS by creating a temporary account, setting notification preferences, and drafting the first benefit request. If a first-time Applicant does not formally submit a benefit request within 30 days of opening the temporary account, USCIS ELIS deletes the temporary account and all draft benefit request data. If a first-time Applicant submits the benefit request within 30 days, USCIS ELIS changes the status of the account from temporary to permanent. Applicants with permanent USCIS ELIS accounts or Representatives may also draft benefit requests. USCIS ELIS deletes all draft benefit requests if they are not submitted within 30 days of initiation.
2. Account and Case Management: The Electronic Immigration System-2 Account and Case Management SORN (DHS/USCIS-015) addresses the activities undertaken by USCIS after Applicants or Representatives submit a benefit request. USCIS ELIS uses information provided on initial and subsequent benefit requests and subsequent collections through the Account and Case Management process to create or update USCIS ELIS accounts; collect any missing information; manage workflow; assist USCIS adjudicators as they make a benefit determination; and provide a repository of data to assist with future benefit requests. In addition, USCIS ELIS processes and tracks all actions related to the case, including scheduling appointments and issuing decision notices and/or proofs of benefit.
3. Automated Background Functions: The Electronic Immigration System-3 Automated Background Functions SORN (DHS/USCIS-016) addresses the actions USCIS ELIS takes to detect duplicate and related accounts and identify potential national security concerns, criminality, and fraud to ensure that serious or complex cases receive additional scrutiny.
This SORN addresses the USCIS ELIS temporary account process for first-time Applicants in USCIS ELIS and the draft benefit request process for all Applicants and Representatives. Because USCIS ELIS collects this information before a benefit request is submitted, USCIS does not have an official need-to-know the information in the drafted benefit request. USCIS is segregating temporary account and draft
USCIS ELIS creates temporary accounts for Applicants that have not previously submitted a benefit request through USCIS ELIS. These temporary accounts permit the first-time Applicant to log in to USCIS ELIS, set notification preferences, and draft a benefit request. If no benefit request is submitted within 30 days of initiation, USCIS ELIS deletes the temporary account. This minimizes the time USCIS ELIS retains personally identifiable information (PII) about individuals that have no pending benefit requests with USCIS, while still giving Applicants time to draft and submit a benefit request. If the Applicant submits a benefit request within the time allotted, USCIS ELIS will convert the temporary account to a permanent account and treat it according to the Electronic Immigration System-2 Account and Case Management SORN and Electronic Immigration System-3 Automated Background Functions SORN.
USCIS ELIS retains benefit requests drafted by Applicants or Representatives for 30 days from initiation to further minimize the PII retained by USCIS ELIS. This information is not accessible by USCIS personnel (aside from system administrators for system maintenance) and will only be shared internally for system maintenance purposes and externally to reduce the harm to individuals in the event the system is compromised. However, once a benefit request has been formally submitted to USCIS, the information will be retained and used according to the Electronic Immigration System-2 Account and Case Management SORN and Electronic Immigration System-3 Automated Background Functions SORN in order to maintain USCIS ELIS accounts and determine eligibility for requested benefits.
USCIS ELIS collects information previously collected on different forms. In the first release of USCIS ELIS, USCIS collects information from the following forms:
• I-90—Application to Replace Permanent Residence Card (1615-0082), 08/31/12;
• I-129—Petition for a Nonimmigrant Worker (1615-0009), 10/31/13;
• I-131—Application for Travel Document (1615-0013), 03/31/12;
• I-140—Immigrant Petition for Alien Worker (1615-0015), 01/31/13;
• I-539—Application to Extend/Change Nonimmigrant Status (1615-0003), 02/29/12;
• I-539—Application to Extend/Change Nonimmigrant Status (On-Line Application) (Pending);
• I-765—Application for Employment Authorization (1615-0040), 09/30/11;
• I-821—Application for Temporary Protected Status (1615-0043), 10/31/13;
• I-907—Request for Premium Processing Service (1615-0048), 08/31/11;
• AR-11—Alien Change of Address Card System (1615-0007), 09/30/11; and
• G-28 Notice of Entry of Appearance as Attorney or Accredited Representative (1615-0105), 04/30/12.
Additional forms from which information will be collected will be posted to the USCIS ELIS website as the system develops.
USCIS collects, uses, and maintains temporary account and draft benefit request information pursuant to the Immigration and Nationality Act of 1952, Public Law No. 82-414, sections 101 and 103, as amended.
This newly established system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of the DHS/USCIS-014 Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
DHS/USCIS-014 Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests System of Records.
Unclassified .
Records are maintained at the USCIS Headquarters in Washington, DC and field offices.
Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests (USCIS ELIS Temporary Accounts and Draft Benefit Requests) stores and/or uses information about individuals who receive or petition for benefits under the Immigration and Nationality Act, as amended. These individuals include: Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to an Applicant (Co-Applicants); attorneys and Board of Immigration Appeals accredited representatives (Representatives); and individuals that assist in the preparation of the benefit request.
Temporary USCIS ELIS account information includes the following from all of the categories of individuals above. If an Applicant or Representative formally submits a benefit request within the 30-day window, USCIS proposes converting the temporary account to a permanent USCIS ELIS
• Valid e-mail address
• Password
• Challenge questions and answers
• Telephone Number (optional)
All benefit requests about the Applicant or Co-Applicant includes the following information:
• Alien Registration Number(s).
• Full name and any alias(es) used.
• Physical and mailing address(es).
• Immigration status.
• Date of birth.
• Place of birth (city, state, and country).
• Country of citizenship.
• Gender.
• Contact information (Phone number(s), E-mail address).
• Military status.
• Government-issued identification (
○ document type.
○ issuing organization.
○ document number.
○ expiration date.
• Benefit requested.
• IP Address.
• Browser information.
• USCIS ELIS account number (for returning Applicants).
The following information may be requested for benefit-specific eligibility:
• Arrival/Departure Information.
• Family Relationships (
• USCIS Receipt/Case Number.
• Personal Background Information (e.g., involvement with national security threats, Communist party, torture, genocide, killing, injuring, forced sexual contact, limiting or denying others religious beliefs; service in military or other armed groups; work in penal or detention systems, weapons distribution, combat training, etc.).
• Health Information (e.g., communicable disease, physical or mental disorder, prostitution, drug abuse, etc.).
• Education History.
• Work History.
• Financial Information (income, expenses, scholarships, savings, assets, property, financial support, supporter information, life insurance, debts, encumbrances, etc.).
• Social Security Number, if applicable.
• Supporting documentation as necessary (i.e. Birth Certificate).
• Criminal Records.
Preparer information includes:
• Name.
• Organization.
• Physical and Mailing Addresses.
• Phone and Fax Numbers.
• Paid/Not Paid.
• Relationship to Applicant.
Representative information includes:
• Name.
• Law Firm/Recognized Organization.
• Physical and Mailing Addresses.
• Phone and Fax Numbers.
• E-mail Address.
• Attorney Bar Card Number or Equivalent.
• BAR Membership.
• Accreditation Date.
• BIA Representative Accreditation Expiration Date.
• Law Practice Restriction Explanation.
The Immigration and Nationality Act of 1952, Public Law 82-414, sections 101 and 103, as amended.
The purpose of the system collecting this information is to provide an Applicant with a temporary account so that he or she may submit a benefit request through USCIS ELIS for the first time. All draft benefit request information is collected to assist the Applicant or Representative in providing all of the information necessary to request a benefit. If a first-time Applicant does not formally submit a benefit request within 30 days of opening the temporary account, the information will be deleted. If an Applicant or Representative formally submits a benefit request within the 30-day window, USCIS proposes converting the temporary account to a permanent USCIS ELIS account and retaining the information according to the USCIS ELIS Account and Case Management SORN and USCIS ELIS Automated Background Functions SORN.
A. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity), or harm to the individual that relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and/or persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
B. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
If a benefit request has been submitted to USCIS within 30 days of initiation, the information will become permanent and shared according to the routine uses listed in the Electronic Immigration System-2 Account and Case Management SORN and Electronic Immigration System-3 Automated Background Functions SORN in order to maintain USCIS ELIS accounts and determine eligibility for requested benefits.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc and/or tape to maintain a real-time copy of the data for disaster recovery purposes. Real-time copies of data are deleted at the same time as the original data.
Records may be retrieved by any of the data elements listed above or combination thereof.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems
USCIS has submitted to the National Archives and Records Administration (NARA) a retention schedule for these records. USCIS proposes that information collected for an Applicant's temporary account and all draft benefit requests will be retained for 30 days after initiation. If a first-time Applicant does not formally submit a benefit request within 30 days of opening the temporary account, the information will be deleted. If an Applicant or Representative formally submits a benefit request within the 30-day window, USCIS proposes converting the temporary account to a permanent USCIS ELIS account and retaining the information according to the Electronic Immigration System-1 Account and Case Management SORN and Electronic Immigration System-2 Automated Background Functions SORN.
The DHS system manager is the Chief, Records Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may log in to USCIS ELIS to amend their information within the 30-day window. If they submit a benefit request, the information will still be available by logging in to their USCIS ELIS account and may be amended through the processes described in the USCIS ELIS Account and Case Management SORN and USCIS ELIS Automated Background Functions SORN.
Because of the temporary nature of this data, records will not likely be available for FOIA requests. However, individuals are free to request records pertaining to them by submitting a request in writing to the National Records Center, FOIA/PA Office, P.O. Box 648010, Lee's Summit, MO 64064-8010. Specific FOIA contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from the Applicant or his or her Representative.
None.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to establish a new system of records titled, “Department of Homeland Security/Federal Emergency Management Agency—012 Suspicious Activity Reporting System of Records.” This system of records allows the Department of Homeland Security/Federal Emergency Management Agency to collect, maintain, and retrieve records on individuals who report suspicious activities, individuals reported as being involved in suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports. Additionally, the Department of Homeland Security/Federal Emergency Management Agency is issuing a Notice of Proposed Rulemaking elsewhere in the
Submit comments on or before October 27, 2011. This new system will be effective October 27, 2011.
You may submit comments, identified by docket number DHS-2011-0090 by one of the following methods:
For general questions please contact: Dr. Lesia Banks, (202-646-3323), Acting Privacy Officer, Federal Emergency Management Agency, Department of Homeland Security, Washington, DC 20478. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA) proposes to establish a new DHS/FEMA system of records titled, “DHS/FEMA—012 Suspicious Activity Reporting System of Records.”
FEMA's mission is to “support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.” FEMA will collect, maintain, and retrieve records on individuals who report suspicious activities, individuals reported as being involved in suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports. FEMA's Office of the Chief Security Officer (OCSO), Fraud and Investigations Unit, manages this process. To reduce any risk of unauthorized access, FEMA SARs are secured in a room monitored by FEMA OCSO special agents and analysts.
FEMA SARs may shared with federal, state, local, and tribal jurisdictions that hold the responsibility of investigating suspicious activities within their jurisdictions. FEMA SARs that do not have a nexus to terrorism or hazards to homeland security, as determined by FEMA OCSO special agents or analysts, are forwarded to the appropriate jurisdiction, such as sheriff offices, county/city police, and state police. FEMA SARs that have a nexus to terrorism or hazards to homeland security, as determined by FEMA OCSO special agents or analysts, are shared with the Federal Bureau of Investigations (FBI) Joint Terrorism Task Force (JTTF), Federal Protective Service, and/or other federal agencies required to investigate and respond to terrorist threats or hazards to homeland security.
FEMA's SAR process is authorized and governed by 44 CFR Chapter 2 “Delegation of Authority;” 42 U.S.C. 5196(d); Executive Orders 12333 and 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. 314; The Homeland Security Act of 2002, as amended; the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; the National Security Act of 1947, as amended; and FEMA Manual 1010-1 “Federal Emergency Management Agency Missions and Functions.”
Consistent with DHS's information sharing mission, information stored in the DHS/FEMA—012 Suspicious Activity Reporting System of Records may be shared with other DHS components, as well as appropriate federal, state, local, tribal, territorial, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.
Additionally, DHS is issuing a Notice of Proposed Rulemaking (NPRM) elsewhere in the
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals” records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of the DHS/FEMA—12 Suspicious Activity Reporting System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
DHS FEMA—012 Suspicious Activity Reporting.
For official use only (FOUO) and law enforcement sensitive (LES).
Records are maintained at FEMA Headquarters in Washington, DC and field offices.
Individuals who report suspicious activities, individuals reported as being involved in suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports.
• Case/incident number;
• Name (first, middle, and last);
• Address (number, street, apartment, city, and state);
• Age;
• Sex;
• Race;
• Signature (investigator, analyst, or LEO);
• Jurisdiction;
• Injury code if applicable;
• Telephone numbers (home, business, or cell);
• Other contact information (
• Property information (name, quantity, serial number, brand name, model, value, year, make, color, identifying characteristics, and/or registration information).
44 CFR Chapter 2 “Delegation of Authority;” 42 U.S.C. 5196(d); Executive Orders 12333 and 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. 314; The Homeland Security Act of 2002, as amended; the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; the National Security Act of 1947, as amended; and FEMA Manual 1010-1 “Federal Emergency Management Agency Missions and Functions.”
The purpose of this system is to collect, investigate, analyze, and report
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including U.S. Attorney Offices, or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The U.S. or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To an appropriate federal, state, tribal, local, international counterterrorism agencies where DHS becomes aware of an indication of a threat or potential threat to security, and where such use is to assist in counterterrorism efforts.
I. To an organization or individual in either the public or private sector, either foreign or domestic, where there is a reason to believe that the recipient is or could become the target of a particular terrorist activity or conspiracy, to the extent the information is relevant to the protection of life, property or other vital interests of a data subject and disclosure is proper and consistent with the official duties of the person making the disclosure.
J. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.
Records may be retrieved by case/incident number, name, address, and/or date.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Pursuant to National Archives and Records Administration (NARA) Schedule Number N1-311-99-6, Items 1, 2, and 3, files containing information or allegations which are of an investigative nature but do not relate to a specific investigation are destroyed when five years old. Investigative case files that involve allegations made against senior agency officials, attract significant attention in the media, attract congressional attention, result in substantive changes in agency policies and procedures, or are cited in the OIG's periodic reports to Congress are cut off when the case is closed, retired to the Federal Records Center (FRC) 5 years after cutoff, and then transferred to NARA 20 years after cutoff. All other investigative case files except those that are unusually significant for documenting major violations of criminal law or ethical standards by agency officials or others are placed in inactive files when case is closed, cut
Office of the Chief Security Officer, Fraud and Investigation Unit, 1201 Maryland Avenue, SW., Washington, DC 20024.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS/FEMA will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief of the FEMA Disclosure Branch whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from individuals who report suspicious activities, individuals reported as being involved in suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports, commercially available systems, and also from other federal, state, and local law enforcement agencies.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a (k)(2).
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to establish a new Department of Homeland Security system of records titled, “Department of Homeland Security/U.S. Citizenship and Immigration Services 015 Electronic Immigration System-2 Account and Case Management System of Records.” This system of records will allow the Department of Homeland Security/U.S. Citizenship and Immigration Services to collect and maintain records on an individual after he or she submits a benefit request and/or updates account information to create or update U.S. Citizenship and Immigration Services Electronic Immigration System accounts; gather any missing information; manage workflow; assist U.S. Citizenship and Immigration Services in making a benefit determination; and provide a repository of data to assist with the efficient processing of future benefit requests. U.S. Citizenship and Immigration Services Electronic Immigration System-2 Account and Case Management process will also be used to process and track all actions related to a particular case, including scheduling appointments and issuing decision notices and/or proofs of benefit. Additionally, the Department of Homeland Security is issuing a Notice of Proposed Rulemaking elsewhere in the
Submit comments on or before October 27, 2011.
You may submit comments, identified by docket number DHS-2011-0085 by one of the following methods:
For general questions please contact: Donald K. Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) proposes to establish a new DHS system of records titled, “DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records.”
DHS and USCIS are promulgating the regulation “Immigration Benefits Business Transformation, Increment I” (August 29, 2011, 76 FR 53764) to allow for USCIS to transition to an electronic environment. This regulation will assist USCIS in the transformation of its operations by removing references and processes that inhibit the use of electronic systems or constrain USCIS's ability to respond to changing workloads, priorities, or statutory requirements.
DHS/USCIS is creating a new electronic environment known as the Electronic Immigration System (USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit to register online and submit certain benefit requests through the online system. This system will improve customer service; increase efficiency for processing benefits; better identify potential national security concerns, criminality, and fraud; and create improved access controls and better auditing capabilities.
Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to an Applicant (Co-Applicants); and their attorneys and representatives accredited by the Board of Immigration Appeals (Representatives) may create individualized online accounts. These online accounts help Applicants and their Representatives file for benefits, track the status of open benefit requests, schedule appointments, change their addresses and contact information, and receive notices and notifications regarding their particular cases. Through USCIS ELIS, individuals may submit evidence electronically. Once an individual provides biographic information for one benefit request, USCIS ELIS uses that information to pre-populate any future benefit requests by the same individual. This eases the burden on an individual so he or she does not have to repeatedly type in the same information and also reduces the number of possible errors. USCIS is publishing three SORNs to cover the three distinct phases of the benefit request process of this new electronic environment and the privacy and security protections incorporated into USCIS ELIS. The SORNs address the new electronic environment in the following different processes:
1.
2.
3.
This SORN addresses the USCIS ELIS account and case management process for applicants. Information for Electronic Immigration System-2 Account and Case Management (USCIS ELIS Account and Case Management) is derived from multiple sources. The main source of information is the benefit request formally submitted by the Applicant or Representative (see Electronic Immigration System-1 Temporary Accounts and Draft Benefits Requests SORN). Upon the formal submission of a benefit request to USCIS, this information will no longer be considered temporary and is subject to the retention schedules provided for in this SORN.
USCIS ELIS collects information previously collected on different forms. In the first release of USCIS ELIS, USCIS collects information from the following legacy forms:
• I-90—Application to Replace Permanent Residence Card (1615-0082), 08/31/12;
• I-129—Petition for a Nonimmigrant Worker (1615-0009), 10/31/13;
• I-131—Application for Travel Document (1615-0013), 03/31/12;
• I-140—Immigrant Petition for Alien Worker (1615-0015), 01/31/13;
• I-539—Application to Extend/Change Nonimmigrant Status (1615-0003), 02/29/12;
• I-539—Application to Extend/Change Nonimmigrant Status (On-Line Application) (Pending);
• I-765—Application for Employment Authorization (1615-0040), 09/30/11;
• I-821—Application for Temporary Protected Status (1615-0043), 10/31/13;
• I-907—Request for Premium Processing Service (1615-0048), 08/31/11;
• AR-11—Alien Change of Address Card System (1615-0007), 09/30/11; and
• G-28—Notice of Entry of Appearance as Attorney or Accredited Representative (1615-0105), 04/30/12.
The information collected throughout the USCIS ELIS Account and Case Management process is necessary to conduct an accurate and thorough adjudication of a request for immigration benefits. USCIS ELIS will use information provided in an Applicant's benefit request, account
Results from Electronic Immigration System-3 Automated Background Functions (USCIS ELIS Automated Background Functions) will also be stored in the individual's USCIS ELIS account and/or case. This includes information from other USCIS, DHS, and federal government systems to confirm identity, determine eligibility, and perform background checks. USCIS ELIS Account and Case Management may store information from DHS systems including: DHS/USCIS-001—Alien File, Index, and National File Tracking System of Records; DHS/USCIS-007—Benefits Information System (BIS); DHS/USCIS/010—Asylum Information and Pre-Screening; DHS/USCIS-006—Fraud Detection and National Security Data System (FDNS-DS); DHS/CBP-011—U.S. Customs and Border Protection TECS; DHS/ICE-001—Student and Exchange Visitor Information System (SEVIS); DHS/ICE-011—Immigration Enforcement Operational Records System (ENFORCE); DHS/USVISIT-001—Arrival and Departure Information System (ADIS); and DHS/USVISIT-0012—DHS Automated Biometric Identification System (IDENT). Furthermore, USCIS ELIS Account and Case Management may store information from systems outside of DHS, including: Department of State Consular Consolidated Database (CCD); JUSTICE/EOIR-001-Records and Management Information System; JUSTICE/FBI-002-FBI Central Records System; JUSTICE/FBI-009-Fingerprint Identification Records System (FIRS); and TREASURY/FMS-017-Collections Records—Treasury/Financial Management Service.
To protect Applicant, Co-Applicant, and Representative information, USCIS ELIS will employ role-based access controls to ensure internal users of the system do not have access to information beyond the functions of their employment. USCIS ELIS will also maintain audit logs of account access information by recording user identification and the date and time of access. Case and account histories are kept in order to track who created, deleted, or edited a record and when the change was made.
USCIS collects, uses, and maintains account and case management information pursuant to Sections 103 and 290 of the Immigration and Nationality Act (INA), as amended (8 U.S.C. 1103 and 1360), and the regulations issued pursuant thereto; and Section 451 of the Homeland Security Act of 2002 (Pub. L. 107-296).
Consistent with DHS's information sharing mission, information stored in the Electronic Immigration Services-2 Account and Case Management SORN may be shared with other DHS components, as well as appropriate federal, state, local, tribal, territorial, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need-to-know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice. USCIS provides information related to the immigration status of persons to employers participating in the USCIS E-Verify program (
DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2), elsewhere in the
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of the DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
DHS/USCIS-015 Electronic Immigration System-2 Account and Case Management System of Records.
Unclassified, sensitive, for official use only, law enforcement sensitive.
Records are maintained at the USCIS Headquarters in Washington, DC and field offices.
USCIS ELIS Account and Case Management stores and/or uses information about individuals who receive or petition for benefits under the Immigration and Nationality Act, as amended. These individuals include: Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to an Applicant (Co-Applicants); attorneys and representatives accredited by the Board of Immigration Appeals (Representatives); and individuals that assist in the preparation of the benefit request.
Information about Applicants and Co-Applicants may include:
• USCIS ELIS account number.
• Alien Registration Number(s).
• Family Name.
• Given Name.
• Middle Name.
• Alias(es).
• Physical and mailing address(es):
○ Address.
○ Unit Number.
○ City.
○ State.
○ ZIP Code.
○ Postal Code.
○ Province.
○ Country.
• Date of Birth.
• Deceased Date.
• Nationality.
• Country of Citizenship.
• City of Birth.
• State of Birth.
• Province of Birth.
• Country of Birth.
• Gender.
• Marital Status.
• Military Status.
• Preferred Contact Method.
• Phone Number.
• Phone Extension.
• E-mail Address.
• Password.
• Challenge questions and answers.
• Immigration status.
• Government-issued identification (
○ Document type.
○ Issuing organization.
○ Document number.
○ Expiration date.
• Benefit requested.
• Preparer Information (name, address, organization, e-mail, phone number, relation, paid/unpaid).
• Signature (electronic or scanned physical signature).
• Pay.gov payment tracking number.
• IP Address and browser information.
• USCIS ELIS case submission confirmation number.
Benefit-specific eligibility information (if applicable) may include:
• Arrival/Departure Information.
• Family Relationships (
• USCIS Receipt/Case Number.
• Personal Background Information (
• Health Information (
• Education History.
• Work History.
• Financial Information (income, expenses, scholarships, savings, assets, property, financial support, supporter information, life insurance, debts, encumbrances, etc.).
• Social Security Number (SSN), if applicable.
• Supporting documentation as necessary (
• Physical Description.
• Fingerprint(s).
• Photographs.
• FBI Identification Number.
• Fingerprint Identification Number.
• Criminal Records.
• Criminal and National Security background check information.
Preparer information includes:
• Name.
• Organization.
• Physical and Mailing Addresses.
• Phone and Fax Numbers.
• Paid/Not Paid.
• Relationship to Applicant.
Representative information includes:
• Name.
• Law Firm/Recognized Organization.
• Physical and Mailing Addresses.
• Phone and Fax Numbers.
• E-mail Address.
• Attorney Bar Card Number or Equivalent.
• BAR Membership.
• Accreditation Date.
• BIA Representative Accreditation Expiration Date.
• Law Practice Restriction Explanation.
Authority for maintaining this system is in Sections 103 and 290 of the INA, as amended (8 U.S.C. 1103 and 1360), and the regulations issued pursuant thereto; and Section 451 of the Homeland Security Act of 2002 (Pub. L. 107-296).
The purpose of this system is to manage USCIS ELIS accounts; gather information related to a benefit request; manage workflow; generate reports; assist USCIS in making a benefit determination; and provide a repository of data to assist with future benefit requests. In addition, the USCIS ELIS Account and Case Management process will be used to process and track all actions related to the case, including scheduling appointments and issuing decision notices and/or proofs of benefit.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including U.S. Attorney Offices, or other federal agencies conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. If the U.S. or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity), or harm to the individual that relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To clerks and judges of courts exercising naturalization jurisdiction for the purpose of filing petitions for naturalization and to enable such courts to determine eligibility for naturalization or grounds for revocation of naturalization.
I. To courts, magistrates, administrative tribunals, opposing counsel, parties, and witnesses, in the course of immigration, civil, or criminal proceedings before a court or adjudicative body when:
1. DHS or any component thereof; or
2. Any employee of DHS in his or her official capacity; or
3. Any employee of DHS in his or her individual capacity where the agency has agreed to represent the employee; or
4. The United States, where DHS determines that litigation is likely to affect DHS or any of its components;
Is a party to litigation or has an interest in such litigation, and DHS determines that use of such records is relevant and necessary to the litigation, and that in each case, DHS determines that disclosure of the information to the recipient is a use of the information that is compatible with the purpose for which it was collected.
J. To an attorney or representative (as defined in 8 CFR 1.1(j)) who is acting on behalf of an individual covered by this system of records in connection with any proceeding before USCIS, ICE, or CBP or the DOJ Executive Office for Immigration Review (EOIR).
K. To DOJ (including United States Attorneys' Offices) or other federal agencies conducting litigation or in proceedings before any court, adjudicative or administrative body, where necessary to assist in the development of such agency's legal and/or policy position.
L. To the Department of State (DOS) in the processing of petitions or applications for benefits under the Immigration and Nationality Act, and all other immigration and nationality laws including treaties and reciprocal agreements; or when DOS requires information to consider and/or provide an informed response to a request for information from a foreign, international, or intergovernmental agency, authority, or organization about an alien or an enforcement operation with transnational implications.
M. To appropriate federal, state, local, tribal, territorial, or foreign governments, as well as to other individuals and organizations during the course of an investigation by DHS or the processing of a matter under DHS's jurisdiction, or during a proceeding within the purview of the immigration and nationality laws, when DHS deems that such disclosure is necessary to carry out its functions and statutory mandates to elicit information required by DHS to carry out its functions and statutory mandates.
N. To an appropriate federal, state, tribal, territorial, local, or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence and the disclosure is appropriate to the proper performance of the official duties of the person receiving the information.
O. To an appropriate federal, state, local, tribal, territorial, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit.
P. To an individual's current employer to the extent necessary to determine employment eligibility or to a prospective employer or government agency to verify an individual is eligible for a government-issued credential that is a condition of employment.
Q. To a former employee of DHS, in accordance with applicable regulations, for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
R. To the Office of Management and Budget (OMB) in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in the Circular.
S. To the U.S. Senate Committee on the Judiciary or the U.S. House of Representatives Committee on the Judiciary when necessary to inform members of Congress about an alien who is being considered for private immigration relief.
T. To a federal, state, tribal, or local government agency and/or to domestic courts to assist such agencies in collecting the repayment of loans, or fraudulently or erroneously secured benefits, grants, or other debts owed to them or to the U.S. Government, or to obtain information that may assist DHS in collecting debts owed to the U.S. Government;
U. To an individual or entity seeking to post or arrange, or who has already posted or arranged, an immigration bond for an alien to aid the individual or entity in (1) Identifying the location of the alien, or (2) posting the bond, obtaining payments related to the bond, or conducting other administrative or financial management activities related to the bond.
V. To a coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
W. Consistent with the requirements of the INA, to the Department of Health and Human Services (HHS), the Centers for Disease Control and Prevention (CDC), or to any state or local health authorities, to:
1. Provide proper medical oversight of DHS-designated civil surgeons who perform medical examinations of both arriving aliens and of those requesting status as a lawful permanent resident; and
2. Ensure that all health issues potentially affecting public health and safety in the United States are being or have been adequately addressed.
X. To a federal, state, local, tribal, or territorial government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law.
Y. To the Social Security Administration (SSA) for the purpose of issuing a SSN and Social Security card to an alien who has made a request for a SSN as part of the immigration process and in accordance with any related agreements in effect between the SSA, DHS, and DOS entered into pursuant to 20 CFR 422.103(b)(3); 422.103(c); and 422.106(a), or other relevant laws and regulations.
Z. To federal and foreign government intelligence or counterterrorism agencies or components where DHS becomes aware of an indication of a threat or potential threat to national or international security, or where such use is to conduct national intelligence and security investigations or assist in anti-terrorism efforts.
AA. To third parties to facilitate placement or release of an individual (
BB. To foreign governments for the purpose of coordinating and conducting the removal of individuals to other nations under the INA; and to international, foreign, and intergovernmental agencies, authorities, and organizations in accordance with law and formal or informal international arrangements.
CC. To a federal, state, local, territorial, tribal, international, or foreign criminal, civil, or regulatory law enforcement authority when the information is necessary for collaboration, coordination, and de-confliction of investigative matters, prosecutions, and/or other law enforcement actions to avoid duplicative or disruptive efforts and to ensure the safety of law enforcement officers who may be working on related law enforcement matters.
DD. To the DOJ Federal Bureau of Prisons and other federal, state, local, territorial, tribal, and foreign law enforcement or custodial agencies for the purpose of placing an immigration detainer on an individual in that agency's custody, or to facilitate the transfer of custody of an individual from DHS to the other agency. This will include the transfer of information about unaccompanied minor children to HHS to facilitate the custodial transfer of such children from DHS to HHS.
EE. To federal, state, local, tribal, territorial, or foreign governmental or quasi-governmental agencies or courts to confirm the location, custodial status, removal, or voluntary departure of an alien from the United States, in order to facilitate the recipients' exercise of responsibilities pertaining to the custody, care, or legal rights (including issuance of a U.S. passport) of the removed individual's minor children, or the adjudication or collection of child support payments or other debts owed by the removed individual.
FF. To a federal, state, tribal, territorial, local, international, or foreign government agency or entity for the purpose of consulting with that agency or entity: (1) To assist in making a determination regarding redress for an individual in connection with the operations of a DHS component or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.
GG. To the Department of Treasury to process and resolve payment issues.
HH. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.
Records may be retrieved by any of the data elements listed above or combination thereof.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need-to-know the information for the performance of their official duties and who have appropriate clearances or permissions.
USCIS is currently in negotiations with NARA for approval of the USCIS ELIS data retention and archiving plan. USCIS proposes retaining information for the retention periods of the underlying forms. Account information will be stored for 15 years from last action. However, USCIS is reviewing its needs for the information as it transitions to a fully electronic environment and may amend its retention, as needed.
USCIS proposes that, in compliance with NARA General Records Schedule 24, section 6, “User Identification, Profiles, Authorizations, and Password Files,” internal USCIS personnel accounts will be destroyed or deleted six years after the account is terminated, or when no longer needed for
The DHS system manager is the Chief, Records Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529.
Applicants may access and amend this information by logging in to their USCIS ELIS account. Pursuant to 8 CFR 103.2 (a)(3), Co-Applicants may access their information by logging in to USCIS ELIS after the benefit request has been approved or denied. Further, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the National Records Center, FOIA/PA Office, P.O. Box 648010, Lee's Summit, MO 64064-8010. Specific FOIA contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from the Applicant or his or her Representative. USCIS personnel may input information as they process a case, including information from commercial sources, like LexisNexis or Dunn and Bradstreet, to verify whether an Applicant or Co-Applicant is eligible for the benefit requested. USCIS ELIS Account and Case Management will also store and use information from the following USCIS, DHS, and other federal agency systems of records:
• DHS/USCIS-001—Alien File, Index, and National File Tracking System of Records;
• DHS/USCIS-007—Benefits Information System (BIS);
• DHS/USCIS-010—Asylum Information and Pre-Screening;
• DHS/USCIS-006—Fraud Detection and National Security Data System (FDNS-DS);
• DHS/USCIS-014—Electronic Immigration System-1 Temporary Accounts and Draft Benefit Requests System of Records;
• DHS/USCIS-016—Electronic Immigration System-3 Automated Background Functions System of Records;
• DHS/CBP-011—U.S. Customs and Border Protection TECS;
• DHS/ICE-001—Student and Exchange Visitor Information System (SEVIS);
• DHS/ICE-011—Immigration Enforcement Operational Records System (ENFORCE);
• DHS/USVISIT-001—Arrival and Departure Information System (ADIS);
• DHS/USVISIT-0012—DHS Automated Biometric Identification System (IDENT);
• Department of State Consular Consolidated Database (CCD);
• JUSTICE/EOIR-001—Records and Management Information System;
• JUSTICE/FBI-002—FBI Central Records System;
• JUSTICE/FBI-009—Fingerprint Identification Records System (FIRS); and
• TREASURY/FMS-017—Collections Records Treasury/Financial Management Service.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in this system require retrieving records from law enforcement systems. Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions in accordance with this rule.
Coast Guard, DHS.
Request for applications; reopening of application period.
The Coast Guard is reopening the period for accepting applications for membership to the Lower Mississippi River Waterway Safety Advisory Committee. This Committee provides advice and recommendations to the Department of Homeland Security on matters relating to communications, surveillance, traffic management, anchorages, development and operation of the New Orleans Vessel Traffic Service (VTS), and other related topics dealing with navigation safety on the Lower Mississippi River as required by the U.S. Coast Guard.
Applicants should submit a cover letter and resume in time to reach the Designated Federal Officer (DFO) on or before November 15, 2011.
Applicants should send their cover letter and resume to Captain P.W. Gautier, DFO, Lower Mississippi River Waterway Safety Advisory Committee, 200 Hendee Street, New Orleans, LA 70114; or by calling (504) 365-2281; or by faxing (504) 365-2287; or by e-mailing to
This notice is available in our online docket, USCG-2011-0512, at
LCDR Marcie Kohn, Alternate Designated Federal Officer (ADFO) of the Lower Mississippi River Waterway Safety Advisory Committee; telephone (504) 365-2281 or fax (504) 365-2287; or e-mail at
On March 11, 2011, the Coast Guard published a request in the
The Lower Mississippi River Waterway Safety Advisory Committee (LMRWSAC) is a Federal advisory committee under 5 U.S.C. App. (Pub. L. 92-463). It was established under the authority provided for in section 19 of the Coast Guard Authorization Act of 1991, (Pub. L. 102-241) as amended by section 621 of the Coast Guard Authorization Act of 2010, (Pub. L. 111-281).
The Committee is expected to meet twice per year. It may also meet for extraordinary purposes with the approval of the DFO. The location of meetings is the U.S. Coast Guard Sector New Orleans building, 200 Hendee Street, New Orleans, LA 70114.
We will consider applications for 25 positions that expired or became vacant March 30, 2011. Applicants should have expertise, knowledge, and experience regarding the transportation, equipment, and techniques that are used to ship cargo and to navigate vessels on the Lower Mississippi River and its connecting navigable waterways, including the Gulf of Mexico.
1. Five members representing River Port Authorities between Baton Rouge, Louisiana, and the head of passes of the Lower Mississippi River, of which one member shall be from the Port of St. Bernard and one member from the Port of Plaquemines.
2. Two members representing vessel owners or ship owners domiciled in the State of Louisiana.
3. Two members representing organizations which operate harbor tugs or barge fleets in the geographical area covered by the Committee.
4. Two members representing companies which transport cargo or passengers on the navigable waterways in the geographical area covered by the Committee.
5. Three members representing State Commissioned Pilot organizations, with one member each representing New Orleans-Baton Rouge Steamship Pilots Association, the Crescent River Port Pilots Association, and the Associated Branch Pilots Association.
6. Two at-large members who utilize water transportation facilities located in the geographic area covered by the Committee.
7. Three members who utilize vessels that transit and use the navigable waterways covered by the committee. These three members should comprise of one consumer member, one shipper member, and one importer/exporter member.
8. Two members representing those licensed merchant mariners, other than pilots, who perform shipboard duties on those vessels which utilize navigable waterways covered by the Committee.
9. One member representing an organization that serves in a consulting or advisory capacity to the maritime industry.
10. One member representing an environmental organization.
11. One member drawn from the general public.
12. One member representing the Associated Federal Pilots and Docking Masters of Louisiana.
Registered lobbyists are not eligible to serve on Federal advisory committees. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbyist Disclosure Act of 1995 (Pub. L. 110-81, as amended).
Each LMRWSAC Committee member serves a term of office for 2 years and may serve consecutive terms. All members serve at their own expense and receive no salary reimbursement of travel expenses, or other compensation from the Federal Government.
In support of the policy of the Coast Guard on gender and ethnic nondiscrimination, we encourage qualified men and women and members of all racial and ethnic groups to apply. The Coast Guard values diversity and recognizes that different characteristics and attributes enhance the Coast Guard mission.
If you are selected as a non-representative member, or as a member who is drawn from the general public, you will be appointed and serve as a Special Government Employee (SGE) as defined in section 202(a) of Title 18, United States Code. As a candidate for appointment as a SGE, applicants are required to complete a Confidential Financial Disclosure Report (OGE Form 450). A completed OGE Form 450 is not releasable to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a). Only the Designated Agency Ethics Official (DAEO) or the DAEO's Designee may release a Confidential Financial Disclosure Report.
Interested applicants should send a cover letter and resume to Captain P. W. Gautier, DFO, Lower Mississippi River Waterway Safety Advisory Committee, 200 Hendee Street, New Orleans, LA 70114. The deadline for applications is November 15, 2011.
To visit our online docket, go to
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for State of Maryland (FEMA-3335-EM), dated August 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency
This action terminates the appointment of Thomas J. McCool as Federal Coordinating Officer for this emergency.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for State of Rhode Island (FEMA-3334-EM), dated August 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this emergency.
This action terminates the appointment of Gracia B. Szczech as Federal Coordinating Officer for this emergency.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for State of Rhode Island (FEMA-4027-DR), dated September 3, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Gracia B. Szczech as Federal Coordinating Officer for this disaster.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-4031-DR), dated September 13, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of New York is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 31, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-4029-DR), dated September 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 9, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
National Park Service.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act [5 U.S.C. Appendix (1988)], that a meeting of the Landmarks Committee of the National Park System Advisory Board will be held beginning at 1 p.m. on November 8, 2011, at the following location. The meeting will continue beginning at 9 a.m. on November 9 and 10, 2011.
November 8, 2011, at 1 p.m.; November 9-10, 2011, at 9 a.m.
Patricia Henry, National Historic Landmarks Program, National Park Service; 1849 C Street, NW., (2280); Washington, DC 20240; Telephone (202) 354-2216;
The purpose of the meeting of the Landmarks Committee of the National Park System Advisory Board is to evaluate nominations of historic properties in order to advise the National Park System Advisory Board of the qualifications of each property being proposed for National Historic Landmark (NHL) designation, and to make recommendations regarding the possible designation of those properties as National Historic Landmarks to the National Park System Advisory Board at a subsequent meeting at a place and time to be determined. The Committee also makes recommendations to the National Park System Advisory Board regarding amendments to existing designations and proposals for withdrawal of designation. The members of the Landmarks Committee are:
Mr. Ronald James, Chair, Dr. James M. Allan, Dr. Cary Carson, Dr. Darlene Clark Hine, Mr. Luis Hoyos, AIA, Dr. Barbara J. Mills, Dr. William J. Murtagh, Dr. Franklin Odo, Dr. William D. Seale, Dr. Michael E. Stevens.
The meeting will be open to the public. Pursuant to 36 CFR part 65, any member of the public may file, for consideration by the Landmarks Committee of the National Park System Advisory Board, written comments concerning the National Historic Landmarks nominations, amendments to existing designations, or proposals for withdrawal of designation.
Comments should be submitted to J. Paul Loether, Chief, National Register of Historic Places and National Historic Landmarks Program, National Park Service; 1849 C Street, NW., (2280); Washington, DC 20240;
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.
In addition to the properties listed in the
• Admiral David G. Farragut Grave Site, Bronx, NY.
• Bacardi Distillery, Cataño, Puerto Rico.
Cedar Creek and Belle Grove National Historical Park Advisory Commission, National Park Service, Department of the Interior.
Notice of Meetings
Notice is hereby given in accordance with the Federal Advisory Committee Act that meetings of the Cedar Creek and Belle Grove National Historical Park Advisory Commission will be held to discuss the implementation of the Park's general management plan.
Diann Jacox, Superintendent, Cedar Creek and Belle Grove National Historical Park, (540) 868-9176.
Topics to be discussed at the meetings include: visitor services and interpretation, land protection planning, historic preservation, and natural resource protection.
The Park Advisory Commission was designated by Congress to advise on the preparation and implementation of the park's general management plan. Individuals who are interested in the Park, the implementation of the plan, or the business of the Advisory Commission are encouraged to attend the meetings.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before September 3, 2011. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by October 13, 2011. 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of VIA Technologies Inc., IP-First, LLC and Centaur Technology on September 22, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (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 computer devices with associated instruction sets. The complaint names as respondent Apple Inc. of CA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
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. Submissions should refer to the docket number (“Docket No. 2844”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of S3 Graphics Co., Ltd. and S3 Graphics Inc. on September 23, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (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 electronic devices with graphics data processing systems, components thereof, and associated software. The complaint names as respondent Apple Inc. of CA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
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. Submissions should refer to the docket number (“Docket No. 2845”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 4) issued by the presiding administrative law judge (“ALJ”) granting complainant's motion to amend the complaint and notice of investigation to reflect a corporate name change in the above-referenced investigation.
Jia Chen, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-4737. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on July 11, 2011, based on a complaint filed by OSRAM GmbH of Munich, Germany. 76 FR 40745 (Jul. 11, 2011). 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 light-emitting diodes and products containing the same by reason of infringement of various claims of United States Patent Nos. 6,812,500; 7,078,732; 7,126,162; 7,345,317; 7,629,621; 6,459,130; 6,927,469; 7,199,454; and 7,427,806. The respondents named in the Commission's notice of investigation are LG Electronics, Inc. and LG Innotek Co., Ltd., both of Seoul, South Korea; LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey; and LG Innotek U.S.A., Inc. of San Diego, California.
On August 31, 2011, complainant moved to amend the complaint and notice of investigation to reflect a recent change of its corporate name from OSRAM GmbH to OSRAM AG. According to complainant, good cause exists to permit the amendment and no party will be prejudiced. No responses to the motion were filed. On September 2, 2011, the ALJ issued the subject ID (Order No. 4). The ALJ explained that Commission Rule 210.14(b)(1) (19 CFR 210.14(b)(1)) provides for amendment of the complaint only by leave of the Commission for good cause, when and upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties to the investigation. The ALJ found that good cause exists for the requested amendment and that it is unlikely that the amendment would prejudice the other parties or the public. None of the parties petitioned for review of the ID.
The Commission has determined not to review the subject ID.
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 Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on April 1, 2011 (76 FR 18251) and determined on July 5, 2011 that it would conduct expedited reviews (76 FR 44608, July 26, 2011).
The Commission transmitted its determinations in these reviews to the Secretary of Commerce on September 22, 2011. The views of the Commission are contained in USITC Publication 4262 (September 2011), entitled
By order of the Commission.
Notice.
The Department of Labor (DOL) is submitting the Office of Federal Contract Compliance Programs (OFCCP) sponsored revised information collection request (ICR) titled, “Office of Federal Contract Compliance Programs Recordkeeping and Reporting Requirements—Supply and Service,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Submit comments on or before October 28, 2011.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Submit comments about this request to the Office of Information and Regulatory Affairs,
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by e-mail at
This is a request for a revision to the Supply and Service ICR, including revisions to the Scheduling Letter. The OFCCP Scheduling Letter is used to schedule Federal contractors and subcontractors for Compliance Evaluations in accordance with Executive Order 11246, as amended; section 503 of the Rehabilitation Act of 1973, as amended); and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212. These mandates prohibit Federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, national origin, disability, or veterans' status. The OFCCP is revising the Scheduling Letter to reduce contractor burden and make Compliance Evaluations more efficient.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• 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
Employment and Training Administration, Labor.
Notice.
The Department of Labor (Department or DOL), 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 (PRA) [44 U.S.C. 3505(c)(2)(A)]. The 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 the collection requirements on respondents can be properly assessed.
Currently the Employment and Training Administration (ETA) is soliciting comments concerning the continued collection of baseline data to support the evaluation of the impact of the Green Jobs and Health Care American Recovery and Reinvestment Act of 2009 (ARRA or Recovery Act)-funded training grants. The present OMB approval expires January 31, 2011. This information collection follows an emergency review that was conducted in accordance with the Paperwork Reduction Act of 1995 and 5 CFR 1320.13. The submission for OMB emergency review was approved on July 18, 2011. A copy of this ICR can be obtained from the RegInfo.gov Web site at
Written comments must be submitted to the office listed in the addressee's section below on or before November 28, 2011.
Submit written comments to the Department of Labor, Employment and Training Administration,
This baseline information collection supports an evaluation of the impacts of the Green Jobs and Health Care (GJHC) training grants. This evaluation is sponsored by ETA for worker training and placement in high growth and emerging industries through training grants funded by the 2009 Recovery Act, which was enacted in an effort to preserve and create jobs, promote economic growth, and assist those impacted by the recession. The Recovery Act included funding for four Solicitations for Grant Applications (SGAs) with the goal of training workers in the skills required to be employed in specific high-growth and emerging industries including health care, energy efficiency, and renewable energy. Two of these four SGAs that are the focus of this study, for which baseline data must be collected, are:
• Pathways Out of Poverty (POP) ($150 million for 38 projects).
• Health Care and Other High Growth Emerging Industries (HHG) ($225 million for 55 projects).
The overall aim of this evaluation is to determine the extent to which enrollees achieve increases in employment, earnings, and career advancement because of their participation in the training provided by POP and HHG grantees and to identify promising best practices and strategies for replication. Individuals enrolling in the GJHC training programs have a 50/50 chance of receiving these services. Those individuals not receiving the training services receive the existing services offered by the grantee. Education, employment, and other outcomes of the two groups will be compared over time to evaluate the GJHC training grant impact. The evaluation will estimate the success in providing educational and occupational skills training that fosters entry into job fields that are innovative and/or experiencing high growth, as in health care industry.
The Department is particularly interested in comments which:
• 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 submission of responses.
Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of the final information collection request. The comments will become a matter of public record.
Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations to serve on NACOSH.
The Assistant Secretary of Labor for Occupational Safety and Health requests nominations for membership on NACOSH.
Nominations for NACOSH must be submitted (postmarked, sent or received) by November 28, 2011.
You may submit nominations for NACOSH, identified by OSHA Docket No., OSHA-2011-0065, by any of the following methods:
Deborah Crawford, OSHA, Directorate of Evaluation and Analysis, Room N-3641, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-1932; e-mail address
The Assistant Secretary of Labor for Occupational Safety and Health invites interested individuals to submit nominations for membership on NACOSH. The terms of seven NACOSH members will expire on March 31, 2012.
The Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 656) authorizes NACOSH to advise the Secretary of Labor (Secretary) and the Secretary of Health and Human Services (HHS) on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory body and operates in compliance with the OSH Act, the Federal Advisory Committee Act (5 U.S.C. App. 2), and regulations implementing those laws (29 CFR 1912a, 41 CFR part 101-6 and 102-3).
NACOSH is comprised of 12 members, all of whom the Secretary appoints (29 CFR 1912a.2). The composition of the Committee and categories of new members to be appointed are as follows:
• Four public representatives—two will be appointed;
• Two management representatives—one will be appointed;
• Two labor representatives—two will be appointed;
• Two occupational safety professional representatives—one will be appointed; and,
• Two occupational health professional representatives—one will be appointed.
Pursuant to 29 CFR 1912a.2, HHS will designate one public and one occupational health professional for appointment by the Secretary. OSHA will provide to HHS all nominations and supporting materials for those membership categories.
NACOSH members serve for staggered of two-year terms, unless the member becomes unable to serve, resigns, ceases to be qualified to serve, or is removed by the Secretary of Labor. If a vacancy occurs before a term expires, the Secretary may appoint a new member who represents the same interest as the predecessor to serve for the remainder of the unexpired term. The committee meets at least two times a year (29 CFR 1912a.4).
Any individual or organization may nominate one or more qualified persons for membership. Nominations must include the nominee's name, occupation or current position, and contact information. The nomination also must identify the category that the candidate is qualified to represent, and include a resume of the nominee's background, experience, and qualifications. In addition, the nomination must state that the nominee is aware of the nomination and is willing to serve on NACOSH for a two-year term.
NACOSH members will be selected upon the basis of their knowledge, experience and competence in the field of occupational safety and health (29 CFR 1912a.2). The information received through this nomination process, in addition to other relevant sources of information, will assist the Secretary in appointing members to serve on NACOSH. In selecting NACOSH members, the Secretary will consider individuals nominated in response to this
Before candidates are appointed, the U.S. Department of Labor (Department) conducts a basic background check using publicly available, Internet-based sources.
The Department is committed to bringing greater diversity of thought, perspective and experience to its advisory committees. In addition, the Department encourages nominees of all races, gender, age, disabilities and sexual orientation to apply.
You may submit nominations (1) Electronically at
Submissions are posted without change at
Electronic copies of this
David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 7 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656), 29 CFR 1912a, and Secretary of Labor's Order No. 4-2010 (75 FR 55355, 9/10/2010).
Wage and Hour Division, 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/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 be provided in a 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 Wage and Hour Division is soliciting comments concerning its proposal to extend Office of Management and Budget (OMB) approval of the Information Collection: The Family and Medical Leave Act Optional Forms. A copy of the proposed information request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
You may submit comments identified by Control Number 1235-0003, by either one of the following methods:
Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-0406 (this is not a toll-free number). Copies of this notice may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0023 (not a toll-free number). TTY/TTD callers may dial toll-free (877) 889-5627 to obtain information to request materials in alternative formats.
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WHD Publication 1420 allows employers to satisfy the general notice requirement. See § 825.300(a).
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As soon as an employer makes a good faith determination—based on the facts available—that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is using FMLA leave is reinstated, the employer must notify the employee in writing of its determination, including that the employer cannot deny FMLA leave and that the employer intends to deny restoration to employment on completion of the FMLA leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.
An employee may still request reinstatement at the end of the leave period, even if the employee did not return to work in response to the employer's notice. The employer must then again determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at that time. If the employer determines that substantial and grievous economic injury will result from reinstating the employee, the employer must notify the employee in writing (in person or by certified mail) of the denial of restoration.
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Covered employers who have eligible employees must maintain basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; total compensation paid; and dates FMLA leave is taken by FMLA eligible employees (available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave and leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA; if FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave; copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all eligibility notices given to employees as required under FMLA and these regulations; any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves; premium payments of employee benefits; records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.
Covered employers with no eligible employees must maintain the basic payroll and identifying employee data already discussed. Covered employers that jointly employ workers with other employers must keep all the records required by the regulations with respect to any primary employees, and must keep the basic payroll and identifying employee data with respect to any secondary employees.
If FMLA-eligible employees are not subject to FLSA recordkeeping regulations for purposes of minimum wage or overtime compliance (
Employers must maintain records and documents relating to any medical certification, recertification or medical history of an employee or employee's family member created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files. Employers must also maintain such records in conformance with any applicable Americans with Disabilities Act (ADA) confidentiality requirements; except that: supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the employee's physical or medical condition might require emergency treatment; and government officials investigating compliance with the FMLA, or other pertinent law, shall be provided relevant information upon request.
The FLSA recordkeeping requirements, contained in Regulations 29 CFR part 516, are currently approved under OMB control number 1215-0018; consequently, this information collection does not duplicate their burden, despite the fact that for the administrative ease of the regulated community this information collection restates them.
II.
• 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;
• Enhance the quality, utility, and clarity of the information to be collected;
• 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;
• 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 technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
III.
National Aeronautics and Space Administration (NASA).
Notice of membership of SES Performance Review Board.
The Civil Service Reform Act of 1978, Public Law 95-454 (Section 405) requires that appointments of individual members to the Performance Review Board (PRB) be published in the
The performance review function for the SES in NASA is being performed by the NASA PRB and the NASA Senior Executive Committee. The latter performs this function for senior executives who report directly to the Administrator or the Deputy Administrator and members of the PRB. The following individuals are serving on the Board and the Committee:
National Science Foundation.
Notice of permit issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On August 22, 2011, the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and copy for a fee, publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by October 28, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150-0169), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
Geoffrey Wertz, Project Manager, Research and Test Reactor Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
You can access publicly available documents related to this notice using the following methods:
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of a renewed Facility Operating License No. R-126, to be held by University of Utah (the licensee), which would authorize continued operation of the University of Utah TRIGA Reactor (UUTR), located in Salt Lake City, Salt Lake County, Utah. Therefore, as required by Title 10 of the
The proposed action would renew Facility Operating License No. R-126 for a period of 20 years from the date of issuance of the renewed license. The proposed action is in accordance with the licensee's application dated March 25, 2005, as supplemented by the letter dated June 8, 2011. In accordance with 10 CFR 2.109, the existing license remains in effect until the NRC takes final action on the renewal application.
The proposed action is needed to allow the continued operation of the UUTR to routinely provide teaching, research, and services to numerous institutions for a period of 20 years.
The NRC has completed its safety evaluation of the proposed action to issue a renewed Facility Operating License No. R-126 to allow continued operation of the UUTR for a period of 20 years and concludes there is reasonable assurance that the UUTR will continue to operate safely for the additional period of time. The details of the NRC staff's safety evaluation will be provided with the renewed license that will be issued as part of the letter to the licensee approving its license renewal application. This document contains the environmental assessment of the proposed action.
The UUTR is located on the main campus of University of Utah and is housed in the Merrill Engineering Building. The Merrill Engineering Building is a multipurpose building designed to conform to the zone 3 requirements of the Uniform Building Code. The UUTR reactor tank, concrete pad, footing, and structures also comply with zone 3 requirements of the Uniform Building Code. Adjacent to the site is a parking lot to the north; fields,
The UUTR is a pool-type, light water moderated and cooled research reactor licensed to operate at a steady-state power level of 100 kilowatt thermal power (kW(T)) in non-pulse mode. The fuel is located at the bottom of the inner aluminum tank with a water volume of approximately 31,000 liters (8000 gallons) and a depth of 7.3 meters (24 feet). The reactor is fueled with standard TRIGA (Training, Research, Isotope production, General Atomics) low enriched uranium fuel. A detailed description of the reactor can be found in the UUTR Safety Analysis Report (SAR). There have been no major modifications to the Facility Operating License since renewal of the license on April 17, 1985.
The licensee has not requested changes to the facility design or operating conditions as part of the license renewal. No changes are being made in the types or quantities of effluents that may be released offsite. The licensee has systems in place for controlling the release of radiological effluents and implements a radiation protection program to monitor personnel exposures and to calculate releases of radioactive effluents. As discussed in the NRC staff's safety evaluation, the systems and radiation protection program are appropriate for the types and quantities of effluents expected to be generated by continued operation of the reactor. Accordingly, there would be no increase in routine occupational or public radiation exposure as a result of license renewal. As discussed in the NRC staff's safety evaluation, the proposed action will not significantly increase the probability or consequences of accidents. Therefore, license renewal would not change the environmental impact of facility operations. The NRC staff evaluated information contained in the licensee's application, as supplemented, and data reported to the NRC by the licensee for the last six years of operation to determine the projected radiological impact of the facility on the environment during the period of the renewed license. The NRC staff found that releases of radioactive material and personnel exposures were all well within applicable regulatory limits. Based on this evaluation, the NRC staff concluded that continued operation of the reactor would not have a significant environmental impact.
Gaseous radioactive effluents are discharged by the ventilation exhaust system located on the roof of the building at a volumetric flow rate of approximately 0.61 cubic meters per second (22 cubic feet per second). The remainder of the facility is maintained at negative pressure which minimizes other release pathways. The only significant nuclide found in the gaseous effluent stream is argon-41. Licensee calculations indicate that annual argon-41 releases will result in a maximum concentration in the ventilation exhaust of 9.33E-10 microCuries per milliliter (μCi/ml). The previous seven years of operational experience shows that the maximum average annual concentration was 7.9E-11 μCi/ml, which is below the limit of 1.0E-8 μCi/ml specified in 10 CFR 20 Appendix B for air effluent releases. The NRC staff performed an independent calculation and found the licensee's calculation to be reasonable. The licensee also performed calculations to estimate the potential release of nitrogen-16 resulting from activation of reactor pool water into the reactor facility. The NRC staff performed independent calculations and found the licensee's calculations to be reasonable. Total gaseous radioactive releases reported to the NRC in the licensees' annual reports were approximately 1 percent or less of the air effluent concentration limits set by 10 CFR 20, Appendix B. The potential radiation dose to a member of the general public resulting from this concentration is approximately 0.5 millirems (mrem) (0.005 milliSieverts (mSv)) and this demonstrates compliance with the dose limit of 100 mrem (1 mSv) set by 10 CFR 20.1301. Additionally, this potential radiation dose demonstrates compliance with the air emissions dose constraint of 10 mrem (0.1 mSv) specified in 10 CFR 20.1101(d).
The licensee disposes of liquid radioactive wastes by transfer to the University's Radiological Health Department for proper disposal under the University's broad scope byproduct material license. During the past six years, the licensee reported no routine releases of liquid radioactive waste by any method.
The University's Radiological Health Department oversees the handling of solid low-level radioactive waste generated at the UUTR. The bulk of the waste consists of ion exchange resin, irradiated samples, lab-ware, and anti-contamination clothing. Upon removal from the facility by the Radiological Health Department, the waste is controlled under the University's broad scope byproduct material license. The Radiological Health Department disposes of the waste by decay in storage or shipment to a low-level waste broker in accordance with all applicable regulations for transportation of radioactive materials. To comply with the Nuclear Waste Policy Act of 1982, the University of Utah has entered into a contract with the U.S. Department of Energy (DOE) that provides that DOE retains title to the fuel utilized at the UUTR and that DOE is obligated to take the fuel from the site for final disposition.
As described in Chapter 11 of the UUTR Safety Analysis Report (SAR), personnel exposures are well within the limits set by 10 CFR 20.1201, and as low as is reasonably achievable (ALARA). The Radiological Health Department tracks personnel exposures, which are usually less than 10 mrem (0.1 mSv) per year. Operating experience which documented radiation exposures to personnel working in the UUTR from both direct and airborne radiation during normal operation have been reviewed and assessed. The licensee conducts an environmental monitoring program to record and track the radiological impact of UUTR operation on the surrounding unrestricted area. The program consists of quarterly exposure measurements at six locations. Three locations are on the roof of the Merrill Engineering Building and three are on adjacent buildings. The University's Radiological Health Department administers the program and maintains the appropriate records. Over the past six years, the survey program indicated that radiation exposures at the monitoring locations did not significantly change. No correlation exists between total annual reactor operations and annual exposures measured at the monitoring locations. Based on the NRC staff's review of the past six years of data, the NRC staff concludes that operation of the UUTR does not have any significant radiological impact on the surrounding environment. No changes in reactor operation that would affect off-site radiation levels are expected as a result of the proposed action.
Accident scenarios are discussed in Chapter 13 of the UUTR SAR. The maximum hypothetical accident (MHA) is the cladding failure of a single irradiated fuel element in air with no
The UUTR core is cooled by a light water primary system consisting of the reactor pool, a heat removal system, and a processing system. Cooling occurs by natural convection, with the heated coolant rising out of the core and into the bulk pool water. The large heat sink provided by the volume of primary coolant allows a few hours of full-power operation without any secondary cooling. The heat removal system transfers heat to the secondary system via a 25 kilowatt (kW) heat exchanger. The secondary system is cooled using an R134a-based refrigeration system. The refrigeration system releases heat to a potable water system which is released to the sanitary sewer. During operation, the secondary system is maintained at a higher pressure than the primary system to minimize the likelihood of primary system contamination entering the secondary system, and ultimately the environment. Release of thermal effluents from the UUTR will not have a significant effect on the environment. Given that the proposed action does not involve any change in the operation of the reactor and the heat load dissipated to the environment, the NRC staff concludes that the proposed action will not have a significant impact on the local water supply.
NRC has responsibilities that are derived from NEPA and from other environmental laws. These include the Endangered Species Act (ESA), Coastal Zone Management Act (CZMA), National Historic Preservation Act (NHPA), Fish and Wildlife Coordination Act (FWCA), and Executive Order 12898 Environmental Justice. The following presents a brief discussion of impacts associated with these laws and other requirements.
No effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to threatened, endangered, or protected species under the Endangered Species Act would be expected.
The UUTR is not located within any managed coastal zones, nor would the UUTR effluents and emissions impact any managed coastal zones.
The NHPA requires Federal agencies to consider the effects of their undertakings on historic properties. National Register of Historic Places (NRHP) lists the closest historical site as the Isaac C. and Dorothy S. Clark House approximately 250 meters (0.16 Miles) west of the UUTR. Given the distance between the facility and the Isaac C. and Dorothy S. Clark House, continued operation of the UUTR will not impact any historical sites. Based on this information, the NRC finds that the potential impacts of license renewal would have no adverse effect on historic and archaeological resources at UUTR.
The licensee is not planning any water resource development projects, including any of the modifications relating to impounding a body of water, damming, diverting a stream or river, deepening a channel, irrigation, or altering a body of water for navigation or drainage.
The environmental justice impact analysis evaluates the potential for disproportionately high and adverse human health and environmental effects on minority and low-income populations that could result from the relicensing and the continued operation of the University of Utah TRIGA reactor. Such effects may include human health, biological, cultural, economic, or social impacts. Minority and low-income populations are subsets of the general public residing around the UUTR and all are exposed to the same health and environmental effects generated from activities at the UUTR.
Minority Populations in the Vicinity of the UUTR—According to 2000 census data, 15.6 percent of the population (approximately 1,765,000 individuals) residing within a 50-mile radius of the UUTR identified themselves as minority individuals. The largest minority group was Hispanic or Latino (approximately 175,000 persons or 9.9 percent), followed by “Some other race” (approximately 98,000 persons or about 5.6 percent). According to the U.S. Census Bureau, about 19.1 percent of the Salt Lake County population identified themselves as minorities, with persons of Hispanic or Latino origin comprising the largest minority group (11.9 percent). According to census data 3-year average estimates for 2006-2008, the minority population of Salt Lake County, as a percent of total population, had increased to 23.8 percent.
Low-Income Populations in the Vicinity of the UUTR—According to 2000 census data, approximately 24,300 families and 147,000 individuals (approximately 5.7 and 8.3 percent, respectively) residing within a 50-mile radius of the UUTR were identified as living below the Federal poverty threshold in 1999. The 1999 Federal poverty threshold was $17,029 for a family of four.
According to census data in the 2006-2008 American Community Survey 3-Year Estimates, the median household income for Utah was $56,484, while 10.0 percent of the state population and 6.9 percent of families were determined to be living below the Federal poverty threshold. Salt Lake County had a higher median household income average ($58,000) and slightly lower percentages (9.3 percent) of individuals and families (6.6 percent) living below the poverty level.
In response to a comment from the State of Utah Division of Radiation Control, an evaluation for a 10-mile radius was performed. Minority Populations in the Vicinity of the UUTR—According to 2000 census data, 21.5 percent of the population (approximately 517,000 individuals) residing within a 10-mile radius of the UUTR identified themselves as minority individuals. The largest minority group was Hispanic or Latino (approximately 68,000 persons or 13.1 percent), followed by “Some other race” (approximately 38,000 persons or about 7.3 percent). According to the U.S. Census Bureau, about 19.1 percent of the Salt Lake County population identified themselves as minorities, with persons of Hispanic or Latino origin comprising the largest minority group (11.9 percent). According to 2010 census data, the minority population of Salt Lake County, as a percent of total population, had increased to 26.0 percent.
Low-Income Populations in the Vicinity of the UUTR—According to 2000 census data, approximately 9,000
Impact Analysis—Potential impacts to minority and low-income populations would mostly consist of radiological effects, however radiation doses from continued operations associated with the license renewal are expected to continue at current levels, and would be well below regulatory limits.
Based on this information and the analysis of human health and environmental impacts presented in this environmental assessment, the proposed relicensing would not have disproportionately high and adverse human health and environmental effects on minority and low-income populations residing in the vicinity of the UUTR.
As an alternative to license renewal, the NRC staff considered denial of the proposed action. If the NRC denied the request for license renewal, reactor operations would end and decommissioning would be required. The NRC staff notes that, even with a renewed license, the UUTR will eventually require decommissioning, at which time the environmental effects of decommissioning will occur. Decommissioning will be conducted in accordance with an NRC-approved decommissioning plan which will require a separate environmental review under 10 CFR 51.21. Cessation of facility operations would reduce or eliminate radioactive effluents and emissions. However, as previously discussed in this environmental assessment, radioactive effluents resulting from facility operations constitute only a small fraction of the applicable regulatory limits. Therefore, the environmental impacts of license renewal and denial of the application for license renewal are similar. In addition, denial of the request for license renewal would cease the benefits of teaching, research, and services provided by UUTR.
The proposed action does not involve the use of any different resources or significant quantities of resources beyond those previously considered in the issuance of Amendment No. 8 to Facility Operating License No. R-126 for the University of Utah's Nuclear Reactor dated April 4, 2005, which increased the possession limit for special nuclear materials.
The NRC staff provided a draft of this environmental assessment to the State of Utah Division of Radiation Control for review on July 5, 2011. The Utah Division of Radiation Control responded with three comments on August 18, 2011. The first comment identified a typographical error, which was easily corrected by the NRC staff. The second comment questioned the periodicity of the personnel dose tracking, and the third comment questioned the use of a 50-mile radius, rather than a 10-mile radius, for the area evaluated in the environmental justice review. The NRC staff responded to the second comment with an explanation that the personnel dose was tracked on a monthly, not annual basis. As previously discussed, the NRC staff responded to the third comment by providing an additional analysis for the environmental justice review using a 10-mile radius. The State of Utah Division of Radiation Control acknowledged the NRC staff response with an electronic mail message dated August 22, 2011 (ADAMS Accession ML112350572). The comments were accepted by the NRC staff and incorporated into the environmental assessment.
In a letter to the Utah State Historic Preservation Office dated March 15, 2010 (ADAMS Accession No. ML100740648), the NRC staff described the proposed activity and requested concurrence with the NRC staff's conclusion that no historic properties would be affected. On March 23, 2010, the Utah State Historic Preservation Office responded by letter (ADAMS Accession No. ML100900420) and concurred with the NRC staff's conclusion that no historical properties would be affected by the proposed action.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from rule 12d1-2(a) under the Act.
DFA Investment Dimensions Group Inc. (“DFAIDG”), Dimensional Emerging Markets Value Fund (“DEM”), Dimensional Investment Group Inc. (“DIG”), The DFA Investment Trust Company (“DFAITC,” and together with DFAIDG, DEM, and DIG, the “Funds” and each a “Fund”), Dimensional Fund Advisors LP (“Dimensional”), and DFA Securities LLC (“DFA Securities”).
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, 6300 Bee Cave Road, Building One, Austin, TX 78746.
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. Each of DFAIDG and DIG is organized as a Maryland corporation, and each of DFAITC and DEM is organized as a Delaware statutory trust. The Funds are registered under the Act as open-end management investment companies. Dimensional, a Delaware limited partnership, is an investment adviser registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and currently serves as investment adviser to each existing Applicant Series (as defined below). DFA Securities, a Delaware corporation, is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and serves as the distributor for the Applicant Series that are series of the Funds.
2. Applicants request the exemption to the extent necessary to permit any existing or future series of the Funds and any other existing or future registered open-end investment company or series thereof that (i) is advised by Dimensional or any person now or in the future controlling, controlled by or under common control with Dimensional (any such adviser or Dimensional, an “Adviser”)
3. Consistent with its fiduciary obligations under the Act, each Applicant Series' board of directors/trustees will review the advisory fees charged by the Applicant Series' Adviser to ensure that the fees are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory agreement of any investment company in which the Applicant Series may invest.
1. Section 12(d)(1)(A) of the Act provides that no registered investment company (“acquiring company”) may acquire securities of another investment company (“acquired company”) if such securities represent more than 3% of the acquired company's outstanding voting stock or more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or cause more than 10% of the acquired company's voting stock to be owned by investment companies and companies controlled by them.
2. Section 12(d)(1)(G) of the Act provides, in part, that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquired company and acquiring company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
3. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper: (i) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (ii) securities (other than securities issued by an investment company); and (iii) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction from any provision of the Act, or from any rule under the Act, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.
5. Applicants state that the Applicant Series will comply with rule 12d1-2 under the Act, but for the fact that the Applicant Series may invest a portion of their assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Applicant Series to invest in Other Investments while investing in Underlying Funds. Applicants assert that permitting the Applicant Series to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2) to the extent that it restricts any Applicant Series from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act, and under section 6(c) of the Act for an exemption from rule 12d1-2(a) under the Act.
Fifth Third Funds (“Trust”) and Fifth Third Asset Management, Inc. (“Adviser”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 17, 2011, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants: 38 Fountain Square Plaza, MD 1090D2, Cincinnati, OH 45202.
Courtney S. Thornton, Senior Counsel, at (202) 551-6812, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is an open-end management investment company registered under the Act and organized as a Massachusetts business trust. The Trust currently offers shares of 24 series (“Funds”), which each pursue different investment objectives and principal investment strategies.
2. The Adviser, an Ohio corporation, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”) and serves as investment adviser to each of the Funds. The Adviser is an indirect wholly-owned subsidiary of Fifth Third Bancorp. The Adviser employs Fort Washington Investment Advisers, Inc. (“Fort Washington”) as subadviser (a “Subadviser”) to manage the Fifth Third High Yield Bond Fund. Fort Washington is registered as an investment adviser under the Advisers Act.
3. Applicants request an order to permit (a) a Fund that operates as a “fund of funds” (each a “Fund of Funds”) to acquire shares of (i) registered open-end management investment companies that are not part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Fund of Funds (“Unaffiliated Investment Companies”) and UITs that are not part of the same group of investment companies as the Fund of Funds (“Unaffiliated Trusts,” together with the Unaffiliated Investment Companies, “Unaffiliated Funds”),
4. Applicants also request an exemption under section 6(c) from rule 12d1-2 under the Act to permit any existing or future Fund of Funds that relies on section 12(d)(1)(G) of the Act (“Same Group Fund of Funds”) and that otherwise complies with rule 12d1-2 to also invest, to the extent consistent with its investment objective, policies, strategies and limitations, in financial instruments that may not be securities within the meaning of section 2(a)(36) of the Act (“Other Investments”).
5. Consistent with its fiduciary obligations under the Act, the board of directors or trustees (“Board”) of each Same Group Fund of Funds will review the advisory fees charged by the Same Group Fund of Fund's investment adviser to ensure that they are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) of the Act to permit a Funds of Funds to acquire shares of the Underlying Funds in excess of the limits in section 12(d)(1)(A), and an Underlying Fund, any principal underwriter for an Underlying Fund, and any Broker to sell shares of an Underlying Fund to a Fund of Funds in excess of the limits in section 12(d)(1)(B) of the Act.
3. Applicants state that the terms and conditions of the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants submit that the proposed arrangement will not result in the exercise of undue influence by a Fund of Funds or a Fund of Funds Affiliate (as defined below) over the Unaffiliated Funds.
5. To further assure that an Unaffiliated Investment Company understands the implications of an investment by a Fund of Funds under the requested order, prior to a Fund of Funds' investment in the shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Fund of Funds and the Unaffiliated Investment Company will execute an agreement stating, without limitation, that their Boards and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order (“Participation Agreement”). Applicants note that an Unaffiliated Investment Company (other than an ETF whose shares are purchased by a Fund of Funds in the secondary market) will retain its right at all times to reject any investment by a Fund of Funds.
6. Applicants state that they do not believe that the proposed arrangement will involve excessive layering of fees. The Board of each Fund of Funds, including a majority of the trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act) (“Independent Trustees”), will find that the advisory fees charged under any investment advisory or management contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Underlying Fund in which the Fund of Funds may invest. In addition, the Adviser will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Unaffiliated Investment Company under rule 12b-1 under the Act) received from an Unaffiliated Fund by the Adviser or an affiliated person of the Adviser, other than any advisory fees paid to the Adviser or its affiliated person by an Unaffiliated Investment Company, in connection with the investment by the Fund of Funds in the Unaffiliated Fund. Any sales charges and/or service fees, as defined in Rule 2830 of the Conduct Rules of the NASD (“NASD Conduct Rule 2830”),
7. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Underlying Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except in certain circumstances identified in condition 11 below.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; and (c) any person directly or indirectly controlling, controlled by, or under common control with the other person.
2. Applicants state that a Fund of Funds and the Affiliated Funds might be deemed to be under common control of the Adviser and therefore affiliated persons of one another. Applicants also state that a Fund of Funds and the Unaffiliated Funds might be deemed to be affiliated persons of one another if the Fund of Funds acquires 5% or more of an Unaffiliated Fund's outstanding voting securities. In light of these and other possible affiliations, section 17(a) could prevent an Underlying Fund from selling shares to and redeeming shares from a Fund of Funds.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the Act.
1. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
2. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper: (1) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other than securities issued by an investment company); and (3) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
3. Applicants state that the proposed arrangement would comply with the provisions of rule 12d1-2 under the Act, but for the fact that a Same Group Fund of Funds may invest a portion of its assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Same Group Funds of Funds to invest in Other Investments. Applicants assert that permitting Same Group Funds of Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
Applicants agree that the relief to permit Funds of Funds to invest in Underlying Funds shall be subject to the following conditions:
1. The members of an Advisory Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. The members of a Subadvisory Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Unaffiliated Fund, the Advisory Group or a Subadvisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of the Unaffiliated Fund, then the Advisory Group or the Subadvisory Group will vote its shares
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in shares of an Unaffiliated Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Unaffiliated Fund or an Unaffiliated Fund Affiliate.
3. The Board of each Fund of Funds, including a majority of the Independent Trustees, will adopt procedures reasonably designed to assure that its Adviser and any Subadviser(s) to the Fund of Funds are conducting the investment program of the Fund of Funds without taking into account any consideration received by the Fund of Funds or Fund of Funds Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of an Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Investment Company, including a majority of the Independent Trustees, will determine that any consideration paid by the Unaffiliated Investment Company to a Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Unaffiliated Investment Company; (b) is within the range of consideration that the Unaffiliated Investment Company would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Unaffiliated Investment Company and its investment adviser(s) or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Unaffiliated Investment Company or sponsor to an Unaffiliated Trust) will cause an Unaffiliated Fund to purchase a security in any Affiliated Underwriting.
6. The Board of an Unaffiliated Investment Company, including a majority of the Independent Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Unaffiliated Investment Company in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of the Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board of the Unaffiliated Investment Company will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Unaffiliated Investment Company. The Board of the Unaffiliated Investment Company will consider, among other things, (a) whether the purchases were consistent with the investment objectives and policies of the Unaffiliated Investment Company; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (c) whether the amount of securities purchased by the Unaffiliated Investment Company in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board of the Unaffiliated Investment Company will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders.
7. Each Unaffiliated Investment Company shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and shall maintain and preserve for a period not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of an Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth the: (a) Party from whom the securities were acquired, (b) identity of the underwriting syndicate's members, (c) terms of the purchase, and (d) information or materials upon which the determinations of the Board of the Unaffiliated Investment Company were made.
8. Prior to its investment in shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Fund of Funds and the Unaffiliated Investment Company will execute a Participation Agreement stating, without limitation, that their Boards and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Unaffiliated Investment Company of the investment. At such time, the Fund of Funds will also transmit to the Unaffiliated Investment Company a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Unaffiliated Investment Company of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Unaffiliated Investment Company and the Fund of Funds will maintain and preserve a copy of the order, the Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
9. Before approving any advisory contract under section 15 of the Act, the Board of each Fund of Funds, including a majority of the Independent Trustees, shall find that the advisory fees charged under such advisory contract are based on services provided that are in addition to, rather than duplicative of, services provided under the advisory contract(s) of any Underlying Fund in which the Fund of Funds may invest. Such finding and the basis upon which the finding was made will be recorded fully in the minute books of the appropriate Fund of Funds.
10. The Adviser will waive fees otherwise payable to it by a Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Unaffiliated Investment Company under rule 12b-1 under the Act) received from an Unaffiliated Fund by the Adviser, or
11. No Underlying Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent that such Underlying Fund: (a) Receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or (b) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to (i) acquire securities of one or more investment companies for short-term cash management purposes, or (ii) engage in interfund borrowing and lending transactions.
12. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to fund of funds set forth in NASD Conduct Rule 2830.
Applicants agree that the relief to permit Same Group Funds of Funds to invest in Other Investments shall be subject to the following condition:
13. Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2), to the extent that it restricts any Same Group Fund of Funds from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
The Singapore Fund, Inc. (the “Fund”).
Notice of application for an order under section 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 17(a) of the Act.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 17, 2011, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicant, c/o Daiwa Securities Trust Company, One Evertrust Plaza, 9th Floor, Jersey City, NJ 07302-3051.
Deepak T. Pai, Senior Counsel, at (202) 551-6876, or Dalia Osman Blass, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Fund, a Maryland corporation, is registered under the Act as a closed-end management investment company. Applicant's investment objective is to seek long-term capital appreciation through investment primarily in Singapore equity securities. Applicant states that under normal circumstances it invests at least 80% of its net assets in Singapore equity securities.
2. The Fund proposes to conduct a tender offer for up to 25% of its outstanding shares at a price equal to 99% of net asset value per share (“NAV”) as of the business day immediately after the day such tender offer expires (the “In-Kind Repurchase Offer”). Payment for any shares repurchased during the In-Kind Repurchase Offer would be made in-kind through a
3. Applicant states that the In-Kind Repurchase Offer is designed to accommodate the needs of stockholders who wish to participate in the In-Kind Repurchase Offer and long-term stockholders who would prefer to remain invested in a closed-end investment vehicle. Under the In-Kind Repurchase Offer, only participating
4. Applicant requests relief to permit any common stockholders of the Fund who are “affiliated persons” of the Fund solely by reason of owning, controlling, or holding with the power to vote, 5% or more of the Fund's outstanding voting securities (each, an “Affiliated Stockholder”) to participate in the proposed In-Kind Repurchase Offer.
1. Section 17(a) of the Act prohibits an affiliated person of a registered investment company, or any affiliated person of the person, acting as principal, from knowingly purchasing or selling any security or other property from or to the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person who directly or indirectly owns, controls, or holds with power to vote 5% or more of the outstanding voting securities of the other person. Applicant states that to the extent that the In-Kind Repurchase Offer could be deemed the purchase or sale of securities by an Affiliated Stockholder, the transactions would be prohibited by section 17(a). Accordingly, applicant requests an exemption from section 17(a) of the Act to the extent necessary to permit the participation of Affiliated Stockholders in the In-Kind Repurchase Offer.
2. Section 17(b) of the Act authorizes the Commission to exempt any transaction from the provisions of section 17(a) if the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the transaction is consistent with the policy of each registered investment company and with the general purposes of the Act.
3. Applicant asserts that the terms of the In-Kind Repurchase Offer meet the requirements of sections 17(b) of the Act. Applicant asserts that neither the Fund nor an Affiliated Stockholder has any choice as to the portfolio securities to be received as proceeds from the In-Kind Repurchase Offer. Instead, stockholders will receive their
Applicant agrees that any order granting the requested relief will be subject to the following conditions:
1. Applicant will distribute to stockholders participating in the In-Kind Repurchase Offer an in-kind pro rata distribution of portfolio securities of applicant. The pro rata distribution will not include: (a) Securities that, if distributed, would be required to be registered under the 1933 Act; (b) securities issued by entities in countries that restrict or prohibit the holdings of securities by non-residents other than through qualified investment vehicles, or whose distribution would otherwise be contrary to applicable local laws, rules or regulations; and (c) certain portfolio assets, such as derivative instruments or repurchase agreements, that involve the assumption of contractual obligations, require special trading facilities, or can only be traded with the counterparty to the transaction. Cash will be paid for that portion of applicant's assets represented by cash and cash equivalents (such as certificates of deposit, commercial paper and repurchase agreements) and other assets which are not readily distributable (including receivables and prepaid expenses), net of all liabilities (including accounts payable). In addition, Applicant will distribute cash in lieu of fractional shares and accruals on such securities. Applicant may round down or up the proportionate distribution of each portfolio security to the nearest round lot amount to eliminate any odd lot prior to the distribution and will distribute the value of the remaining odd lot, if any, in cash. Applicant may also distribute a higher pro rata percentage of other portfolio securities to represent such fractional shares and odd lots.
2. The securities distributed to stockholders pursuant to the In-Kind Repurchase Offer will be limited to securities that are traded on a public securities market or for which quoted bid and asked prices are available.
3. The securities distributed to stockholders pursuant to the In-Kind Repurchase Offer will be valued in the same manner as they would be valued for purposes of computing Applicant's net asset value, consistent with the requirements of section 2(a)(41) of the 1940 Act.
4. Applicant will maintain and preserve for a period of not less than six years from the end of the fiscal year in which the In-Kind Repurchase Offer occurs, the first two years in an easily accessible place, a written record of the In-Kind Repurchase Offer, that includes the identity of each stockholder of record that participated in the In-Kind Repurchase Offer, whether that stockholder was an Affiliated Stockholder, a description of each security distributed, the terms of the distribution, and the information or materials upon which the valuation was made.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt a Market-Maker Trade Prevention Order. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt a Market-Maker Trade Prevention (“MMTP”) Order. The proposed MMTP Order is an immediate-or-cancel order containing a designation that prevents incoming orders for a Market-Maker from executing against resting quotes and orders for the same Market-Maker.
The MMTP Order type designation is intended to prevent a Market-Maker from trading on both sides of the same transaction. Orders would be marked with the MMTP designation on an order-by-order basis. An incoming MMTP Order cannot interact with interest resting on the book from the same Market-Maker. An MMTP Order that would trade against a resting quote or order for the same Market-Maker will be cancelled, as will the resting quote or order. The MMTP Order will trade against other tradable orders and quotes entered by or on behalf of another market participant (other than those entered by or on behalf of the same Market-Maker) in accordance with the execution process described in Exchange Rule 6.12 (Order Execution and Priority).
However, if the MMTP is received while an order for the same Market-Maker is subject to Rule 6.14,
For example, assume the Exchange's best bid and offer is $1.00-$1.20, 100 contracts on each side. A Market-Maker marks an order to buy 100 contracts at $1.20 with the MMTP distinction, making it an MMTP Order. The MMTP Order is submitted to the Exchange and it would trade with a resting quote from the same Market-Maker for 100 contracts offered at $1.20, then both the order to buy and the resting offer quote would be canceled. However, if the resting offer quote from the same Market-Maker was for only 60 contracts, then 60 contracts from the order to buy would be canceled (as would the resting quote), but the other 40 contracts could trade with the resting offer interest of the other market participants.
As another example, assume a sell order entered on behalf of a Market-Maker is subject to a HAL auction. A Market-Maker marks an order to buy with the MMTP distinction, making it an MMTP Order. If this incoming MMTP Order is received while the auction is in progress and the MMTP Order would otherwise trade with the order that is subject to the HAL auction, then only the MMTP Order would be cancelled. The order being represented in the auction would not be canceled.
At this time, the Exchange intends to identify an incoming MMTP Order as being for the same Market-Maker if the MMTP Order and resting quote or order share any of the following: (1) User acronym, (2) login ID, or (3) sub-account code. Each Market-Maker is assigned its own acronym (sometimes multiple acronyms). However, a Market-Maker may have multiple different login IDs or sub-account codes. A login ID is the session through which a Market-Maker routes orders to the Exchange. A Market-Maker may elect to use different login IDs to route different types of communications to the Exchange. For example, a Market-Maker may choose to use login ID #1 for all orders it sends to the Exchange and login ID #2 for all quotes it sends to the Exchange. Or the Market-Maker may be much more specific, and use different login IDs for different types of orders and quotes. A sub-account code is simply a field on each order or quote that lists the account into which a trade clears at the Options Clearing Corporation (“OCC”). A Market-Maker may have different sub-account codes for each trader it employs, so that the Market-Maker may track each trader's activity. Finally, Market-Makers sometimes use different acronyms but clear into the same accounts (thereby using the same sub-accounts codes).
Allowing Market-Makers to designate orders as MMTP Orders is intended to allow firms to better manage order flow and prevent unwanted executions resulting from the interaction of executable buy and sell trading interest for the same Market-Maker, as well as prevent the potential for (or appearance of) “wash sales” that may occur as a result of the velocity of trading in today's high speed marketplace. When a Market-Maker is preparing to submit an order, the Market-Maker may not know whether or not his order is going to trade against his own resting quote.
The Exchange believes the proposed rule change is consistent with the Act
C2 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 solicited or received with respect to the proposed rule change.
The proposed rule change is filed for immediate effectiveness pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-C2-2011-017. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to modify Exchange Rule 7050 governing pricing for NASDAQ members using the NASDAQ Options Market (“NOM”), NASDAQ's facility for executing and
While changes pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative for transactions on October 3, 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 any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is proposing to modify Exchange Rule 7050 governing the rebates and fees assessed for option orders entered into NOM. The Exchange is proposing to modify pricing for the Customer Rebate to Add Liquidity in Penny Options by amending Rebates to Add Liquidity and eliminating certain tiers.
The Exchange currently pays a Customer Rebate to Add Liquidity in Penny Options based on six volume tiers as follows:
The Exchange is proposing to: (i) Increase the Tier 2(a) Rebate to Add Liquidity from $0.34 per contract to $0.36 per contract and amend the title from “Tier 2(a)” to “Tier 2”; (ii) increase the Tier 6 Rebate to Add Liquidity from $0.35 per contract to $0.37 per contract and amend the title from “Tier 6(a)” to “Tier 6”; and (iii) eliminate Tier 2(b) and Tier 6(b) language, which as of October 3, 2011 will be outdated as those terms expired after September 30, 2011.
The Exchange adopted these monthly volume achievement tiers in September 2011.
The Exchange believes the existing monthly volume thresholds have incentivized firms that route Customer orders to the Exchange to increase
First, the Exchange is proposing to increase the rebate for newly named Tier 2 firms that add between 25,000 and 59,999 contracts per day in month
Second, the Exchange is proposing to increase the rebate for newly named Tier 6 from a $0.35 per contract Rebate to Add Liquidity to a $0.37 per contract Rebate to Add Liquidity. Tier 6 firms are required to meet two criteria: (1) Provide 25,000 or more contracts per day in a month;
The Exchange is not proposing any amendments to Tiers 1, 3, 4, and 5.
NASDAQ believes that the proposed rule changes are consistent with the provisions of Section 6 of the Act,
The Exchange believes that the proposed new pricing tiers are equitable, reasonable and not unfairly discriminatory because they continue an existing program to encourage broker-dealers acting as agent for Customer orders to select the Exchange as a venue to post Customer orders. The Exchange believes that its success at attracting Customer order flow benefits all market participants by improving the quality of order interaction and executions at the Exchange.
The Exchange believes that the proposed increased rebates for Tiers 2 and 6 are reasonable because as explained herein, the Exchange is seeking to further incentivize Participants to add liquidity to the Exchange. In addition, with respect to Tier 6, the Exchange believes the increased Rebates to Add Liquidity will incentivize participants in the Exchange's equity markets to also participate in the Exchange's options market.
The Exchange believes that the proposed increased rebates for Tiers 2 and 6 are equitable and not unfairly discriminatory because the proposed Rebates to Add Liquidity will apply to all Customer order flow in a uniform manner. All Customers will have the opportunity to earn even higher rebates by adding liquidity and obtaining higher tier rebates as compared to all other market participants.
The Exchange believes that its proposal to eliminate outdated language in Tier 2(b) and Tier 6(b) is reasonable and equitable because the elimination of outdated language will provide clarity to Exchange Rule 7050.
The Exchange operates in a highly competitive market comprised of nine U.S. options exchanges in which sophisticated and knowledgeable market participants can and do send order flow to competing exchanges if they deem fee levels at a particular exchange to be excessive or rebate opportunities to be inadequate. The Exchange believes that the proposed rebate scheme is competitive and similar to other rebates and tiers opportunities in place on other exchanges. The Exchange believes that this competitive marketplace materially impacts the rebates present on the Exchange today and substantially influenced the proposal set forth above.
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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to update cross-references within certain FINRA rules to reflect changes adopted in the consolidated FINRA rulebook and to make non-substantive technical changes to certain FINRA and NASD Rules.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is in the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”).
The proposed rule change would update rule cross-references to reflect changes adopted in the Consolidated FINRA Rulebook. In this regard, the proposed rule change would update references in FINRA Rule 9217 (Violations Appropriate for Disposition Under Plan Pursuant to SEA Rule 19d-1(c)(2)) that are needed as the result of Commission approval of a recent FINRA proposed rule changes [sic].
The proposed rule change would also delete from FINRA Manual the Series heading for NASD Rule 3200 (Settlement) to reflect that the NASD Rule 3200 Series has been replaced by FINRA Rules 4311, 4320, and 5330.
FINRA has filed the proposed rule change for immediate effectiveness. The implementation date for the proposed rule changes to FINRA Rules 7410, 9217, and NASD Rule 3200 will be October 17, 2011.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 26, 2011, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposal seeks to amend Interpretation and Policy .01 to Rule 5.5 to simplify the $1 Strike Price Interval Program (the “Program”). The Exchange established the Program in 2003, and has subsequently modified it on several occasions.
To simply the rules of the Program and as a proactive attempt to mitigate any unintentional listing of improper strikes, CBOE proposed the following amendments:
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
○ However, the above restriction would not prohibit the listing of at least five strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, the Exchange would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” is as set forth in Rule 5.5A(b)(i).
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The early 2011 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in the Program. The Exchange is proposing to simplify the language and provide clearer examples. These changes are set forth in proposed Rule 5.5.01(b)(2)(v).
For stocks in the Program, the Proposal permits the Exchange to list one $1 strike price interval between each standard $5 strike interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock. The proposed rule text defines these strikes as “$2 wings.” For example, if the price of the underlying stock is $24.50, the Exchange may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, the Exchange may list the following $2 wings: $18, $27 and $32.
In addition, the proposal permits the Exchange to list the $1 strike price interval that is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, the Exchange may list a $22 strike.
The proposal also contains certain non-substantive amendments to rule text.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The proposed rule change seeks to simplify the Program, and thereby to reduce the possibility of confusion among investors and market participants. At the same time, the Commission notes that the changes proposed by CBOE would allow a relatively modest increase to the total number of series that may be listed under the $1 Strike Interval Program, and would not alter the range for which $1 interval strikes are permitted to be listed. The Commission also notes that CBOE has represented that it has the necessary systems capacity to support the increase in new options series that will result from the proposed streamlining changes to the Program.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt a Market-Maker Trade Prevention Order. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt a Market-Maker Trade Prevention (“MMTP”) Order. The proposed MMTP Order is an immediate-or-cancel order containing a designation that prevents incoming orders for a Market-Maker from executing against resting quotes and orders for the same Market-Maker.
The MMTP Order type designation is intended to prevent a Market-Maker from trading on both sides of the same transaction. Orders would be marked with the MMTP designation on an order-by-order basis. An incoming MMTP Order cannot interact with interest resting on the book from the same Market-Maker. An MMTP Order that would trade against a resting quote or order for the same Market-Maker will be cancelled, as will the resting quote or order. The MMTP Order will trade against other tradable orders and quotes entered by or on behalf of another market participant (other than those entered by or on behalf of the same Market-Maker) in accordance with the execution process described in Exchange Rules 6.45 (Priority of Bids and Offers—Allocation of Trades), 6.45A (Priority and Allocation of Equity Option Trades on the CBOE Hybrid System) and 6.45B (Priority and Allocation of Trades in Index Options and Options on ETFs on the CBOE Hybrid System).
However, if the MMTP is received while an order for the same Market-Maker is subject to Rule 6.13A,
For example, assume the Exchange's best bid and offer is $1.00-$1.20, 100 contracts on each side. A Market-Maker marks an order to buy 100 contracts at $1.20 with the MMTP distinction, making it an MMTP Order. The MMTP Order is submitted to the Exchange and it would trade with a resting quote from the same Market-Maker for 100 contracts offered at $1.20, then both the order to buy and the resting offer quote would be canceled. However, if the resting offer quote from the same Market-Maker was for only 60 contracts, then 60 contracts from the order to buy would be canceled (as would the resting quote), but the other 40 contracts could trade with the resting offer interest of the other market participants.
As another example, assume a sell order entered on behalf of a Market-Maker is subject to a HAL auction. A Market-Maker marks an order to buy with the MMTP distinction, making it an MMTP Order. If this incoming MMTP Order is received while the auction is in progress and the MMTP Order would otherwise trade with the order that is subject to the HAL auction, then only the MMTP Order would be cancelled. The order being represented in the auction would not be canceled.
At this time, the Exchange intends to identify an incoming MMTP Order as being for the same Market-Maker if the MMTP Order and resting quote or order share any of the following: (1) User acronym, (2) login ID, or (3) sub-account code. Each Market-Maker is assigned its own acronym (sometimes multiple acronyms). However, a Market-Maker may have multiple different login IDs or sub-account codes. A login ID is the session through which a Market-Maker routes orders to the Exchange. A Market-Maker may elect to use different login IDs to route different types of communications to the Exchange. For example, a Market-Maker may choose to use login ID #1 for all orders it sends to the Exchange and login ID #2 for all quotes it sends to the Exchange. Or the Market-Maker may be much more specific, and use different login IDs for different types of orders and quotes. A sub-account code is simply a field on each order or quote that lists the account into which a trade clears at the Options Clearing Corporation (“OCC”). A Market-Maker may have different sub-account codes for each trader it employs, so that the Market-Maker may track each trader's activity. Finally, Market-Makers sometimes use different acronyms but clear into the same accounts (thereby using the same sub-accounts codes).
Allowing Market-Makers to designate orders as MMTP Orders is intended to allow firms to better manage order flow and prevent unwanted executions resulting from the interaction of executable buy and sell trading interest for the same Market-Maker, as well as prevent the potential for (or appearance of) “wash sales” that may occur as a result of the velocity of trading in today's high speed marketplace. When a Market-Maker is preparing to submit an order, the Market-Maker may not know whether or not his order is going to trade against his own resting quote. Further, many Market-Makers have multiple connections into the Exchange due to capacity- and speed-related demands. Orders routed by the same Market-Makers via different connections may, in certain circumstances, trade against each other. Finally, the Exchange notes that offering the MMTP modifiers will streamline certain regulatory functions by reducing false positive results that may occur on Exchange-generated wash trading surveillance reports when orders are executed by the same Market-Maker. For these reasons, the Exchange believes the MMTP Order provides Market-Makers enhanced order processing functionality to prevent potentially unwanted trades from occurring.
The Exchange believes the proposed rule change is consistent with the Act
CBOE 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 solicited or received with respect to the proposed rule change.
The proposed rule change is filed for immediate effectiveness pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The text of the proposed rule change is below. Italicized text indicates additions; bracketed text indicates deletions.
Rule 100—80203—No Change.
Rule 80301-End—No change.
In its filing with the Commission, CME included statements concerning the purpose and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CME offers clearing services for certain credit default swap index products. Currently, CME offers clearing for Markit CDX North American Investment Grade Index Series 10, 11, 12, 13, 14, 15 and 16 and will offer Series 17 on September 20, 2011. The proposed rule changes that are the subject of this filing are intended to expand CME's credit default swap index product offering by adding clearing for Markit CDX North American High Yield Index Series 11, 12, 13, 14, 15, 16 and 17.
CME notes that it has also submitted the proposed rule changes that are the subject of this filing to its primary regulator, the Commodity Futures Trading Commission (“CFTC”). The text of the CME proposed rule amendments is included above, with additions italicized and deletions in brackets.
CME believes the proposed rule changes are consistent with the requirements of the Exchange Act including Section 17A of the Exchange Act. CME notes that the proposed rule changes involve the addition of new CFTC-regulated swaps for clearing and therefore are primarily related to CME's swaps clearing activities pursuant to its registration as a derivatives clearing organization under the Commodity Exchange Act (“CEA”). CME further notes that the policies of the CEA with respect to clearing are comparable to a number of the policies underlying the Exchange Act, such as promoting market transparency for over-the-counter derivatives markets, promoting the prompt and accurate clearance of transactions and protecting investors and the public interest. The proposed rule changes accomplish those objectives by offering investors clearing for an expanded range of credit default swap products based on broad-based indexes.
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Electronic comments may be submitted by using the Commission's Internet comment form (
• Paper comments should be sent 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-CME-2011-07. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All submissions should refer to File Number SR-CME-2011-07 and should be submitted on or before October 19, 2011.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration.
Notice of Revised Transaction Fee for Consent Based Social Security Number Verification Service.
We provide limited fee-based Social Security number (SSN) verification service to private businesses and other requesters who obtain a valid, signed consent form from the Social Security number holder. We originally published a notice announcing the CBSV service in the
Based on the consent forms, we verify the number holders' SSNs for the requesting party. The Privacy Act of 1974 (5 U.S.C. 552a(b)), section 1106 of the Social Security Act (42 U.S.C. 1306) and our regulation at 20 CFR 401.100, establish the legal authority for us to provide SSN verifications to third party requesters based on consent.
The CBSV process provides the business community and other government entities with consent-based disclosures in high volume. We developed CBSV as a user-friendly, internet-based application with safeguards that will protect the public's information. In addition to the benefit of providing high volume, centralized SSN verification services to the business community in a secure manner, CBSV provides us with cost and workload management benefits.
Based on the most recent cost analysis, we will adjust the fiscal year 2012 fee to $1.05 per transaction. New customers will still be responsible for the one-time $5,000 enrollment fee.
The changes described above are effective October 1, 2011.
Gerard R. Hart, Office of Public Service and Operations Support, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-8707, for more information about the CBSV service, visit our Internet site, Social Security Online, at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Notice of meeting.
Pursuant to the provisions of the rules and regulations of the Federal Advisory Committee Act (FACA), the Advisory Committee on the Secretary of State's Strategic Dialogue with Civil Society will convene in Washington, DC on October 4, 2011. The Committee provides advice and assists with the formulation of U.S. policies, proposals, and strategies for engagement with, and protection of, civil society worldwide. The objective of this inaugural meeting is to discuss the general purposes of the Committee and its five subcommittees and set an agenda for future Committee meetings. The meeting is open to the public and will be streamed live at
The meeting will be held on October 4, 2011, from 10 a.m. to 11:30 a.m.
The meeting will be held at the U.S. Department of State, Room 1107, 2201 C Street, NW., Washington, DC. This meeting is open to public participation, though seating is limited. Entry to the building is controlled. To obtain pre-clearance for entry provide, by September 29th, your name, professional affiliation, valid government-issued ID number, passport number and country of issuance, or drivers license number and state of issuance, date of birth, and citizenship to Dara Duncan via e-mail to
Written comments may also be submitted to Dara Duncan via the contact information above. All comments, including names and addresses when provided, are placed in the record and are available for inspection and copying. The public may inspect comments received at the U.S. Department of State, 2201 C Street, NW., Room 1317, Washington, DC 20520. Please call ahead to (202) 736-7824 to facilitate entry into the building.
Dara Duncan, Committee Executive Secretary, U.S. Department of State, 2201 C Street, NW., Room 1317, Washington, DC 20520; (202) 736-7824; fax (202) 736-7961;
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 Dara Duncan at the contact information provided above prior to September 26th. Requests made after that date will be considered, but might not be possible to fulfill.
The meeting is open to the public and will be streamed live at:
Personal data is requested for building entry pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA Patriot Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Privacy Impact Assessment for VACS-D at
Office of the United States Trade Representative.
Request for written submissions from the public.
In January 1998, the USTR designated Paraguay as a Priority Foreign Country in the 1998 Special 301 Report. A Section 301 investigation was initiated in February 1998, and was suspended in November 1998 after the United States and Paraguay successfully entered into a Memorandum of Understanding on Intellectual Property Rights. USTR subsequently announced that the MOU would be monitored through Section 306 of the Trade Act of 1974. USTR hereby requests written submissions from the public concerning Paraguay's implementation of the MOU on Intellectual Property Rights, and additional actions that Paraguay should take, if any, to improve the protection and enforcement of intellectual property rights.
Submissions from the general public and foreign governments must be received by
All comments should be sent electronically to
Paula Karol Pinha, Director, Intellectual Property and Innovation, Office of the United States Trade Representative, at (202) 395-5419.
Section 182 of the Trade Act of 1974 (Trade Act) (19 U.S.C. 2242) requires the United States Trade Representative (USTR) to identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. (The provisions of Section 182 are commonly referred to as the “Special 301” provisions of the Trade Act.) The USTR is required to determine which, if any, of these countries should be identified as Priority Foreign Countries. Countries placed on the Priority Foreign Country list are found to have the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on the relevant U.S. products. Priority Foreign Countries are subject to an investigation under the Section 301 provisions of the Trade Act of 1974.
In 1998, the USTR identified Paraguay as a Priority Foreign Country in the 1998 Special 301 Report. A Section 301 investigation was initiated in February 1998, and was suspended in November 1998 after the United States and Paraguay entered into a Memorandum of Understanding on Intellectual Property Rights (the “MOU”) that included an Enforcement Action Plan to address the issues that were the subject of the Section 301 investigation. The MOU has been extended since 1998, and it was renegotiated in 2008 to address legislative developments and to better tailor key objectives for the enforcement of intellectual property rights. The MOU is scheduled to expire as of December 31, 2011.
The current MOU includes commitments by Paraguay to protect intellectual property rights and implement effective enforcement mechanisms and practices against intellectual property rights violations. It also includes commitments with respect to transparency in the administration of intellectual property rights, and reporting of enforcement related activities, and commitments with respect to training of government officials. The MOU includes an enforcement action plan and a consultation mechanism for addressing matters related to the MOU.
USTR hereby requests written submissions from the public concerning Paraguay's implementation of the MOU on Intellectual Property Rights, and, if applicable, any additional actions that Paraguay should take to improve the protection and enforcement of intellectual property rights, and any provisions that should be included in the MOU to make it more effective. USTR requests that, where relevant, submissions mention particular examples of which acts, policies, or practices in Paraguay deserve special attention. Submissions may report positive or negative developments with respect to the protection and enforcement of intellectual property rights in Paraguay and market access for U.S. persons who rely on intellectual property.
To submit comments to
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such, the submission must be marked “Business Confidential” at the top and bottom of the cover page and each succeeding page, and should indicate using brackets the specific information which is confidential. Any comment containing business confidential information must be accompanied by a non-confidential summary of the confidential information. The non-confidential summary will be placed in the docket and open to public inspection.
USTR will maintain a docket on the Paraguay Memorandum of Understanding on Intellectual Property Rights, accessible to the public. The public file will include non-confidential comments received by USTR from the public, including foreign governments, with respect to the Paraguay Memorandum of Understanding on Intellectual Property Rights.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
This notice announces a public meeting of the FAA's Aviation Rulemaking Advisory Committee (ARAC) to discuss transport airplane and engine (TAE) issues.
The meeting is scheduled for Wednesday, October 19, 2011, starting at 9 am Eastern Daylight Time. Arrangements for oral presentations must be made by October 12, 2011.
The Boeing Company, 1200 Wilson Boulevard, Room 234, Arlington, Virginia 22209.
Ralen Gao, Office of Rulemaking, ARM-209, FAA, 800 Independence Avenue, SW., Washington, DC 20591, Telephone (202) 267-3168, Fax (202) 267-5075, or e-mail at
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. app. 2), notice is given of an ARAC meeting to be held October 19, 2011.
The agenda for the meeting is as follows:
• Opening Remarks, Review Agenda and Minutes.
• FAA Report.
• ARAC Executive Committee Report.
• Update on Rulemaking Prioritization Working Group.
• Transport Canada Report.
• Materials Flammability Working Group Report.
• Avionics Harmonization Working Group Report.
• AA Working Group Report.
• Flight Controls Working Group Report.
• Rudder Reversal Tasking.
• Any Other Business.
• Action Items Review.
Attendance is open to the public, but will be limited to the availability of meeting room space. Please confirm your attendance with the person listed in the
The FAA will arrange for teleconference service for individuals wishing to join in by teleconference if we receive notice by October 12, 2011. For persons participating by telephone, please contact Ralen Gao by e-mail or phone for the teleconference call-in number and passcode. Anyone calling from outside the Arlington, VA, metropolitan area will be responsible for paying long-distance charges.
The public must make arrangements by October 12, 2011, to present oral statements at the meeting. Written statements may be presented to the ARAC at any time by providing 25 copies to the person listed in the
If you need assistance or require a reasonable accommodation for the meeting or meeting documents, please contact the person listed in the
Federal Highway Administration, District of Columbia Division; and District Department of Transportation; in cooperation with the National Park Service.
Notice of availability of the Finding of No Significant Impact for the Metropolitan Branch Trail (MBT) Project.
The U.S. Federal Highway Administration (FHWA) and the District Department of Transportation (DDOT) as lead agencies, and in cooperation with the National Park Service (NPS), announce the availability of the Finding of No Significant Impact (FONSI) for the Metropolitan Branch Trail Project, pursuant to the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347; the Council on Environmental Quality Regulations (40 CFR parts 1500-1508); and the FHWA Environmental Impact and Related Procedures (23 CFR 771).
Federal Highway Administration, District of Columbia Division: Mr. Michael Hicks, Environmental/Urban Engineer, 1990 K Street, NW., Suite 510, Washington, DC 20006-1103, (202) 219-3536; or District Department of Transportation: Heather Deutsch, Bicycle Program Specialist/Trail Planner, Policy, Planning and Sustainability Administration, District Department of Transportation, 55 M Street, SE., Suite 500, Washington, DC 20003, (202) 671-2638.
The proposed action evaluated in the Environmental Assessment (EA) includes construction of a multi-use trail facility following the Metro red line from Fort Totten to Takoma and the Metro green line from Fort Totten to the District border.
This EA analyzed the potential impacts resulting from constructing and operating the MBT on sections of land owned by the NPS within the area north of Fort Totten (Reservation 451 West), the area east of Fort Totten (Reservation 451 East), the Community Gardens (Reservation 497), and Tacoma Park (Reservation 531). Following the public comment period, DDOT identified Alternatives A1, B1, C1 and/or C2 as the Preferred Alternatives.
The FHWA has determined that the Preferred Alternative and options will not have a significant impact on the natural, human or built environment as defined by CEQ. This Finding of No Significant Impact (FONSI) is based on the findings of the proposed project's Final EA, and comments submitted during preparation of the EA. The Final EA has been evaluated by the FHWA, using CEQ regulations and FHWA and NPS guidelines, and determined to adequately discuss the need, environmental issues, and impacts of the proposed project and appropriate mitigation measures. It provides sufficient evidence and analysis for determining that an environmental impact statement is not required.
An electronic copy of this document may be downloaded from the Project
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before October 27, 2011.
Anne Wehde, Maritime Administration, 1200 New Jersey Ave., SE., Washington, DC 20590.
Maritime Administration (MARAD).
By Order of the Maritime Administrator.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intention to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before November 28, 2011.
Patricia Thomas, Maritime Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
49 CFR 1.66.
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before October 28, 2011.
Comments should refer to docket number MARAD-2011-0122. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979, E-mail
As described by the applicant the intended service of the vessel ARIA is:
The complete application is given in DOT docket MARAD-2011-0122 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized
Submit comments on or before October 28, 2011.
Comments should refer to docket number MARAD-2011-0123. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979, e-mail
As described by the applicant the intended service of the vessel WILDFLOWER is:
The complete application is given in DOT docket MARAD-2011-0123 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of grant of a petition for renewal of a temporary exemption from certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
This notice grants the petition of Tesla Motors, Inc. (Tesla) for the renewal of a temporary exemption of its Roadster model from the advanced air bag requirements of FMVSS No. 208. The basis for the exemption is that compliance with the standard would cause substantial economic hardship to a manufacturer that has tried to comply with the standard in good faith.
The exemption remains in effect until November 7, 2011.
David Jasinski, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building 4th Floor, Room W41-326, Washington, DC 20590.
In general, frontal air bags for drivers and right front passengers have large net benefits. NHTSA estimates that they saved 30,232 lives from 1987 through the end of 2009.
In 2000, NHTSA published a final rule that upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The issuance of the advanced air bag requirements was a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of some air bag designs. This plan also included an extensive consumer education program to encourage the placement of children in rear seats.
The new requirements were phased-in, beginning with the 2004 model year. Small volume manufacturers were not subject to the advanced air bag requirements until the end of the phase-in period,
In recent years, NHTSA has addressed a number of petitions for exemption from the advanced air bag requirements of FMVSS No. 208. The majority of these requests have come from small manufacturers, each of which has petitioned on the basis that compliance would cause it substantial economic hardship and that it has tried in good faith to comply with the standard. In recognition of the more limited resources and capabilities of small motor vehicle manufacturers, authority to grant exemptions based on substantial economic hardship and good faith efforts was added to the Vehicle
NHTSA has granted a number of these petitions, usually in situations in which the manufacturer is supplying standard air bags in lieu of advanced air bags.
Notwithstanding those previous grants of exemption, NHTSA has considered two key issues—
(1) Whether it is in the public interest to continue to grant such petitions, particularly in the same manner as in the past, given the number of years these requirements have now been in effect and the benefits of advanced air bags, and
(2) to the extent such petitions are granted, what plans and countermeasures to protect child and infant occupants, short of compliance with the advanced air bag requirements, should be expected.
The agency requested comments on these issues in recent notices of receipt, including the one for Tesla.
Over time, the number of petitions for exemption from the advanced air bag requirements has decreased, and several small manufacturers that previously received exemptions now produce vehicles that comply with the advanced air bag requirements. The majority of current petitions before the agency are petitions for limited extension of previously granted exemptions.
We discuss comments concerning this issue that were submitted in response to the notice of receipt of the Tesla petition later in this document.
The National Traffic and Motor Vehicle Safety Act (Safety Act), codified as 49 U.S.C. Chapter 301, provides the Secretary of Transportation authority to exempt, on a temporary basis and under specified circumstances, motor vehicles from a motor vehicle safety standard or bumper standard. This authority is set forth at 49 U.S.C. 30113. The Secretary has delegated the authority for implementing this section to NHTSA.
The Act authorizes the Secretary to grant a temporary exemption to a manufacturer of not more than 10,000 motor vehicles annually, on such terms as the Secretary deems appropriate, if the Secretary finds that the exemption would be consistent with the public interest and also finds that compliance with the standard would cause substantial economic hardship to the manufacturer and that the manufacturer has tried to comply with the standard in good faith.
NHTSA established Part 555,
A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. chapter 301) do not state that a manufacturer has substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
While 49 U.S.C. 30113(b) states that exemptions from a Safety Act standard are to be granted on a “temporary basis,”
Finally, we note that under 49 CFR 555.8(e), “If an application for renewal of temporary exemption that meets the requirements of § 555.5 has been filed not later than 60 days before the termination date of an exemption, the exemption does not terminate until the Administrator grants or denies the application for renewal.” In the case of the petition for renewal from Tesla, the petition for renewal was submitted by the deadline stated in 49 CFR 555.8(e).
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR part 555, Tesla Motors, Inc., (Tesla) has submitted a petition asking the agency for renewal of its temporary exemption from certain advanced air bag requirements of FMVSS No. 208,
Specifically, the petition requests an exemption from the advanced air bag requirements (S14), with the exception of the belted, rigid barrier provisions of S14.5.1(a); the rigid barrier test requirement using the 5th percentile adult female test dummy (belted and unbelted, S15); the offset deformable barrier test requirement using the 5th percentile adult female test dummy (S17); and the requirements to provide protection for infants and children (S19, S21, and S23).
In a
In a November 24, 2010 petition, Tesla sought renewal of its exemption. The basis for Tesla's application is substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. Tesla is a Delaware corporation headquartered in California with sales offices throughout the United States and overseas. Tesla currently sells only one vehicle, the Roadster. Tesla has sold or leased 287 Roadsters in the 12 months prior to filing its petition for renewal. Tesla states that it continues to be eligible for a financial hardship exemption, and that it has suffered substantial losses and will continue to do so while selling the Roadster.
Tesla began production of the all-electric Roadster in 2008. The Roadster has a single-speed electrically actuated automatic transmission and three phase, four pole AC induction motor. The Roadster has a combined range of 245 miles on a single charge. Under an agreement with Group Lotus plc (Lotus), Tesla purchases the Roadster “glider,” which uses the chassis and several other systems of the Lotus Elise. The gliders are manufactured under Tesla's supervision and direction at a Lotus factory in the United Kingdom and then shipped to Menlo Park, California, where installation of the power train and other final steps are taken prior to sale of the vehicle in the United States. Tesla asserts in its petition that Lotus will cease manufacturing Roadster gliders in December 2011, and that Tesla plans to finish production in early 2012 and offer remaining Roadsters for sale during 2012.
According to Tesla, the Roadster was conceived as a limited proof-of-concept for later generations of Tesla vehicles. Tesla intends to introduce its next electric vehicle, a four-door fully electric sedan known as the Model S. Tesla states that the Model S would meet or exceed all FMVSSs in effect by the time the vehicle is released for production in 2012.
Tesla contends that it is eligible for an economic hardship exemption. Tesla has produced fewer than 10,000 vehicles since the company's founding in 2003. Worldwide production of the Roadster for calendar year 2010 will be approximately 600 to 700 vehicles. Tesla also states that it will not produce more than 10,000 vehicles (combined Roadster and Model S production) per year during the requested exemption period.
In the January 2008 notice granting Tesla's original exemption, the agency determined that Lotus, as well as Tesla, was considered a manufacturer of the Roadster. The basis for this determination was information in the prior petition that Lotus would be assembling the Roadster. Nevertheless, the agency determined that Tesla was eligible for an economic hardship petition because the combined production of Lotus and Tesla was fewer than 10,000 vehicles.
In its petition for renewal, Tesla contends that the relationship between Lotus and Tesla does not involve ownership, sponsorship, or any type of control of one entity over the other. Tesla also reiterates that, even if the production of Lotus and Tesla vehicles are combined, the total production is far below the threshold 10,000 vehicle per year limit for hardship exemptions.
Tesla cites multiple reasons why the failure to obtain the requested extension of its exemption would cause substantial economic hardship. First, Tesla has incurred cumulative net losses of $360 million since inception through September 30, 2010, and a net loss of $100 million for the first nine months of 2010. Tesla also expects cumulative losses to almost double before launch of the Model S. Second, Tesla has committed certain remaining costs for the Roadster that cannot be cancelled, such as a fixed supply contract with Lotus and other suppliers until the end of 2011. Third, Tesla contends that ending U.S. sales of the Roadster would require Tesla to refund $2.4 million in deposits on Roadster reservations, exacerbating its financial hardship. Additionally, because the Roadster is the only Tesla model available in the United States, Tesla states that cancellation of the program would result in a significant loss of market share.
Tesla also contends that Lotus, and by extension Tesla, has exerted good faith efforts to achieve compliance with the advanced air bag requirements. Tesla notes that the Roadster shares a number of common components and systems with the Lotus Elise, including the passive safety systems. Tesla believes that, for the reasons outlined in Lotus's petition for an renewal of its FMVSS No. 208 exemption for the Elise, Lotus has exerted good faith efforts to comply with the advanced air bag requirements. Furthermore, Tesla states that it is in no better position than Lotus to develop an advanced air bag system for the Elise-based Roadster. Like the Lotus Elise, the Tesla Roadster is coming to the end of its model life. Given the limited number of Roadsters planned for production, Tesla believes that developing an advanced air bag system for the Roadster at this time is economically impracticable. Tesla also contends that it has been using the three years of its current exemption to develop the Model S, which will include advanced air bags.
Tesla also contends that the requested extension of its exemption is in the public interest for five reasons. First, Tesla states that granting the petition would encourage development and sale of highway-capable electric vehicles by Tesla and other manufacturers. Second, Tesla contends that the public interest considerations supporting other similar extension petitions previously granted by NHTSA exist for Tesla as well. Third, Tesla states that the Roadster has a high degree of safety because of its design. Even without advanced air bags, Tesla believes that the requested exemption would have a negligible impact on vehicle safety because of the limited number of vehicles that would be sold in the United States under the extension. Fourth, Tesla contends that the Roadster does not pose an unreasonable risk to safety of infants or children because young children are unlikely to be passengers in the Roadster and neither Tesla nor Lotus has received any complaints, reports, or information of air bag-related injuries. Fifth, Tesla contends that granting its petition will have a positive impact on U.S. employment in the automotive industry, and that denying its petition would not only directly impact the jobs of current Tesla employees supporting the Roadster, but also potentially compromise the company's ability to move forward with the Model S.
On June 8, 2011, we published in the
Advocates first responded to NHTSA's request for comment regarding whether and under what circumstances the agency should continue to grant temporary exemptions from the advanced air bag requirements. Advocates concurred with NHTSA's concerns regarding the continuation of such exemptions. The organization noted that air bag technology is over 35
Advocates also recommended revising the petition process to create a rebuttable presumption that cost alone cannot provide a basis for a temporary exemption beyond four years following the compliance date. Additionally, the organization recommended that NHTSA require applicants to make a showing regarding recent advances in state-of-the-art research, design, and development that pertain to the requirements for which exemption is requested and explain why an exemption is still necessary.
Regarding Tesla's petition, Advocates noted that the company requests exemption from the unbelted test of the 50th percentile male occupant and the belted and unbelted tests of the 5th percentile adult female driver, and the out-of-position portions of the advanced air bag requirements for all children. Advocates asserted that in developing and testing air bag systems to meet these requirements, Tesla would only need to perform component level tests rather than more expensive full vehicle tests. Alternatively, Advocates stated that Tesla could meet these requirements by using an occupant detection system to suppress air bag deployment in specified situations, which, according to Advocates, costs approximately $1,500. Advocates argued that Tesla had multiple ways to meet the requirements without being granted an extension of its exemption.
Advocates also addressed Tesla's assertions that an extension of its exemption would be consistent with the public interest and the objectives of the Safety Act. Specifically, Advocates stated that every safety regulation was developed for a specific reason and intended to provide a specific level of protection, and that the fact that the vehicle will meet other safety requirements does not address the safety concerns that caused NHTSA to promulgate the requirements from which Tesla seeks exemption.
Advocates further argued that exemptions should not be based upon assumptions of the occupant population. The organization noted that, although many consumers would not purchase a Tesla Roadster as the primary means of transporting their children, there was no reason why Tesla vehicles would not be used to transport children and, in vehicles with two seats, any child riding in the vehicle would be located in the front seat. Additionally, the organization noted that one of the requirements from which exemption is sought is meant to address the safety of small-statured adult females, and that Tesla did not indicate why these women would not be occupants of the vehicles.
Advocates stated that, based on the foregoing, it could not support granting Tesla's petition for renewal of its temporary exemption.
Finally, Advocates argued that the procedure under which Tesla received an automatic extension of its exemption violates 49 U.S.C. section 30113(e). That statutory provision provides that an economic hardship exemption may not be granted for more than three years. As provided by 49 CFR 555.8(e), if a petition for renewal of a temporary exemption has been filed not later than 60 days before termination of an exemption, the exemption does not terminate until the Administrator grants or denies the petition for renewal. Advocates stated that this provision allows the agency, through inaction on a petition for renewal of an exemption, to extend the three-year limit of an exemption.
Tesla filed a response to Advocates' comment. With respect to Advocates' assertion regarding Tesla's ability to use off-the-shelf technology that would cost $1,500 to comply with the advanced air bag requirements, Tesla stated that Advocates have understated the complexity of advanced air bag technology. Tesla noted that any modification to a vehicle requires full testing to ensure appropriate operation and compatibility. Further, with respect to the complexity of adding new components, Tesla stated that it has relied on the expertise of Lotus, whose assertions regarding the compatibility of existing air bag components should be given more weight than Advocates' speculative arguments.
With respect to Advocates' assertion regarding the hazard posed by the Roadster's existing air bag system, Tesla noted that Advocates have not provided data or statistics to validate their assertions. In contrast, Tesla stated, it has over 12 million miles of real world driving in over 1,800 vehicles without a single report of serious injury or death caused by passenger air bags in the Roadster.
Advocates filed a second comment on the petition, asking the agency to take note of its comments filed on Tesla's petition for an exemption from the electronic stability control (ESC) requirements of FMVSS No. 126. Those comments raised two issues pertinent to Tesla's advanced air bag petition. First, Advocates believe the agency should consider the interaction between multiple exemptions sought by Tesla. Second, Advocates expressed a concern that, in its ESC petition, Tesla only sought an exemption through December 31, 2010 (later shortened to a 50-day period ending October 20, 2011),
In this section, we provide our analysis and decision regarding Tesla's temporary exemption request concerning the advanced air bag requirements of FMVSS No. 208, including our response to the comments received from Advocates and Tesla.
As noted earlier, NHTSA requested comments in the notice of receipt for the Tesla petition about a number of issues related to the justification for continuing to grant petitions for a hardship exemption from the advanced air bag requirements. The agency also requested comments on these issues in notices of receipt for other petitions.
This is not the first decision document we have issued since beginning to request comments on this issue, and we summarized our new position earlier in this document. In this section, we address the specific comments submitted in response to the notice of receipt for the Tesla petition.
To briefly summarize our new position, and the background for that position, the final rule requiring advanced air bags was published in 2000, and the new requirements were phased-in, beginning with the 2004 model year. Small volume manufacturers were not subject to the advanced air bag requirements until the
In addressing various petitions for exemption from the advanced air bag requirements of FMVSS No. 208 since that time, NHTSA has recognized that small manufacturers faced particular difficulties in acquiring or developing advanced air bag systems. Specifically, the agency noted that major air bag suppliers initially concentrated their efforts on working with large volume manufacturers and small volume manufacturers had limited access to advanced air bag technology.
However, while the exemption authority was created to address the problems of small manufacturers and the agency wishes to be appropriately attentive to those problems, it was not anticipated by the agency that use of this authority would result in small manufacturers being given much more than relatively short term exemptions from recently implemented safety standards, especially those addressing particularly significant safety problems.
Given the passage of time since the advanced air bag requirements were established and implemented, and in light of the benefits of advanced air bags, NHTSA has determined that it is not in the public interest to continue to grant exemptions from these requirements in the same circumstances and under the same terms as in the past. The costs of compliance with the advanced air bag requirements of FMVSS No. 208 are costs that all entrants to the U.S. automobile marketplace should expect to bear. Furthermore, NHTSA understands that, in contrast to the initial years after the advanced air bag requirements went into effect, low volume manufacturers now have access to advanced air bag technology.
Manufacturers are not precluded from submitting petitions for exemption in this area, and NHTSA may grant some such exemptions. However, manufacturers should understand that the circumstances in which we would grant such exemptions is expected to be significantly more limited than in the past.
We are not adopting Advocates' recommendation to change the exemption petition process. Although NHTSA may develop general policies on certain issues, the agency still analyzes each petition on a case-by-case basis and believes that this is the best approach for addressing the individual circumstances of each manufacturer seeking exemption. Moreover, with respect to that organization's suggestion that NHTSA should establish a rebuttable presumption that manufacturing cost alone cannot provide the basis for an application for a temporary exemption from safety requirements beyond four years following the date on which compliance with a vehicle safety standard or requirement is mandatory, we note that manufacturers should not assume that the agency would be likely to grant hardship exemptions based on manufacturing cost alone, even within that four-year period. We evaluate all relevant information and issues in deciding whether to grant petitions for exemptions.
In response to Tesla's petition, and after considering all of the information provided as a response to the notice of receipt of the petition, NHTSA has decided to extend Tesla's temporary exemption from the advanced air bag requirements of FMVSS No. 208 for a period of 40 days after publication of notice of this decision in the
First, we find that Tesla is eligible for an economic hardship exemption. As discussed above, a manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator. In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle.
We have considered whether an entity other than Tesla can be considered to manufacture the Roadster. Lotus, based on its involvement in the design and manufacture of the Roadster gliders is potentially an additional manufacturer of the Roadster.
However, as we have noted in a prior notice, Lotus is itself a small manufacturer and NHTSA granted a temporary exemption from the advanced air bag requirements for the Lotus Elise.
Based on the information provided in Tesla's petition and its comments, NHTSA concludes that Tesla has demonstrated a good faith effort to bring its vehicle into compliance with the advanced air bag requirements of FMVSS No. 208. NHTSA also concludes that Tesla has demonstrated the requisite financial hardship. In reaching the conclusion about good faith efforts, we place significant weight on the fact that, before seeking renewals of existing exemptions, Tesla and Lotus again sought to determine whether it was feasible to include advanced air bags on the exempted vehicles.
As noted earlier, Advocates stated that in developing and testing air bag systems for meeting the sections of the standard related to out-of-position testing, Tesla only needs to perform component level tests as compared to full vehicle tests. It cited a retail price for an occupant detection system and claimed that there are cost effective alternative ways to meet the specific sections of the regulation without being granted an extension.
In response to Advocates' comment, we note that, in order to meet the advanced air bag requirements, Tesla's efforts are not limited to achieving compliance with the out-of-position requirements, but its vehicle must comply with all of the advanced air bag requirements including unbelted crash test requirements and crash test requirements using 5th percentile adult female dummies. While Advocates cited a retail price for an occupant detection system, it has not provided analysis demonstrating how a particular system could be incorporated into the Roadster
Several factors support a finding that an extension of Tesla's exemption is in the public interest. NHTSA has traditionally found that the public interest is served by affording consumers a wider variety of motor vehicles, by encouraging the development of fuel-efficient and alternative-energy vehicles, and providing additional employment opportunities. We believe that all three of these public interest considerations would be served by granting Tesla's petition and note that the denial of this request would remove a vehicle that is currently being sold in the U.S. market.
There are other relevant considerations. The number of vehicles at issue is small. The total number of vehicles produced under this exemption, dating back to the expiration date of the initial exemption, is expected to be fewer than 500. Further, Tesla, based on assertions made in its submissions in support of its petition for exemption from the ESC requirements, expects to produce only 80 additional vehicles under this exemption.
In considering whether to grant a temporary exemption, including a renewal of a temporary exemption, we must consider all relevant factors. We have discussed earlier in this document the benefits provided by advanced air bags. In particular, the requirements for advanced air bags were designed to meet the twin goals of improving protection for occupants of all sizes, belted and unbelted, in moderate-to-high-speed crashes, and of minimizing the risks posed by air bags to infants, children, and other occupants, especially in low-speed crashes. Vehicles without advanced air bags will present greater safety risks in these areas.
After considering all of the relevant information, we have decided to extend Tesla's temporary exemption from the advanced air bag requirements of FMVSS No. 208 for a period of 40 days after publication of this notice in the
Although Tesla requested an exemption for the Roadster from the advanced air bag requirements of FMVSS No. 208 based on substantial economic hardship pursuant to 49 U.S.C. 30113(b)(3)(B)(i), the agency has also considered whether the Roadster qualifies for an exemption as a low-emission vehicle pursuant to 49 U.S.C. 30113(b)(3)(B)(iii). Simultaneously with this determination, the agency has made the determination to grant a temporary exemption for the Roadster from the requirements of FMVSS No. 126 based upon 49 U.S.C. 30113(b)(3)(B)(iii). For the reasons explained therein, NHTSA also concludes for purposes of this determination that the Roadster is a low-emission vehicle and that this temporary exemption of the Roadster from the advanced air bag requirements of FMVSS No. 208 would make the development and field evaluation of a low-emission vehicle easier.
We note that, as explained below, prospective purchasers will be notified that the vehicle is exempted from the specified advanced air bag requirements of FMVSS No. 208. Under § 555.9(b), a manufacturer of an exempted passenger car must affix securely to the windshield or side window of each exempted vehicle a label containing a statement that the vehicle conforms to all applicable FMVSSs in effect on the date of manufacture “except for Standard Nos. [listing the standards by number and title for which an exemption has been granted] exempted pursuant to NHTSA Exemption No. ______.” This label notifies prospective purchasers about the exemption and its subject. Under § 555.9(c), this information must also be included on the vehicle's certification label.
The text of § 555.9 does not expressly indicate how the required statement on the two labels should read in situations in which an exemption covers part, but not all, of a FMVSS. In this case, we believe that a statement that the vehicle has been exempted from Standard No. 208 generally, without an indication that the exemption is limited to the specified advanced air bag provisions, could be misleading. A consumer might incorrectly believe that the vehicle has been exempted from all of Standard No. 208's requirements. Moreover, we believe that the addition of a reference to such provisions by number would be of little use to consumers, since they would not know the subject of those specific provisions.
In accordance with 49 U.S.C. 30113(b)(3)(B)(i), Tesla is granted a renewal of NHTSA Temporary Exemption No. EX 08-01, from S14 (apart from section S14.5.1(a)), S15, S17, S19, S21, and S23 of 49 CFR 571.208.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of grant of a petition for temporary exemption from Federal Motor Vehicle Safety Standard (FMVSS) No. 126,
This notice grants the petition of Tesla Motors, Inc. (Tesla) for the temporary exemption of its Roadster model from the electronic stability control requirements of FMVSS No. 126. The basis for the exemption is that the exemption would facilitate the development or field evaluation of a low-emission motor vehicle and would not unreasonably reduce the safety level of that vehicle.
The exemption is effective September 28, 2011, and remains in effect until November 7, 2011.
David Jasinski, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building 4th Floor, Room W41-326, Washington, DC 20590.
The National Traffic and Motor Vehicle Safety Act (Safety Act), codified as 49 U.S.C. Chapter 301, authorizes the Secretary of Transportation to exempt, on a temporary basis and under specified circumstances, motor vehicles from a motor vehicle safety standard or bumper standard. This authority is set forth at 49 U.S.C. 30113. The Secretary has delegated the authority in this section to NHTSA.
NHTSA established 49 CFR part 555,
For an exemption petition to be granted on the basis that the exemption would make the development or field evaluation of a low-emission motor vehicle easier and would not unreasonably lower the safety level of the vehicle, the petition must include specified information set forth at 49 CFR 555.6(c). The main requirements of that section include: (1) Substantiation that the vehicle is a low-emission vehicle; (2) documentation establishing that a temporary exemption would not unreasonably degrade the safety of a vehicle; (3) substantiation that a temporary exemption would facilitate the development or field evaluation of the vehicle; (4) a statement of whether the petitioner intends to conform to the standard at the end of the exemption period; and (5) a statement that not more than 2,500 exempted vehicles will be sold in the United States in any 12-month period for which an exemption may be granted.
In April 2007, NHTSA published a final rule requiring that vehicles with a gross vehicle weight rating of 4,536 kilograms (kg) (10,000 pounds) or less be equipped with electronic stability control (ESC) systems. ESC systems use automatic computer-controlled braking of individual wheels to assist the driver in maintaining control in critical driving situations in which the vehicle is beginning to lose directional stability at the rear wheels (spin out) or directional control at the front wheels (plow out). An anti-lock brake system (ABS) is a prerequisite for an ESC system because ESC uses many of the same components as ABS. Thus, the cost of complying with FMVSS No. 126 is less for vehicle models already equipped with ABS.
Preventing single-vehicle loss-of-control crashes is the most effective way to reduce deaths resulting from rollover crashes. This is because most loss-of-control crashes culminate in the vehicle leaving the roadway, which dramatically increases the probability of a rollover. NHTSA's crash data study of existing vehicles equipped with ESC demonstrated that these systems reduce fatal single-vehicle crashes of passenger cars by 55 percent and fatal single-vehicle crashes of light trucks and vans (LTVs) by 50 percent.
The ESC requirement became effective for substantially all vehicles on September 1, 2011.
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR Part 555, Tesla Motors, Inc. (Tesla) submitted a petition dated June 7, 2011 asking the agency for a temporary exemption from the electronic stability control requirements of FMVSS No. 126. The bases for the application are, first, that the exemption would make the development or field evaluation of a low-emission vehicle easier and would not unreasonably lower the safety level of that vehicle and, second, that compliance would cause substantial economic hardship to a petitioner that has tried in good faith to comply with the standard. However, the agency has decided to grant the petition on the basis that an exemption would make the development or field evaluation of a low-emission vehicle easier and would not unreasonably lower the safety level of the vehicle. Accordingly, this document will not further discuss the portions of the petition related to only the economic hardship arguments.
Tesla has requested an exemption for the Roadster model for a period from September 1, 2011 to December 31, 2011. In a supplemental filing, Tesla stated that it now intends to manufacture no more than 80 vehicles under the requested exemption and that manufacturing would be complete by October 20, 2011.
Tesla is a Delaware corporation headquartered in California with sales offices throughout the United States and overseas. Although Tesla currently sells
Tesla began production of the all-electric Roadster in 2008. The Roadster has a single-speed electrically actuated automatic transmission and three phase, four pole AC induction motor. The Roadster has a combined range of 245 miles on a single charge. Under an agreement with Group Lotus plc (Lotus), Tesla purchases the Roadster “glider,” which uses the chassis and several other systems of the Lotus Elise. The gliders are manufactured under Tesla's supervision and direction at a Lotus factory in the United Kingdom and then shipped to Menlo Park, California, where installation of the power train and other final steps are taken prior to sale of the vehicle in the United States.
According to Tesla, the Roadster was conceived as a limited proof-of-concept vehicle for later generations of Tesla vehicles. Tesla is preparing to introduce its next electric vehicle, the four-door fully electric Model S sedan. Tesla states that the Model S will meet or exceed all FMVSSs in effect when the vehicle is released for production in 2012. The Model S will carry up to seven passengers for 300 miles on a single charge, but at less than half the price of the Tesla Roadster. In parallel with the development of the Model S, Tesla is developing electric power trains for two other vehicles intended for wide distribution—the Toyota RAV 4 and Mercedes A Class electric vehicles. For these reasons, Tesla asserts that granting the exemption will support the development and evaluation of electric vehicles by Toyota and Mercedes, as well as by Tesla itself.
Tesla explains in its petition how the continued sale of Roadster vehicles will support development and field evaluation of a highway-capable electric vehicle. Tesla states that the development and sale of the Roadster model has allowed it to develop its next all-electric vehicle, the Model S. Tesla states that, with the permission of vehicle owners, it has used data from computers installed in on-road Roadsters related to vehicle operation, operating conditions, charging conditions, state of charge, and other vehicle performance parameters to determine how best to optimize its battery design and vehicle software for future vehicle offerings such as the Model S. Tesla believes that allowing the sale of additional Roadsters will continue to enrich and add to its database of information for future electric vehicle development. Tesla states that it cannot replicate this data in laboratory or other non-highway conditions. Tesla contends that the database from Roadster vehicles is the most substantial real-world database available to government agencies such as NHTSA that are involved in the evaluation of electric vehicles. Tesla also contends that the 80 additional Roadster vehicles covered by its exemption request have the most up-to-date software, hardware, controls and power electronics of any Tesla vehicles, and that their operation therefore will generate particularly valuable additional data that is most valuable addition to the Tesla database. Because these Roadsters incorporate the latest generation of technology and apply the most up-to-date knowledge developed by Tesla, the company also asserts that they are the most valuable vehicles for the development and release of Tesla's next electric vehicle, the Model S.
Tesla believes that safety will not be unduly compromised if the exemption is granted. In support of this assertion, Tesla cites its inclusion of a traction control system (TCS) on its vehicles. Tesla's TCS is comprised of software, wheel speed sensors, and the drive system electronic control unit (ECU). Tesla states that its TCS has many elements of an ESC system required by FMVSS No. 126. Tesla claims that the TCS is able to detect slip in the drive wheels through the vehicle's ECU and that the vehicle will limit drive power until wheel spin is controlled. However, Tesla notes that the TCS does not have the capability to independently monitor or adjust steering inputs to prevent oversteer or understeer, nor is it capable of applying brakes independent of driver input, both of which are required by FMVSS No. 126.
Further, Tesla believes that the lack of ESC systems on the Roadster will not unduly compromise safety based on the intended use of the Roadster. The Roadster is a low, two-seat sport coupe. Tesla believes that, while the Roadster is capable of handling slippery roads due to ice and snow, most owners either do not use their Roadsters during winter months or sharply limit their use.
Tesla contends that denial of its petition will jeopardize Tesla's ability to make the transition to production of the Model S and other electric vehicles. Tesla states that it currently employs approximately 1,100 people, primarily in Palo Alto and Fremont, California. Tesla had intended its manufacturing and production line workers to complete manufacture of the remaining Roadsters and then so shift their duties over to the Model S. Tesla asserts that it is not yet ready to transfer many Roadster manufacturing employees to the production operations for the Model S, and that it therefore cannot support Roadster manufacturing employees for the final quarter of 2011. Without the additional 80 vehicles covered by its exemption request, Tesla's production and manufacturing would have a significant gap in production time lines. As a result, Tesla may be forced to lay off a significant number of employees if it is not granted an exemption. Further, because the Roadster is the only vehicle Tesla offers for sale in the United States, Tesla contends that the cancellation of the program would result in a significant loss of market for Tesla.
In its petition, Tesla asserts that the continued sale of a high-profile vehicle like the Roadster will make the U.S. public familiar with the new possibilities of electric vehicles. The Roadster was intended to demonstrate that electric vehicles can provide all the performance, range and capabilities of internal combustion engine vehicles, but without any emissions. Tesla contends that continued production of the Roadster will help to ensure that the public remains aware of the viability and practicality of high performance, long range electric vehicles, as it makes the transition to the Model S.
Tesla also believes that the exemption is in the public interest. As stated above, Tesla asserts that, without the exemption, it may be required to lay off a significant number of employees. Further, Tesla notes that denying this petition would result in fewer electric vehicles for sale in the United States. Tesla points out that, on the basis of each mile driven, vehicles like the Roadster that operate only on electricity have the greatest impact on reducing U.S. dependence on foreign oil. As Tesla states in its petition, electric vehicles are not just low-emission vehicles that would qualify for this exemption, but zero emission vehicles. Finally, Tesla believes that continuing to sell a long range, highway-capable, battery-powered electric vehicle in the United States will lead to more electric vehicles entering the fleet.
On August 5, 2011, we published in the
In this section, we provide our analysis and decision regarding Tesla's temporary exemption request concerning the ESC requirements of FMVSS No. 126, including our response to the comment received by the Advocates.
As discussed below, we are granting Tesla's petition for the Roadster to be exempted, for a period of 40 days after the date of publication of this notice in the
First, we conclude that Tesla has shown that an exemption from the ESC requirements would make the development or field evaluation of a low-emission motor vehicle easier. Specifically, we agree with Tesla that, by producing additional Roadster models, Tesla will be able to use data from computers installed on those vehicles to assist it in optimizing its battery design and vehicle software for future all-electric vehicle offerings, including its upcoming Model S, as well as vehicles produced by other manufacturers working with Tesla. Furthermore, Tesla's willingness to share data from its Roadster database with NHTSA and other federal agencies means that the additional data from the operation of these additional Roadsters will help to advance the development, and to ensure the safety, of other electric vehicles. We believe that the data from the Roadster database can be used to ensure the safety of not only Tesla's future vehicles, but also electric vehicles produced by all other manufacturers.
Further, the production of additional Roadster models would allow consumers of all-electric vehicles an additional option during the exemption period. We agree with Tesla that continued production of a high-profile vehicle like the Roadster, even for the very limited period of 40 days and in the limited quantity of 80 vehicles, will help to demonstrate to the U.S. public the performance, range and capabilities of electric vehicles. We also agree with Tesla that continued production of the Roadster for the limited period requested by Tesla will ease Tesla's transition to the development and production of the all-electric Model S. For that reason we agree that denial of the petition could jeopardize Tesla's ability to produce the Model S and other electric vehicles in the future. For these reasons, we agree with Tesla that granting this petition will encourage the development and sale of highway-capable electric vehicles by Tesla and also by other manufacturers.
Second, NHTSA concludes that the grant of this exemption would not unreasonably lower the safety or impact protection level of the vehicle. In particular, we have considered that Tesla produces a low, two-seat sport vehicle. The low center of gravity provides some additional protection from loss-of-control crashes. Furthermore, the nature of the vehicle is such that we agree with Tesla's assertion that Roadster owners would be less likely to use their vehicles in winter months or during rain. Because the Roadster would be used less during winter months or during rain, a Roadster is likely to be driven fewer miles compared to an average vehicle. We believe that this factor diminishes the likelihood that the failure to include an ESC system on the Roadster would unreasonably lower the safety level of the vehicle.
The Advocates argue that ESC is an important and proven safety improvement. In support of their argument, the Advocates cite agency and industry research, including the agency's most recent study of ESC system effectiveness.
The Advocates also argue that Tesla cannot guarantee the conditions under which the vehicle will be used. That is, although Tesla argues that Roadsters are less likely to be driven in winter months or during rain, Tesla cannot guarantee that. However, we believe that the Advocates would hold Tesla to too high of a burden of proof that would essentially foreclose the possibility of any exemption being granted. Moreover, although Tesla has not provided data in support of its assertions, we find Tesla's assertions that a low, soft-top convertible vehicle is less likely to be driven in the rain, snow, or winter months to be plausible and persuasive.
The Advocates also argue that Tesla's limited production of exempted vehicles does not justify an exemption. The Advocates argue that rarer vehicles are not safer just because they are rarer. While the agency cannot dispute the assertion that rarer vehicles are not safer because they are rarer, it does not follow that the agency should not consider the expected production volume in support of an exemption request. If Tesla intended to produce 2,500 vehicles per year over two years rather than 80 vehicles in a little over a month, the agency would judge Tesla's petition differently than the petition now before it.
Moreover, it is not just the limited number of Roadsters that would be produced under the exemption, but the limited number of miles the average Roadster is driven compared to other cars that Tesla cites in support of its petition. The Advocates do not dispute the relatively small number of vehicles that Tesla intends to produce under the exemption and the relatively low-mileage use of the Roadster when compared to other vehicles.
The Advocates also contend that, because an FMVSS establishes only the minimum performance requirements necessary for occupant protection, an exemption must only be granted when absolutely necessary. However, the statutory requirements for granting an exemption require only a finding that an exemption is in the public interest and meets the objectives of the Safety Act, in addition to the specific requirements set forth for each of the four bases for an exemption.
We also observe that a very limited number of vehicles would be produced under this temporary exemption. Manufacturers granted exemptions on the basis of furthering the development or field evaluation of a low-emission vehicle are allowed to sell as many as 2,500 exempted vehicles in any 12-month period. Tesla has stated that it intends to produce only 80 vehicles during the exemption period.
The Advocates express a concern that Tesla has, in this petition, requested a shorter exemption period than in its request for an exemption from the advanced air bag requirements of FMVSS No. 208. The Advocates suggest that the longer exemption period sought in the advanced air bag exemption petition suggests that Tesla may continue Roadster production beyond the date sought for this exemption. We reject this argument as a basis for denying Tesla's petition. We give greater weight to Tesla's most recent statement
Based on the foregoing, we believe that any impact on safety from granting the petition would be negligible and that Tesla has satisfied the eligibility criteria for an exemption for the development or field evaluation of a low-emission motor vehicle.
The Advocates raise other issues in their comments that the agency need not address in detail. Specifically, the Advocates argue that Tesla had ample time to develop an FMVSS No. 126-compliant ESC system because the final rule mandating ESC systems was published in the same year that Roadster production first began. The Advocates also state that the cost of including an ESC system is small relative to the cost of the Roadster.
We also find that this exemption would be consistent with the public interest and the objectives of the Safety Act. NHTSA has traditionally found that the public interest is served by affording consumers a wider variety of motor vehicles, by encouraging the development of fuel-efficient and alternative-energy vehicles, and providing additional employment opportunities. We believe that all three of these public interest considerations would be served by granting Tesla's petition.
We note that the denial of this request would remove one of the few electric vehicles that is currently being sold in the U.S. market and that granting this petition would afford U.S. consumers the continued choice of this all-electric vehicle. As explained above, granting this petition will ease the development of the Model S as well as other electric vehicles, while conversely denial of the petition could compromise Tesla's ability to move forward with the Model S. We believe that granting this petition will have a positive impact on U.S. employment in the automotive industry, and that denial of the petition could directly impact the jobs of current Tesla employees supporting the Roadster.
Additionally, we believe that the requested exemption will have a limited impact on general motor vehicle safety because of the small number of vehicles that can be produced under this exemption. Finally, it is critical to the agency's decision that Tesla is requesting a very short exemption period and intends to sell only vehicles that comply with all applicable FMVSS after the exemption period.
We note that, as explained below, prospective purchasers will be notified that the vehicle is exempted from the ESC requirements of Standard No. 126. Under § 555.9(b), a manufacturer of an exempted vehicle must affix securely to the windshield or side window of each exempted vehicle a label containing a statement that the vehicle conforms to all applicable FMVSSs in effect on the date of manufacture “except for Standard Nos. [listing the standards by number and title for which an exemption has been granted] exempted pursuant to NHTSA Exemption No. __.” This label notifies prospective purchasers about the exemption and its subject. Under § 555.9(c), this information must also be included on the vehicle's certification label.
In consideration of the foregoing, we conclude that granting the requested exemption from FMVSS No. 126,
In accordance with 49 U.S.C. 30113(b)(3)(B)(iii), Tesla is granted NHTSA Temporary Exemption No. EX 11-03 from FMVSS No. 126. The exemption is for the Roadster model and shall remain effective from the date on which notice of this decision is published in the
(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and 501.8)
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before October 27, 2011 to be assured consideration.
Department of the Treasury.
Notice of members of the Legal Division Performance Review Board (PRB).
Pursuant to 5 U.S.C. 4314(c)(4), this notice announces the appointment of members of the Legal Division PRB. The purpose of this Board is to review and make recommendations concerning proposed performance appraisals, ratings, bonuses, and other appropriate personnel actions for incumbents of SES positions in the Legal Division.
Office of the General Counsel, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Room 3000, Washington, DC 20220,
The Board shall consist of at least three members. In the case of an appraisal of a career appointee, more than half the members shall consist of career appointees. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed in this notice.
The names and titles of the PRB members are as follows:
Rupa Bhattacharyya, Deputy Assistant General Counsel (International Affairs); Peter A. Bieger, Deputy Assistant General Counsel (Banking and Finance); George Bostick, Benefits Tax Counsel; Michael Caballero, International Tax Counsel; Himamauli Das, Assistant General Counsel (International Affairs); Rochelle F. Granat, Assistant General Counsel (General Law, Ethics and Regulation); Elizabeth Horton, Deputy Assistant General Counsel (Ethics); Catherine E. Livingston, Special Counsel to the Chief Counsel Healthcare Program, Internal Revenue Service; M.J.K. Maher, Jr., Deputy Assistant General Counsel (Enforcement & Intelligence); Margaret V. Marquette, Chief Counsel, Financial Management Service; Christopher J. Meade, Principal Deputy General Counsel; Mark Monborne, Assistant General Counsel (Enforcement & Intelligence); Helen Morrison, Deputy Benefits Tax Counsel; Kevin Rice, Chief Counsel, Bureau of Engraving and Printing; Daniel P. Shaver, Chief Counsel, United States Mint; Brian Sonfield, Deputy Assistant General Counsel (General Law and Regulation); Sean M. Thornton, Chief Counsel, Office of Foreign Assets Control; Robert M. Tobiassen, Chief Counsel, Alcohol and Tobacco Tax and Trade Bureau; Jeffrey Van Hove, Tax Legislative Counsel; Christian A. Weideman, Deputy General Counsel; Curtis G. Wilson, Associate Chief Counsel (Passthroughs & Special Industries), Internal Revenue Service and; Paul Wolfteich, Chief Counsel, Bureau of Public Debt.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, 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 a continuing information collection, as required by the Paperwork Reduction Act of 1995. Currently, the OCC is soliciting comment concerning a renewal of an existing collection titled “Customer Complaint Form.” The OCC
You should submit written comments by: October 27, 2011.
You should direct all written comments to: Communications Division, Office of the Comptroller of the Currency, Mailstop 2-3, Attention: 1557-0232, 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 OCC Desk Officer, 1557-0232, 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.
You can request additional information or a copy of the collection from Mary Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division (1557-0202), Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is requesting comment on the following information collection:
The Customer Assistance Group uses the information submitted in these forms to create a record of the OCC's contacts with the consumer, capture information that can be used to resolve the consumer's issues, and create a database of information that is incorporated into the OCC's supervisory process.
On July 21, 2010, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (Dodd-Frank Act). As part of the comprehensive package of financial regulatory reform measures enacted, Title III of the Dodd-Frank Act transfers the powers, authorities, rights and duties of the Office of Thrift Supervision to other banking agencies, including the OCC, on July 21, 2011. The Dodd-Frank Act also abolishes the OTS ninety days after the transfer date. As a result of the Dodd-Frank Act, OCC is incorporating the burden from OTS's Consumer Complaint Form (OMB Control Nos. 1550-0126; 1557-0291) of 1,180 consumer complaints to this collection.
The Dodd-Frank Act also requires the transfer of certain consumer protection functions from the OCC to the new Bureau of Consumer Financial Protection. The OCC will revise this collection if it is determined that this collection of information is affected by this transfer.
An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless the information collection displays a currently valid OMB control number. On March 23, 2011, the OCC issued a notice for 60 days of comment. 76 FR 16477. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the 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.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of an individual whose property and interests in property have been unblocked pursuant to Executive Order 13315 of August 28, 2003, “Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members, and Taking Certain Other Actions,” as amended by Executive Order 13350 of July 30, 2004.
The removal of this individual from the SDN List is effective as of September 21, 2011.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220,
The SDN List and additional information concerning OFAC are available from OFAC's Web site (
On August 28, 2003, the President issued Executive Order 13315 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701
On July 30, 2004, the President issued Executive Order 13350, which,
The Department of the Treasury's Office of Foreign Assets Control has determined that the individual identified below, whose property and interests in property were blocked pursuant to Executive Order 13315, as amended, should be removed from the SDN List.
The following designation is removed from the SDN List:
The removal of this individual's name from the SDN List is effective as of September 21, 2011. All property and interests in property of the individual that are in or hereafter come within the United States or the possession or control of United States persons are now unblocked.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of a vessel whose property and interests in property have been unblocked pursuant to the Cuban Assets Control Regulations (31 CFR Part 515).
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the individual and entity identified in this notice whose property and interests in property were blocked pursuant to the Cuban Assets Control Regulations (31 CFR part 515), is effective on September 21, 2011.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220,
The SDN List and additional information concerning OFAC are available at OFAC's Web site (
On September 21, 2011, OFAC unblocked and removed from the SDN List the vessel listed below, whose property and interests in property were blocked pursuant to the Cuban Assets Control Regulations (31 CFR part 515):
REDESTOS (H2SA) General Cargo 15,180DWT 8,953GRT Cyprus flag (REDESTOS SHIPPING CO. LTD. (SDN)) (vessel) [CUBA].
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the names of 18 individuals and 2 entities whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995,
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the individuals and entities identified in this notice, whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on September 21, 2011.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220,
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and Secretary of State: (a) To play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the Order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to the Order.
On September 21, 2011, the Director of OFAC removed from the SDN List the
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 28, 2011.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 461-0966 or e-mail
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be
Submit written comments on the collection of information through the Federal Docket Management System (FDMS)
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Human Resources and Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Office of Human Resources and Administration (OHR&A), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 28, 2011.
Submit written comments on the collection of information through
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, fax (202) 461-0966 or e-mail
a. Child Care Subsidy Application Form, VA Form 0730a.
b. Child Care Provider Information (For the Child Care Subsidy Program), VA Form 0730b.
a. VA employees complete VA Form 0730a to request participation in VA's child care subsidy program. VA will use the data collected to determine the percentage of monthly cost to be subsidized for child care.
b. VA Form 0730b is completed by the child care provider. The data will be used to determine whether the child care provider is licensed and/or regulated by the state to perform child care.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
a. VA Form 0730a—667 hours.
b. VA Form 0730b—333 hours.
a. VA Form 0730a—20 minutes.
b. VA Form 0730B—10 minutes.
a. VA Form 0730a—2,000.
b. VA Form 0730b—2,000.
By direction of the Secretary.
Board of Veterans' Appeals, Department of Veterans Affairs.
Notice.
The Board of Veterans' Appeals (BVA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 28, 2011.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Sue Hamlin at (202) 461-8194.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, BVA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of BVA's functions, including whether the information will have practical utility; (2) the accuracy of BVA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Appeal to Board of Veterans' Appeals, VA Form 9.
b. Withdrawal of Services by a Representative.
c. Request for Changes in Hearing Date.
d. Motions for Reconsideration.
a. Appeal to Board of Veterans' Appeals, VA Form 9, may be used by appellants to complete their appeal to the Board of Veterans' Appeals (BVA) from a denial of VA benefits. The information is used by BVA to identify the issues in dispute and prepare a decision responsive to the appellant's contentions and the legal and factual issues raised.
b. Withdrawal of Services by a Representative: When the appellant's representative withdraws from a case, both the appellant and the BVA must be informed so that the appellant's rights may be adequately protected and so that the BVA may meet its statutory obligations to provide notice to the current representative.
c. Request for Changes in Hearing Date: VA provides hearings to appellants and their representatives, as required by basic Constitutional due-process and by Title 38 U.S.C. 7107(b). From time to time, hearing dates and/or
d. Motions for Reconsideration: Decisions by BVA are final unless the Chairman orders reconsideration of the decision either on the Chairman's initiative, or upon motion of a claimant. The Board Chairman, or his designee, uses the information provided in deciding whether reconsideration of a Board decision should be granted.
a. Appeal to Board of Veterans' Appeals, VA Form 9—45,850 hours.
b. Withdrawal of Services by a Representative—183 hours.
c. Request for Changes in Hearing Date—1,212 hours.
d. Motions for Reconsideration—846 hours.
a. Appeal to Board of Veterans' Appeals, VA Form 9—1 hour.
b. Withdrawal of Services by a Representative—20 minutes.
c. Request for Changes in Hearing Date—15 minutes (hearing date change), 15 minutes (request to withdraw a hearing),—1 hour (requests change a motion).
d. Motions for Reconsideration—1 hour.
a. Appeal to Board of Veterans' Appeals, VA Form 9—45,850.
b. Withdrawal of Services by a Representative—550.
c. Request for Changes in Hearing Date—2,733.
d. Motions for Reconsideration—846.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on Disability Compensation will meet on October 17-18, 2011, at the Department of Veterans Affairs Regional Office, 245 West Houston Street, Manhattan, New York, from 8:30 a.m. to 3:30 p.m. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the maintenance and periodic readjustment of the VA Schedule for Rating Disabilities. The Committee is to assemble and review relevant information relating to the nature and character of disabilities arising from service in the Armed Forces, provide an ongoing assessment of the effectiveness of the rating schedule, and give advice on the most appropriate means of responding to the needs of Veterans relating to disability compensation.
The Committee will receive briefings on issues related to compensation for Veterans with service-connected disabilities and other VA benefits programs. Time will be allocated for receiving public comments in the afternoon. Public comments will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis. Individuals who speak are invited to submit 1-2 page summaries of their comments at the time of the meeting for inclusion in the official meeting record.
The public may submit written statements for the Committee's review to Robert Watkins, Designated Federal Officer, Department of Veterans Affairs, Veterans Benefits Administration, Compensation and Pension Service, Regulation Staff (211D), 810 Vermont Avenue, NW., Washington, DC 20420, or e-mail at
By Direction of the Secretary.
Department of Veterans Affairs.
Notice.
Section 17.101 of Title 38 of the Code of Federal Regulations sets forth the Department of Veterans Affairs (VA) medical regulations concerning “Reasonable Charges” for medical care or services provided or furnished by VA to a veteran:
The regulations include methodologies for establishing billed amounts for the following types of charges: acute inpatient facility charges; skilled nursing facility/sub-acute inpatient facility charges; partial hospitalization facility charges; outpatient facility charges; physician and other professional charges, including professional charges for anesthesia services and dental services; pathology and laboratory charges; observation care facility charges; ambulance and other emergency transportation charges; and charges for durable medical equipment, drugs, injectables, and other medical services, items, and supplies identified by Healthcare Common Procedure Coding System (HCPCS) Level II codes. The regulations also provide that data for calculating actual charge amounts at individual VA facilities based on these methodologies will either be published in a notice in the
When charges for medical care or services provided or furnished at VA expense by either VA or non-VA providers have not been established under other provisions of the regulations, the method for determining VA's charges is set forth at 38 CFR 17.101(a)(8).
Romona Greene, Chief Business Office (10NB1A), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Of the charge types listed in the Summary section of this notice, only the acute inpatient facility charges and skilled nursing facility/sub-acute inpatient facility charges are being changed. Charges are not being changed for: partial hospitalization facility charges; outpatient facility charges; physician and other professional charges, including professional charges for anesthesia services and dental services; pathology and laboratory charges; observation care facility charges; ambulance and other emergency transportation charges; and charges for durable medical equipment, drugs, injectables, and other medical services, items, and supplies identified by HCPCS Level II codes. These outpatient facility charges and professional charges remain the same as set forth in a notice published in the
Based on the methodologies set forth in 38 CFR 17.101(b), this document provides an update to acute inpatient charges that were based on 2011 Medicare severity diagnosis related groups (MS-DRGs). Acute inpatient facility charges by MS-DRGs are set forth in Table A and are posted on the Internet site of the VHA Chief Business Office, currently at
Also, this document provides for an updated all-inclusive per diem charge for skilled nursing facility/sub-acute inpatient facility charge using the methodologies set forth in 38 CFR 17.101(c), and it is adjusted by a geographic area factor based on the location where the care is provided (
The charges in this update for acute inpatient facility and skilled nursing facility/sub-acute inpatient facility services are effective October 1, 2011.
In this update, we are retaining the table designations used for acute inpatient facility charges by MS-DRGs which is posted on the Internet site of the VHA Chief Business Office, currently at
The list of data sources presented in Supplementary Table 1 will be posted on the Internet site of the VHA Chief Business Office, currently at
We have also updated the list of VA medical facility locations. As a reminder, in Supplementary Table 3 posted on the internet site of the VHA Chief Business Office, currently at
Consistent with VA's regulations, the updated data tables and supplementary tables containing the changes described in this notice will be posted on the Internet site of the VHA Chief Business Office, “Reasonable Charges (Rates) Information” page currently at
Office of Special Education and Rehabilitative Services, Department of Education.
Final regulations.
The Secretary issues final regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities. These regulations are needed to reflect changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Act or IDEA).
These regulations are effective on October 28, 2011.
Alexa Posny, U.S. Department of Education, 550 12th Street, SW., Potomac Center Plaza, room 5107, Washington, DC 20202-2641.
These regulations implement changes in the regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities necessitated by the reauthorization of the IDEA.
On May 9, 2007, the U.S. Department of Education (the Department) published a notice of proposed rulemaking in the
In these regulations, the Department is amending and finalizing the regulations proposed in the May 2007 NPRM, except in the maintenance of effort (MOE) provisions (proposed § 303.225) (which implement part C's supplement not supplant requirements). The Department plans to obtain additional public input and conduct further rulemaking in this area.
Due to the economic changes that many States have experienced since the publication of the NPRM in May 2007, the Department has received many informal inquiries requesting guidance on the MOE provisions in the part C regulations (which implement the supplement not supplant requirements under part C of the Act). States also have expressed concern about their ability to meet the MOE requirements and their continued participation in the part C program. In response to these concerns, the Department intends to issue a separate NPRM and seek input from the public on the MOE provisions. Accordingly, these final regulations continue in § 303.225 the MOE requirements in current § 303.124.
The following is a summary of the major changes in these final regulations from the regulations proposed in the NPRM (the rationale for each of these changes is discussed in the
• The definition of
• Revised § 303.25(a) and new § 303.321(a)(5) and (a)(6) clarify that in the case of a child who is limited English proficient,
• We have revised the definition of
• New § 303.32 adds to these regulations a definition of
• Section 303.203(b)(2) clarifies that the State's application must include, as part of coordination of all resources, those methods the State uses to implement the payor of last resort requirements in § 303.511.
• Revised § 303.208(b), regarding public participation policies and procedures, requires lead agencies to hold public hearings, provide at least 30 days' prior notice for the hearings, and provide a public comment period of at least 30 days before adopting any new or revised part C policies or procedures.
• Revised § 303.209(b)(1)(i) (proposed § 303.209(b)(2)(i)) requires that, for toddlers with disabilities who may be eligible for preschool services under part B of the Act, the lead agency notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the local educational agency (LEA) where the toddler resides, but also the State educational agency (SEA), and revise the timeline for the notification to occur not fewer than 90 days before the toddler's third birthday.
• New § 303.209(b)(1)(ii) clarifies that if the lead agency determines a child to be eligible for part C services between 45 and 90 days prior to the toddler's third birthday, the lead agency must notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the LEA where the toddler resides, but also the SEA, as soon as possible after the toddler's eligibility determination.
• New § 303.209(b)(1)(iii) provides that if a child is referred to the lead agency fewer than 45 days before that toddler's third birthday, the lead agency is not required to conduct the initial evaluation, assessment, or IFSP meeting, and if that child may be eligible for preschool services or other services under part B of the Act, the lead agency, with the parental consent required under § 303.414, must refer the toddler to the SEA and appropriate LEA.
• Revised § 303.209(d)(2) clarifies that the transition plan is not a separate document, but is included in the IFSP.
• New § 303.209(e) clarifies that a transition conference under § 303.209(c) or meeting to develop the transition plan under § 303.209(d) must meet the
• New § 303.209(f) clarifies when and what transition requirements in § 303.209 apply to toddlers with disabilities, including toddlers in a State that elects to offer part C services beyond age three under § 303.211.
• Revised § 303.211(b)(6) clarifies the transition requirements that apply to children receiving services under § 303.211 as they transition to preschool, kindergarten or elementary school.
• Proposed § 303.225 has been revised to include the MOE requirements in current § 303.124. The Department intends to issue an NPRM on the MOE provisions and provide an opportunity for the public to comment on the proposed rule.
• New § 303.300 identifies the major components of the statewide comprehensive, coordinated, multidisciplinary interagency system by specifically distinguishing between pre-referral activities (public awareness and child find), referral, and post-referral IFSP activities (including screening, evaluations, assessments, and IFSP development, review, and implementation).
• Revised § 303.301(c) (proposed § 303.300(c)) requires each lead agency, as part of its public awareness obligation, to provide for informing parents of toddlers about preschool programs under section 619 of the Act not fewer than 90 days prior to the toddler's third birthday.
• Revised new § 303.302(c)(1)(ii) (proposed § 303.301(c)(1)(ii)) adds the following two programs to the list of programs with which the lead agency must coordinate its child find efforts: (1) The Children's Health Insurance Program (CHIP) and (2) the State Early Hearing Detection and Intervention (EHDI) system. Since the publication of the May 2007 NPRM, the name of the State Children's Health Insurance Program (S-Chip) was changed to the “Children's Health Insurance Program (CHIP).” This change is reflected in these final regulations.
• Revised § 303.303(a)(2)(i) requires primary referral sources to refer a child to the part C program “as soon as possible but in no case more than seven days” after identification.
• New § 303.310 (proposed § 303.320(e)(1)) requires that, within 45 days after the lead agency or early intervention service (EIS) provider receives a referral of a child, the screening (if applicable), initial evaluation, initial assessments (of the child and family), and the initial IFSP meeting for that child must be completed (45-day timeline).
• New § 303.310(b)(2) adds an exception to the 45-day timeline if the parent has not provided consent to the initial screening, evaluation, or assessment of the child, despite documented, repeated attempts to obtain parental consent. Revised § 303.310(c) (proposed § 303.320(e)(2)) requires the lead agency to ensure completion of the initial evaluation, assessments, and IFSP meeting as soon as possible after parental consent is provided.
• Revised § 303.320 (proposed § 303.303) requires the lead agency to provide notice to parents of its intent to screen and clarifies that, at any time during the screening process, a parent may request an evaluation.
• Revised § 303.321(a)(2)(i) (proposed § 303.320) clarifies that (1) the term
• New § 303.322 clarifies that the prior written notice requirements in § 303.421 apply when the lead agency determines, after conducting an evaluation, that a child is not an infant or toddler with a disability.
• Revised § 303.342(e) requires early intervention services to be provided as soon as possible after parental consent.
• New § 303.404(d) requires that the general notice provided to parents by the lead agency specify the extent to which that notice is provided in the native languages of the various population groups in the State.
• Section 303.405(a), regarding a parent's rights to inspect and review any early intervention records and the timeline the lead agency must follow any time a parent makes such a request, is revised to require that the participating agency must comply with a parent's request without unnecessary delay and in no case more than 10 days after the parent makes the request to inspect and review records.
• New § 303.409(c) requires the participating agency to provide at no cost to the parent, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.
• Section 303.414(b) sets forth the specific exceptions to the parental consent required before a participating agency may disclose personally identifiable information under these regulations.
• Proposed § 303.414(d), regarding limited disclosures of personally identifiable information in early intervention records that may be sought by Protection and Advocacy (P&A) agencies, has been removed.
• Section 303.420(c) is revised to indicate that a lead agency may not use the due process hearing procedures under this part or under part B of the Act to challenge a parent's refusal to provide any consent required under § 303.420(a), which includes consent for evaluations and assessments.
• New § 303.422(g), concerning lead agency responsibility concerning surrogate parents, adds a 30-day timeline requirement regarding the lead agency's obligation to make reasonable efforts to ensure the assignment of a surrogate parent after a public agency determines that the child needs a surrogate parent.
• New § 303.437(c) permits the due process hearing officer, in a State that elects to adopt the part C due process hearing procedures under § 303.430(d)(1), to grant specific extensions of time beyond the 30-day timeline at the request of either party.
• Section 303.446 is revised to permit, but not require, the lead agency to establish procedures that would allow any party aggrieved by the findings and decision in the due process hearing to appeal to, or request reconsideration of the decision by, the lead agency.
• Section 303.520(a) establishes three new requirements that are designed to provide important protections for parents of infants and toddlers with disabilities balanced against the need for States to have access to public benefits and public insurance to finance part C services while implementing the system of payments, coordination of
• Section 303.521(a) is revised to provide that the State's system of payments policies must include the State's definition of ability to pay and indicate when and how the agency makes its determination regarding the parent's ability or inability to pay.
• A new § 303.521(e) is added to address a parent's procedural safeguard rights under a State's system of payments.
• Proposed § 303.601(a), which states that a parent member on the Council may not be an employee of a public or private agency involved in providing early intervention services, has been removed.
• New § 303.605(c) permits the Council to coordinate and collaborate with the State Advisory Council on Early Childhood Education and Care, which is required to be established by States under the Improving Head Start for School Readiness Act of 2007.
• Section 303.702(b) has been revised to indicate that the State annual reporting to the public, on the performance of each EIS program in relation to the State's Annual Performance Report (APR) targets must be “as soon as practicable but no later than 120 days” following the State's APR submission to the Secretary.
These final regulations contain additional changes from the NPRM that we explain in the following
In response to the invitation in the NPRM, more than 600 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM immediately follows this introduction. The perspectives of parents, individuals with disabilities, early intervention providers, State and local officials, members of Congress, and others were useful in helping identify where changes to the proposed regulations should be made, and in formulating many of the changes. In light of the comments received, a number of significant changes are reflected in these final regulations.
Substantive issues are discussed under their corresponding subpart. References to subparts in this analysis are to those contained in the final regulations. The analysis generally does not address—
(a) Minor changes, including technical changes made to the language published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the Department or other matters that are not directly relevant to these regulations, including requests for information about innovative early intervention methods or matters that are within the purview of State and local decision-makers.
The list in § 303.1(d) is not exhaustive. Rather, this list provides examples of historically underrepresented populations, for whom State and local agencies and EIS providers need to improve services. For this reason, including children who are wards of the State and homeless children in § 303.1(d) is not necessary. We also note that other sections of the Act and these regulations identify specific child find and other responsibilities of States for identifying, evaluating, and meeting the needs of children who are homeless and wards of the State. For example, § 303.101(a)(1)(ii) through (a)(1)(iii) requires a State, as a condition of receiving part C funds, to provide an assurance that the State has adopted a policy to make appropriate early intervention services available to infants and toddlers with disabilities who are homeless and their families and infants and toddlers with disabilities who are wards of the State.
Concerning the specific comment that infants and toddlers in foster care should be included in the list, we note that the list in § 303.1(d) already includes “infants and toddlers in foster care.”
Finally, the references to “the records” in the following regulations have been replaced with “early intervention records”: § 303.7(b), regarding the definition of consent; § 303.310(c)(1), regarding the documentation of exceptional circumstances that may delay the evaluation and initial assessment of a child; § 303.405(b)(1), regarding parents' right to a response to reasonable requests for explanations and interpretations of early intervention records; § 303.405(b)(2), regarding parents' right to request that a participating agency provide copies of early intervention records; § 303.405(b)(3), regarding parents' right to have a representative of the parents inspect and review the early intervention records; § 303.406, regarding the maintenance of a record of parties obtaining access to early intervention records; § 303.412(b), regarding the right of parents to place a statement commenting on information or disagreeing with the decision of the agency following a hearing to challenge information in early intervention records; § 303.412(c), regarding the maintenance of any such explanation in the child's record; § 303.412(c)(1), regarding the length of time any explanation must be maintained as part of the early intervention records; § 303.412(c)(2), regarding the disclosure of any explanation placed in the early intervention records, and § 303.414(b)(2) regarding the modification provisions in applying the exceptions under FERPA to the part C program.
Additionally, we have added § 303.3(b)(2) to indicate that any reference to “education records” in EDGAR means “early intervention records” under this part.
We also have modified this provision to identify the entities that must comply with part 303. Part 303 applies to the lead agency and any EIS provider that is part of the part C statewide system of early intervention required of each State in sections 634 and 635 of the Act, regardless of whether the EIS provider receives funds under part C of the Act. part 303 also applies to each child referred to part C, as well as to infants and toddlers with disabilities (
For clarity, we have replaced the phrase “such as,” which precedes the list of factors, with the word “including.” We note that the definitions of
Additionally, requirements in these regulations, such as the evaluation and assessment requirements in § 303.321, apply to a child who is referred to the State part C program but is determined not to be eligible as an infant or toddler with a disability. Thus, including a definition of
Changing the abbreviation “EIS” for purposes of referencing early intervention services is not necessary. “EIS” is the long-standing, commonly accepted abbreviation used in the field of early intervention and we do not anticipate any confusion by the abbreviation's continued use in programs administered under part C of the Act.
Part B of the Act requires States to make available to children with disabilities a free appropriate public education or FAPE, which includes special education and related services. The term
While many examples of early intervention services under part C of the Act, including occupational therapy and speech-language pathology services, are the same as the examples of related services under part B of the Act, there are potential differences between related services and early intervention services, based on differing ages of the populations served and purposes of the programs. Therefore, it is the Department's position that the regulations for part B and part C of the Act, and specifically the definitions of
With regard to the commenter's suggestion that we add the phrase “and based on the child's developmental needs” to § 303.13(a)(8) after the word “appropriate,” § 303.13(a)(4) already provides that early intervention services must be designed to meet the developmental needs of an infant or toddler with a disability. Therefore, adding “and based on the child's developmental needs” would be repetitive and thus not necessary. Adding the phrase “and based on the child's chronological age” to § 303.13(a)(8) also is not necessary because the definition of
Concerning the comment about providing family members with the necessary tools to help an infant or toddler with a disability learn even when a teacher or therapist is not present, we agree that EIS providers should work with the parents of an infant or toddler with a disability so that the parents can continue to assist the child whenever a learning opportunity occurs. However, in addition to the reasons stated, adding language to § 303.13 as requested is not necessary because the definition of
However, many commenters opposed removing nutrition services from the types of early intervention services identified and requested that nutrition services be specifically included as one of the types of early intervention services identified in the final regulations.
Numerous commenters also opposed the removal of nursing services from the definition of
Additionally, many commenters requested that music therapy be included in the definition of
Other commenters requested that respite care be specifically included in the definition of