Agricultural Marketing Service
Animal and Plant Health Inspection Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Presidential Documents
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Ocean Energy Management Bureau
Drug Enforcement Administration
Justice Programs Office
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration, DOT.
Final rule; technical amendment.
On November 12, 2013, the FAA published a final rule entitled “Qualification, Service and Use of Crewmembers and Aircraft Dispatchers” which will result in new information collection requirements. This technical amendment updates the FAA's list of OMB control numbers to display the control number associated with the approved information collection activities in the “Qualification, Service and Use of Crewmembers and Aircraft Dispatchers” final rule.
Effective March 12, 2014.
For technical questions concerning this action, contact Nancy Lauck Claussen, Air Transportation Division, AFS–200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–9991; email:
On November 12, 2013, the FAA published a final rule entitled “Qualification, Service and Use of Crewmembers and Aircraft Dispatchers” (78 FR 67800). This final rule revises the training requirements for pilots in air carrier operations. The regulations enhance air carrier pilot training programs by emphasizing the development of pilots' manual handling skills and adding safety-critical tasks such as recovery from stall and upset. The final rule also requires enhanced runway safety training and pilot monitoring training to be incorporated into existing requirements for scenario-based flight training and requires air carriers to implement remedial training programs for pilots. The FAA expects these changes to contribute to a reduction in aviation accidents. Additionally, the final rule revises recordkeeping requirements for communications between the flightcrew and dispatch; ensures that personnel identified as flight attendants have completed flight attendant training and qualification requirements; provides civil enforcement authority for making fraudulent statements; and, provides a number of conforming and technical changes to existing air carrier crewmember training and qualification requirements. The final rule also includes provisions that provide opportunities for air carriers to modify training program requirements for flightcrew members when the air carrier operates multiple aircraft types with similar design and flight handling characteristics.
This final rule will result in new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted these information collection amendments to OMB for its review.
On January 9, 2014, OMB approved the information collection request. The OMB control number is 2120–0739.
The FAA lists OMB control numbers assigned to its information collection activities in 14 CFR 11.201(b). Accordingly, this technical amendment updates 14 CFR 11.201(b) to display OMB control number 2120–0739 associated with the information collection activities in the final rule, Qualification, Service and Use of Crewmembers and Aircraft Dispatchers.
Because this amendment is technical in nature and results in no substantive change, the FAA finds that the notice and public procedures under 5 U.S.C. 553(b) are unnecessary. For the same reason, the FAA finds good cause exists under 5 U.S.C. 553(d)(3) to make the amendment effective in less than 30 days.
Administrative practice and procedure, Reporting and recordkeeping requirements.
In consideration of the foregoing the Federal Aviation Administration amends Chapter I of Title 14 Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 40113, 44110, 44502, 44701–44702, 44711, and 46102.
(b) * * *
Drug Enforcement Administration, Department of Justice.
Final order.
The Deputy Administrator of the Drug Enforcement Administration (DEA) is issuing this final order to temporarily schedule 10 synthetic cathinones into schedule I pursuant to the temporary scheduling provisions of the Controlled Substances Act (CSA). The 10 substances are: 4-methyl-
This final order is effective March 7, 2014.
Ruth A. Carter, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone (202) 598–6812.
The DEA implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purpose of this action. 21 U.S.C. 801–971. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), parts 1300 to 1321. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, controlled substances are classified into one of five schedules based upon their potential for abuse, their currently accepted medical use, and the degree of dependence the substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308.
Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 CFR part 1308. The Attorney General has delegated his authority under 21 U.S.C. 811 to the Administrator of the DEA, who in turn has delegated her authority to the Deputy Administrator of the DEA. 28 CFR 0.100, Appendix to Subpart R of Part 0, Sec. 12.
Section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)) requires the Deputy Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into schedule I of the CSA.
The DEA has taken into consideration the Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). As 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP are not currently listed in any schedule under the CSA, and as no exemptions or approvals are in effect for 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP under section 505 of the FDCA, 21 U.S.C. 355, the conditions of 21 U.S.C. 811(h)(1) have been satisfied. As required by 21 U.S.C. 811(h)(1)(A), a notice of intent to temporarily schedule these 10 synthetic cathinones was published in the
To find that placing a substance temporarily into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Deputy Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration, and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1). Available data and information for 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP indicate that these 10 synthetic cathinones have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.
Synthetic cathinones are β-keto-phenethylamine derivatives of the larger phenethylamine structural class (amphetamines, cathinones, 2C compounds, aminoindanes, etc.). Synthetic cathinones share a core phenethylamine structure with substitutions at the β-position, α-position, phenyl ring, or nitrogen atom. The addition of a beta-keto (β-keto) substituent (i.e., carbonyl (C=O)) to the phenethylamine core structure along with substitutions on the alpha (α) carbon (C) atom or the nitrogen (N) atom produce a variety of substances called cathinones or synthetic cathinones. Many synthetic cathinones produce pharmacological effects substantially similar to the schedule I substances cathinone, methcathinone, and 3,4-methylenedioxymethamphetamine (MDMA) and schedule II stimulants amphetamine, methamphetamine, and cocaine. 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP are synthetic cathinones and are structurally and pharmacologically similar to amphetamine, MDMA, cathinone, and other related substances. Accordingly, these synthetic cathinone substances share substantial similarities with schedule I and schedule II substances with respect to desired and adverse effects. In general, desired effects reported by abusers of synthetic cathinone substances include euphoria, sense of well-being, increased sociability, energy, empathy, increased alertness, and improved concentration and focus. Abusers also report experiencing unwanted effects such as tremor, vomiting, agitation, sweating, fever, and chest pain. Other adverse or toxic effects that have been reported with the abuse of synthetic cathinones include tachycardia, hypertension, hyperthermia, mydriasis, rhabdomyolysis, hyponatremia, seizures, altered mental status (paranoia, hallucinations, delusions), and even death. These synthetic cathinone substances have no known medical use in the United States but evidence demonstrates that these substances are being abused by individuals. There have been documented reports of emergency room admissions and deaths associated with the abuse of synthetic cathinone substances.
Products that contain synthetic cathinones have been falsely marketed as “research chemicals,” “jewelry cleaner,” “stain remover,” “plant food or fertilizer,” “insect repellants,” or “bath salts.” These products are sold at smoke shops, head shops, convenience stores, adult book stores, and gas stations and can also be purchased on the Internet. These substances are commonly encountered in the form of powders, crystals, resins, tablets, and capsules.
From January 2010 through December 2013, according to the System to Retrieve Information from Drug Evidence
4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP are synthetic cathinones that emerged on the United States' illicit drug market around the time of the temporary scheduling of mephedrone, MDPV, and methylone on October 21, 2011. 76 FR 65371. Mephedrone and MDPV were permanently placed in schedule I on July 9, 2012, by the Food and Drug Administration Safety and Innovation Act (Pub. L. 112–144), and methylone was permanently placed in schedule I by the DEA on April 12, 2013 (78 FR 21818). These synthetic cathinone substances, like the schedule I synthetic cathinones (mephedrone, methylone, and MDPV), are promoted as being a “legal” alternative to cocaine, methamphetamine, and MDMA. Products that contain 4-MEC, 4-MePPP,
Information from published scientific studies indicates that the most common routes of administration for synthetic cathinone substances is ingestion by swallowing capsules or tablets or nasal insufflation by snorting the powder. Other methods of intake include intravenous or intramuscular injection, rectal administration, and swallowing via ingestion by “bombing” (wrapping a dose of powder in paper).
There is evidence that these synthetic cathinone substances are abused alone or ingested with other substances including other synthetic cathinones, pharmaceutical agents, or other recreational substances. Substances found in combination with 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, or naphyrone are: Other synthetic cathinones (e.g., methylone and MDPV), common cutting agents (e.g., lidocaine, caffeine, lignocaine, ephedrine, etc.), or other recreational substances (e.g., cocaine, methamphetamine, and amphetamine).
Evidence from poison centers and published reports suggest that the primary users of synthetic cathinones are youths and young adults. Synthetic cathinone exposures reported to the Texas Poison Center Network during 2010 and 2011 involved mostly adolescents (12 to 19-years-old) and young adults (mean age was 30-years-old). A survey of college students reported that the lifetime use (used at least once) of synthetic cathinones among college students (at a large Southeastern United States university) is 25 out of 2,349 students surveyed. A national survey on drug use by the Monitoring the Future (MTF)
4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP, like the schedule I cathinones mephedrone, methylone, and MDPV, are popular recreational drugs. Evidence that these synthetic cathinone substances are being abused is indicated by law enforcement encounters of these substances. Forensic laboratories have analyzed drug exhibits received from State, local, and Federal law enforcement agencies and confirmed the presence of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, or α-PBP in these exhibits.
STRIDE registered 1,789 drug exhibits pertaining to the trafficking, distribution and abuse of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP from January 2010 to December 2013.
NFLIS registered over 9,000 reports from State and local forensic laboratories identifying these substances in drug-related exhibits for the period from January 2010 to December 2013, across 42 States. Specifically, in 2010, NFLIS registered 13 reports from 5 States containing many of these synthetic cathinone substances.
Additionally, large seizures of these substances have occurred by the United States Customs and Border Protection (CBP). At selected United States ports of entry, CBP encountered several shipments of products from April 2010 to November 2013 containing these synthetic cathinone substances (4-MEC—78 encounters; 4-MePPP—8 encounters; α-PVP—40 encounters; butylone—21 encounters; pentedrone—18 encounters; pentylone—10 encounters; FMC
Concerns over the abuse of these synthetic cathinone substances have prompted many States to regulate them. As of June 24, 2013, more than half of the States in the United States have emergency scheduled or enacted legislation placing regulatory controls on some or many of the 10 synthetic cathinones that are the subject of this final order. In addition, due to the use of synthetic cathinones by service members, the United States Armed Forces has prohibited the use of synthetic cathinones for intoxication purposes.
Available evidence on the overall public health risks associated with the use of synthetic cathinones indicates that 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP can cause acute health problems leading to emergency department admissions, violent behaviors causing harm to self or others, or death. For example, individuals have presented at emergency departments following exposure to some of these synthetic cathinone substances or products containing them. In addition, products containing these synthetic cathinone substances often do not bear labeling information regarding their ingredients and, if they do, they may not list the active synthetic ingredients or identify the health risks and potential hazards associated with these products. Acute effects of these substances are those typical of sympathomimetic agents (e.g., cocaine, methamphetamine, and amphetamine) and include, among other effects, tachycardia, headache, bruxism (teeth grinding), palpitations, agitation, anxiety, insomnia, mydriasis, tremor, fever or sweating, and hypertension. Other effects, with public health risk implications, that have been reported from the use of synthetic
Based on the above summarized data and information, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for these synthetic cathinones in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b). Based on available data and information for 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP, the Deputy Administrator has made the determination that these 10 synthetic cathinones have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Deputy Administrator through a letter dated November 7, 2013, notified the Assistant Secretary of the DEA's intention to temporarily place these 10 synthetic cathinones in schedule I.
In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Deputy Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily place 10 synthetic cathinones, 4-MEC, 4-MePPP, α-PVP, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP into schedule I of the CSA, and finds that placement of these synthetic cathinones into schedule I of the CSA is warranted in order to avoid an imminent hazard to the public safety.
Because the Deputy Administrator hereby finds that it is necessary to temporarily place these synthetic cathinones into schedule I to avoid an imminent hazard to the public safety, the final order temporarily scheduling these substances will be effective on the date of publication in the
The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).
Upon the effective date of this final order, 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP become subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, importing, exporting, research, conduct of instructional activities, and possession of schedule I controlled substances including the following:
1.
2.
3.
4.
After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including 4-MEC, 4-MePPP, α-PVP, butylone, pentedrone, pentylone, 4-FMC, 3-FMC, naphyrone, and α-PBP) on hand on a biennial basis, pursuant to 21 U.S.C. 827, 958, and in
5.
6.
7.
8.
9.
10.
Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the
Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this temporary scheduling action. In the alternative, even assuming that this action might be subject to section 553 of the APA, the Deputy Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety. Further, the DEA believes that this temporary scheduling action final order is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.
Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).
This action 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 Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Pursuant to section 808(2) of the Congressional Review Act (CRA), “any rule for which an agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the Federal agency promulgating the rule determines.” 5 U.S.C. 808(2). It is in the public interest to schedule these substances immediately because they pose a public health risk. This temporary scheduling action is taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety from new or designer drugs or abuse of those drugs. 21 U.S.C. 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie 21 U.S.C. 811(h), that is, the DEA's need to move quickly to place these substances into schedule I because they pose a threat to the public safety, it would be contrary to the public interest to delay implementation of the temporary scheduling order. Therefore, in accordance with section 808(2) of the CRA, this order shall take effect immediately upon its publication.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, 21 CFR part 1308 is amended as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(h) * * *
(19) 4-methyl-
(20) 4-methyl-
(21)
(22) Butylone, its optical, positional, and geometric isomers, salts and salts of
(23) Pentedrone, its optical, positional, and geometric isomers, salts and salts of isomers—1246 (Other names: α-methylaminovalerophenone; 2-(methylamino)-1-phenylpentan-1-one)
(24) Pentylone, its optical, positional, and geometric isomers, salts and salts of isomers—7542 (Other names: bk-MBDP; 1-(1,3-benzodioxol-5-yl)-2-(methylamino)pentan-1-one)
(25) 4-fluoro-
(26) 3-fluoro-
(27) Naphyrone, its optical, positional, and geometric isomers, salts and salts of isomers—1258 (Other names: naphthylpyrovalerone; 1-(naphthalen-2-yl)-2-(pyrrolidin-1-yl)pentan-1-one)
(28)
Internal Revenue Service, Treasury.
Final rule.
In accordance with the requirements of the Privacy Act of 1974, as amended, the Department of the Treasury gives notice of an amendment to this part to reflect revisions of existing Internal Revenue Service (IRS) systems of records and to exempt the resulting revised systems of records from certain provisions of the Privacy Act. Criminal Investigation has revised five systems of records and deleted one system of records. This final rule applies the previously approved exemptions to the newly revised and renamed systems of records.
Effective April 7, 2014.
Please submit comments to Anne Jensen, Tax Law Specialist, Office of Privacy, Governmental Liaison, and Disclosure, 1111 Constitution Avenue NW., Room 1621, Washington, DC 20224. Comments will be made available for inspection at the IRS Freedom of Information Reading Room (Room 1621), at the above address. The telephone number for the Reading Room is (202) 317–4997 (not a toll-free call).
Anne Jensen, Tax Law Specialist, Office of Privacy, Governmental Liaison, and Disclosure, 1111 Constitution Avenue NW., Room 1621, Washington, DC 20024. Ms. Jensen may be reached via telephone at (202) 317–4997 (not a toll-free number).
5 U.S.C. 552a(j)(2): Under 5 U.S.C. 552a(j)(2), the head of any agency may promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act of 1974 if the agency or component thereof that maintains the system performs as its principal function any activities pertaining to the enforcement of criminal laws. Certain components of the Department of the Treasury have as their principal function activities pertaining to the enforcement of criminal laws. The IRS is hereby giving notice of a final rule to exempt “Treasury/IRS 46.002, Management Information System and Case Files, Criminal Investigation”; “Treasury/IRS 46.003, Confidential Informant Records, Criminal Investigation”; “Treasury/IRS 46.005, Electronic Surveillance and Monitoring Records, Criminal Investigation”; “Treasury/IRS 46.015, Relocated Witness Records, Criminal Investigation”; and “Treasury/IRS 46.050, Automated Information Analysis and Recordkeeping, Criminal Investigation,” from certain provisions of the Privacy Act of 1974, pursuant to 5 U.S.C. 552a(j)(2) to the extent these records capture criminal matters; otherwise 5 U.S.C. 552(k)(2) applies as described in subsequent sections.
The exemptions pursuant to 5 U.S.C. 552a(j)(2) are from the provisions 5 U.S.C. 552a(c)(3) and (4), 5 U.S.C. 552a(d)(1), (2), (3), (4), 5 U.S.C. 552a(e)(1), (2) and (3), 5 U.S.C. 552a(e)(4)(G), (H), and (I), 5 U.S.C. 552a(e)(5) and (8), 5 U.S.C. 552a(f), and 5 U.S.C. 552a(g). As published in Part 1, Subpart C, of title 31 of the Code of Federal Regulations, section 1.36, these exemptions already apply to the records to which this final rule applies, therefore the reasons for the exemptions are not repeated here.
Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system is investigatory material compiled for law enforcement purposes. The IRS is hereby giving notice of a final rule to exempt “Treasury/IRS 46.050, Automated Information Analysis and Recordkeeping” from certain provisions of the Privacy Act of 1974, pursuant to 5 U.S.C. 552a(k)(2).
The exemptions pursuant to 5 U.S.C. 552a(k)(2) are from the provisions (c)(3), (d)(1)–(4), (e)(1), (e)(4)(G)–(I), and (f) because the system contains investigatory material compiled for law enforcement purposes. As published in Part 1, Subpart C, of title 31 of the Code of Federal Regulations, section 1.36, these exemptions already apply to the records to which this final rule applies; therefore the reasons for the exemptions are not repeated here.
As required by Executive Order 12866, it has been determined that this final rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.
The regulation will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601–612, it is hereby certified that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities.
In accordance with the provisions of the Paperwork Reduction Act, the Department of the Treasury has determined that the revision of the systems or records notices would not impose new recordkeeping, application, reporting, or other types of information collection requirements.
Privacy.
Part 1, Subpart C of title 31 of the Code of Federal Regulations is amended as follows:
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C. 552a.
The revisions read as follows:
(c) * * *
(1) * * *
(vii) * * *
(g) * * *
(1) * * *
(vii) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Oklahoma State Implementation Plan (SIP), submitted by the Oklahoma Department of Environmental Quality (ODEQ) to EPA on June 20, 2013, which address revised Best Available Retrofit Technology (BART) requirements for sulfur dioxide (SO
This final rule will be effective April 7, 2014.
EPA has established a docket for this action under Docket ID No. EPA–R06–OAR–2013–0227. All documents in the docket are listed in the
Mr. Terry Johnson (214) 665–2154, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The background for today's final rule is discussed in detail in our August 21, 2013 proposal (see 78 FR 51686). The comment period was open for 30 days, and 273 comments were received, including five comment letters opposed to the proposed action.
We are approving Oklahoma's June 20, 2013 SIP revision submittal (“Oklahoma RH SIP revision”), which provides a revised BART determination for Units 3 and 4 of AEP/PSO's Northeastern Power Station with accompanying enforceable documentation. This revised SO
We are also taking final action to approve the following accelerated NO
In addition to approving Oklahoma's revised enforceable SO
Implementation of the enforceable commitment is only necessary if the Northeastern Power Station is not able to achieve the equivalent of 0.3 lbs SO
We have made the determination that the Oklahoma RH SIP revision is approvable because the revision was adopted and submitted as a SIP revision in accordance with the CAA and EPA regulations regarding the regional haze program and meets the CAA provisions concerning non-interference with programs to protect visibility in other states. We are taking this final action today under section 110 and part C of the CAA.
As explained in our August 21, 2013 proposal (see 78 FR 51686), as a result of today's approval action we are taking action to amend the regional haze Federal Implementation Plan (FIP) for Oklahoma at 40 CFR 52.1923. The action to amend the FIP is in a separate action contained in today's
We received a total of 273 comments, including five comments in opposition to our proposed approval of the Oklahoma RH SIP revision that were submitted by U.S. Representative Jim Bridenstine, the Oklahoma Attorney General, the Consumer Coalition of Oklahoma, the Oklahoma Industrial Energy Consumers, and the Quality of Service Coalition, and 268 comments in support from the Sierra Club and its members in Oklahoma. Copies of the comments are available in the docket for this rulemaking. A summary of the issues raised in the comment letters, and our responses, follows:
We also note that AEP/PSO offered the BART determination in question to ODEQ as an alternative to our FIP, which indicates that the company found the alternative more economical, flexible, or consistent with its business strategy. AEP/PSO's decision to retire these aging units by dates certain is one that involves a variety of considerations that lie outside the BART analysis, including increasing costs of maintenance, economics of fuels, and costs of compliance with non-air quality requirements. Given the broad range of factors that affect a utility's decisions regarding the make-up of its power plant fleet, it would not be reasonable for EPA to second-guess decisions regarding the remaining useful life of facilities. Consequently, we believe that, in addition to its evaluation of energy impacts, the State also appropriately considered the remaining useful life of the AEP/PSO units in determining BART.
Regarding potential unemployment of AEP/PSO Northeastern Power Station workers, however, we received one comment that notes that AEP/PSO has extraordinary resources to redeploy its Northeastern Power Station employees affected by the Settlement Agreement and proposed SIP revision, and has committed to doing so.
EO 13175 section (5)(b) states that no agency may promulgate any regulation that has tribal implications, imposes substantial direct compliance costs on Indian tribal governments, and is not required by statute unless the direct costs of compliance with the proposed rule are paid by the Federal government or the agency consults with tribes, provides the Director of OMB a tribal summary impact statement, and makes available to the Director of OMB any written communication tribal officials submitted to the agency. Our approval of the Oklahoma RH SIP revision does not directly apply since the facility is not located in Indian country. Moreover, the facilities that will incur the direct costs of compliance are not tribally owned or operated. The possibility that a tribe, as a consumer, may be affected by a rate change, does not implicate EO 13175. Therefore, EPA was not required to prepare a tribal impact summary statement.
When promulgating a FIP, such as EPA's proposed FIP for BART at NGS in Arizona referenced by the commenter, EPA is required to provide an opportunity for public hearing. 42 U.S.C. 7607(d)(1)(B) and (5). Likewise, in the process of promulgating our FIP for BART in Oklahoma, we conducted two hearings in 2011 in Oklahoma City and Tulsa. However, today's action does not promulgate a FIP, but rather approves the State's submittal to revise its RH SIP. Neither the CAA nor the Administrative Procedures Act (APA) requires EPA to provide a public hearing for actions on SIPs.
In taking action on this SIP submittal, EPA has complied with the applicable statutory requirements for public participation under the Administrative Procedure Act, which does not require an opportunity for public hearing. 5 U.S.C. 553(c). While a public hearing is not statutorily required for SIP actions, EPA recognizes that the EPA retains discretion to offer public hearings. EPA elected not to conduct a public hearing for this SIP action for several reasons. EPA may conduct a discretionary public hearing when it is necessary to glean additional information from the public; however, we did not feel that it was necessary here. We believe the opportunities for public participation during ODEQ's rulemaking process, including the State's public hearing, along with the opportunity to provide written comments to EPA on our proposed approval of the Oklahoma RH SIP revision provided significant opportunity for affected citizens in Oklahoma to participate in this rulemaking. In response to the
Finally, the CAA requires EPA to provide a 30-day public comment period before EPA enters any proposed settlement agreement; however, this requirement is limited to written comments. 42 U.S.C. 7413(g). EPA met this requirement when it published a 30-day notice in the
In addition to the comments submitted directly to EPA, some commenters also incorporated by reference the following comments from Oklahoma Industrial Energy Consumers and Quality of Service Coalition that were submitted to ODEQ during its public comment period on the state-proposed SIP revision, which ended in May 2013. These comments and our responses follow below:
With respect to the Arizona regional haze SIP revision referenced by the commenters, 40 CFR 51.308(d)(4)(v) requires a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I Federal area. This inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. States must also include in their regional haze SIPs a commitment to update this inventory periodically. Arizona did not satisfy this requirement because it failed to include the 2008 emission inventory when it submitted its regional haze SIP in 2011. Oklahoma, however, did satisfy this requirement because ODEQ included its most recent emission inventory as Appendix 4–1 of its original regional haze SIP submittal. This requirement is unrelated to the requirements for a BART determination and is not relevant to this action.
Furthermore, regarding the life-span of Units 3 and 4 under the FIP scenario, EPA recognizes that the cost of scrubbers is significant and that if a source makes such an investment, it will likely make other necessary investments to extend operation to recoup the costs. Thus, consistent with our standard practices for conducting BART determinations and cost-effectiveness analyses we assumed a 30-year useful life for the wet scrubber systems and responded to comments on this issue when we took final action in promulgating our FIP. The BART guidelines do allow for consideration of the remaining useful life of facilities when considering the costs of potential BART controls. Any claims regarding the remaining useful life of a facility or a source have to be secured by an enforceable requirement. AEP/PSO did not claim any such restrictions on the operation of Units 3 and 4 of Northeastern Power Station when we
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 6, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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,
40 CFR Part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(d) * * *
(e) * * *
(c) The SO
(d) The revision to the Regional Haze plan submitted on June 20, 2013 concerning Units 3 and 4 of the American Electric Power/Public Service Company of Oklahoma (AEP/PSO) Northeastern plant is approved. For this source the plan addresses requirements for BART and adequate provisions to prohibit emissions from interfering with measures required in another state to protect visibility. As called for in the plan if a SO
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to amend a Federal Implementation Plan (FIP) for Oklahoma that became effective on January 27, 2012, as it applies to Units 3 and 4 of the Northeastern Power Station in Rogers County, Oklahoma, which is operated by the American Electric Power/Public Service Company of Oklahoma (AEP/PSO). We are removing the FIP requirements for AEP/PSO because, in a separate action being published in today's
This final rule will be effective April 7, 2014.
EPA has established a docket for this action under Docket ID No. EPA–R06–OAR–2013–0227. All documents in the docket are listed in the
Mr. Terry Johnson (6PD–L), Air Planning Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD–L), Suite 1200, Dallas, TX 75202–2733. The telephone number is (214) 665–2154. Mr. Johnson can also be reached via electronic mail at
Throughout this document whenever
I. What is the background for this action?
II. What final action is EPA taking?
III. Responses to Comments Received
IV. Statutory and Executive Order Reviews
The Oklahoma regional haze (RH) and interstate transport (IT) FIP being amended by this action was promulgated in order to address certain deficiencies in Oklahoma's BART determinations concerning the appropriate level of control of SO
The background for this final rule and the separate action also being published today that approves the Oklahoma SIP revisions is discussed in detail in our August 21, 2013 proposal (see 78 FR 51686). The comment period was open for 30 days, and we received 273 comments in response to our proposed action.
We are withdrawing the Oklahoma RH and IT FIP at 40 CFR 52.1923, as it applies to Units 3 and 4 of AEP/PSO's Northeastern Power Station. Therefore, as of the effective date of this final rule, the Oklahoma RH and IT FIP will no longer apply to AEP/PSO Northeastern Power Station. The Oklahoma RH and IT FIP provisions applicable to OG&E's Muscogee and Sooner plants are unaffected by this action and remain in place.
As explained in our August 21, 2013 proposal (see 78 FR 51686), this action is made possible because of our separate action being published in today's
EPA is finalizing this action under section 110 and part C of the Act.
We received a total of 273 comments concerning our proposed action. The issues raised in those comment letters are summarized, along with our response to each, in the separate notice being published in today's
Withdrawal of the Oklahoma RH and IT FIP as it applies to AEP/PSO Northeastern Power Station means that the Federal plan no longer applies to this facility.
This FIP withdrawal action for AEP/PSO's Northeastern Power Station is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This FIP withdrawal action for AEP/PSO Northeastern Power Station does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule withdraws the FIP for AEP/PSO's Northeastern Power Station, which is not a small entity, and does not create any new requirements. After considering the economic impact of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities.
This FIP withdrawal action for AEP/PSO's Northeastern Power Station contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. This action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This FIP withdrawal action for AEP/PSO's Northeastern Power Station is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action removes a Federal plan for AEP/PSO's Northeastern Power Station. Small governments are not impacted.
This FIP withdrawal action for AEP/PSO Northeastern Power Station does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the State, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby states
This FIP withdrawal action for AEP/PSO's Northeastern Power Station does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). In this action, EPA is not addressing any Tribal Implementation Plans. This action is limited to the withdrawal of the Oklahoma RH and IT FIP for AEP/PSO's Northeastern Power Station. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the executive order has the potential to influence the regulation. This action is not subject to EO 13045 because EPA is withdrawing the Oklahoma RH and IT FIP for AEP/PSO's Northeastern Power Station, as authorized by the CAA.
This FIP withdrawal action for AEP/PSO's Northeastern Power Station is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This FIP withdrawal action for AEP/PSO's Northeastern Power Station does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
This final rule 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 6, 2014. 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, Nitrogen dioxide, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide, Visibility, and Volatile organic compounds.
Title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a)
(c)
(i) Unit 4 of the Oklahoma Gas and Electric Muskogee plant; or
(ii) Unit 5 of the Oklahoma Gas and Electric Muskogee plant; or
(iii) Unit 1 of the Oklahoma Gas and Electric Sooner plant; or
(iv) Unit 2 of the Oklahoma Gas and Electric Sooner plant.
(e) * * *
(1) No later than the compliance date in paragraph (b) of this section, the owner or operator shall install, calibrate, maintain and operate Continuous Emissions Monitoring Systems (CEMS) for SO
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit reduction.
NMFS reduces the commercial trip limit for vermilion snapper in or from the exclusive economic zone (EEZ) of the South Atlantic to 500 lb (227 kg), gutted weight. This trip limit reduction is necessary to protect the South Atlantic vermilion snapper resource.
This rule is effective 12:01 a.m., local time, March 11, 2014, until 12:01 a.m., local time, July 1, 2014.
Catherine Hayslip, telephone: 727–824–5305, email:
The snapper-grouper fishery includes vermilion snapper in the South Atlantic and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The commercial ACL (commercial quota) for vermilion snapper in the South Atlantic is divided into two 6-month time periods, and is 401,874 lb (182,287 kg), gutted weight (446,080 lb (202,338 kg), round weight), for the January 1 through June 30, 2014, fishing season, and 401,874 lb (182,287 kg), gutted weight (446,080 lb (202,338 kg), round weight), for the July 1 through December 31, 2014, fishing season, as specified in 50 CFR 622.190(a)(4)(i)(B) and (ii)(B), respectively.
Under 50 CFR 622.191(a)(6)(ii), NMFS is required to reduce the commercial trip limit for vermilion snapper from 1,000 lb (454 kg), gutted weight (1,110 lb (503 kg), round weight), to 500 lb (227 kg), gutted weight (555 lb (252 kg), round weight), when 75 percent of the fishing season quota is reached or projected to be reached, by filing a notification to that effect with the Office of the Federal Register, as implemented by the final rule for Regulatory Amendment 18 (78 FR 47574, August 6, 2013). Based on current statistics, NMFS has determined that 75 percent of the available commercial quota for the January 1 through June 30, 2014, fishing season, for vermilion snapper will be reached on or before March 11, 2014. Accordingly, NMFS is reducing the commercial trip limit for vermilion snapper to 500 lb (227 kg), gutted weight (555 lb (252 kg), round weight), in or from the South Atlantic EEZ at 12:01 a.m., local time, on March 11, 2014. This 500-lb (227-kg), gutted weight, trip limit will remain in effect until July 1, 2014, or until the quota is reached and the commercial sector closes, whichever occurs first.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic vermilion snapper and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.
This action is taken under 50 CFR 622.191(a)(6) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best available scientific information recently obtained from the fishery. Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirements to provide prior notice and the opportunity for public comment on this temporary rule. Such procedures are unnecessary because the rule itself has already been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect vermilion snapper because the capacity of the fishing fleet allows for rapid harvest of the ACL (quota). Prior notice and opportunity for public comment for this trip limit reduction would require time and would result in the trip limit reduction not being implemented, and increase the probability that the commercial ACL (commercial quota) will be exceeded.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the State of North Carolina is transferring a portion of its 2014 commercial summer flounder quota to the Commonwealth of Virginia. NMFS is adjusting the quotas and announcing the revised commercial quota for each state involved.
Effective March 4, 2014, through December 31, 2014.
Carly Bari, Fishery Management Specialist, 978–281–9224.
Regulations governing the summer flounder fishery are in 50 CFR part 648, and require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.102.
The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i) to evaluate requests for quota transfers or combinations.
North Carolina has agreed to transfer 132,788 lb (60,232 kg) of its 2014 commercial quota to Virginia. This transfer was prompted by summer flounder landings of a number of North Carolina vessels that were granted safe harbor in Virginia due to mechanical failure and hazardous weather between January 1, 2014, and January 31, 2014, thereby requiring a quota transfer to account for an increase in Virginia's landings that would have otherwise accrued against the North Carolina quota. The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. The revised summer flounder commercial quotas for calendar year 2014 are: North Carolina, 2,993,041 lb (1,357,621 kg); and Virginia, 2,560,571 lb (1,161,455 kg).
This action is taken under 50 CFR part 648 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; reallocation.
NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (18.3 meters) length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the A season apportionment of the 2014 total allowable catch of Pacific cod to be harvested.
Effective March 4, 2014, through 2400 hours, Alaska local time (A.l.t.), December 31, 2014.
Obren Davis, 907–586–7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season apportionment of the 2014 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,905 metric tons (mt) as established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014).
The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,700 mt of the A season apportionment of the 2014 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(
The harvest specifications for Pacific cod included in the final 2014 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) are revised as follows: 205 mt to the A season apportionment and 1,474 mt to the annual amount for vessels using jig gear, and 6,218 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.
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 reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using hook-and-line gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2014 Pacific cod total allowable catch apportioned to catcher/processors using hook-and-line gear in the Western Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 4, 2014, through 1200 hours, A.l.t., June 10, 2014.
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 A season allowance of the 2014 Pacific cod total allowable catch (TAC) apportioned to catcher/processors using hook-and-line gear in the Western Regulatory Area of the GOA is 2,436 metric tons (mt), as established by the final 2013 and 2014 harvest specifications for groundfish of the GOA (78 FR 13162, February 26, 2013) and inseason adjustment (79 FR 601, January 6, 2014).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2014 Pacific cod TAC apportioned to catcher/processors using hook-and-line gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,406 mt and is setting aside the remaining 30 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using hook-and-line gear 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 directed fishing closure of Pacific cod by catcher/processors using hook-and-line gear 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 March 3, 2014.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS is reallocating the projected unused amounts of the Aleut Corporation's pollock directed fishing allowance and the Community Development Quota from the Aleutian Islands subarea to the Bering Sea subarea directed fisheries. These actions are necessary to provide opportunity for harvest of the 2014 total allowable catch of pollock, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area.
Effective 1200 hrs, Alaska local time (A.l.t.), March 7, 2014, until 2400 hrs, A.l.t., December 31, 2014.
Steve Whitney, 907–586–7269.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea
In the Aleutian Islands subarea, the portion of the 2014 pollock total allowable catch (TAC) allocated to the Aleut Corporation's directed fishing allowance (DFA) is 15,500 metric tons (mt) and the Community Development Quota (CDQ) is 1,900 mt as established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014).
As of March 4, 2014, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that 7,750 mt of Aleut Corporation's DFA and 1,900 mt of pollock CDQ in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(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 the reallocation of AI pollock. Since the pollock fishery is currently open, it is important to immediately inform the industry as to the final Bering Sea subarea pollock allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery; allow the industry to plan for the fishing season and avoid potential disruption to the fishing fleet as well as processors; and provide opportunity to harvest increased seasonal pollock allocations while value is optimum. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 3, 2014.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; opening.
NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota (IFQ) Program and the Community Development Quota (CDQ) Program. The season will open 1200 hours, Alaska local time (A.l.t.), March 8, 2014, and will close 1200 hours, A.l.t., November 7, 2014. This period is the same as the 2014 commercial halibut fishery opening dates adopted by the International Pacific Halibut Commission. The IFQ and CDQ halibut season is specified by a separate publication in the
Effective 1200 hours, A.l.t., March 8, 2014, until 1200 hours, A.l.t., November 7, 2014.
Obren Davis, 907–586–7228.
Beginning in 1995, fishing for Pacific halibut and sablefish with fixed gear in the IFQ regulatory areas defined in 50 CFR 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale supporting it, are contained in the preamble to the final rule implementing the IFQ Program published in the
This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ Program be specified by the Administrator, Alaska Region, and announced by publication in the
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 opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 3, 2014.
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 § 679.23 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This final decision proposes to permanently adopt amendments that adjust the Class I pricing surface of the Appalachian, Florida, and Southeast Federal milk marketing orders. In addition, this decision seeks to adopt proposals that amend certain features of the diversion limit, touch-base, and transportation credit provisions for the Appalachian and Southeast milk marketing orders. This decision also proposes to adopt amendments that increase the maximum administrative assessment for the Appalachian, Florida and Southeast marketing orders. The orders as amended are subject to approval by producers in the affected markets. Producer approval for this action will be determined concurrently with amendments adopted in a separate final decision that amends the transportation balancing fund and other provisions of the Appalachian and Southeast milk marketing orders.
Erin Taylor, USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, STOP 0231-Room 2971, 1400 Independence Avenue SW., Washington, DC 20250–0231, (202) 720–7311, email address:
This final decision adopts amendments that: (1) Adjust the Class I pricing surface in the Appalachian, Florida, and Southeast marketing orders; (2) Make diversion limit standards identical for the Appalachian and Southeast orders: 25 percent of deliveries to pool plants during the months of January, February, July, August, September, October, and November, and 35 percent in the months of March, April, May, June, and December; (3) Reduce touch-base standards to one day each month for the Appalachian and Southeast orders; (4) Add January and February as months when transportation credits are paid for the Appalachian and Southeast orders; (5) Provide for the payment of transportation credits in the Appalachian and Southeast orders for full loads of supplemental milk; (6) Provide more flexibility in the qualification requirements for supplemental milk producers to receive transportation credits for the Appalachian and Southeast orders; and (7) Increase the monthly transportation credit assessment from $.20 per hundredweight (cwt) to $0.30 per cwt in the Southeast order. This decision also increases the maximum administrative assessment for the Appalachian, Florida, and Southeast orders from $0.05 per cwt to $0.08 per cwt. Increasing the maximum administrative assessment was initially addressed in a separate recommended decision (73 FR 11062). Comments concerning the recommended decision were requested but none were received. Accordingly, this document is the final decision on all proposals addressed in both the tentative final decision (73 FR 11194) for items 1 through 7 above and the recommended decision (73 FR 11062) that were simultaneously published in the
This administrative action is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.
The amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect. If adopted, the amendments would not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674) (AMAA), provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 608c(15)(A) of the AMAA, any handler subject to an order may request modification or exemption from such order by filing a petition with the Department of Agriculture (USDA) stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The AMAA provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601–612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this proposed rule would not have a significant economic impact on a substantial number of small entities. For the purposes of the Regulatory Flexibility Act, a dairy farm is considered a small business if it has an annual gross revenue of less than $750,000 and a dairy products manufacturer is a small business if it has fewer than 500 employees.
For the purposes of determining which dairy farms are small businesses, the $750,000 per year criterion was used to establish a marketing guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that dairy producers receive, it should be an inclusive standard for most small dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.
During May 2007, the time of the hearing, there were 2,744 dairy farmers pooled on the Appalachian order (Order 5), 2,924 dairy farmers pooled on the Southeast order (Order 7), and 283 dairy farmers pooled on the Florida order (Order 6). Of these, 2,612 dairy farmers
During May 2007, there were a total of 36 plants associated with the Appalachian order (22 fully regulated plants, 10 partially regulated plants, 2 producer-handlers, and 2 exempt plants). A total of 55 plants were associated with the Southeast order (33 fully regulated plants, 9 partially regulated plants, 2 producer-handlers, and 11 exempt plants). A total of 25 plants were associated with the Florida order (13 fully regulated plants, 9 partially regulated plants, 1 producer-handler, and 2 exempt plants). The number of plants meeting small business criteria under the Appalachian, Southeast, and Florida orders were 8 (or 22 percent), 18 (or 33 percent), and 11 (or 44 percent), respectively.
The adopted amendments in this final decision provide for an increase in Class I prices in the Appalachian, Southeast, and Florida orders. The minimum Class I prices of the three southeastern orders, as with all other Federal milk marketing orders, are set by using the higher of an advance Class III or Class IV price as determined by USDA and adding a location-specific differential, referred to as a Class I differential. Minimum Class I prices charged to regulated handlers are applied uniformly to both large and small entities. At the time of the hearing, the Department estimated that the proposed Class I price increases would generate higher marketwide pool values in all three southeastern orders of approximately $18–19 million for the Appalachian order, $17.5 million for the Southeast order, and $38 million for the Florida order, on a monthly basis. It was estimated that monthly minimum prices paid to dairy farmers (blend prices) would increase approximately $0.26 per cwt for the Appalachian order, $0.64 per cwt for the Southeast order, and $1.20 per cwt for the Florida order.
The Class I price increases were implemented on an interim basis effective May 1, 2008.
The adopted amendments revise the Appalachian and Southeast orders by making the diversion limit standards for the orders identical—not to exceed 25 percent in each of the months of January, February, and July through November, and 35 percent in each of the months of March through June and for the month of December. Prior to their interim adoption, the diversion limit standards of the Appalachian order for pool plants and cooperatives acting as handlers were not to exceed 25 percent in each of the months of July through November, January, and February; and 40 percent in each of the months of December and March through June. For the Southeast order, prior to their interim adoption, the diversion limit standards for pool plants and cooperatives acting as handlers were not to exceed 33 percent in each of the months of July through December and 50 percent in each of the months of January through June.
In addition, the adopted amendments establish identical touch-base standards of at least one day's milk production every month for a dairy farmer in the Appalachian and Southeast orders. Prior to their interim adoption, the Appalachian order had a touch-base standard of 6 days' production in each of the months of July through December and not less than 2 days' production in each of the months of January through June. Prior to their interim adoption, the Southeast order had a touch-base standard of not less than 10 days' production in each of the months of July through December and not less than 4 days' production in each of the months of January through June.
The adopted amendments to the pooling standards serve to revise established criteria that determine those producers, producer milk, and plants that have a reasonable association with and are consistently serving the fluid needs of the Appalachian and Southeast marketing areas. Criteria for pooling are established on the basis of performance levels that are considered adequate to meet the Class I needs and determine those producers who are eligible to share in the revenue that arises from the classified pricing of milk. The criteria for pooling are established without regard to the size of any dairy industry or entity. The established criteria are applied in an identical fashion to both large and small businesses and do not have any different economic impact on small entities as opposed to large entities.
The adopted amendments add January and February to the months of July through December as months when transportation credits may be paid to those handlers who incur the costs of providing supplemental milk for the Appalachian and Southeast orders. The amendments also expand the payment of transportation credits for supplemental milk to include the full load of milk rather than the calculated Class I portion and provide more flexibility in the qualification requirements for supplemental milk producers to receive transportation credits. In addition, the maximum monthly transportation credit assessment for the Southeast order is increased from $0.20 per cwt to $0.30 per cwt on all milk assigned to Class I use. The transportation credit provisions are applicable only to the Appalachian and Southeast orders, are applied in an identical fashion to both large and small businesses, and will not have any different impact on those businesses producing manufactured milk products. The changes will not have a significant economic impact on a substantial number of small entities.
The adopted amendments also allow the Market Administrators of the Appalachian, Southeast, and Florida orders to increase the administrative assessment from the current $0.05 per cwt to $0.08 per cwt if necessary to maintain adequate funds for the operation of the orders. Administrative assessments are charged without regard to the size of any dairy industry or entity. Therefore, the proposed amendments will not have a significant economic impact on a substantial number of small entities.
The Agricultural Marketing Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services.
This action does not require additional information collection that needs clearance by the Office of Management and Budget (OMB) beyond currently approved information collection. The primary sources of data used to complete the forms are routinely used in most business transactions. Forms require only a minimal amount of information that can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same reports for all handlers does not significantly disadvantage any handler that is smaller than the industry average.
Interested parties were invited to submit comments on the probable regulatory and informational impact of this proposed rule on small entities.
A public hearing was held upon proposed amendments to the marketing agreement and the orders regulating the handling of milk in the Appalachian, Florida and Southeast marketing areas. The hearing was held, pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601–674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900).
The proposed amendments set forth below are based on the record of a public hearing held in Tampa, Florida, on May 21–23, 2007, pursuant to a notice of hearing issued May 3, 2007, published May 8, 2007 (72 FR 11194).
Upon the basis of the evidence introduced at the hearing and the record thereof, USDA issued a Tentative Final Decision and a Recommended Decision on February 25, 2008, containing notice of the opportunity to file written exceptions thereto.
The materials issues on the hearing record relate to:
1. Class I Prices—adjustments and pricing surface.
2. Producer milk—diversion limit and touch-base standards.
3. Transportation credit balancing fund provisions.
4. Administrative assessment provisions.
This final decision proposes to adopt proposals, published in the hearing notice as Proposals 1, 2, 3, 4, 5, and 6, seeking to make various changes to the Appalachian, Southeast, and Florida milk marketing orders (hereinafter these marketing areas and marketing orders will collectively be referred to as the southeastern marketing areas or orders as appropriate). These amendments form a package of changes that simultaneously provide for an increase in Class I prices and the Class I pricing surface in the three southeastern orders; and for the Appalachian and Southeast orders, more stringent diversion limit standards, lower touch-base standards, and other specific changes to the transportation credit balancing fund provisions. This final decision also adopts proposals, published in the hearing notice as Proposals 4, 5, and 6, for increasing the maximum administrative assessment rate on producer milk from the current $0.05 per cwt to $0.08 per cwt for the Appalachian, Southeast, and Florida orders.
While the summary of testimony is presented as four separate material issues, the discussion and findings on all material issues are provided after the summary of comments and exceptions.
The minimum Class I prices of the three southeastern orders, as with all other Federal milk marketing orders, are set by using the higher of an advance Class III or Class IV price as determined by USDA and adding a location-specific differential, referred to as a Class I differential. The Class I differentials are location-specific by county and parish for all States of the 48 contiguous United States. These Class I differentials are specified in 7 CFR 1000.52.
The diversion limit standards of the Appalachian and Southeast milk orders are described in the
This decision adopts identical touch-base standards of at least 1 day's milk production per month for a dairy farmer to be considered a producer under each respective order's
Currently, of the three southeastern orders, only the Appalachian and Southeast orders contain provisions for a transportation credit to partially offset handler costs of transporting supplemental milk for Class I use during certain times of the year from producers located outside of the two marketing areas. These producers are not part of the regular and consistent supply of Class I milk to the Appalachian and Southeast marketing areas.
Transportation credit balancing funds were first established for the Appalachian and Southeast (or predecessor orders) in 1996 and operate independently of the producer settlement funds. A monthly per cwt assessment is charged to Class I handlers on a year-round basis on the volume of milk assigned to Class I use at a rate of $0.15 per cwt in the Appalachian order and, prior to its interim adoption, $0.20 per cwt in the Southeast order. Payments from the transportation credit balancing fund are made during the months of July through December (when milk supplies are tightest) in both orders to those handlers that incur the costs of providing supplemental milk. The transportation credit balancing fund provisions were amended in a separate rulemaking and made effective on an interim basis on December 1, 2006 (71 FR 62377), and were again amended by this rulemaking proceeding on an interim basis effective March 18, 2008 (73 FR 14153).
Changes proposed in this final decision to the Appalachian and Southeast order transportation credit balancing fund provisions continue the
The final decision also recommends adoption of three proposals published in the hearing notice as Proposals 4, 5, and 6 seeking to increase the maximum administrative assessment rates of the Appalachian, Southeast, and Florida orders. Specifically, the maximum administrative assessment rates collected on pooled producer milk in the Appalachian, Southeast, and Florida orders will be increased from the current maximum administrative assessment rate of $0.05 per cwt to $0.08 per cwt. Proposal 4 was submitted by the Appalachian Market Administrator and Proposals 5 and 6 were submitted by the Market Administrator for the Southeast and Florida orders. These proposals were addressed in a separate recommended decision that solicited comments and exceptions to the proposed assessment rate increase. No comments or exceptions to the recommended decision were received.
A witness appearing on behalf of the proponents, Dairy Cooperative Marketing Association (DCMA) testified in support of temporarily increasing minimum Class I prices in the three southeastern milk marketing orders. The witness testified that all elements of their proposals are offered as a “single package” to address the needs of all the southeastern region's dairy industry stakeholders. It was the opinion of the witness that the supply of milk for fluid use in these marketing areas is threatened and that several simultaneous changes to the provisions of the three orders are needed to attract a sufficient quantity of milk to meet the fluid needs of the markets.
According to the witness, DCMA consists of nine Capper-Volstead cooperative members that include Arkansas Dairy Cooperative Association, Damascus, AR; Cooperative Milk Producers Association, Inc., Blackstone, VA; Dairy Farmers of America (DFA), Kansas City, MO; Dairymen's Marketing Cooperative, Inc., Mt. Grove, MO; Lone Star Milk Producers, Inc., Windthorst, TX; Maryland & Virginia Milk Producers Cooperative Association, Inc. (MD–VA), Reston, VA; Select Milk Producers, Inc., Artesia, NM; Southeast Milk, Inc. (SMI), Belleview, FL; and Zia Milk Producers, Inc., Roswell, NM. The witness testified that each of the DCMA members marketed and pooled milk in one or more of the three southeastern milk marketing order areas during 2006.
According to the DCMA witness, during December 2006 members of DCMA pooled more than 87 percent of cooperative and non-member producer milk on the Appalachian order, more than 87 percent of the cooperative and non-member producer milk on the Southeast order, and more than 96 percent of the cooperative and non-member producer milk on the Florida order.
The DCMA witness testified that their proposed changes to the Class I pricing surface better reflect the actual cost of transporting milk and the pattern in which milk produced outside of the marketing areas moves into the three marketing areas. According to the witness, the cost of procuring milk for fluid use for the southeast region has increased because local production is in serious decline and continues to decline at an increasing rate. The witness noted that the three southeastern orders collectively import more than one-third of the region's milk supply during the most deficit months of the year to cover the fluid milk needs. Fluid demand exceeds 300 million pounds of milk each month in the three southeastern marketing areas, the witness said. The witness characterized the economic situation of the dairy industry in the region as dire and marketing conditions as disorderly. The witness asserted that producers currently experience inequitable prices for their milk, that handlers have unequal costs, and that there are insufficient economic incentives for the procurement of milk supplies.
The DCMA witness characterized the southeastern region as having rapid population growth. The witness indicated that the U.S. Census Bureau population growth estimates for the states of Alabama, Arkansas, Florida, Georgia, Mississippi, Louisiana, North Carolina, South Carolina, and Tennessee have collectively increased by 8.4 percent from 2000 to 2006, while the population of the U.S. as a whole increased 6.2 percent.
Using market administrator statistics on in-area milk production for the three southeastern marketing order areas, the DCMA witness contrasted population growth to the region's milk production to demonstrate that the dairy industry is in serious decline. The witness said that during 2006 milk was delivered into the three southeastern orders from at least 27 States. The witness explained that local in-area milk production (milk produced within the geographic marketing area boundaries) during 2006 for both the Appalachian and Southeast areas supplied the entire Class I needs of these two areas only 4 months of the year and Florida's in-state milk production was insufficient to supply the Class I needs in every month of 2006. The witness estimated that the Appalachian and Southeast marketing areas are able to supply only about 76 percent of the milk necessary to meet Class I, Class II, and reserve demands, while in Florida in-area producers are able to supply only about 66 percent of the milk necessary to meet Class I and reserve demands annually. The DCMA witness asserted that minimum Federal order Class I prices have increased only twice in the past 22 years—as a part of the 1985 Farm Bill and as part of Federal milk order reform made effective in January 2000. Specifically, the witness related that the Class I differential for Atlanta increased from $2.30 to $3.08 per cwt in 1985 but was increased by only $.02 to $3.10 in January 2000. According to the witness, under Federal order reform, some Class I differentials in distant milk surplus areas were increased more than in the milk-deficit regions of the southeast.
The DCMA witness was also of the opinion that changes to the Class I price surface resulted in a flattened price surface and narrowed producer blend price differences between orders. The witness testified that such changes diminished the economic incentives to move milk within the southeastern marketing areas as well as to move milk into the deficit southeastern region of the U.S. According to the witness, minimum Class I price differences and returns to producers are simply not high enough to move milk into these deficit markets without substantial over-order premiums.
The DCMA witness explained that since 1986 diesel fuel prices have risen more rapidly than Class I differentials (and thus Class I prices) in the southeastern region. Relying on data of
The DCMA witness testified that the slope of the Class I pricing surface should be changed to progressively increase Class I prices as milk moves to the east and south within the three marketing areas. The witness was of the opinion that changing the slope of the Class I price surface inside the three marketing areas in this way would better encourage milk to move within the marketing areas. Additionally, the witness was of the opinion that pricing signals to producers would direct their supplies to the most milk-deficit portions of the region. In this regard, the witness added that simply raising Class I prices uniformly throughout the three marketing areas would not result in improved pricing signals to producers.
The DCMA witness explained that in developing the proposed Class I price structure and adjustments to current Class I price levels, DCMA considered two alternatives. According to the witness, in one pricing alternative all the Class I price relationships between plants in the three southeastern orders could be retained. However, under this alternative, the witness explained, the Class I prices for the plants on the outer edges of the Appalachian and Southeast marketing area boundaries would increase considerably, resulting in significant changes in price relationships between those plants and plants regulated by adjoining Federal orders.
Alternatively, the DCMA witness said that the slope of the Class I price surface within the three marketing areas could be altered to minimize plant-to-plant Class I price relationship changes. The witness testified that this approach would result in a pricing structure that better reflected actual milk movements from within and outside of the marketing areas. The witness pointed out that in either approach, plant-to-plant price relationships would change and that the method they chose provided the least change in plant-to-plant price relationships.
The DCMA witness also stressed the need for the proposed Class I price adjustments to remain aligned with the Class I price structure in adjoining marketing areas. The witness said that the proposed Class I price surface outside of the three southeastern marketing areas would not be changed. The witness was of the opinion that the proposed Class I price adjustments are reasonably aligned with Class I prices in adjoining marketing areas. Through an analysis of plant-to-plant movements of packaged milk, the witness indicated that DCMA's proposed Class I pricing structure provides pricing adjustments that are reasonable and improves the slope of the Class I price surface.
The DCMA witness explained that both a most distant demand point and several supply locations were identified in developing the proposed Class I price surface. The witness indicated that Miami, FL, was identified as the most distant demand point in the southeastern region from any alternative milk supply area. According to the witness, the five possible major supply locations and their distance to Miami were also identified. These locations included: Wayne County, OH; Jasper County, IN; Hopkins County, TX; Lancaster County, PA; and Franklin County, PA.
The witness indicated that of the five possible supply sources, Wayne County, OH, was determined as the least cost supply location with a calculated Class I price adjustment of $6.14 per cwt at Miami, FL. The witness testified that Class I price adjustments were progressively adjusted to smaller and smaller values as plant location values in the southeastern region were adjusted by their distance from the supply locations.
According to the DCMA witness, the plant-to-plant cost of moving packaged milk was analyzed. The witness testified that successive movements of packaged fluid milk from the outer edge of the Appalachian and Southeast marketing areas towards Miami, FL, were analyzed. As with bulk milk movements, the witness explained, at each plant location the minimum cost of moving packaged milk was determined and compared to the minimum costs of moving bulk milk. The witness concluded that the bulk and plant-to-plant packaged milk movements were very similar.
The DCMA witness testified that the calculated Class I pricing adjustments were re-adjusted so that plants located near each other would have a similar Class I price adjustment. The witness also acknowledged that the proposed pricing structure could not maintain current Class I price relationships because the current Class I price surface does not reflect actual hauling costs. According to the witness, the west-to-east proposed increase in Class I price adjustments reflects higher hauling costs.
The DCMA witness characterized the proposed adjustments to the calculated Class I price surface as being the result of “smoothing.” The witness explained that deviation from the calculated Class I price adjustment represents the incorporation of best professional judgment in assuring that plants located near each other have the same Class I price adjustment and the need to maintain alignment with Class I prices in adjoining marketing areas.
According to the DCMA witness, the proposed adjustments for plant locations regulated by the Appalachian order would increase in the range of $0.10 per cwt to $1.00 per cwt; plants regulated by the Southeast order would increase in the range of $0.10 per cwt to $1.15 per cwt; and plants regulated by the Florida order would increase between $1.30 per cwt to $1.70 per cwt. Relying on market administrator data, the DCMA witness concluded that the proposed Class I price increases would generate higher marketwide pool values in all three southeastern orders. According to the witness, the estimated annual increase of the Appalachian order pool for 2004, 2005, and 2006 resulting from the proposed Class I prices alone would have totaled $19.3 million, $18.6 million, and $18.3 million, respectively. For the Southeast order, the witness said, the annual pool value increase would have totaled $16.8 million, $17.1 million, and $17.7 million, respectively. For the Florida order, the witness said, the annual increase in pool value would have totaled $36.4 million, $38.3 million, and $39.2 million, respectively. In estimating the impact on minimum prices paid to dairy farmers, the witness said that average annual minimum uniform prices (as announced at current locations) would have increased by approximately $0.25 per cwt to $0.26 per cwt for the Appalachian order, approximately $0.64 per cwt higher for the Southeast order, and $1.19 per cwt to $1.22 per cwt higher for the Florida order.
The DCMA witness acknowledged and explained that changes in Class I price relationships between plant locations resulting from any changed Class I price surface would be inevitable. In this regard, the witness asserted that the price adjustment differences between plant locations under the DCMA proposal would not exceed the cost of moving Class I fluid milk products and therefore would not result in the uneconomic movement of milk.
The DCMA witness concluded by testifying that orderly marketing would be improved with a Class I price
A total of 11 dairy farmers whose milk is pooled on at least 1of the 3 southeastern orders testified at the hearing in support of DCMA's package of proposals, but suggested modifications on how the package should be changed.
Three of the dairy farmers who testified were cooperative members of MD–VA, DFA, and SMI (cooperatives previously described as member organizations of DCMA). These witnesses testified that the dairy industry in the southeastern region is in need of changes to the three marketing orders to respond to the decline in regional milk production. Their testimonies joined that of the DCMA witness supporting the DCMA proposals.
A dairy farmer whose milk is marketed on the Southeast and Florida marketing orders testified on behalf of Cobblestone Milk Producers, Inc. and Mountain View Farms of Virginia in limited support of the Class I price surface feature of DCMA's package of proposals provided certain modifications were made. This witness agreed with proponents concerning the decline of milk production in the southeastern region and the need to import supplemental milk supplies. According to the witness, lower producer pay prices in the southeastern region have led to rapidly declining production that is not being replaced by new farms or the expansion of existing farms. It was the opinion of this witness that the projected increases in producer pay prices arising from the proposed increase in Class I prices would not be enough to affect production trends in the southeastern region. The witness expressed concern that Class I processors would demand their over-order premiums be lowered to compensate for increases in the three orders' minimum Class I prices. The witness requested that the proposed Class I price adjustments for the Appalachian and Southeast marketing areas be increased but did not offer specific amounts.
Four dairy farmers from North Carolina testified in general support of the proposed Class I price adjustments. Three of the witnesses represented organizations that were part of the Southeast Producers Steering Committee (SPSC), whose members include North Carolina Dairy Producers Association, Georgia Milk Producers Association, Upper South Milk Producers Association, Kentucky Dairy Development Council (KDDC), North Carolina Department of Agriculture and Consumer Services, and the North Carolina Farm Bureau Federation. All four witnesses were of the opinion that the proposed Class I price adjustments would not be adequate to increase prices paid to dairy farmers in order to stem the decline of milk production in the southeastern region. The witnesses were of the opinion that additional efforts should be made to enhance local milk production. One dairy farmer witness testifying on behalf of the KDDC said that other adjustments needed to be made to the proposed Class I price adjustments because Kentucky dairy farmers would benefit less from the proposed adjustments than dairy farmers located in the Southeast and Florida marketing areas. Another North Carolina dairy farmer witness offered the opinion that Appalachian producers would need to receive at least a $1.00 to $1.50 per cwt increase in their mailbox price to stimulate local milk production. A third North Carolina dairy farmer witness stressed that more emphasis should be made on increasing local milk production rather than seeking better ways to import milk into the region. Another dairy farmer, also from North Carolina, expressed concern that over-order premiums might fall because of the proposed Class I prices adjustments. In addition, an SPSC witness, as well as others, called for a comprehensive study to identify problems and alternatives to the proposals regarding the decline of milk production in the southeastern region.
A witness appearing on behalf of National Dairy Holdings (NDH) testified in limited opposition to the Class I price adjustments of the DCMA package. According to the witness, NDH is a national dairy processor with facilities located throughout the United States. The witness indicated no specific opposition to Class I price increases but conditioned such increases on the fair distribution of the revenue to producers in the southeastern region. While the witness testified that NDH has no difficulty procuring milk for its plants located in the southeastern region, the witness acknowledged other testimony that identified milk production problems of the southeastern region and that the region's producers are in need of relief. The witness expressed concern on how the proposals would impact NDH's wholesale packaged milk sales. The witness also suggested that issues discussed at the hearing could be addressed by utilizing a point-of-sale or plant-point pricing method.
A witness appearing on behalf of the Kroger Company (Kroger) testified in opposition to the proposed Class I price adjustments for the Appalachian and Southeast marketing orders. According to the witness, Kroger operates four fluid distributing plants regulated by the Appalachian and Southeast orders (Winchester Farms, Westover Dairy, Heritage Farms Dairy, and Centennial Farms Dairy). The opinion of the witness was that the proposed Class I price adjustments would disrupt traditional pricing relationships, which were established by the 1985 Farm Bill, and would generate competitive discrepancies with adjoining markets.
The Kroger witness testified that the proposed Class I price adjustments would place their plants in an unacceptable competitive situation with each other in the Appalachian and Southeast marketing areas. Specifically, the witness requested that the Class I price adjustments for Louisville, KY; Lynchburg, VA; Murfreesboro, TN; and Atlanta, GA be unchanged. The witness also suggested that Winchester, KY, be increased by no more than $0.10 per cwt in order to maintain competitive milk procurement price relationships with other plants located in the Cincinnati area of the Mideast milk marketing area. The witness opposed the proponent's position that the proposal be considered on an emergency basis.
A witness appearing on behalf of the Milk Industry Foundation (MIF) testified in opposition to the Class I price adjustments of DCMA's package of proposals. According to the witness, MIF is a member organization of the International Dairy Foods Association (IDFA) which represents 115 member companies that market approximately 85 percent of the nation's milk and dairy products. The witness testified that the proposed changes are not necessary because an adequate of supply of milk already exists for the Appalachian, Southeast, and Florida orders. The witness stated that because the Federal order system is a national market, milk is available from anywhere in the country. The witness noted over-order premiums compensate those entities who supply the deficit regions. The witness was of the opinion that declining milk production in the southeastern region has been occurring for many years and as such does not warrant an increase in Class I prices.
The MIF witness was of the opinion that Class I prices cannot be changed in one region of the country without affecting milk marketings in other regions. The witness said that the proposed Class I price adjustments would change the competitive relationships between plants located within and outside of the three southeastern marketing areas. The witness argued that Class I sales would be discouraged because all Class I plants in the three marketing areas would be required to pay a higher price for milk. The witness requested a comprehensive analysis of the national market before adopting the proposed Class I price adjustments.
A witness appearing on behalf of Dean Foods Inc. (Dean) testified in opposition to the proposed Class I price adjustments of DCMA's package of proposals. The witness agreed with testimony of other witnesses indicating the deficit milk supply conditions in the three southeastern marketing areas and the need to increase prices paid to the region's local dairy farmers.
The Dean witness was of the opinion that a comprehensive analysis of the potential impacts of changing the Class I price surface in the three marketing areas had not been conducted. The witness characterized DCMA's package of proposals as containing “too many moving parts” that make it difficult to evaluate the impact of the proposed Class I price adjustment features. The witness was of the opinion that Appalachian and Southeast marketing area dairy farmers are in greater need of higher producer prices than dairy farmers in the Florida marketing area and noted that the proposed Class I price adjustments would benefit Appalachian and Southeast marketing area producers the least. In this regard, the witness worried that the prices received by dairy farmers across the southeastern region would be unfairly distributed if the proposed Class I price changes were adopted.
The Dean witness was of the opinion that the proposed Class I price surface and Class I pricing adjustments would change how milk moves to and between plants located within and outside of the three marketing areas. The Dean witness testified that the assumptions used by DCMA in laying the foundation for the proposed Class I price adjustments and Class I pricing structure are flawed. In this regard, the witness noted that the USDA 1999 Final Decision on Federal milk order reform indicated that the cost of hauling raw milk was linear [cost increases as the distance milk is transported increases at a constant rate], but that the cost of hauling packaged milk was nonlinear. Accordingly, the Dean witness argued that the proposed Class I pricing changes could give distributing plants located outside the marketing areas incentive to change their route dispositions in order to become regulated on one of the three marketing orders.
According to the Dean witness, distributing plants located outside the area could become regulated at the expense of plants located in the area. As a result, the witness concluded, Class I revenue generated by out-of-area distributing plants would be returned to dairy farmers located far outside of the three southeastern marketing areas. The witness offered that perhaps the greatest beneficiaries of the proposed Class I pricing changes could be producers located as far away as Illinois and Indiana.
The Dean witness also criticized reliance on Wooster, OH, (located in Wayne County) as a supply area for the southeastern region and being a basis of DCMA's proposed Class I price adjustments. The witness noted while DCMA identifies Wooster, OH, as a supply area for the southeastern region, a Pennsylvania State proceeding held in 2006 indicated the testimony of a DFA witness saying that milk was not available in the Wooster, OH, area to supply Pennsylvania.
The Dean witness offered nine modifications to DCMA's package of proposals. The witness explained that their proposed modifications to the package of proposals would not seek to provide higher Class I prices or change the Class I pricing surface. According to the witness, the Appalachian and Southeast marketing orders' pooling provisions should be identical to those of the Florida marketing order (discussed further below).
The DCMA witness testified that the diversion limit standards of the Appalachian and Southeast orders should be identical. According to the witness, diversions to nonpool plants allows for the pooling of milk that is transferred from pool to nonpool plants without milk first needing to be delivered to pool plants. In setting a reasonable limit, the witness was of the opinion that diversion limit standards must take into account reserve supplies needed for Class I use, the balancing needs of the markets, and the seasonality of production.
The DCMA witness testified that milk-deficit Federal orders tend to have lower diversion limit standards relative to orders with substantial reserve milk supplies. The witness testified that while the Appalachian and Southeast order diversion limit standards generally reflect their milk-deficit marketing conditions, they are in need of tightening. Specifically, the DCMA witness proposed that the diversion limit standards be 25 percent during each of the months of January, February, and July through November, and 35 percent for each of the months of March through June and for the month of December.
In explaining the analysis conducted in arriving at the proposed new diversion limit standards for the Appalachian and Southeast orders, the DCMA witness testified that daily producer milk receipts by distributing plants regulated by the two orders from January 2004 through December 2006 were compared to the day of the month when daily receipts at distributing plants were the greatest. The witness explained that the differences between the day of the greatest receipts and each day's actual receipts for the month at distributing plants were then summed. According to the witness, the resulting value represents the amount of additional milk that would need to be pooled as reserve milk to be able to satisfy Class I demands at a distributing plant on the day of their greatest need. The witness stated that the analysis showed that an additional milk volume of 12 to 13 percent of distributing plant receipts would be the minimum reserve necessary to cover daily fluctuations in the demand for fluid milk at distributing plants. On an annual basis, the minimum average reserve needed as calculated is about 22 percent, the witness said.
The witness explained that the proposed diversion limit standards of 25 percent for both orders for each of the months of January, February, and July through November, are based on the analysis described above and the need to provide for an additional reserve in the tightest supply months. The witness explained that the proposed diversion limit standards of 35 percent for each of the months of March through June and the month of December accommodate seasonal fluctuations in supply. The witness explained that this standard would allow regular producers who supply the Class I needs of the marketing areas in the tight supply months to pool all of their additional production in the flush months and accommodate the regular decline in Class I sales that occurs when schools close for the summer months. According to the witness, Class I plants also
Relying on market administrator data, the DCMA witness estimated that the impact on the minimum uniform prices from lowering the diversion limit standards alone would raise blend prices approximately $0.02 per cwt and $0.07 per cwt annually for the Appalachian and Southeast orders, respectively. The witness indicated that a change in the blend price for any particular producer would vary based on where the producer's milk was delivered.
The DCMA witness stressed that the proposed changes in the two orders' diversion limit standards do not fully capture the true volume of milk likely to no longer be eligible to be pooled on the two orders. The witness explained that if the volume of producer milk delivered to pool plants were the same each month, then the volume of producer milk no longer pooled and priced by the orders would drop about 6.67 percent and 29.72 percent on the Appalachian and Southeast orders, respectively. The witness further explained that lowering the diversion limit standards also should result in increasing minimum order blend prices paid to producers. According to the witness, proposed changes to the diversion limit standards of the orders, together with expected increases in revenue arising from Class I price adjustments and Class I pricing surface, will likely encourage local milk production, the movement of milk into the region from distant sources, or some combination of both.
The DCMA witness testified that the package of proposals also includes the lowering of the touch-base standards of the Appalachian and Southeast orders and makes them identical. According to the witness, this would discourage uneconomic movements of milk and offer operational savings for cooperatives supplying the Class I needs of the marketing area.
The DCMA witness explained that because of the continuing decline in local milk production, an increasing amount of milk that is produced further from the marketing areas is becoming a regular part of the supply of Class I milk. The witness characterized this milk of distant dairy farmers as the reserve supply needed for balancing the Class I needs of the two marketing areas.
The DCMA witness was of the opinion that reducing the touch-base standard to one day each month in both orders is necessary for the efficient pooling of reserve supplies. The witness testified that lowering the touch-base standard would prevent local milk already supplying the markets' Class I needs from being displaced by milk produced farther from the marketing areas, which is shipped in simply to meet pooling standards. According to the witness, requiring producers to deliver more days to pool plants when the milk is not truly needed results in increasing the cost of supplying the Class I needs of the two markets.
Eight dairy farmers testified in general support of DCMA's proposed changes to the two orders' diversion limit and touch-base standards. Some were of the general opinion that the regular reserve supply for the Appalachian and Southeast marketing areas should be pooled when not delivered to Class I plants. While all supported the pooling of milk that regularly supplies the Class I needs of the two marketing areas, several dairy farmers expressed caution that the diversion limits were not being lowered enough while touch-base standards were needlessly being lowered. According to these witnesses, this would encourage pooling milk not truly supplying the markets and result in lower blend prices paid to local dairy farmers. The dairy farmers testifying supported adopting needed changes on an emergency basis.
A witness representing Dean testified that the proposed changes to the diversion limit and touch-base standards would not be sufficient to deter the uneconomic movement of milk or to enhance producer prices in the Appalachian and Southeast marketing areas. According to the witness, current diversion limit standards are in excess of the markets' balancing needs and should be lowered immediately.
The Dean witness characterized the Appalachian and Southeast orders as being very similar to the Florida order in terms of milk consumption and production. The witness was of the opinion that the pooling standards of the Florida order work well and pooling milk not consistently serving the market's Class I needs rarely occurs. The witness specifically proposed that diversion limit standards be changed to 15 percent for each of the months of December through February, 20 percent for each of the months of March through June, and 10 percent for each of the months of July through November.
According to the Dean witness, dairy farmers will receive higher blend prices if diversion limits are made even lower than proposed by DCMA. Relying on market administrator data, the witness stated that January 2004 had shown the highest “need” of reserve milk during 2004–2006 for the Southeast order at approximately 22 percent of total milk pooled on the order. The witness contrasted this with October 2004 when the “needed” reserve was approximately 7 percent. In this regard, the witness suggested that diversion limits could be reduced below that proposed by DCMA. According to the witness, if made too low, the market administrator has the authority to change the diversion limit standards if warranted.
The Dean witness opposed DCMA's proposed one day per month touch-base standard if DCMA's proposed diversion limit standards are adopted. The witness was of the opinion that inefficient movements of milk would result if the one day touch-base standard were adopted. However, the witness indicated support for a two-day touch-base standard provided the diversion limit standards of the Florida order are simultaneously adopted.
The Dean witness explained that when touch-base requirements are low, locally produced milk can be displaced by milk located far from the marketing area because it needs to be transported to the marketing area fewer times to qualify for pooling and receiving a higher blend price. The witness was of the opinion that only milk that is necessary to serve the Class I needs of the market should be delivered to that market. According to the witness, reserve milk supplies located far from the market should not be pooled on the market if they are not delivered to the market.
The DCMA witness explained that on September 1, 2006, the Secretary issued a tentative partial decision (71 FR 54118) which amended the transportation credit provisions of the Appalachian and Southeast orders. Specifically, the witness noted that the decision established a fuel cost adjuster to determine a variable mileage rate factor used to compute the payout of transportation credits and higher maximum transportation credit assessments on Class I milk for the Appalachian and Southeast orders. To accompany these adopted changes that were implemented on December 1, 2006, (71 FR 62377) the witness proposed four other changes to the transportation credit provisions that are part of the package of changes proposed for the two southeastern orders.
According to the DCMA witness, the four additional changes to the transportation credit provisions for both orders include: (1) extending the months during which transportation credits may be paid to include the
According to the DCMA witness, the need for supplemental milk in the Appalachian and Southeast orders has increased during the months of January and February. The witness offered evidence showing that during January 2004 through December 2006, January and February are months with increasing Class I use in the Appalachian and Southeast orders. The witness claimed that during January and February, local milk is not sufficient to supply the Class I milk needs. It is this combination of Class I need and available local producer supplies that show January and February as being more like the current transportation credit payment months of July through December than the flush months of March through May, the witness concluded. According to the witness, adding January and February as transportation credit payment months would give suppliers of supplemental milk an opportunity to recoup a portion of the hauling costs to supply the marketing areas with milk for fluid use.
In explaining this proposed change, the DCMA witness said, in part, current transportation credit payment provisions result in reimbursements that are much lower than the real cost of hauling. The witness explained that the cost of hauling milk to Class I plants is the same regardless of the plant's use or the Class I utilization of the market. The witness was of the opinion that expanding the transportation credit payments to full loads of milk delivered only to pool distributing plants would enhance orderly marketing and better ensure that sufficient supplemental milk is delivered to pool distributing plants. The witness supported continuing transportation credit payments on supplemental milk deliveries to pool distributing plants only.
The DCMA witness proposed simplifying the process for determining what supplemental milk is eligible for transportation credit payments. The witness noted that currently, a dairy farm must be located outside either the Appalachian or the Southeast marketing areas, the dairy farmer must not meet the
The DCMA witness was of the opinion that the requirements for transportation credit payment eligibility should be changed to provide flexibility in meeting the criteria while limiting the receipt of transportation credits to only that milk which is truly supplemental and that is not part of the consistent and regular supply of milk serving the Class I needs of the two markets. Specifically, the witness proposed that: (1) A dairy farmer must not meet the
The DCMA witness testified that the maximum transportation credit assessment for the Southeast order needs to be increased from the current $0.20 per cwt to $0.30 per cwt given the proposed expansion of the transportation credit payments on full loads of milk to Class I distributing plants regulated by the two orders. The witness was of the opinion that otherwise the current assessment rate would be insufficient to cover anticipated shortfalls in the transportation credit balancing fund.
While the DCMA witness proposed a higher transportation credit assessment rate for the Southeast order only, the witness projected that the proposed changes to Class I prices and the Class I pricing surface in the Appalachian and Southeast orders would lessen payments from the transportation credit balancing funds. The witness explained this may occur because of the greater positive differences (increases) from adopting the proposed Class I price adjustments and Class I pricing surface. The witness did acknowledge that the additions of the months of January and February as transportation credit payment months would tend to increase transportation credit payouts.
Relying on market administrator data, the DCMA witness estimated that for the months of July through December 2006 the Southeast order transportation credit payments would total $15,704,872 as a result of their proposal, and January and February 2006 payments would total approximately $2,900,000, resulting in an overall amount of approximately $18,604,872. At the current assessment rate of $0.20 per cwt, the witness concluded that transportation credit balancing funds would not have been sufficient to pay all transportation credit claims in 2006. At the proposed $0.30 per cwt assessment rate, the witness was of the opinion that sufficient revenue would be generated to satisfy all transportation credit claims.
Relying on market administrator data for the Appalachian order, the witness said that during July 2006 through January 2007, transportation credit payments would have totaled approximately $4,073,312. According to the witness, February 2006 would have included a payment of approximately $313,000, bringing the total estimated transportation credit payments to $4,383,312. According to the witness, the current $0.15 per cwt assessment rate for the Appalachian order would have been sufficient and no increase in the assessment rate would be needed.
The DCMA witness supported continuing to provide for market administrator discretion in setting the transportation credit assessment rates at less than the maximum allowed. The witness was of the opinion that doing so will prevent the needless collection of revenue when the transportation credit balancing funds are sufficient to meet claims.
Four dairy farmers testified in support of DCMA's proposal to provide additional flexibility in determining which producers are supplying supplemental milk to the two marketing areas. As with other features of DCMA's proposals, these dairy farmers supported adoption of these proposed changes on an emergency basis.
The witness appearing on behalf of Dean expressed support for adding the months of January and February as transportation credit payment months for the Appalachian and Southeast orders on the condition that tighter diversion limits be adopted. The witness said these months should be considered as payment-eligible months because the tentative decision implemented in December 2006 eliminated the ability to divert milk on loads of milk seeking the payment of a transportation credit. However, the
According to the Assistant Market Administrator for the Appalachian order, Proposal 4 was offered to ensure that sufficient funds are available for administering the Appalachian order. The witness added that Proposal 4 would amend section 1005.85 (7 CFR 1005.85) to provide for all of the administrative assessment language pertinent to the Appalachian order provisions and would discontinue the reference to section 1000.85 (7 CFR 1000.85). The witness explained that administration and operating costs include administrative, accounting, human resources, economic, pooling and audit staff expenses.
The Assistant Market Administrator for the Appalachian order stated that the market administrator is required to maintain a specific level of operating reserves. The reserve level, the witness said, must be maintained in the event that an order is terminated and would fund the necessary costs for closing out an order, completing pools and audits and paying severance and leases. The reserve level is detailed in the MA Instruction 207 that is issued by the Dairy Programs Deputy Administrator, said the witness.
The Assistant Market Administrator for the Appalachian order said that the majority of the administrative assessment revenue comes from pooled producer milk. Additionally, the witness said, assessments are also collected on other source receipts assigned to Class I and certain route disposition in the marketing area by partially regulated distributing plants. The witness stated that although the maximum administrative assessment rate allowable on pooled producer milk is $0.05 per cwt, the rate currently collected each month is $0.04 per cwt, which has remained unchanged since January 2000.
The Assistant Market Administrator for the Appalachian order said that during 2000–2002, producer milk pooled on the Appalachian order averaged 547 million pounds per month. According to the witness, the $0.04 per cwt assessment rate at this volume of milk created enough revenue to fund Appalachian order operations and maintain the mandated operating reserve. The witness stated that from 2003–2005, producer milk pooled on the order averaged 525 million pounds per month and in 2006, producer milk pooled on the order averaged 520 million pounds per month. The witness also compared the first 4 months of 2007 to the first 4 months of 2006 and stated that producer milk pooled on the order was down 3.45 percent.
The Assistant Market Administrator for the Appalachian order explained that about $215,000 is needed each month to cover basic operating expenses. By keeping the assessment rate of $.04 per cwt, the witness said 538 million pounds of producer milk would be needed each month to cover monthly order expenses. The witness further explained that the Appalachian order was in an operating deficit in 2003, 2004, and 2006 and had a balanced budget in 2005. During 2003–2006, the witness said, the volumes of pooled producer milk did not generate sufficient revenue to fund order operations and lowered the mandated operating reserves.
According to the Assistant Market Administrator for the Appalachian order, a decision effective December 1, 2006 (71 FR 62377), established a zero diversion limit standard on Class I milk receiving transportation credits. The decision, the witness said, reduced the amount of milk that could be pooled on the order and reduced the amount of assessment revenue collected during the period of July through December, when those volumes of milk would be pooled. In addition, the witness said that Proposal 1, if adopted, would add January and February as additional transportation credit payout months, further reducing the amount of milk that could be pooled on the Appalachian order. The witness stressed that tightening pooling provisions of the order impacts the amount of producer milk pooled on the order. The witness expressed concern that less milk pooled on the order would reduce administrative assessment revenue and the ability to fund order operations while maintaining the mandated reserve level.
The Assistant Market Administrator for the Appalachian order said that the market administrator makes efforts to control costs of carrying out order operations. According to the witness, cost control efforts include a reduction of office staff by 29 percent through attrition since January 2003, contracting with outside computer services, negotiating a telecommunications contract, consolidating a field office, and reducing travel and mail expenses. The witness stressed that regardless of the market administrator's efforts to control costs and efficiently administer the order, gains in efficiency cannot make up for revenue lost due to a reduction in milk volumes.
The Assistant Market Administrator for the Appalachian order concluded by emphasizing that increasing the maximum administrative assessment rate to $.08 per cwt would be the maximum rate allowable and not necessarily the rate assessed. The witness said the actual rate assessed would only be as high as determined by the market administrator with approval by the Dairy Programs Deputy Administrator.
According to the Market Administrator for the Southeast and Florida orders, Proposals 5 and 6 were offered to ensure that there are sufficient funds to carry out administration of the orders. The witness said the proposals would amend sections 1006.85 (7 CFR 1006.85) and 1007.85 (7 CFR 1007.85) to provide for all of the administrative assessment language pertinent to the Southeast and Florida orders, and would discontinue the reference to section 1000.85 (7 CFR 1000.85). The witness explained that administration and operating expenses of the order include pooling, auditing, and providing market information.
The Market Administrator for the Southeast and Florida orders explained that the order is required to maintain a specified level of operating reserves. The reserve level, the witness said, is detailed in the MA Instruction 207 that is issued by the Dairy Programs Deputy Administrator. The witness said the reserve level is kept to cover necessary costs of closing out an order, such as completing pools, audits, and paying severance and lease payments.
The Market Administrator for the Southeast and Florida orders explained that the majority of the monthly administrative assessment is collected from pooled producer milk. The witness added that additional assessments are also collected from other source receipts associated with Class I and certain route disposition in the marketing area by partially regulated distributing plants. The witness stated that the market administrator largely depends on the administrative assessment revenue to fund the operations of the orders. The witness noted that since 2000, the administrative assessments for both the Southeast and Florida orders have contributed over 80 percent of the total income of the market administrator office.
According to the Market Administrator for the Southeast and Florida orders, the combined monthly average of pooled producer milk for the two orders in 2000 was 862.8 million
The Market Administrator for the Southeast and Florida orders said that in 2003, although producer milk in the Florida order increased by 5 percent, producer milk in the Southeast order decreased 11 percent, resulting in a considerable decrease in assessment collections. According to the witness, during 2003, funds were drawn from the operating reserves, reducing the reserve level near the mandated minimum. The witness said that as a result, effective with January 2004 milk deliveries, the administrative assessment rates increased by $0.01 to $0.045 and $0.04 per cwt for the Southeast and Florida orders, respectively.
The Market Administrator for the Southeast and Florida orders stated that in 2004, the monthly average pounds of producer milk pooled increased over 2003 by 1 percent and 5 percent in the Southeast and Florida orders, respectively. The witness added that in 2005, producer milk increased over 2004 by 5 percent and 8.8 percent in the Southeast and Florida orders respectively, and in 2006, producer milk increased over 2005 by 6.8 percent and stayed the same in the Southeast and Florida orders, respectively.
According to the Market Administrator for the Southeast and Florida orders, the administrative assessments implemented in 2004, with the increase in producer milk during 2004–2006 and efforts to control costs, have been sufficient to cover operating expenses and build an adequate reserve level. The witness added that they continue to take measures to control costs. The witness said that from 2000–2006, cost control measures included a 15 percent reduction in staff through attrition, increased use of technology to hold meetings and conduct audits, a reduction in travel expenses, and a decrease in communication costs.
The Market Administrator for the Southeast and Florida orders explained that Proposal 2 seeks to limit an average of 12.3 percent of allowable diversions in the Southeast order which would reduce the amount of milk pooled on the order, as well as the value of administrative assessments used to fund order operations. The witness also noted a decision effective December 1, 2006, (71 FR 62337) that reduced allowable diversions by the volume of transportation credit claims. The witness also expressed concern that the downward trend in Southeast milk production and marketing decisions made by handlers provides an increased potential for variability in the revenue available for order operations.
The Market Administrator for the Southeast and Florida orders concluded that while the proposals seek to increase the maximum assessment rate from $0.05 per cwt to $0.08 per cwt, the $0.08 per cwt would not necessarily be the rate charged. The witness stressed that the assessed rate would only be high enough to cover operating expenses and maintain the mandated reserve level as approved by the Deputy Administrator for Dairy Programs.
Post-hearing briefs were filed by: Dairy Cooperative Marketing Association (DCMA), Southeast Producers Steering Committee (SPSC), Dean Foods Company and National Dairy Holdings (Dean/NDH), and the Milk Industry Foundation (MIF).
The DCMA post-hearing brief echoed the association's support for adoption of their proposals on an emergency basis. The brief stated that its proposals were developed as an integrated package and that the package of proposals better assures the Appalachian, Southeast, and Florida milk orders' ability to attract a sufficient quantity of milk for fluid use. The brief said this is accomplished by increasing the Class I prices in the three milk marketing orders, lowering the diversion limit and touch-base standards, and modifying the transportation credit provisions. The brief reiterated the deficit milk supply situation in the southeastern region. The brief emphasized that procuring milk for Class I use for the region is a major challenge that is borne disproportionately by cooperative associations and their dairy farmer members.
The DCMA brief explained that the proposed Class I price adjustments and changes to the Class I pricing surface in the Appalachian, Southeast, and Florida orders would accomplish two needed results. According to the brief, the changes would likely encourage local producers to increase milk production
The DCMA brief stated that, while plant price relationships would inevitably change as a result of its proposals, the Class I prices proposed are strikingly similar to plant price differences adopted in the 1999 Order Reform final rule. The brief indicated that this is proof that its method of developing the proposed Class I price adjustments and Class I pricing surface is valid and meets the requirements of a regulated Class I price system.
The DCMA brief commented on the method used in developing its Class I pricing proposals as deviating from a model developed by Cornell University that was relied upon in the adoption of current Class I pricing structure. The brief addressed opponent arguments that the cost of shipping bulk versus packaged milk follows distinct cost equations and, therefore, different cost curves. According to the brief, the marginal costs involved in shipping bulk milk long distances (over 900 miles) are still greater than zero and subsequently do not invalidate their proposed pricing structure. The brief characterized the proposed Class I pricing portion of the proposal package as containing all the elements used by the Department in the current Class I pricing structure. The brief also argued that DCMA's proposals generate Class I pricing relationships consistent with the objectives of marketing orders in assuring an adequate supply of milk for the three marketing areas, not encouraging the uneconomic movement of milk, and being reflective of the supply and demand conditions for milk within the marketing areas.
The DCMA brief explained that lowering the diversion limit standards in the Appalachian and Southeast orders would serve to enhance producer blend prices while the decrease in the producer touch-base standard would act to encourage more efficient milk movements and offer cost savings to milk suppliers. The brief maintained that while some witnesses testified in support of even lower (tighter) diversion limits, no evidence to support such changes was presented. The brief added that diversion limit standards in both orders will effectively be much lower than the proposed standards because no diversions may accompany supplemental milk pooled on the order which receives a transportation credit payment. The brief also noted that DCMA's proposal for extending transportation credit pay-out months also effectively lowers pooling milk by diversion.
The DCMA brief stated that extending the payment of transportation credits to include the months of January and February and to the entire loads of milk would offer the suppliers of
The DCMA brief maintained that the record contains abundant evidence supporting the existence of emergency conditions in the three marketing areas affecting the ability to adequately supply fluid milk. The brief stressed that providing adjustments for higher Class I prices and modifying the Class I pricing surface, if even on a temporary basis, is necessary immediately. The brief indicated that milk production in the Southeastern states during the first quarter of 2007 declined at a faster rate than the annual decline during 2006 and 2005, and that this increasing rate of milk production decline cannot be ignored. The brief reiterated the continuing increases in hauling costs and the longer distances milk must be shipped to provide sufficient supplies to meet fluid demands.
A post-hearing brief was submitted on behalf of SPSC. The SPSC brief indicated support for the Class I portions of DCMA's proposals but was not fully supportive of the proposed diversion limit standards, touch-base standards, and transportation credit provisions. The brief agreed with the DCMA proposals to increase Class I prices in the Appalachian, Southeast, and Florida orders on an emergency basis because it would promote milk production within the three marketing areas by enhancing local producer income—the primary suppliers of fluid milk for the three southeastern markets. The SPSC brief did express concern that even with expected higher blend prices to producers accruing from higher Class I prices, the current trend of lower local milk production may not be slowed.
The SPSC brief indicated support to lower (tighten) diversion limit standards in the Appalachian and Southeast orders. However, the brief expressed the opinion that diversion limit standards for both orders could and should be reduced more than that proposed by the DCMA. The SPSC brief asserted that record evidence had not determined the appropriate base and reserve milk supply volumes, the proper diversion limit and touch-base standards for the Appalachian and Southeast orders, or who should bear the costs of maintaining reserve milk supplies for the Southeastern region.
The SPSC brief was of the opinion that record evidence also did not clearly indicate that the volume of milk pooled on the orders for other than Class I use actually would be lowered by adopting DCMA's proposed diversion limit and touch-base standards. According to its brief, the majority of the producer milk removed under the DCMA proposals would be unavailable in only a few months of the flush production months for the Appalachian order and in the months of January and February for the Southeast order. The brief expressed concern that milk could actually be added in both orders in the other months due to the decrease in the touch-base standard. The brief maintained that in-area producers and those who provide the primary supply of milk for fluid use on a regular basis should receive the greatest share of revenue attributable to that service. According to the brief, pooling more milk than needed would only continue to depress the income of Southeastern producers.
The SPSC brief found agreement with Dean's testimony that proposed a more aggressive lowering of diversion limit standards for the Appalachian and Southeast orders. The brief agreed with Dean's position that tighter diversion limits would sharply reduce the volumes of pooled milk in the two orders and the relative impact on producer pay prices would be more substantial. The brief indicated support for continuing to provide discretionary authority for the market administrators to tighten diversion limits and raise touch-base standards if necessary and without the need to resort to the formal rulemaking process.
The SPSC brief indicated conditioned support for DCMA's proposed changes to the transportation credit provisions of the Appalachian and Southeast orders. However, the brief questioned the proper role of transportation credits in both marketing orders. The brief requested the Department consider the proper levels of producer delivery day requirements, diversion limits, and transportation credit provisions to achieve the stated goals of the DCMA package of proposals.
A post-hearing brief submitted on behalf of Dean and NDH (Dean/NDH) agreed that the Southeastern region of the U.S. is a deficit milk production region and that the deficit is growing. The brief said that dairy farmers who regularly and consistently supply milk to fluid milk plants in the southeastern region should be appropriately compensated for their raw milk and receive the blend price of the order they supply. However, the brief argued that adopting the proposed Class I price adjustments and the Class I price surface proposals is not supported by record evidence or by rule of law and should be denied. While the Dean/NDH brief expressed agreement that long-term problems exist regarding the viability of the southeastern region dairy industry, it doubted that correcting problems that have prevailed for 25 years could be solved overnight through emergency rulemaking.
According to the Dean/NDH brief, there is no evidence of an emergency that would warrant adopting the Class I price proposals by the omission of a Recommended Decision. To the extent that conditions warrant the need to rely on milk orders to return higher prices to dairy farmers, the brief asserted that an alternative method of returning higher prices can be achieved by simply lowering the orders' diversion limit standards. The Dean/NDH brief noted that Dean and NDH operate several fluid milk processing plants in the Southeastern region and that other processors testifying at the hearing opposed the Class I price adjustments and Class I pricing surface changes. The brief argued that such changes may have unintended consequences which may worsen the situation in the southeastern region. According to the Dean/NDH brief, adopting changes to Class I pricing may create incentives for plants located outside the Appalachian and Southeast marketing areas to direct their fluid milk sales in the marketing areas and become pooled on those orders. The brief argued that while plants may gain in blend price changes by altering where they become pooled, the price surface may not change for their competitors. The brief also asserted that since January 2000, Class I prices were intentionally linked nationwide as part of Federal milk order reform and concluded that any change in Class I differentials or the Class I price surface, even at one price location, would change the economic incentive nationwide to serve that location. The brief therefore contended that the entire national Class I price surface needs to be evaluated.
According to the Dean/NDH brief, DCMA's Class I price proposals fail to rely on accepted economic models and fail to follow the Department's established policies for making adjustments to the Class I price surface. Specifically, the brief argued that the economic calculations failed to take into consideration “shadow pricing,” which the brief characterized as how a market could react to changes such that an
According to the Dean/NDH brief, the rationale for setting a target price for Miami, FL, and then backing off that price and “smoothing” the result is arbitrary and capricious. The brief contended that determining Class I prices in this way applied non-uniform methodology and did not meet the standards of the Administrative Procedure Act. In addition, the brief noted that no evidence or economic data backs up the “smoothing” process as described by DCMA testimony.
The Dean/NDH brief asserted that Wooster, OH, should not be identified as a supply area because it has never been relied upon as any kind of basing point for pricing milk and doing so now would be specifically contrary to testimony given at a Pennsylvania State hearing for a recent State of Pennsylvania rulemaking. Accordingly, the brief contended that DCMA's entire Class I pricing proposals should be rejected.
According to the Dean/NDH brief, although the Class I price changes sought are “temporary,” competitive impacts of such changes can be long-term and result in permanent harm to Class I handlers. The brief asserted that any decision should be considered permanent unless it has a specific sunset provision. According to the brief, no specific sunset provision had been proposed or discussed in the hearing record.
The Dean/NDH brief pointed out that, at the time of the hearing, the dairy industry was also experiencing record high Class I prices for milk further demonstrating the lack of need for emergency action. The brief noted that the May 2007 uniform price for Fulton County, GA, was $18.37 per cwt. According to the brief, this price is $1.37 per cwt higher than April 2007 and is $5.83 per cwt, or 45.3 percent, higher than in May 2006. The brief also noted that the Class I price for June 2007 at Fulton County was $1.92 per cwt higher than May 2007, and the July 2007 price increased by $3.07 per cwt. The brief indicated that even a proponent witness acknowledged that such higher prices were likely to continue through the fall 2007.
The Dean/NDH brief agreed that diversion limit standards for the Appalachian and Southeast orders should be lowered on an emergency basis and made identical to those of the Florida order. The brief indicated that the Florida order currently functions well by having lower diversion limit standards and this has supported the prevailing over-order premiums. The brief opined that because of the order's tight pooling provisions, the need for transportation credits and the need for holding numerous formal rulemaking hearings has been avoided. According to the brief, the Florida order's tight diversion limit standards have continually assisted that order in retaining strong blend prices paid to dairy farmers and attracting sufficient amounts of milk supplies.
The Dean/NDH brief asserted that pool revenues should be shared only among those producers who truly and regularly serve the Class I market and that diversion limit standards of the Appalachian and Southeast orders are not adequately identifying those true and regular suppliers. The brief asserted that both orders can be made more effective by requiring a genuine association of a milk supply with the market as intended by the AMAA.
The Dean/NDH brief indicated that if Dean's proposal for adopting the diversion limit standards of the Florida order for the Appalachian and Southeast orders is adopted, Dean would support the DCMA's one-day per month touch-base standard proposals. As Dean/NDH does not consider DCMA's proposed diversion limit standards as being any change at all, it opposed any change to the touch-base standards of the Appalachian and Southeast orders.
The Dean/NDH brief opposed the expansion of the payment of transportation credits to include the entire load of milk and stated that payments should only be paid on Class I milk as currently provided under the Appalachian and Southeast orders. The brief expressed concern that adopting the proposed changes would create the wrong economic incentives. The brief noted that suppliers of milk to a Class I plant with a higher than market average of Class II use would be receiving a larger economic benefit than Class I plants with below market average Class II use. According to the brief, this would be contrary to assuring equal minimum milk prices among similar handlers.
The Dean/NDH brief was of the opinion that transportation credits have been a key factor in contributing to the decline of the dairy industry in the southeastern region. In this regard, the brief noted the proponents acknowledgement that in some cases current touch-base provisions in conjunction with transportation credits cause inefficient movements of milk. The brief asserted that transportation credits, not touch-base standards, give rise to inefficient movements of milk.
A post-hearing brief by MIF reiterated its opposition to adopting DCMA's proposals and asserted the absence of emergency marketing conditions that warrant emergency action. The brief noted awareness of declining milk production in the southeastern region but indicated this is not a sufficient basis for the adoption of the proposals on an emergency basis. The brief further argued that no emergency exists to warrant adoption of the proposals because the trends of declining milk production in the region and rising fuel costs have existed for many years.
The MIF brief stressed that the key purpose of the Federal milk marketing order program is to ensure an adequate supply of milk for Class I needs. In this regard, the brief noted that no witnesses testified on the inability to procure milk for Class I use. The brief reiterated that in a survey of its membership conducted before the hearing, no member indicated difficulty securing milk for Class I needs in the three southeastern marketing areas. The brief also mentioned that over-order premiums are paid by Class I handlers to secure milk for fluid use and the proponents testified that current over-over premiums currently offset higher fuel costs.
The MIF brief noted that some southeastern dairy producers who testified at the hearing also participated in a herd-removal program called Cooperatives Working Together (CWT). In this regard, the brief cited this as an example of misplaced concern for declining milk production in the southeastern region.
The MIF brief asserted Class I sales would suffer if higher Class I prices were adopted because higher raw milk costs would increase wholesale costs and result in higher retail prices paid by consumers. The brief noted that the current, general structure of Class I location differentials has been in place for 22 years and that milk bottlers have made significant investments in plants and equipment during this time.
According to the MIF brief, plants could be disadvantaged in the marketplace solely because of increases in the Class I price relative to the Class I price of its competitors. The brief argued that a $0.005 difference per gallon could result in lost customers for a distributing plant and that a $0.025 increase is enough to lose a supermarket account. The brief asserted that increasing a Class I price by $0.10 per cwt ($0.0086 per gallon) could yield
The MIF brief said that a comprehensive study and analysis on a national scale of all potential consequences and on demand for packaged milk was needed before any changes to Class I pricing were adopted. The brief reasserted the opinion that Class I prices could not be changed in the southeastern region alone because that would change marketing conditions in all marketing areas.
A post-hearing brief submitted on behalf of DCMA expressed support for the market administrator assessment increase for the Appalachian, Southeast, and Florida milk orders in Proposals 4, 5, and 6, respectively.
Comments and exceptions to the tentative partial decision (73 FR 11194) were filed by Dairy Cooperative Marketing Association, Inc. (DCMA), Arkansas Milk Stabilization Board (AMSB), Southeast Producers Steering Committee (SPSC), Dean Foods Company and National Dairy Holdings (Dean/NDH), and the Milk Industry Foundation (MIF).
In comments and exceptions regarding the adopted Class I price surface, DCMA wrote that the amended Class I differentials will send appropriate signals to maintain and increase milk production within the three marketing areas, as well as create incentives to increase the movement of supplemental milk to these areas when needed. DCMA also expressed agreement that the Class I price surface changes will generate producer price increases in all three marketing areas. DCMA reiterated that the reduction in the volume of diverted milk in the Appalachian and Southeast marketing areas should also lead to increased uniform prices in those marketing areas. DCMA predicted that decreases in the touch-base standard will offer greater flexibility in moving pooled milk and will offer cost savings on pooled reserve supplies. Lastly, DCMA supported USDA's decision to maintain and update the transportation credit balancing fund provisions.
Comments and exceptions filed on behalf of the AMSB expressed support for the tentative partial decision, but proposed additional changes to Class I price adjustments for certain county locations in Arkansas. AMSB requested that the Class I differentials for Pulaski county be increased from $2.80 to $3.20 per cwt, Sebastian county from $2.80 to $3.10 per cwt, and Washington and Benton counties from $2.60 to $3.00 per cwt. AMSB also proposed that the touch-base standard be changed from 2 days for each of the months of July through December and to 6 days for each of the months of January through June. According to AMSB, significant decreases in milk production in Arkansas, as well as in Mississippi and Louisiana, are due, in part, to the Federal milk marketing orders. AMSB was of the opinion that their proposed changes are needed to stabilize dairy production in the State of Arkansas.
Comments and exceptions filed on behalf of the SPSC expressed support for adjusting the Class I price surface in each of the three marketing areas but asserted that the price adjustment increases adopted in the tentative partial decision will not sufficiently increase local milk production in the three marketing areas. SPSC reiterated a number of positions given in record testimony and brief: (1) lowering the touch-base standards will have a negative impact on milk prices and production in the three marketing areas, (2) changes to the transportation credit balancing fund provisions will encourage unnecessary milk movements to the detriment of producer mailbox prices in the Appalachian and Southeast marketing areas, and (3) milk produced on farms located far from the marketing areas will seek to capture higher transportation credit payments by taking advantage of the lower touch-base standards along with the extension of transportation credit eligibility on the full loads of milk.
Comments and exceptions filed on behalf of Dean/NDH expressed opposition to the tentative partial decision by reiterating its positions given in record testimony and post-hearing brief: (1) USDA has deserted utilizing a nationally coordinated pricing surface for Class I milk; (2) current economic conditions demand a nationally coordinated price surface; and (3) abandonment of a nationally coordinated Class I price surface does not follow the requirements of Administrative Procedure Act (APA) or the Agricultural Marketing Agreement Act (AMAA). Similarly, Dean/NDH comments and exceptions also continued to criticize the method used to create the Class I price surface adjustment.
Comments and exceptions filed on behalf of the MIF reiterated its opposition given in record testimony and post-hearing brief to adjusting the Class I price surface in the Appalachian, Southeast, and Florida Federal milk marketing areas and USDA's conclusion to implement the proposed changes on an interim basis. According to MIF's comments and exceptions, increasing Class I prices and adjusting the Class I price surface will not solve the problem of covering procurement costs of fluid milk. MIF asserted that over-order payments are already used to compensate cooperatives that bear the costs of balancing the supply and that increasing Class I prices will only increase costs for processors, retailers and consumers and discourage Class I sales.
No comments and exceptions were received regarding the proposed increase in the maximum administrative assessment for the Appalachian, Southeast, and Florida orders.
The record of this proceeding reveals that for many years milk production has declined in the southeastern region and supplying the region with supplemental milk has demanded the sourcing of milk supplies from ever farther distances from the marketing areas. Not only has the decline in milk production been in absolute terms, but when balanced with population increases, milk production in the region has failed to satisfy fluid demands year-round.
The proposed amendments in this proceeding to the Appalachian, Florida, and Southeast milk marketing orders aim to assure an adequate supply of milk for fluid use in the southeastern region of the U.S. As proposed by DCMA, the amendments to the three marketing orders seek simultaneous changes with the aim of providing incentives for assuring a reliable supply of milk for fluid use. The amendments integrate: (1) Higher regulated minimum prices for Class I milk, (2) changes to assure that the revenue accruing from higher minimum Class I prices will be shared with those producers who regularly and consistently serve the region's Class I needs of the region, (3) cost savings for entities who have made the commitment to supply the region, and (4) flexibility and incentives for supplying the Appalachian and Southeast marketing areas with supplemental milk by offsetting the cost of transportation.
Adjustments to the Class I prices for the three southeastern orders continue to be proposed for adoption in this final decision and result in a change to the Class I price surface. The changes are
The basic foundation for deriving the temporary adjustments to Class I prices begins with DCMA's identification of
As the proposal indicated, the selection of Wooster, OH, (Wayne County) as a supply point is one of several that were considered by the proponents. The selection of Wooster was made after consideration of other supply points because it would represent the least-cost point from which a milk supply could potentially be sourced from locations in the southeastern region. All other supply points considered would have resulted in much higher Class I price adjustments.
The Class I price adjustment calculated for every county and parish location relies upon a mileage rate factor implemented in December 2006. This factor is further reduced by 20 percent. While this formed DCMA's basic foundation for adjusting Class I prices, it is not the proposed Class I price adjustments at all locations in the southeastern region.
The DCMA's Class I price adjustments differ from those calculated. What the proponents have described as “smoothing” of the Class I price adjustments is essentially price alignment. In this regard, it is clear that the adopted Class I price adjustments are different from strictly calculated values. The adopted Class I price adjustments provide reasonable alignment with the current Class I price surface beyond the geographical boundaries of the southeastern orders.
Similarly, DCMA's Class I price adjustments differ from calculated adjustments by adjusting calculated values to correspond to Class I processing plant locations. This establishes pricing zones that are conceptually identical to current pricing zones and assures that similarly situated Class I handlers will have the same minimum regulated Class I prices. Providing similar regulated prices for similarly situated handlers is consistent with the requirements of the AMAA. While conceptually identical, maintaining price alignment with adjoining milk marketing orders together with pricing zones, the adopted Class I price adjustments result in price relationships that are different from those that existed at the time of the hearing. Despite criticism that DCMA's adjustments change price relationships between plants of the same ownership, the key requirement that similarly located plants have similar regulated minimum prices is maintained.
In an effort to examine both the level and the reasonableness of the Class I price adjustments that were zoned and aligned with adjoining orders, DCMA evaluated the cost of shipping packaged milk. According to the record, there are some differences between what the resulting Class I price adjustments would be under the cost analysis of shipping packaged milk. Nevertheless, the similarities between the adopted Class I price adjustment and the cost adjustment analysis of shipping packaged milk are very similar. Since the Class I price adjustment at all locations does not exceed the value of milk at alternative locations, in either bulk or packaged form, the Class I price adjustments are reasonable. Despite criticism in comments and exceptions, this final decision continues to find that this method of evaluating the Class I pricing changes forms a rational basis to conclude that the proposed changes to Class I pricing are reasonable. The adopted Class I price adjustments are presented in Figure 1. While the Class I differentials in the southeastern region are not changed in this decision, the Class I price adjustments are added to the current Class I differentials for illustrative purposes. Figure 1 provides a graphic presentation of the combined value of Class I differentials plus the adjustment values adopted in this decision.
On the basis of a pricing surface alone, the adopted Class I price adjustments will not likely result in the uneconomic movement of milk as asserted by opponents. The adopted pricing surface better reflects the economic conditions affecting the supply and demand for milk in the three southeastern marketing areas by providing greater pricing incentives indicative of actual milk movements and the cost of supplying milk from alternative locations. The adopted Class I price adjustments result in a steeper Class I price surface that correlates with the higher location value fluid milk has in the southeastern region. The location value of milk is higher because of the cost involved in transporting milk to locations in the milk-deficit southeastern region from alternative milk-surplus locations.
Opponents to DCMA's Class I price adjustments assert that there is no reason to increase Class I prices because all Class I demands are being met. This decision continues to find that DCMA's proposed adjustments to the pricing provisions of the three orders are reasonable and necessary. The record of this proceeding reveals that it is the cooperative member organizations of DCMA who supply the majority of the Class I needs of the three marketing areas. In making the commitment to supply the fluid needs of the markets, the supplying cooperatives have largely reduced the burden on Class I handlers to source their supply. Similarly, it is the cooperative organizations that provide the service of balancing the three southeastern markets.
Opponents to DCMA's Class I price adjustments noted that there is an adequate supply of milk to meet fluid demands. There is an adequate national supply of milk to meet the national demands for fluid milk. However, in the deficit areas of the southeastern
Opponents criticized DCMA's Class I adjustments by identifying that other means and methods are available which would return greater revenue to dairy farmers instead of increasing minimum prices. Other changes adopted in this decision will, all other things being equal, tend to increase minimum regulated prices paid to producers. However, these changes are founded on the very limited improvement gained from lowering the diversion limit standards of the Appalachian and Southeast orders. In light of the chronic milk deficit conditions of the southeastern region, only higher minimum regulated prices can reasonably generate the additional revenue needed to assure that the Class I needs of the region can be met continuously. According to market administrator analyses, the estimated annual increase of the Appalachian order pool for 2004, 2005, and 2006 resulting from DCMA's proposed Class I price adjustments would have been $19.3 million, $18.6 million, and $18.3 million, respectively. For the Southeast order, the annual pool value increase would have been $16.8 million, $17.1 million, and $17.7 million, respectively. For the Florida order, the annual increase in pool value would have been $36.4 million, $38.3 million, and $39.2 million, respectively. While alternative methods such as a tightening of pooling standards will, among other things, tend to enhance producer revenue to those producers who regularly and consistently supply the market's Class I needs, this alone will not establish minimum regulated prices high enough to attract an adequate supply for chronic milk-deficit marketing areas from alternative distant locations.
Opponents expressed concern about producers in the region being involved with a voluntary producer-funded program known as the Cooperatives Working Together (CWT). CWT is a non-government program that includes a herd retirement program, which reduces the number of cows in the national dairy herd. This decision rejects this argument as it is not germane to the issues at hand. This decision is derived on the basis of record evidence which supports the adoption of the Class I pricing surface.
AMSB, in its comments and exceptions, proposed additional Class I price surface changes for certain counties in Arkansas with the aim of raising local milk production. This decision rejects adoption of the proposed increases for the Arkansas county locations for two fundamental reasons. First, doing so would not result in a reasonably aligned Class I price surface with the current national Class I price surface. Second, the proposed additional increases are based on the narrow objective of raising local Arkansas milk production. It is the purpose of milk marketing orders to set minimum prices that result in an adequate supply of milk for fluid uses. In this regard, it is not important where the milk is produced. A function of the minimum prices set by the orders is to ensure that a sufficient supply of milk will be delivered to where it is demanded. While AMSB's proposed additional Class I price increases for certain Arkansas counties would provide an even greater incentive to deliver milk to those locations, the adjustments are justified with the goal of increasing local milk production. Accordingly, AMSB's proposed Class I pricing increases for certain Arkansas county locations cannot be deemed superior to those of the DCMA proposal that clearly seeks price increases necessary to assure an adequate supply of milk from any source while also maintaining reasonable alignment with a nationally coordinated Class I price surface.
DCMA's proposed diversion limit and touch-base standards for the Appalachian and Southeast orders continue to be proposed for adoption in this final decision. The proposed changes make the diversion limit and touch-base standards of the two orders identical. Specifically, the proposed diversion limit standards are: (1) 25 percent of deliveries to pool plants during each of the months of January, February, July, August, September, October, and November, and (2) 35 percent in each of the months of March, April, May, June, and December. Both orders' touch-base standards are amended to require at least one day's milk production of a producer be delivered to a pool plant during the month in order for a producer to be eligible to divert milk to nonpool plants.
Based on record evidence, adoption of a one-day per month touch-base standard for both orders and making the diversion limit standards of both orders identical accomplishes three important pooling standard objectives. Specifically, the changes: (1) provide a standard necessary to identify producers supplying the markets' Class I needs, (2) provide the criteria to identify the milk of producers who may be eligible for receiving a transportation credit in supplying supplemental milk for Class I use, and (3) allows milk that is part of the milk supply which regularly and consistently services the markets' Class I needs to be pooled on the orders.
Providing for the diversion of milk is a desirable and needed feature of an order because it facilitates the orderly and efficient disposition of milk when not needed for fluid use. When producer milk is not needed by the market for Class I use, some provisions should be made for that milk to be diverted to nonpool plants but remain pooled and priced under the order. The lower diversion limits adopted in this decision will likely reduce the volume of milk eligible to be pooled by diversion to a significant degree on the Southeast order and less so on the Appalachian order. Assuming all other conditions being equal, the adopted changes in diversion limit standards will result in higher blend prices paid to producers. This is a desirable outcome, especially for the Southeast order where there is the need to better identify the milk of those producers who regularly and consistently service the Class I needs of the Southeast marketing area. An examination of the Southeast order's utilization of milk belies the fact that the marketing area is chronically short of in-area milk production to meet the Class I demand of the marketing area. This can only be the result of pooling much more milk on the order than is necessary as part of the legitimate reserve supply of milk available to service the Class I needs of the market.
The record reveals that according to market administrator analyses, the estimated impact on minimum order uniform prices of the proposed diversion limit standards in both orders would have average annual increases in uniform prices of $0.02 per cwt for the Appalachian order and $0.07 per cwt for the Southeast order. Increased blend prices will help to provide greater incentives to maintain milk production from current producers and provide greater economic incentives for dairy farmers located outside of the marketing
Milk diverted to nonpool plants is milk not physically received at a pool plant. However, it is included as a part of the total producer milk receipts of the diverting plant or cooperative entity pooling milk for its own account. A diversion limit establishes the amount of producer milk that may be associated with the integral milk supply of a pool plant or cooperative acting in its capacity as a handler. With regard to the pooling issues of the Southeast order, the record reveals that current diversion limit standards contribute to the pooling of large volumes of milk on the order that does not regularly and consistently service Class I market needs. Therefore, lowering the diversion limit standard is appropriate to better assure that only milk which regularly and consistently services the Class I market is pooled. Associating more milk than is actually part of the legitimate reserve supply available for Class I use unnecessarily reduces the potential blend price paid to dairy farmers who regularly and consistently service the Class I needs of a marketing area. Not having reasonable diversion limit standards weakens the orders' ability to provide for orderly marketing. Diversion limit standards that are too high can open the door for pooling more milk on the markets than necessary. The record supports concluding that a 33 percent diversion limit for the Southeast order during each of the months of January through June and 50 percent for each of the months of July through December has not only resulted in lower blend prices harming local producers, but has also resulted in Class I utilization rates that obscure that area as a deficit market.
For the Appalachian and Southeast orders, the record reveals that since the average reserve requirements did not differ greatly over the 36 month period (January 2004 through December 2006), having the same diversion limit standards for both orders is justifiable. In addition, by having identical diversion limit standards, the blend prices paid to producers increase as milk is supplied to locations generally in an easterly and southern direction. To the extent that this diversion limit standard may warrant future adjustments, the orders already provide the market administrator authority to adjust diversion standards as marketing conditions may warrant. Given the total milk demands of the marketing areas revealed by the record, a minimum of about 12 to 13 percent of monthly pool distributing plant receipts would be needed to meet the minimum daily, weekly, monthly, and seasonal needs, as well as a modest margin for unanticipated changes in the supply and demand relationship for Class I milk needs. Accordingly, the proposed diversion standards for the orders are reasonable and continue to be proposed for adoption in this final decision.
Touch-base delivery standards define the minimum number of days of milk production each month that a dairy farmer must supply a pool plant of an order to be associated with that market and thus qualify to have their milk pooled by diversion. On the basis of the record evidence, this decision finds reason to support adopting a 1 day touch-base standard for both orders. Conditional supporters have voiced concern for DCMA's package of proposed amendments that lower the touch-base standards of the Appalachian and Southeast order because, they believe, it represents an easing of a feature of the orders' pooling standards at a time when the opposite is needed to improve producer income in the two orders. While this concern might be conceptually valid, it does not consider that the volume of milk pooled on the two orders will be appropriately restricted by the adopted diversion limit standards. In part, because the diversion limit standards of the orders are tightened, an easing of the touch-base standard can be made without fear of pooling the milk of producers who are not part of the regular and consistent supply of milk serving the Class I needs of the two marketing areas.
While diversion limit standards are a key feature of the pooling standards of an order for defining the total volume of milk that can be pooled, an argument could be made that perhaps a touch-base standard is not necessary at all if other pooling standard features are appropriately tailored. However, a touch-base standard for the Appalachian and Southeast orders remains a critical feature of both orders because some criteria are needed to identify producers who are suppliers of supplemental milk to the two marketing areas and who thereby may be eligible to receive a transportation credit.
Record evidence indicates that by reducing the touch-base standard to 1 day per month, producers, especially cooperative member producers who bear the burden of supplying the vast majority of milk to the southeastern marketing areas, would avoid the cost of delivering their milk to pool plants when not necessarily needed. While a higher touch-base standard tends to support the integrity of the orders' performance standards, the current touch-base standards result in the uneconomic movement of milk solely for the purpose of meeting a pooling standard. The current touch-base standards of the two orders too often result in the substitution of local milk with the milk of more distant producers, thus displacing the milk of local producers supplying the market. The milk of local producers needlessly incurs the cost of being transported to more distant locations. As a result of the current touch-base standard, hauling and marketing costs are needlessly higher and the supply of milk from distant producers may still not be available to serve the Class I needs of the two marketing areas.
Despite comments and exceptions received by SPSC and AMSB and for the reasons discussed above, this decision continues to find that the diversion limit standards of the Appalachian and Southeast orders at the time of the hearing resulted in the pooling of more milk than could reasonably be considered as actually serving the markets' Class I needs. Therefore, this final decision continues to support the reduced diversion limits proposed by DCMA. Additionally, the lowering of the touch-base standard, in light of the tightening of the diversion limit standards, does not compromise the integrity of the orders' pooling standards. Together with the adopted diversion limit standards, a lower touch-base standard for the two orders offers operational cost savings to producers supplying the market with Class I milk while simultaneously providing for identification of the milk of those producers who regularly and consistently service the markets' Class I needs.
Until December 2006, the transportation credit balancing provisions of the Appalachian and Southeast orders allowed supplemental milk loads to be used as a platform to pool additional milk on the order through the diversion process. Official notice is taken of the tentative partial decision concerning milk in the Appalachian and Southeast marketing areas issued September 1, 2006, and published September 13, 2006, (71 FR 54118) and the Interim Rule issued October 19, 2006, and published October 25, 2006 (71 FR 62337). In discussing the need for revised diversion limit standards for the Appalachian and Southeast orders it is necessary to consider the findings of that decision.
The September 2006 decision referenced above established a zero diversion limit standard on supplemental milk supplies seeking a transportation credit payment. An
DCMA's proposed changes to the Appalachian and Southeast order transportation credit balancing fund provisions continue to be proposed for adoption in this final decision. Specifically, these changes include: (1) Extending the number of months that transportation credit balancing funds will be paid to include the months of January and February. The month of June will continue to be a month for the payment of transportation credits if requested and approved by the market administrator; (2) Expanding the payment of transportation credits for supplemental milk to include the full load of milk; (3) Providing more flexibility in determining the qualification requirements for supplemental milk producers to receive transportation credit payments; and (4) Increasing the monthly transportation credit balancing fund assessment rate for the Southeast order from $0.20 per cwt to $0.30 per cwt.
The transportation credit balancing fund provisions for both orders (and predecessor orders) were established in 1996 as a result of the consistent need to import supplemental milk for fluid use during certain times of the year when local production is not sufficient to meet the markets' fluid needs. Specifically, the market administrator applies a monthly transportation credit balancing fund assessment on all dispositions of Class I milk. The assessment rate adopted on an interim basis through a separate rulemaking proceeding (71 FR 62377, published October 25, 2006) was $0.15 per cwt and $0.20 per cwt for the Appalachian and Southeast orders, respectively. At the time of the hearing, transportation credit payments were paid from each order's transportation credit balancing fund during the months of July through December to help offset the cost of transporting such supplemental milk for Class I use. As a result of this proceeding, January and February were added on interim bases as transportation credit payout months effective March 18, 2008 (73 FR 14153). The transportation credit balancing funds operate independently from the producer settlement funds of the two orders. Milk from producers located outside of the two marketing areas who are not part of the regular and consistent supply of Class I milk, is commonly referred to as supplemental milk.
The record reveals that the seasonal swings in milk production lead to inadequate milk supplies for fluid use in certain months and surplus supplies in other months. In the Appalachian and Southeast orders, the summer and fall (and sometimes winter) months are generally considered those months with inadequate (tight) milk supplies for fluid use, while the spring months are generally characterized as having sufficient supplies of milk for fluid use. Transportation credits are used as a method to compensate handlers that provide supplemental milk during the tight supply months by offsetting some of the costs of transporting milk to the two marketing areas.
Prior to the interim final rule issued in this proceeding (73 FR 14153) the payment of transportation credits under the Appalachian and Southeast orders was only made during the months of July through December. A feature of DCMA's proposal seeks to extend such payments to also include the months of January and February. Record evidence demonstrates reliance on supplemental milk supplies for each order's marketing area during July through December and the months of January and February showing similar demand for supplemental milk supplies.
Declining local milk production in the southeastern region of the country is well-known and is a chronic problem. Record evidence indicates milk marketings from dairy farmers located in both the Appalachian and Southeast marketing areas (pooled on any order) has continued to decrease since 2004. Specifically, evidence shows that annual milk marketings pooled on the Appalachian order have decreased from approximately 3.94 billion pounds in 2004 to about 3.77 billion pounds in 2006. For the Southeast order, milk marketings from in-area dairy farmers declined from 5.0 billion pounds in 2004 to 4.76 billion pounds in 2006. Furthermore, record evidence illustrates that total milk production in the southeastern states of the U.S. has declined on average almost 2 percent each year since 1986 and has decreased a total of 34.6 percent since 1986—from 18.29 billion pounds in 1986 to 11.96 billion pounds in 2006.
In each of the years of 2004, 2005, and 2006, the months of July through January were deficit in terms of monthly in-area milk marketings (milk marketed by dairy farmers within the geographical boundaries of the two marketing areas) being consistently less than the monthly Class I producer milk pooled on the Appalachian and Southeast orders. The in-area deficit in January for both orders for all 3 years combined totaled 8.4 million pounds. While February in-area milk marketings for all 3 years exceeded Class I demands, that surplus decreased from over 44 million pounds in 2004 to just under 14 million pounds in 2006—a decrease of over 68 percent.
Record evidence reveals that the months of January and February are likely to become months during which local in-area milk marketings will no longer satisfy Class I demands and the Appalachian and Southeast marketing areas will need to increasingly rely on supplemental milk supplies to satisfy Class I demands. Accordingly, this decision continues to find that expanding the transportation credit payment months to include the months of January and February for the payment of transportation credits is reasonable. June will continue to be an optional month for transportation credit payments, if requested, to be reviewed and authorized by the market administrator.
Currently, transportation credits are paid on loads of milk at the lower of the receiving plant's Class I use or the marketwide Class I utilization. DCMA's proposals seek to change these criteria by having the entire load of supplemental milk eligible to receive a transportation credit. The major justification offered by DCMA is that the cost of transporting supplemental milk, regardless of the plant's use of that milk, is the same. This decision finds that a supplier of supplemental milk sources and assembles milk demanded by distributing plants for fluid uses, but no distributing plant disposes 100 percent of its milk receipts as Class I sales. The supplemental milk supplier does not
The current calculation of transportation credit payments in the Appalachian and Southeast orders contain a number of features to prevent offsetting the full cost of transporting supplemental milk into the marketing areas. They also contain features to prevent the pooling of milk on the orders that do not regularly and consistently supply the fluid needs of the two marketing areas. Most important is the feature denying the ability to pool milk by diversion on the basis of supplemental milk deliveries to plants in the two orders. Current transportation credit provisions prohibit pooling diverted milk on the Appalachian and Southeast orders on loads of supplemental milk seeking a transportation credit and this prohibition is continued by its adoption in this decision. Since supplemental milk can no longer form a basis from which to pool milk through the diversion process, it is reasonable to conclude that the marketwide Class I utilization percentage of the orders will likely increase. However, this improvement alone will not likely result in offsetting the costs incurred by supplemental milk suppliers who both assemble and transport milk to plants regulated by the two orders to satisfy Class I demands.
Record evidence reveals that the Appalachian and Southeast marketing areas incur different costs in attracting supplemental milk to meet Class I needs. In recent years, the transportation credit reimbursement on claims for the Southeast order has been prorated at greater rates and more often than those of the Appalachian order. As discussed in the September 13, 2006, tentative decision for the Appalachian and Southeast orders (71 FR 54118), the Appalachian marketing area receives the majority of its supplemental milk supplies from the northern Mid-Atlantic States. The Southeast marketing area receives the majority of its supply from the Midwest and Southwest States. The location of supplemental milk supplies for the Southeast marketing area therefore tends to be more distant from the marketing area than for the Appalachian marketing area.
The need to again raise the monthly transportation credit assessment rate for the Southeast order is in part explained by the continuing need of the Southeast marketing area to reach ever farther to source milk supplies to satisfy fluid demands. Additionally, expanding the payment of transportation credits on the entire load of supplemental milk also will likely increase the payment of transportation credit claims. At the same time, payment of transportation credit claims will be partially offset by the adopted changes to the Class I pricing surface because the calculation for determining payment considers the change in Class I pricing values between the origin of supplemental milk and the point where it is delivered. As discussed above, the need for supplemental milk supplies is fueled by the marketing area's Class I demand.
The current transportation credit provisions provide precautionary measures such that the rate of assessments beyond actual handler claims is unlikely. The transportation credit provisions provide the market administrators the authority to reduce or waive assessments as necessary to maintain sufficient fund balances to pay the transportation credits claims. Therefore, increasing the maximum transportation credit assessment rates will not result in an accumulation of funds beyond what is needed to pay transportation credit claims.
The record supports concluding that local milk production is expected to continue declining within both marketing areas. This will result in an even greater reliance on supplemental milk to meet the fluid milk needs of the markets. Record evidence shows a constant increase in both the volume and distance of supplemental milk supplies, especially for the Southeast marketing area. As such, it is reasonable to conclude that future transportation credit claims will increase. In this regard, it is important to prevent exhausting the transportation credit balancing fund before the payment of claims on supplemental milk. Doing so is consistent with the fundamental purposes of the transportation credit provisions.
The adopted increases in Class I prices will likely alter the payout of transportation credit claims because the differences in origin and delivery point Class I prices are increased. However, adoption of expanded transportation credit payment months to include January and February, as well as payments on the entire load of milk, will tend to offset the payout on transportation credit claims resulting from the adopted changes in Class I pricing.
An increase in the transportation credit assessment rate for the Appalachian order was not requested because 100 percent of the transportation credit requests were paid in 2006 and in January 2007. Hearing record data indicates that even with adoption of the proposed Class I prices, pooling requirements and transportation credit provisions, the transportation credit assessment rate of $0.15 per cwt in the Appalachian order should continue to be sufficient to pay future transportation credit requests.
The record indicates that the actual transportation credits paid in 2006 for the Appalachian order totaled $3,313,590. Had the current mileage rate factor (MRF) been in effect for all of 2006, transportation credit payments for the Appalachian order would have totaled $4,433,854, including the actual payment for January 2007 and an estimated payment for February. Analysis suggests that with the current MRF and proposed Class I prices in place, the total transportation credits paid during 2006 would have been about $456,000 less than the actual total transportation credit payments. Using market administrator data with the variable MRF based on 2006 calculated monthly averages ($0.044 per cwt per 10 miles), paying of transportation credit claims on full loads of milk, and the proposed Class I price adjustments, the total transportation credits paid for 2006 in the Appalachian order would have totaled $4,073,312. This is $360,000 less than what would have been paid with the MRF and the lower of a plant's Class I use or marketwide Class I utilization. Accordingly, the current $0.15 assessment rate for the Appalachian order appears to be sufficient to meet all claims even when paying transportation credits on full loads of milk delivered to Class I plants regulated by the order.
The record indicates that the transportation credit balancing fund for the Southeast order has been insufficient to pay transportation credit claims. Record evidence indicates that during 2006, Southeast order transportation credit payments were prorated to 81, 36, 39, and 64 percent of the transportation credit claims for the months of September, October, November, and December, respectively. Such transportation credit claims also have increased in number of pounds and in number of miles. Specifically, the total pounds claimed for the receipt of transportation credits has increased from 374 million pounds for July
Increasing the maximum transportation credit assessment rate for the Southeast order should not result in an unnecessary accumulation of funds. For the Southeast order, the record indicates that transportation credits paid in 2006 would have totaled $15,704,872 for the months of July through December and would have totaled $18,604,872 by including the months of January and February. This analysis is based on using the same MRF of $0.044 as in the Appalachian order analysis, paying of transportation credit claims on full loads of milk, and with the proposed Class I price adjustments. However, the assessment rate of $0.20 per cwt falls far short of the total revenue needed to pay all expected transportation credit claims. Even a $0.30 per cwt assessment may not generate sufficient revenue to meet all expected claims on full loads of supplemental milk. Nevertheless, a $0.30 cwt assessment is more likely to be sufficient to cover all expected transportation credit claims.
Determining those producers eligible to receive a transportation credit on their supplemental milk deliveries requires that the dairy farmer be located outside either the Appalachian or the Southeast marketing areas, the producer must not meet the
DCMA has proposed that these requirements for the Appalachian and Southeast orders be made more flexible without substantially changing the identification of milk that is not a regular part of the supply of milk to the two orders. Specifically proposed is that a dairy farmer must not be a producer on the orders for more than 45 of the 92 days in the months March through May or must have less than 50 percent of the producer's milk pooled on the orders during those 3 months combined. On the basis of record testimony, this change is warranted. Specifically, it represents a change that provides flexibility in identifying supplemental milk producers and may result in lower operational costs to those producers incurring the costs of supplying supplemental milk to the Appalachian and Southeast marketing areas. Additionally, prior to the interim adoption, February was a month used to determine the qualification of supplemental milk producers to be eligible for a transportation credit payment. Since this decision adopts providing for the month of February as a month in which transportation credit payments can be made, it is necessary to redefine the months that a producer may qualify to receive transportation credits on either order.
The hearing record reveals that fluctuations in the volumes of milk pooled on the Appalachian, Southeast, and Florida orders can be attributed to a combination of declining milk supplies and the tightening of diversion limits in all three marketing areas. This combination can reduce market administrator revenues to a level too low for the proper administration of the orders while maintaining the mandated reserve level. The adoption of Proposals 4, 5, and 6 will create a more stable revenue stream for the administration of the three southeastern orders.
It is reasonable to increase the maximum administrative assessment rate to $0.08 per cwt in the Appalachian, Southeast and Florida orders to ensure that the market administrators have the proper funds to carry out all of the services provided by the three marketing areas. While the maximum administrative assessment rate is increased to $0.08 per cwt in the Appalachian, Southeast, and Florida orders, the actual rate charged will only be as high as necessary to properly administer the orders and provide necessary services to market participants.
Conforming changes were made to 7 CFR 1000.50 Class prices, component prices, and advanced pricing factors. Specifically, the Class I skim milk price and the Class I butterfat price provisions were changed to conform to the amendments adopted in this proceeding as provided for in Proposal 7 of the hearing notice. The changes made to 7 CFR 1000.50 (b) and (c) included reference to the adjustments adopted to Class I prices specified in 7 CFR 1005.51(b), 1006.51(b), and 1007.51(b). The conforming changes were presented in the partial tentative final decision (73 FR 11194) and implemented by the interim final rule (73 FR 14153).
Briefs, proposed findings, and conclusions were filed on behalf of certain interested parties. These briefs, proposed findings, and conclusions, and the evidence in the record were considered in making the findings and conclusions set forth above. To the extent that the suggested findings and conclusions filed by interested parties are inconsistent with the findings and conclusions set forth herein, the claims to make such findings or reach such conclusions are denied for the reasons previously stated in this decision.
The findings and determinations hereinafter set forth supplement those that were made when the Appalachian, Florida, and Southeast orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
The following findings are hereby made with respect to the aforesaid marketing agreements and orders:
(a) The tentative marketing agreements and the orders, as hereby proposed to be amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2 of the Act are not reasonable with respect to the price of feeds, available supplies of feeds, and other economic conditions that affect market supply and demand for milk in the marketing area, and the minimum prices specified in the tentative marketing agreements and the orders, as hereby proposed to be amended, are such prices as will reflect the aforesaid factors, ensure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(c) The tentative marketing agreements and the orders, as hereby proposed to be amended, will regulate the handling of milk in the same manner as, and will be applicable only to persons in the respective classes of industrial and commercial activity specified in, the marketing agreements upon which a hearing has been held.
In arriving at the findings and conclusions, and the regulatory provisions of this decision, each of the exceptions received was carefully and fully considered in conjunction with the record evidence. To the extent that the findings, conclusions, and regulatory provisions of this decision are at variance with any of the exceptions, such exceptions are hereby overruled for the reasons previously stated in this decision.
Annexed hereto and made a part hereof are two documents—a Marketing Agreement regulating the handling of milk and an Order Amending the Order regulating the handling of milk in the Appalachian, Florida, and Southeast marketing areas, that was approved by producers and published in the
The month of July 2013 is hereby determined to be the representative period for the purpose of ascertaining whether the issuance of the order, as amended and as hereby proposed to be amended, regulating the handling of milk in the Appalachian, Southeast, and Florida marketing areas is approved or favored by producers, as defined under the terms of the order as hereby proposed to be amended, who during such representative period were engaged in the production of milk for sale within the aforesaid marketing area.
Milk Marketing Orders.
This order shall not become effective until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.
The findings and determinations hereinafter set forth supplement those that were made when the orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
(a)
Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1) The said orders as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(2) The parity prices of milk, as determined pursuant to Section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the aforesaid marketing areas. The minimum prices specified in the orders as hereby amended are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(3) The said orders as hereby amended regulate the handling of milk in the same manner as, and are applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held.
The provisions of the order amending the orders contained in the interim amendments of the orders issued by the Administrator, Agricultural Marketing Service, on March 12, 2008, and published in the
For the reasons set forth in the preamble, 7 CFR parts 1005, 1006 and 1007 are proposed to be amended as follows:
7 U.S.C. 601–674, and 7253.
On or before the payment receipt date specified under § 1005.71, each handler shall pay to the market administrator its
(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9 (c) of this chapter that were delivered to pool plants of other handlers;
(b) Receipts from a handler described in § 1000.9(c) of this chapter;
(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) of this chapter and other source milk allocated to Class I pursuant to § 1000.43(a)(3) and (8) of this chapter and the corresponding steps of § 1000.44(b) of this chapter, except other source milk that is excluded from the computations pursuant to § 1005.60(d) and (e) of this chapter; and
(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii) of this chapter.
On or before the payment receipt date specified under § 1006.71, each handler shall pay to the market administrator its
(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) of this chapter that were delivered to pool plants of other handlers;
(b) Receipts from a handler described in § 1000.9(c) of this chapter;
(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk
(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to 1000.76(a)(1)(i) and (ii) of this chapter.
On or before the payment receipt date specified under § 1007.71, each handler shall pay to the market administrator its
(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) of this chapter that were delivered to pool plants of other handlers;
(b) Receipts from a handler described in § 1000.9(c) of this chapter;
(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) of this chapter and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) of this chapter and the corresponding steps of § 1000.44(b) of this chapter, except other source milk that is excluded from the computations pursuant to § 1007.60(d) and (e) of this chapter; and
(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to 1000.76(a)(1)(i) and (ii) of this chapter.
[
The parties hereto, in order to effectuate the declared policy of the Act, and in accordance with the rules of practice and procedure effective thereunder (7 CFR part 900), desire to enter into this marketing agreement and do hereby agree that the provisions referred to in paragraph I hereof, as augmented by the provisions specified in paragraph II hereof, shall be and are the provisions of this marketing agreement as if set out in full herein.
I. The findings and determinations, order relative to handling, and the provisions of § __ to __
II. The following provisions: § __
(a) Record of milk handled. The undersigned certifies that he/she handled during the month of ___
(b) Authorization to correct typographical errors. The undersigned hereby authorizes the Deputy Administrator, or Acting Deputy Administrator, Dairy Programs, Agricultural Marketing Service, to correct any typographical errors which may have been made in this marketing agreement.
Effective date. This marketing agreement shall become effective upon the execution of a counterpart hereof by the Department in accordance with Section 900.14(a) of the aforesaid rules of practice and procedure.
In Witness Whereof, The contracting handlers, acting under the provisions of the Act, for the purposes and subject to the limitations herein contained and not otherwise, have hereunto set their respective hands and seals.
Agricultural Marketing Service, USDA.
Proposed rule.
This final decision proposes to permanently adopt revised transportation credit balancing fund provisions for the Appalachian and Southeast milk marketing orders. Specifically, this document Establishes a variable mileage rate factor using a fuel cost adjustor to determine the transportation credit payments of both orders; increases the transportation credit assessment rate for the Appalachian order to $0.15 per hundredweight; and establishes a zero diversion limit standard on loads of milk requesting transportation credits. Separate decisions will address the proposed adoption of an intra-market transportation credit provision for the Appalachian and Southeast orders and for increasing the transportation credit rate assessment for the Southeast order. This final decision is subject to producer approval. Producer approval for this action will be determined concurrently with amendments adopted in a separate final decision that amends the Class I pricing and other provisions of the Appalachian, Southeast, and Florida milk marketing orders.
Erin Taylor, USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, STOP 0231–Room 2971, 1400 Independence Avenue SW., Washington, DC 20250–0231, (202) 720–7183, email address:
This final decision proposes to permanently adopt amendments that: (1) Establish a variable transportation credit mileage rate factor which uses a fuel cost adjustor in both orders; (2) Increase the Appalachian order's maximum transportation credit assessment rate to $0.15 per hundredweight (cwt); and (3) Establish a zero diversion limit standard on loads of milk requesting transportation credits.
This administrative action is governed by the provisions of sections 556 and
The amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect. If adopted, the proposed amendments would not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674) (the Act), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing a petition with the United States Department of Agriculture (USDA) stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601–612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this proposed rule would not have a significant economic impact on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy farm is considered a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees.
For the purposes of determining which dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a marketing guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most small dairy farms. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.
During January 2006, the time of the hearing, there were 3,055 dairy farmers pooled on the Appalachian order (Order 5) and 3,367 dairy farmers pooled on the Southeast order (Order 7). Of these, 2,889 dairy farmers (95 percent) in Order 5 and 3,218 dairy farmers (96 percent) in Order 7 were considered small businesses.
During January 2006, there were a total of 37 handlers operating plants associated with the Appalachian order (22 fully regulated plants, 11 partially regulated plants, 2 producer-handlers and 2
The amendments that are recommended for permanent adoption in this decision revise the transportation credit provisions of the Appalachian and Southeast orders. The Appalachian and Southeast orders contain provisions for a transportation credit balancing fund. To partially offset the costs of transporting supplemental milk into each marketing area to meet fluid milk demand at distributing plants during the months of July through December, handlers are charged an assessment year-round to generate revenue used to make payments to qualified handlers.
The adopted amendments establish a variable mileage rate factor that would be adjusted monthly by changes in the price of diesel fuel (a fuel cost adjustor) as reported by the Department of Energy for paying claims from the transportation credit balancing funds of the Appalachian and Southeast orders. Prior to their interim adoption, the mileage rate of both orders was fixed at 0.35 cents per cwt per mile.
The adopted amendments increase the transportation credit assessment rate for the Appalachian order. Specifically, the maximum assessment rate for the Appalachian order is increased to $0.15 per cwt. The transportations credit assessment rate for the Southeast order is increased by actions taken in a separate rulemaking (73 FR 14153). The higher assessment rate is intended to minimize the proration and depletion of the order's transportation credit balancing fund during those months when supplemental milk is needed. The higher assessment rate for the Appalachian order adopted in this decision is necessary due to expected higher mileage reimbursement rates arising from escalating fuel costs, the transporting of milk over longer distances and the expected continuing need to rely on supplemental milk supplies arising from declining local milk production in the marketing areas.
The transportation credit assessment rate for the Southeast order was increased from 10 cents per cwt to 20 cents per cwt on an interim basis (71 FR 62377). Subsequent to this increase, a separate rulemaking affecting the Southeast order proposed an additional increase in the assessment rate to 30 cents per cwt. A tentative partial decision (73 FR 11194), effective February 25, 2008, describes the record evidence supporting a 30 cents per cwt transportation credit assessment rate. The 30 cents per cwt assessment rate was then adopted on an interim basis (73 FR 14153) effective March 18, 2008. Since these separate decisions address the higher assessment rate, there is no further consideration to this issue in this proceeding.
Proposals published in the hearing notice as Proposal 2, seeking to establish an intra-market transportation credit provision for the Appalachian and Southeast orders, and Proposal 5, seeking to reduce the volume of milk diverted to plants located outside of the Appalachian and Southeast milk marketing areas, will be addressed in a separate decision. No further discussion of these proposals is made in this decision.
The adopted amendments also amend the
Prior to amendments adopted on an interim basis, the Appalachian and Southeast orders provided transportation credits on supplemental shipments of milk for Class I use provided the milk was from dairy farmers who are not defined as a “producer” under the orders. A producer under the order is defined as a dairy farmer who: (1) during the immediately preceding months of
Adoption of the proposed amendments will be applied to all Appalachian and Southeast order handlers and producers, which consist of both large and small businesses. Since the adopted amendments will affect all producers and handlers equally regardless of their size, the amendments would not have a significant economic impact on a substantial number of small entities.
The Agricultural Marketing Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
This notice does not require additional information collection that needs clearance by the Office of Management and Budget (OMB) beyond currently approved information collection. The primary sources of data used to complete the forms are routinely used in most business transactions. Forms require only a minimal amount of information that can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same reports for all handlers does not significantly disadvantage any handler that is smaller than the industry average.
No other burdens are expected to fall on the dairy industry as a result of overlapping Federal rules. This rulemaking proceeding does not duplicate, overlap, or conflict with any existing Federal rules.
A public hearing was held upon proposed amendments to the marketing agreement and the orders regulating the handling of milk in the Appalachian and Southeast marketing areas. The hearing was held, pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601–674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900).
The proposed amendments set forth below are based on the record of a public hearing held in Louisville, KY, on January 10–12, 2006, pursuant to a notice of hearing issued December 22, 2005, published December 28, 2005 (70 FR 76718).
Upon the basis of the evidence introduced at the hearing and the record thereof, the Administrator, on September 1, 2006, issued a Tentative Partial Decision, published in the
The material issues on the record of hearing relate to:
A. Establishing a variable mileage rate factor.
B. Increasing the maximum assessment rates.
C. Establishing diversion limit standards.
This final decision specifically addresses proposals published in the hearing notice as Proposals 3, 1, and certain objectives of Proposal 4. Proposal 3 seeks to establish a variable mileage rate factor (MRF) using a fuel cost adjustor. Proposal 1 seeks to increase the maximum transportation credit assessment rates for both orders. The intent of Proposal 4 is to discourage the volume of milk pooled by diversions by reducing the amount of transportation credits a handler could receive. A complete discussion and findings on these three proposals appears after the summary of testimony.
Proposal 2, seeking to establish an intra-market transportation credit provision for both the Appalachian and Southeast orders and Proposal 5, seeking to reduce the volume of milk diverted to an out-of-area plant, will be addressed in a separate decision. Accordingly, no further references to Proposals 2 and 5 will be made in this decision.
The following findings and conclusions on the material issues are based on evidence presented at the hearing and the record thereof:
A proposal, published in the hearing notice as Proposal 3, seeking to establish a variable mileage rate factor (MRF) that uses a fuel cost adjustor in the transportation credit payment provisions in both the Appalachian and Southeast orders, is recommended for permanent adoption. At the time of the hearing, the two orders provided for a fixed mileage rate of $0.035 per cwt per mile. The proposal was offered by Dairy Farmers of America, Inc. (DFA). DFA is a dairy farmer member-owned Capper-Volstead cooperative that at the time of the hearing had 12,800 member farmers whose milk was pooled throughout the Federal order system, including on the Appalachian and Southeast orders.
A witness appearing on behalf of Southern Marketing Agency, Inc. (SMA) and Dairy Cooperative Marketing Association, Inc. (DCMA) testified in support of Proposal 3. SMA and DCMA are marketing agencies-in-common operating in the southeast region of the country. Members of SMA at the time of the hearing included Arkansas Dairy Cooperative Association; Dairy Farmers of America, Inc.; Dairymen's Marketing Cooperative, Inc.; Lone Star Milk Producers, Inc.; and Maryland & Virginia Milk Cooperative Association, Inc. Members of DCMA at the time of the hearing included the abovementioned members of SMA; Zia Milk Producers Association; Select Milk Producers Association; Cooperative Milk Producers Association, Inc.; and Southeast Milk, Inc. Dairylea Cooperative, Inc. also requested that the witness testify on their behalf and in support of Proposal 3.
The SMA witness testified that the southeastern region of the United States is experiencing declining milk production while the population and demand for fluid milk are increasing. As a result, the witness stated that handlers servicing the Appalachian and Southeast marketing areas must continually seek supplemental supplies of milk from outside their normal milksheds. The witness added that the volume of supplemental milk needed to meet demand that cannot be met by local production and the distances from where the supplemental milk is obtained continues to increase. The witness explained that these marketing conditions cause the transportation
The SMA witness presented monthly fuel cost data for the United States and nine U.S. sub-regions from the Energy Information Administration of the United States Department of Energy (EIA). Relying on EIA data, the witness asserted that the cost of diesel fuel has escalated sharply in recent years. According to the witness, the national average diesel fuel price in mid-1997 was reported to be approximately $1.15 to $1.17 per gallon while the national average diesel fuel price in mid-2005 was reported to be $2.20 to $2.50 per gallon. The witness emphasized that diesel fuel prices are much higher than the prices that existed when the transportation credit provisions were first implemented in 1996 and amended in 1997.
The SMA witness noted that the cost of hauling has also increased. Relying on EIA data, the SMA witness estimated the cost of hauling to be in the range of $1.75 to $1.80 per loaded mile in 1997, whereas the cost in 2005 was about $2.35 per loaded mile. As diesel fuel costs have increased, the witness explained, so have other costs such as equipment, insurance, and labor.
The SMA witness emphasized that there have been no adjustments made to the MRF of the transportation credit provisions since they were last amended in 1997. The witness recounted that the original mileage rate was reduced by 5 percent, from $0.037 per cwt per mile to $0.035 per cwt per mile in 1997.
The SMA witness explained that in 1997, approximately 94 to 95 percent of the transportation costs of supplemental milk were covered by transportation credit balancing fund payments. The witness reiterated that since no adjustments have been made to the orders' transportation credit reimbursement rate since 1997, the percentage of hauling costs covered by the transportation credits today are substantially less than those in 1997.
According to the SMA witness, the use of a fixed mileage rate is not responsive to changes in hauling costs. The witness explained that Proposal 3 would compute a variable transportation credit mileage rate per cwt per mile that would adjust with changes in the cost of diesel fuel. The witness stressed the importance of, and the need for, keeping information on hauling costs current by using independent fuel cost data. The witness stated that hauling cost rates, adjusted for changes in fuel costs, are common in the industry.
The SMA witness illustrated components used to calculate the proposed variable MRF. According to the witness, a monthly average diesel fuel price, a reference diesel fuel price, an average mile-per-gallon truck fuel use, a reference hauling cost per loaded mile and a reference load size are the components needed to calculate the proposed variable MRF.
Using EIA data for the United States and nine U.S. sub-regions, the SMA witness explained that using the Lower Atlantic and Gulf Coast EIA regions in computing the monthly mileage rates would be reflective of the Appalachian and Southeast marketing areas. Relying on EIA data, the witness explained that the Lower Atlantic region is comprised of the states of Virginia, West Virginia, North Carolina, South Carolina, Georgia, and Florida. Similarly, the witness added, the Gulf Coast region is comprised of Alabama, Mississippi, Arkansas, Louisiana, Texas, and New Mexico. According to the witness, of the nine sub-regions described by the EIA, the Lower Atlantic and Gulf Coast regions best reflect the Appalachian and Southeast marketing areas geographically. The witness also noted that according to EIA data, the diesel fuel costs for these two regions are among the lowest reported nationally.
In establishing a reference diesel fuel price for the proposed transportation credit mileage rate calculation, the SMA witness relied on EIA retail diesel fuel prices for the time period of October to November 2003. During that period, the witness said, diesel fuel prices averaged $1.48 per gallon nationally and ranged from $1.42 per gallon in the Lower Atlantic to $1.43 per gallon in the Gulf Coast EIA regions. Due to relatively little fluctuation of diesel fuel prices during October to November 2003, the witness was of the opinion that this period is a fair and conservative timeframe on which to establish a reference diesel fuel price. The witness concluded by suggesting $1.42 per cwt per mile should be used as the reference diesel fuel price.
The SMA witness submitted a random selection of actual milk hauler bills as the basis for computing the reference hauling cost component of the proposed MRF. According to the witness, actual origination and destination points, miles moved, and rates and fuel surcharges per loaded mile were depicted on each hauling bill. For the month of October 2005, the witness stated that hauling costs ranged from $1.89 to $2.70 per loaded mile, with the average being $2.48 per loaded mile. In order to be consistent with the timeframe used for the reference diesel fuel price, the witness submitted selected milk hauling bills from October to November 2003 as the basis for determining the reference hauling cost. The witness testified that for this time period the simple average hauling rate charged per loaded mile in the Southeast was $1.9332 and $1.8913, respectively, and averaged $1.9122. Accordingly, the witness offered that the average hauling rate of $1.91 per loaded mile should become the reference hauling cost used in calculating the MRF.
The SMA witness provided data compiled by the United States Department of Transportation (USDOT) on combination truck fuel economy. According to the witness, the USDOT data indicated that the average miles traveled per gallon for a combination truck in 2002 was 5.2. The witness was of the opinion that dairy industry fuel economy is similar, as it ranges between 5.0 to 6.0 miles per gallon. Accordingly, the witness advocated using a 5.5 miles per gallon fuel consumption rate in computing the proposed MRF. The witness also testified that a 5,600 gallon tanker, at its fullest capacity, can carry 48,160 pounds of milk. Therefore, the witness explained, 48,000 pounds should be the reference load size used in calculating the MRF.
The SMA witness summarized that Proposal 3 calculates a variable monthly MRF by using: (1) EIA data from a base period defined as October and November 2003, (2) hauling cost of $1.91 per loaded mile, (3) a reference diesel fuel rate of $1.42 per gallon, (4) a fuel economy of 5.5 miles per gallon and (5) a load size of 48,000 pounds.
The SMA witness explained that the proposed mileage rate would be calculated by averaging the four most recent weeks of retail on-highway diesel prices for both the Lower Atlantic and Gulf Coast, as reported by the EIA prior to each order's announcement of the Advance Class milk prices. According to the witness, the proposed mileage rate would then be computed and included in each order's announcement of Advanced Class milk prices that are announced publicly on or before the 23rd of the month.
The SMA witness stressed that, for a variety of reasons, the proposed mileage rate computation reflects less than the actual cost of hauling. The witness asserted that the proposed mileage rate is based on costs of hauling from 2003, rather than a more current timeframe, and therefore would only reflect changes in the cost of diesel fuel since that time. The witness also reiterated that the proposed mileage rates would apply only to Class I milk shipped in
The SMA witness asserted at the time of the hearing that they were incurring substantial losses in supplying supplemental milk for Class I use to the Appalachian and Southeast marketing areas. The witness indicated that hauling costs in supplying supplemental milk exceed $15 million annually.
A comment filed by SMA in response to the Tentative Final Decision reiterated support for the adoption of Proposal 3.
Six DFA farmer-members testified in support of Proposal 3. According to these witnesses, it is the cooperative members of SMA who are acting as handlers to supply the supplemental fluid milk needs of both marketing areas. According to the witnesses, this results in additional costs that are absorbed by the dairy farmer members of the cooperatives that comprise SMA. The witnesses argued that hauling costs and the distances supplemental milk must be hauled continue to increase.
The six DFA dairy farmer witnesses were of the opinion that Proposal 3 is a reasonable solution to deal with the continued production decline and population driven demand increase in the southeastern region of the United States. The witnesses were of the opinion that using a fuel adjustor that moves up and down with changes in the cost of diesel fuel would more adequately cover the costs of transporting supplemental milk to the two marketing areas.
A post-hearing brief submitted by DFA, and supported by SMA, reiterated support for adopting a fuel cost adjustor.
A post-hearing brief was submitted on behalf of Arkansas Dairy Cooperative Association (ADCA) in support of Proposal 3. According to ADCA, its members' milk does not usually qualify for transportation credit payments because it is typically pooled on the Southeast and Central orders year-round. However, ADCA noted that its members are impacted by the cost of hauling supplemental milk into the southeast because of its membership in a marketing agency-in-common.
A post-hearing brief was submitted on behalf of Dairymen's Marketing Cooperative, Inc. (DMCI) in support of Proposal 3. The brief emphasized that as fuel costs continue to increase, the Class I differential surface becomes more outdated and unable to reflect the costs of moving milk.
A post-hearing brief was submitted on behalf of Lone Star Milk Producers (Lone Star) in support of Proposal 3 because it would establish updated mileage rates for payments from the transportation credit balancing funds. The brief stated that the hauling cost factor used to develop the mileage rate for the transportation credit balancing fund has not been updated since the mid 1990's and is inadequate.
A post-hearing brief submitted by Maryland & Virginia Milk Producers Cooperative Association, Inc. (Maryland & Virginia) reiterated support for the adoption of Proposal 3.
A post-hearing brief was submitted on behalf of South East Dairy Farmers Association (SEDFA). The brief expressed support for a variable mileage rate based on the changes in the cost of diesel fuel. The brief stated that the industry uses a consistent fuel economy estimate of 5.0 to 6.0 miles per gallon when calculating expected milk transportation costs. The brief stressed that the extreme rise in diesel fuel prices in recent months has made the adoption of Proposal 3 critical for producers who incur the cost of hauling milk to the market.
A witness appearing on behalf of Southeast Milk, Inc. (SMI) testified in support of Proposal 3. SMI is a dairy marketing cooperative with, at the time of the hearing, approximately 300 dairy farmer members in Florida, Georgia, Alabama, and Tennessee. The SMI witness stated that relying on cost indexes of other government agencies determined on a national scale makes the data less subject to manipulation by any given industry.
A witness testified on behalf of Dean Foods Company (Dean) in support of Proposal 3. According to the witness, Dean owns and operates 8 plants regulated by the Appalachian marketing area and 10 plants regulated by the Southeast marketing area. The Dean witness agreed with the benefit of using an adjustor in determining the MRF to reflect changes in fuel prices over time. However, the witness also was of the opinion that the MRF should be reduced to 95 percent in order to be consistent with the Secretary's past decisions that transportation credits do not encourage the uneconomic movement of milk or inefficiencies.
The Dean witness testified that the marketing areas are in need of supplemental milk supplies and that supplying such milk presents challenges. Nevertheless, the witness expressed concern for the continuing and potential future abuse of transportation credits. The witness asserted that current order provisions allow supplemental milk to receive transportation credits, when such milk is not demanded. Moreover, the witness stressed that there is no assurance that transportation credit balancing fund payments would flow to the dairy farmer members of the cooperatives acting as handlers located in the two marketing areas regardless of the producers' status as independent or cooperative members.
A post-hearing brief submitted on behalf of Dean reiterated support for Proposal 3, indicating that disorderly marketing conditions exist because the milk supply in the Southeastern United States is deficit and the cost of supplying the market is not borne equally. Additionally, a comment filed by Dean in response to the Tentative Final Decision expressed continued support for the adoption of Proposal 3.
A dairy farmer who supplies milk to Dean testified in support of the intent of Proposal 3. The witness stated that a dynamic mileage rate that adjusts to the energy markets is better than a static factor that is unable to adjust in response to changes in energy costs.
A dairy farmer who markets milk to Dean through Dairy Marketing Service (DMS) testified in favor of Proposal 3. The witness stated that using a variable MRF derived from a source outside of the dairy industry, such as the USDOT, would help decrease the chances of industry participants manipulating the information that should be used in calculating a MRF.
A witness appearing on behalf of Land O'Lakes, Inc. (LOL) testified in support of Proposal 3. LOL is a dairy farmer member-owned Capper-Volstead cooperative with, at the time of the hearing, over 4,000 member farmers whose milk is pooled on 6 Federal Orders. The witness stated that its members' milk located in the Northeast and Midwest have provided supplemental supplies to both the Appalachian and Southeast marketing orders for the past 10 years.
According to the witness, LOL supplies supplemental milk to the Appalachian and Southeast orders and experiences high milk hauling costs. The witness asserted that using diesel fuel prices as the basis for the MRF would make it responsive to actual costs incurred by the handlers moving milk into these two deficit markets.
A post-hearing brief submitted by LOL reiterated support for the adoption of Proposal 3. The brief said that in order to fulfill the supplemental milk needs of the Appalachian and Southeast
An independent dairy farmer from Tennessee testified in opposition to any changes to the Appalachian or Southeast marketing orders. The witness testified that additional government intervention in moving milk was not necessary and that supply and demand should be relied upon to dictate what services are needed. The witness asserted that amending the orders as proposed would change the way milk is moved, thereby hindering efficient milk hauling. The witness also was of the opinion that there is no assurance that transportation credits received for supplying supplemental milk would truly reach the market's producers. The witness expressed concerns that the proposed increases in the transportation credit rate could affect producer decisions and producer blend prices.
A witness testified on behalf of the Kentucky Dairy Development Council (KDDC). KDDC is a member-based organization that, at the time of the hearing, represented approximately 1,360 dairy farmers in Kentucky. The witness did not state support for or opposition to the proposals presented at the hearing. The witness was of the opinion that noncompetitive pricing is discouraging milk production in the southeastern United States. The witness was of the opinion that farm milk prices in Kentucky and in the Southeastern States have eroded and that KDDC was opposed to any Federal Order changes which would further erode farm prices. The witness did testify in support of changes to the orders that would strengthen the position of dairy farmers in Kentucky and in other Southeastern States.
A post-hearing brief submitted by KDDC in support of Proposal 3 said that Proposal 3 would benefit Kentucky dairy farmers by providing assistance in recovering market service costs.
A proposal, published in the hearing notice as Proposal 1, offered by DFA, that seeks to increase the maximum transportation credit balancing fund assessment rates for the Appalachian and Southeast orders is adopted. Specifically, the maximum transportation credit balancing fund assessment rate in the Appalachian order is increased by $0.055 per cwt on Class I milk for an amended rate of $0.15 per cwt. The Southeast order's maximum assessment rate was increased by $0.10 per cwt for an amended rate of $0.20 per cwt and implemented on an interim basis. Subsequent to the interim adoption of the $0.20 per cwt assessment rate, a separate rulemaking increased this rate to $0.30 per cwt (73 FR 14153). Accordingly, this decision would permanently adopt the higher assessment rate for the Appalachian order only.
A witness appearing on behalf of DCMA and SMA testified in support of Proposal 1. As previously described in testimony regarding Proposal 3, the SMA witness said that the current transportation credit provisions provide for the collection of a maximum transportation credit assessment to handlers on all Class I milk for the Appalachian and Southeast marketing areas year-round. While the market administrator has the discretion to waive the maximum transportation credit assessments if deemed necessary, the SMA witness explained that the market administrator of each order collected the maximum assessments in 2004 and 2005. However, the witness said that the collected assessments in both orders had been insufficient to pay the requested credits, thereby necessitating the prorating of payments from the transportation credit balancing fund.
The SMA witness stated that even with the November 1, 2005, implementation of a transportation credit assessment increase of $0.03 per cwt for both orders, the assessment rate will likely not be able to ensure payments from the transportation credit balancing funds on all milk eligible to receive payment.
The SMA witness estimated that the transportation credit assessment rate for the Appalachian order for 2004 would have needed to be $0.0889 per cwt and $0.0953 per cwt for all of 2005 to cover all of the transportation credits requested. The witness also estimated that the Southeast order transportation credit assessment rate would needed to have been $0.1318 per cwt and $0.1246 per cwt in 2004 and 2005, respectively, to cover all requested credits. Additionally, the witness noted that the transportation credits requested for both the Appalachian and Southeast marketing orders for the months of July, September, and October of 2005 exceeded the transportation credits requested in all of 2004. The witness said this also demonstrates that increased volumes of supplemental milk were transported from locations farther from the marketing areas.
The witness said that the reason the market administrators prorated payments from the transportation credit balancing funds was because the rate of assessments exceeded collections. The witness was of the opinion that this occurred because more supplemental milk was sourced from more distant locations.
Relying on market administrator data, the witness concluded that only 55 percent of the actual cost of transporting supplemental milk was covered by the transportation credit payments in the Appalachian order in 2004. Similarly, only 39 percent of the actual cost was covered for the Southeast order during the same period. The witness further estimated that in 2005, only 53 percent and 43 percent of the actual hauling costs for supplemental milk would be covered for the Appalachian and Southeast orders, respectively.
In explaining the need for the adoption of Proposal 3, the SMA witness reiterated that the combined effect of higher mileage hauling rates and the increased distance from which supplemental milk had to be hauled, resulted in a smaller portion of actual transportation costs being funded with transportation credits compared to the rate in 1997. The witness was of the opinion that transportation costs will continue to increase, making it necessary to again increase the assessment rate.
Further illustrating the need to increase the maximum transportation credit assessment rate, the SMA witness indicated that if a transportation credit reimbursement rate of $0.046 per cwt per mile had been in place rather than the current rate of $0.035 per cwt per mile, the Appalachian order would have required an assessment of $0.133 per cwt in 2004 and an assessment of $0.1415 per cwt in 2005, to prevent the prorating of transportation credit claims. Similarly, the witness stated that for the Southeast order, the assessment rate would have needed to have been $0.1927 per cwt in 2004 and $0.1869 per cwt in 2005.
The SMA witness testified that the different rates of transportation credit balancing fund assessments proposed for the Appalachian and Southeast orders reflect the differing costs of supplying supplemental milk into each marketing area. The witness stated that while the transportation credit assessment was waived for 2 months during 2002 and 2003 in the Appalachian order, assessments were not waived for the Southeast order. The
The six DFA dairy farmer witnesses that testified in support of Proposal 3 also testified in support of increasing the transportation credit assessments for both orders. The witnesses were of the opinion that the assessment increases would generate funds needed to maintain a sufficient transportation credit fund balance capable of paying on eligible claims. In addition, the witnesses were of the opinion that the orders' current location adjustments were not able to reflect the rapidly increasing costs of transporting milk from where it is located to where it is needed. Similarly, the witnesses stated that over-order premiums cannot be garnered from the market to offset rapidly increasing transportation costs.
The six DFA dairy farmer witnesses were also of the opinion that the intent of increasing the transportation credit assessment rates was a reasonable solution to mitigate continued production declines and the increasing demand for milk in the southeastern United States due to continued population increases in that region. The witnesses added that the markets' producers face higher fuel costs and longer hauling distances associated with obtaining supplemental milk. When producers go out of business, the witnesses said, the gap between supply and demand widens thereby increasing the cost of supplying the market with supplemental milk.
Post-hearing briefs submitted by DFA reiterated the position and testimony of SMA in support of increasing the transportation credit assessment rates immediately.
A post-hearing brief was submitted on behalf of Select Milk Producers, Inc. (Select) and Continental Dairy Products, Inc. (Continental) in support of Proposal 1. At the time of the hearing, Select's members were located in New Mexico, Texas, Kansas, and Oklahoma, while Continental's members were located in Indiana, Michigan, and Ohio. The brief stated that both cooperatives supply the Appalachian and Southeast marketing areas with supplemental milk. Select and Continental expressed support for proponent's hearing testimony in favor of increasing the transportation credit assessment rates of the two orders. The brief stated that while the proposals under consideration will not fix long-term marketing and transportation problems, Proposal 1 should be adopted in conjunction with USDA's consideration of alternative approaches aimed at correcting the milk deficit problems in the southeast region of the United States.
The Select/Continental brief expressed the opinion that blend prices, not Class I prices, provide the economic incentive to supply milk to a marketing area. The brief stated that when producers in a large marketing area share the same blend price, the incentive to move milk within the large marketing area is greatly diminished. In addition, the brief indicated that the pricing of diverted milk ignores the value of milk to the market where pooled, which results in milk being pooled that is not available to meet the Class I needs of the market.
A post-hearing brief was submitted on behalf of Southeast Dairy Farmer Association (SEDFA). The brief expressed support for Proposal 1 as published in the hearing notice. SEDFA represents cooperative and independent producers who are regular and supplemental milk suppliers located in and outside of the Appalachian and Southeast marketing areas.
The SEDFA brief asserted that whether milk is produced inside or outside of the two marketing areas, the cost of moving Class I supplemental milk should be borne by the marketplace. The brief stated that while the reimbursement of actual hauling costs is much lower than in 1997, the amount of supplemental milk being brought into the marketing areas is increasing. The brief concluded that because reimbursement of actual hauling cost is smaller, the higher costs not reimbursed have fallen disproportionately on producers. The brief agreed with Lone Star and Maryland & Virginia that the $0.03 increase in the transportation credit assessments implemented in November 2005
A witness appearing on behalf of LOL testified in support of Proposal 1. The LOL witness agreed with other proponents that the transportation credit balancing fund for both orders has been insufficient to support transportation credit payments. While the witness supported the transportation credit assessment increases effective in November 2005, the witness did not think that this would be sufficient to reimburse future claims.
A post-hearing brief submitted by LOL reiterated its support for the adoption of Proposal 1. The brief indicated that the southeast region of the country is not able to fulfill Class I demands during any season of the year and must rely on a supplemental milk supply from about 28 States outside the Appalachian and Southeast marketing areas. The brief noted that transportation credits installed in the southeastern region in 1996 were based on the recognition that the region's Class I needs could only be met by supplemental milk from dairy farms located outside of the region.
A witness testifying on behalf of Dean expressed cautious support for increasing the transportation credit assessment rates of the two orders because the availability of additional credits must be balanced with consideration for abuses and undesired results. The witness was of the opinion that handlers who receive such credits are also pooling milk on the orders through the diversion process which does not actually serve the markets' Class I needs.
A post-hearing brief submitted on behalf of Dean agreed with proponents of Proposal 1 that disorderly marketing conditions exist. The brief stated that the southeast area's milk supply is deficit and the cost of supplying the market is not borne equally.
A witness testified on behalf of SMI in opposition to Proposal 1. The witness characterized transportation credits as a subsidy. The witness further expressed that subsidizing the transportation of milk produced outside of the marketing areas results in economic disincentives for local milk production and provides incentives for local milk supplies to be replaced by milk from outside the two marketing areas. The witness noted that when transportation credits were first adopted in 1996, the average Class I utilization of the southeast region was in the mid-80 percent range. Since the implementation of transportation credits, the witness said, Class I utilization had fallen to the 60 percent range. It was the opinion of the witness that transportation credit provisions are contributing to declining milk production in the two marketing areas.
The SMI witness testified that transportation credits should be eliminated. As an alternative, the witness suggested: (1) Establishing a
A Kentucky dairy farmer testified in opposition to Proposal 1. The witness argued that providing transportation credits devalues local milk, which results in lower prices to local producers and causes declining milk production in the two marketing areas. The witness expressed concern that Proposal 1 would encourage more milk from outside the marketing areas to be pooled on the orders even though it is not delivered to either marketing area on a daily basis, as is the locally produced milk. According to the witness, local producers are not able to receive the full value for local production because transportation credits give price advantages to producers located far from the marketing areas. The witness concluded by stating that pooling milk located outside of both marketing areas does not represent Class I use and therefore this milk should not be pooled on the Appalachian or Southeast orders.
A dairy farmer witness who supplies milk to Dean testified in opposition to Proposal 1. The witness viewed increasing assessment rates on transportation credits as detrimental to those dairy farmers who are located in the Appalachian and Southeast marketing areas and who regularly supply the Class I needs of the market. The witness was of the opinion that Proposal 1 lacks safeguards on the amount of additional milk that could be pooled on the orders by diversion. The witness said that this additional pooled milk would unnecessarily lower the blend price received by producers and essentially result in out-of-area milk supplies becoming less expensive relative to milk produced in-area. As a consequence, the witness said, local in-area producers will be forced out of business because of lower prices. Should this occur, the witness said, the need for additional out-of-area supplemental milk supplies would further increase to meet the Class I needs of the marketing areas.
The witness suggested that instead of providing additional transportation credits, a review of the level of Class I differentials and a review of diversions and touch-base provisions should be considered in another hearing.
An independent dairy farmer from Tennessee testified against making any changes to the Appalachian and Southeast marketing orders, including the adoption of Proposal 1. In addition to the witness' testimony regarding Proposal 3 as was already described, the witness was of the opinion that additional government intervention to provide for increasing the transportation credit assessment rate was not necessary and that supply and demand forces should dictate what services are needed. The witness asserted that amending the orders as proposed would change the way milk is transported and would hinder efficient handling of milk. The witness was of the opinion that there would be no assurance that the transportation credits would benefit the producers who were pooled on the two orders and had incurred the additional costs of servicing the Class I market.
A dairy farmer, who also markets milk to Dean through DMS, testified in opposition to Proposal 1. The witness said that local producers of the Appalachian and Southeast marketing areas are unable to supply all the fluid milk needs of the two marketing areas because local milk production in these areas is declining. The witness suggested that if Proposal 1 were adopted, an accounting of the total transportation costs of all milk movements should be supplied to the market administrators and be made available for public inspection. The witness also suggested making changes to the level of adjustments of milk prices by location (location adjustments) as an alternative to increasing the transportation credit assessment rate. The witness said if location adjustments were changed, the pooling standards for both orders would also need to be adjusted. Specifically, the witness suggested increasing the number of days' production needed to touch base, or increasing the performance standards of the orders.
A post-hearing brief submitted by the Kentucky Dairy Development Council (KDDC) supported Proposal 1. The brief noted that increasing the transportation credit assessment rate would benefit Kentucky dairy farmers by providing assistance in recovering costs associated with serving the market.
A proposal submitted by Dean Foods, published in the hearing notice as Proposal 4, seeks to reduce a handler's ability to utilize transportation credits to qualify producers for pooling on the orders. The intent of the proposal is to limit the pooling of additional surplus milk on the orders through the diversion process. At the time of the hearing, large volumes of milk were being pooled through diversions on the Appalachian and Southeast orders from locations distant from the marketing areas. While Proposal 4 would provide incentives to limit the pooling of milk through the diversion process, it would do so indirectly by limiting the payment of transportation credits. This decision chooses to directly limit diversions by establishing a zero diversion limit on milk that receives transportation credits.
A witness appearing on behalf of Dean testified in support of Proposal 4 while also expressing cautious support for the proposed transportation credit assessment increase (Proposal 1). The witness was of the opinion that handlers supplying supplemental milk to the two marketing areas receive a financial benefit from pooling diverted milk on the orders even though the milk does not ultimately serve the fluid market. The witness explained that while the diverted milk typically does not serve the two markets, it seeks to be pooled on the two orders because the blend prices are higher than what this milk could receive if pooled on other Federal orders.
The Dean witness testified that the establishment of large marketing orders has created new marketing problems. According to the witness, when the Federal order system had a larger number of smaller markets, each order's marketwide pools were small. Markets with large populations relative to associated milk, the witness explained, had higher Class I utilizations and higher blend prices to attract supplemental milk supplies. Markets with significant supplies of milk and smaller populations, the witness related, had lower Class I utilizations and producers pooled in those markets were provided with the economic incentive to look for higher returns from markets with higher blend prices. The witness further explained that smaller marketing areas limited the size of the Class I market and, in turn, limited how much milk could be pooled by diversion. The witness said that when orders were smaller, there were disincentives to pooling milk and the orders were more effective in limiting a handler's ability to pool milk through diversions. According to the witness, the relative value of diverted milk was tied to its distance from the market.
The Dean witness also testified that the Class I price surface adopted during Federal milk order reform changed the relative relationship of milk value to its distance from the market. According to the witness, the location value of diverted milk prior to reform was determined by adjusting milk value according to its distance from an order's pricing point. The witness said this
The Dean witness expressed concern that no longer valuing milk relative to the order on which it is pooled had a material effect on the value of pooling milk located far from the market by diversion. The witness was of the opinion that the flatter Class I price surface, with fixed differential levels by county, places a value on milk that is not reflective of its value to the marketing order where pooled making it economically desirable to pool milk located far from the market through the diversion process. The witness was also of the opinion that this served to provide the incentive for pooling distant milk by diversion.
The Dean witness testified that even though there are closer milk supplies, distant milk is being pooled on both orders. The witness further asserted that transportation credits amplify the pooling of milk on the orders, which does not service the markets' Class I needs. The witness was of the opinion that pooling distant milk by diversion clearly results in disorderly marketing conditions within the two markets. According to the witness, when such milk is pooled, local farmers who are consistently serving the Class I needs of the markets receive a needlessly lower blend price.
According to the Dean witness, the objective of Proposal 4 is to modify the receipt of transportation credits depending on a handler's specific service to the Class I need of the markets and to lower transportation credit payments to those handlers who have higher levels of diversions. The witness stated that the current reimbursement rate of transportation credits is the same for each handler regardless of the level of its relative service to the fluid market. The witness explained that when a handler delivers 100 percent of its receipts to a pool distributing plant, it receives transportation credits at the same rate as a handler delivering only the minimum volume needed to meet the pooling qualifications. The witness conveyed that the handlers meeting only the minimum pooling standards are then able to divert milk which is not actually available to the market. Additionally, the witness indicated that adjusting a handler's receipt of transportation credits in this way will maintain and help extend the transportation credit balancing funds.
The Dean witness acknowledged the need for balancing because distributing plants do not typically need to receive milk every day of the week. However, the witness asserted that unlimited diversions undermine the purpose of the Federal order system. The witness explained that the proposed 30 percent diversion limit on supplemental milk seeking transportation credits is reasonable because a distributing plant typically receives milk five days per week. The need to divert milk 2 days per week, the witness explained, justifies the 30 percent diversion limit. The Dean witness explained that based on data provided by the market administrator, there are handlers in both orders who divert significantly more pounds of milk than the orders need to balance the Class I demands of pool distributing plants, and yet still receive transportation credits.
A post-hearing brief submitted on behalf of Dean reiterated support for the adoption of Proposal 4 provided that Proposals 1 and 3 are adopted. The brief stated that Proposal 4, when adopted in conjunction with Proposals 1 and 3, would tend to limit the abuse of transportation credits on supplemental milk for Class I use as a result of the cap on the receipt of transportation credits by handlers suggested in Proposal 4. The brief also stressed that, if adopted, the provisions detailed in Proposal 4 would lead to the exercise of some control over the amount of milk that would be pooled on the orders through the diversion process.
A dairy farmer who supplies milk to Dean testified in support of Proposal 4. The witness agreed with Dean and other witnesses that orders should only pool the milk of producers who truly serve the Class I needs of the market, otherwise revenue essentially leaves the two marketing areas. According to the witness, this loss of revenue leads area dairy farmers to exit the industry, thereby further reducing the availability of local milk supplies and increasing the need for acquiring more milk produced from far outside the marketing areas. The witness was of the opinion that it is the shipments of supplemental milk into the marketing areas that provide the ability to pool milk by diversion when it is not available to the market.
A witness from SMI testified in support of Proposal 4, provided Proposals 1 and 3 are adopted.
A Kentucky dairy producer testified in support of Proposal 4 and said that supplemental milk receiving transportation credits should be subject to some limits on the amount of additional milk that can be pooled by diversion. The witness was of the opinion that transportation credits give producers located outside the marketing areas a price advantage because their diverted milk receives the blend price of the orders.
A witness appearing on behalf of LOL testified in opposition to Proposal 4. The witness noted that transportation credits were established to attract supplemental milk and to partially offset the cost of hauling supplemental milk into the deficit markets. The witness explained that the orders' specify the conditions that must be met to be eligible to receive transportation credit payments. The current transportation credit provisions, the witness said, already limit payments for supplemental milk from outside the marketing areas to include only the milk of dairy farmers who are not defined as “producers” under the orders. The witness also said that payments are limited to Class I pounds and are not paid on the first 85 miles of hauling milk from farms to the plant receiving supplemental milk.
The LOL witness stressed that additional limitations would do nothing to encourage the delivery of needed supplemental milk into the marketing areas during the short production months. The witness was of the opinion that if the intent is to change the diversion limits of the orders, then those changes should be addressed in a separate hearing.
A post-hearing brief submitted by LOL reiterated its position given at the hearing opposing Proposal 4. The brief also stated that Proposal 4 improperly assumes that all handlers supplying supplemental milk have equal access to distributing plants and that distributing plants' Class I use of milk is the same as the Class I utilization of the two markets.
A witness appearing on behalf of SMA also testified in opposition to Proposal 4. The witness was of the opinion that the orders touch-base and diversion limit standards already provide sufficient safeguards to pooling milk not needed for Class I use. The SMA witness explained that it is difficult to establish specific diversion limits on supplemental milk, as contained in Proposal 4, because of individual differences in the balancing needs of each distributing plant, noting that these needs continually change. The witness emphasized that difficulties in balancing the orders' pool distributing plants exist year-round, and that suppliers sometimes have no control over factors that may alter balancing needs. The witness noted that some of SMA's purchase agreements for supplemental milk included
The SMA witness also was of the opinion that Proposal 4 would give pool distributing plant operators an advantage over cooperatives who, in their capacity as handlers, are supplying supplemental milk. The witness said that while cooperatives handle the majority of supplemental milk for the orders, they may receive little or no transportation credit payments under Proposal 4. According to the witness, a diversion limit could only benefit those handlers in nearer proximity to the marketing areas.
A post-hearing brief was submitted on behalf of ADCA in opposition to Proposal 4. The brief stressed that the seasonality of production in the southeastern region is the highest in the country and as such, a greater reserve of milk must be available. The brief concluded that Proposal 4 would create inequities between handlers supplying supplemental milk while also encouraging uneconomic movements of milk.
A post-hearing brief was submitted on behalf of DMCI in opposition to Proposal 4. The brief asserted that there are too many unanswered questions as to how Proposal 4 would be applied. The brief stated that a distributing plant's reserve milk needs are an individual business decision and should only be limited by the order's pooling provisions.
A post-hearing brief submitted by DFA and other SMA members reiterated their opposition to Proposal 4. The brief noted that during many months, a 30 percent diversion limit is insufficient to cover balancing needs. Therefore, if Proposal 4 were implemented, the brief said, it could disproportionately affect different supplemental supplies and distributing plants in the marketing areas.
A post-hearing brief was submitted on behalf of Lone Star in opposition to Proposal 4. The premise of its opposition was that Proposal 4 would establish a “one-size-fits-all” diversion limit for all Class I handlers. The brief noted that a distributing plant's reserve milk needs are individual decisions in response to its customer base and seasonal changes in demand. The brief expressed the opinion that the orders already provide for some of the most strict diversion limit standards and touch-base requirements in the Federal order system.
Comments filed by Dean in response to the tentative partial decision supported the proposed amendments as recommended by USDA. The brief offered support of USDA's alternative to Proposal 4 which, in its opinion, more directly addressed the problem of pooling diverted milk that is associated with supplemental milk supplies. Dean also stated that since the Department's alternative continued to address the intent of Proposal 4, it would support the adoption of Proposals 1 and 3. In brief, Dean expressed that USDA's decision adequately addressed concerns it expressed at the hearing regarding pooling abuse and ensuring that transportation credits only reimburse handlers for a portion of the supplemental hauling costs.
Comments filed on behalf of SMA also expressed support for the amendments recommended in the tentative final decision. SMA stated that the recommended amendments would ensure that there are sufficient funds available to fund the transportation credit balancing fund and that transportation credits would better reflect the changing costs of supplying supplemental milk to the southeastern region. Comments filed on behalf of LOL supported the adoption of Proposals 1 and 3. LOL stated that increasing the transportation credit assessment rates and updating the payment rate to better reflect the cost of fuel were long overdue improvements to the two orders' transportation credit provisions. However, LOL took exception with USDA's recommendation regarding Proposal 4 (pooling of diverted milk through supplemental milk supplies). LOL argued that by not allowing diversions on supplemental milk supplies, supplemental milk suppliers located outside of the marketing areas would bear the burden of balancing the markets' seasonal milk needs. LOL also argued that while USDA asserted in the tentative final decision that limiting diversions on supplemental milk supplies would increase blend prices to the orders' dairy farmers, no analysis was provided to verify the claim. Additionally, LOL wrote that the record reveals the problem with diversions is greater in the Southeast marketing area and therefore unique marketing conditions call for unique provisions in each order.
The issue before USDA in this decision is the consideration of changes to the transportation credit and closely related provisions of the Appalachian and Southeast milk marketing orders. Transportation credit provisions have been a feature of the current orders (and their predecessor orders) since 1996. The need for transportation credit provisions arose from a consistent need to import milk from considerable distances to the marketing areas during certain months of the year when local milk production was not sufficient to meet Class I demands. Transportation credit provisions provide payments to handlers to cover a portion of the costs of hauling supplemental milk supplies into the Appalachian and Southeast marketing areas during the months of January, February, and July through December—a time period during which supplemental milk is needed to meet the demand for Class I milk at distributing plants.
The transportation credit provisions are designed to distinguish between producers who regularly supply the Appalachian and Southeast markets from producers who are
The record reveals that the Appalachian marketing area, and in particular, the Southeast marketing area, are chronically unable to meet Class I demands. Local milk production relative to demand has declined and is expected to continue declining. Consequently, local milk production is not always able to fulfill the Class I needs of the markets which necessitates the need for supplemental milk from distant locations. As local milk production has eroded, the volume of supplemental milk needed for fluid use has increased, while at the same time the distance from the marketing areas from which the supplies are obtained has increased. This development is particularly evident for the Southeast marketing area. These combined factors have caused the transportation credit balancing fund (TCBF) to be insufficient in covering requested transportation
While both marketing areas are able to supply the Class I needs of their respective markets during the spring “flush” months without the need for transportation credits, the record clearly indicates that both orders are unable to fully supply their fluid needs with local production during the last 6 months of the year. The chronic shortage of milk for fluid uses during this period has worsened over time, especially in the Southeast marketing area. Evidence shows that the trend of declining production relative to demand will result in an increased need for supplemental milk supplies and it is likely that this trend will continue into the foreseeable future.
Based on record evidence, this decision continues to find that the mileage rate factor (MRF) used to determine the payment of transportation credits should include a fuel cost adjustor as proposed in DFA's Proposal 3.
The original fixed mileage rate for both orders was $0.037 per cwt per mile when the transportation credit provisions were first established in 1996. The computation of the transportation credit payments was based on the total miles supplemental milk was shipped from its point of origination to its destination—the receiving pool distributing plant. In 1997, several amendments were made to the transportation credit provisions of the orders that included a reduction of the mileage rate from $0.037 per cwt per mile to the current $0.035 per cwt per mile.
Additional amendments made in 1997 to the transportation credit provisions specified the exclusion of the first 85 miles supplemental milk was hauled from farms in determining the total miles shipped. Additionally, the 1997 amendments eliminated the use of the orders' producer settlement fund as a source of revenue for the payment of transportation credits on supplemental milk when the TCBF was unable to pay net transportation credit claims. No other amendments have been made to the MRF used in the transportation credit provisions since 1997.
Proposal 3 adjusts the MRF accordingly with changes in the cost of diesel fuel. Specifically, the component factors used in the determination of the variable MRF used in the calculation of TCBF payments include: a monthly average diesel fuel price; a reference diesel fuel price; an average mile-per-gallon truck fuel use; a reference hauling cost per loaded mile; and a reference load size.
The Energy Information Administration (EIA) data for the United States and nine U.S. sub-regions are a reliable and reasonable data source to be used in the establishment of certain components required to determine a variable MRF. The data are representative of diesel fuel prices in the Appalachian and Southeast marketing orders and can be relied upon as a basis upon which adjustments to the MRF can be made. Reliance on EIA data, as it is independent and unbiased, will make determination of the MRF objective and uniformly applicable to all handlers.
The proponent's suggested that the use of the Lower Atlantic and Gulf Coast EIA regions in the computation of monthly mileage rates for the Appalachian and Southeast orders is reasonable. The record reveals that the Lower Atlantic and Gulf Coast regions best reflect the Appalachian and Southeast marketing areas geographically. Additionally, the record reflects that the diesel fuel prices reported for these two regions are among the lowest in the country. Hence, it is appropriate to utilize these geographically defined data sets in the mileage rate calculations.
The record reveals that fuel prices and other factors impacting hauling prices have increased greatly since the establishment of transportation credits. Specifically, the record indicates that current diesel fuel prices exceed those prices that prevailed when transportation credit provisions were first implemented in 1996 and amended in 1997. The national average diesel fuel prices in mid-1997 were reported to be approximately $1.15 to $1.17 per gallon, while the national average diesel fuel price in mid-2005 was reported to be $2.20 to $2.50 per gallon. Additionally, while diesel fuel prices have increased, all other costs impacting hauling have also increased. According to the record, EIA data indicates that hauling costs ranged from $1.75 to $1.80 per loaded mile in 1997 and were about $2.35 per loaded mile in January 2006. Establishing a reference diesel fuel price for the MRF calculation using the EIA retail diesel fuel prices from October to November 2003 data is reasonable. According to the EIA data, national average diesel fuel costs during this period demonstrated price stability relative to any other time between 1997 and 2005.
From October to November 2003, national diesel fuel prices fluctuated by only $0.001. Specifically, diesel fuel prices averaged $1.48125 per gallon in October 2003 and $1.48225 per gallon in November 2003. Similarly, the record shows that, for both the Lower Atlantic and Gulf Coasts, diesel fuel prices ranged from $1.4210 to $1.43075 per gallon between October and November 2003. The stability of diesel fuel prices during October to November 2003 supports this period as a reasonable point in time for use in determining a reference diesel fuel price. Therefore, the record supports using $1.42 per gallon as the reference diesel price in the MRF calculation.
Evidence submitted by SMA provides a basis for the determination of a reference average hauling cost per loaded mile as a component for determining the MRF. The evidence consisted of data randomly selected from actual hauler bills paid to cooperatives during October and November 2003, and October and November 2005. The record supports the use of hauling cost data from October and November 2003 as a basis for the calculation of a reference hauling cost in the MRF consistent with the time frame used for the reference diesel price.
The randomly selected hauling bills depict actual origination and destination points of the milk hauled, miles traveled, and the rates and fuel surcharges per loaded mile for each bill. For the month of October 2005, the data indicate that hauling costs ranged from $1.89 to $2.70 per loaded mile, with an average cost of $2.48 per loaded mile. Data also show that the simple average hauling rate charged per loaded mile in the Southeast marketing area was $1.9332 and $1.8913 in October and November 2003, respectively, yielding a two-month simple average cost of $1.9122 per loaded mile. Therefore, it is reasonable to conclude that a reference hauling rate of $1.91 per loaded mile be used as a component in the MRF calculations.
Another component needed in the calculation of the MRF is the average number of miles traveled per gallon of fuel used in transporting milk.
The record also supports the use of 48,000 pounds as a reasonable reference load size for determining the MRF. Data reveal that a 5,600 gallon tanker truck at maximum capacity can carry 48,160 pounds of milk. Therefore, 48,000 pounds is appropriate for use as the reference load size component in calculating the MRF.
Proposal 3 would calculate the MRF by averaging the four most recent weeks of weekly retail on-highway diesel prices for both the Lower Atlantic and Gulf Coast, as reported by the EIA. Record evidence supports announcing the monthly MRF at the same time as Advanced Class Prices, on or before the 23rd of the month. This way, handlers will know in advance the rate at which transportation credits will be paid.
Table 1 shows an example of the calculation of the MRF to be used in the transportation credit provisions:
Concern exists that relying on a variable MRF may result in reimbursing the total, rather than a portion, of the hauling costs on supplemental milk. In this regard, a variable MRF that is consistent and reflective of the original intent of the transportation credit provisions of the Appalachian and Southeast orders is necessary. As already discussed, approximately 94 to 95 percent of the total transportation costs on supplemental milk were covered by the TCBF payments for both orders in 1997. However, the record reveals that for 2005, 53 percent and 42 percent of the total transportation costs for the Appalachian and Southeast orders, respectively, were covered by TCBF payments.
Due to a number of unknown variables, it is not possible to predetermine the percent of the total transportation costs that will be reimbursed by TCBF payments. However, the transportation credit provisions already contain precautionary measures for how the MRF is calculated. The record indicates that reference diesel fuel prices and reference hauling costs per loaded mile are components of the mileage rate calculation and are based on 2003 data that are more current than the data considered and adopted in 1997 establishing a fixed mileage rate. Finally, current transportation credit provisions do not include the first 85 miles that supplemental milk is shipped from farms in determining the total miles shipped. This feature also plays a part to safeguard against excessive transportation credit payments.
This decision continues to find that the transportation credit assessment rate in the Appalachian order should be increased to $0.15 per cwt on all Class I milk pooled.
As discussed earlier in this decision, transportation credit provisions of the Appalachian and Southeast orders were originally established to partially offset the cost of transporting supplemental milk supplies into each marketing area to meet fluid milk demands. The transportation credit assessment rates have been increased twice in an effort to ensure that the TCBF would be sufficient to meet the expected claims. When first established for the Appalachian, Southeast, and predecessor orders (Orders 5, 7, 11 and 46), the maximum transportation credit assessment charged to Class I handlers was $0.06 per cwt for each order. The first increase, adopted in 1997, raised the maximum assessment by $0.005 per cwt for the Appalachian order and by $0.01 per cwt for the Southeast order.
The hearing record reveals that the Appalachian order was able to pay all transportation credit claims for every month since implementation through September 2004. For the remainder of 2004, the Appalachian Market Administrator began prorating the transportation credit payments.
Specifically, the record shows that for the Appalachian order, 41, 39, and 43 percent of the transportation credit claims were paid in October, November, and December of 2004, respectively. The Appalachian order paid 90 percent and 31 percent of the claims in September and October of 2005, respectively. Despite the assessment rate increase that became effective November 2005, the evidence indicates that only 58 percent of the transportation credit claims for the Appalachian order were paid. Table 2 below illustrates the percent paid from the TCBF for the Appalachian order:
The record demonstrates that at a transportation credit mileage rate of $0.0035 per cwt per mile, the TCBF assessment for Appalachian marketing area has been insufficient to pay all transportation credit claims, especially during the time when payment of credits was most needed. Preventing the prorating of the transportation credit reimbursement payments would have required a higher assessment rate. Evidence submitted by the SMA witness showed that the maximum transportation credit assessment rate for the Appalachian order would have needed to be $0.0889 and $0.0953 per cwt, for 2004 and 2005, respectively. Such evidence further supports the need to increase the transportation credit assessment rate.
The adoption of the variable MRF that is calculated and adjusted with changes in diesel fuel prices (as presented in Proposal 3), will most likely increase the current mileage rate of $0.035 per cwt per mile. Relying on EIA data, the record reveals that applying the calculated mileage rates to the months of July through December 2005 would have resulted in transportation credit mileage rates ranging from $0.0432 to$ 0.0461 per cwt per mile for both orders. If a transportation credit mileage reimbursement rate of $0.046 per cwt per mile had been in place, rather than the current rate of $0.035 cents per cwt, the maximum transportation credit assessments needed for the Appalachian order to ensure that the TCBF covered all claims, would have been $0.133 and $0.1415 per cwt for 2004 and 2005, respectively. This analysis supports concluding, and this final decision continues to find, that increasing the Appalachian order maximum transportation credit assessment rate, as contained in Proposal 1, by $0.055, to $0.15 per cwt is warranted.
Precautionary measures, which decrease the likelihood that the rate of assessments occurs in excess of actual handler claims, are currently provided for within the transportation credit provisions of the orders. The transportation credit provisions provide the market administrator the authority to reduce or waive assessments as necessary to maintain sufficient fund balances for the payment of the transportation credits requested. Therefore, increasing the maximum transportation credit assessment rate will not result in an accumulation of funds beyond what is needed to pay transportation credit claims and no additional precautionary measures are necessary beyond those currently provided.
The record supports concluding that local milk production is expected to continue declining within both marketing areas and will result in an even greater reliance on supplemental milk to meet the fluid milk needs of the
The intent of a proposal offered by Dean, published in the hearing notice as Proposal 4, seeks to provide a method to limit the amount of additional milk being pooled by diversion on the Appalachian and Southeast orders. As proposed, Dean's proposal would change the amount of transportation credits paid on eligible supplemental milk depending on the amount of milk delivered to plants other than pool distributing plants—this includes diversions to plants located outside of the marketing areas and deliveries to pool supply plants. Simply put, the greater the volume of diversions, the lower the amount of transportation credits paid. In this regard, Dean's proposal attempts to provide an incentive to limit diversions
The record reveals that the volume of supplemental milk needed to serve the Class I needs of the marketing areas has grown over time and is expected to continue growing. Supplemental milk is representing a greater percentage of the Southeast market's total Class I utilization. The record reveals that for the months of July through December, supplemental milk accounted for 16 percent of total Class I utilization in 2004. For 2005, such supplemental milk as a percent of total Class I utilization increased to 19 percent.
In addition, the record indicates that, for the Southeast marketing area, the monthly weighted average distance supplemental milk eligible to receive transportation credits traveled ranged from 578 to 627 miles, during July through December 2000. During July through November 2005, the weighted average distance increased, ranging from 682 to 755 miles. The amount of supplemental milk receiving transportation credits during 2005 was nearly 686 million pounds. In 2000 and 2004 the amounts were 363 million and 541 million, respectively. This represents an 89 percent increase in the amount of supplemental milk receiving transportation credits from 2000 to 2005 and a 27 percent increase since 2004.
For the Southeast order, the record reveals that total diversions at locations outside of the Appalachian and Southeast marketing areas totaled 883.4 million pounds in 2004. Total diversions outside of the marketing areas for 2005, not including the months of November and December, were 965.6 million pounds, an increase of 9.3 percent from 2004. Such data for November and December 2005 are not contained in the record. For the months of January through June, when transportation credits
It is reasonable to conclude that diversions outside the Appalachian and Southeast marketing areas are most likely attributed to supplemental milk that is eligible to receive transportation credits. The record reveals that for the Southeast marketing area, the 27 percent increase in the amount of milk receiving transportation credits from 2004 through 2005 corresponds with the 27 percent increase of diversions outside the marketing areas between 2004 and 2005. It is also reasonable to conclude from the record that it is in the interest of the handler supplying supplemental milk, and in this case, the cooperatives in their capacity as handlers, to maximize the value of diversions. Doing so would require pooling the maximum amount of diverted milk to the closest location from where supplemental milk was sourced. Therefore, relying on data provided by the Market Administrator for the Southeast marketing area for the months when transportation credits are available, the calculated total maximum diverted pounds associated with supplemental milk would have totaled over 178 million pounds in 2004, and over 226 million pounds in 2005. On the basis of these calculations, an estimate of diversions attributed to supplemental milk is 64 percent of total diversions for both 2004 and 2005, ranging from 56 percent to 77 percent of the total known diversions outside the marketing areas.
The contribution from diversions associated with supplemental milk as compared to total outside diversions is nearly three times greater than the contribution of the supplemental milk to Class I utilization. As previously discussed, for 2004 and 2005, supplemental milk represented about 15.9 and 19 percent, respectively, of total Class I utilization. However, estimated diversions attributable to supplemental milk represent approximately 64 percent of total diversions. Clearly, not only do transportation credits offset the costs of hauling supplemental milk to the markets, they also contribute to pooling much more milk on the orders through the diversion process.
For the Appalachian order, data contained in the record is much more limited for determining the diversions arising from transportation credit eligible supplemental milk. What can be reasonably concluded is that the pooling of diverted milk linked to supplemental milk is not occurring on nearly the magnitude as is the case for the Southeast order. For the Appalachian order, evidence indicates that total diversions at locations outside of the Appalachian and Southeast marketing areas, for the time period of January through June, increased by 64.4 percent from 2004 to 2005. Total diversions from the time period of July through November, when transportation credits are available, decreased over 20 percent from 2004 to 2005.
For the Appalachian order, only 2 months of data—October and November 2005—is available to estimate the maximum diversions that could be associated with supplemental milk. Relying on Appalachian Market Administrator data, it is estimated that the maximum diversions from transportation credit eligible milk during October and November 2005 were approximately 34 percent and 28 percent, respectively, of the total diversions at locations outside the Appalachian and Southeast marketing areas. Supplemental milk on the Appalachian order for October and
Pooling the diversions of this milk differs from pooling diverted milk that is part of the regular supply of milk of the marketing area. Pooling diverted milk associated with transportation credit eligible supplemental milk, allows more milk to be pooled on the order than normal. Pooling this milk is different than pooling milk that is part of the regular supply for the marketing area. The difference is that producers of milk eligible to receive transportation credits
Pooling diverted milk arising from supplemental milk eligible to receive transportation credits not only offsets the intended benefit of increasing the supply of milk for fluid uses, it also lowers blend prices to those producers who regularly and consistently supply the Class I needs of the markets. Higher blend prices provide important economic signals—the incentive to: (1) Continue supplying the markets; (2) increase local production; and (3) attract the milk of producers to become regular and consistent suppliers.
Lowering blend prices received by producers who regularly supply the markets relative to producers who supply supplemental milk sends contradictory pricing signals. Lower blend prices do not send the proper price signals to local producers to increase local production or to continue supplying the Class I needs of the markets. Furthermore, lower blend prices fail to create the price signals necessary to attract a regular and consistent milk supply.
The availability of transportation credits on supplemental milk has clearly provided a platform to pool additional diverted milk at locations distant to the marketing areas. Milk diverted from supplemental producers is more likely to be diverted at locations far from the marketing areas. The record reveals that suppliers of the supplemental milk to the Appalachian and Southeast marketing areas pool diverted milk at locations as far away as California and Utah. Supplemental milk suppliers benefit in three ways: (1) Receiving reimbursement for costs of transporting milk to the deficit markets; (2) receiving cost savings from the diverted milk not transported to the marketing areas; and (3) receiving higher blend prices on the diverted milk that would have otherwise been pooled on a different order with a typically lower blend price.
The pooling of milk that is not part of the regular and consistent supply of milk which serves the Class I needs of the market is contradictory to the intent of an order's pooling standards and provisions. The pooling standards of the orders serve to identify the milk of producers who regularly and consistently serve the Class I needs of the marketing areas. Pooling milk that is available but not immediately needed for Class I use is provided through diversion limit standards. Diversion limit standards provide the criteria for determining how much additional milk can be pooled on the orders. Diverted milk in this context reflects the legitimate reserve supply of milk available to serve the Class I needs of the marketing areas and, therefore, receives the blend price of the orders.
Since implementation of Federal milk order reform, there have been many formal rulemakings that have amended orders to more properly identify the milk of producers which should and should not be pooled on the orders. The milk of producers who are the consistent and reliable suppliers serving the Class I needs of the market should be pooled even when it is not immediately needed for Class I use. However, this foundational principle of orderly marketing in milk marketing orders is essentially disregarded for 6 months each year when the orders allow the pooling of diverted milk from producers who are specifically identified as not being “producers” under either of the orders.
The lowering of blend prices by pooling such diverted milk is an unintended outcome not foreseen when the transportation credit provisions of the Appalachian and Southeast orders were implemented and amended. As the blend prices are reduced so is the incentive for local milk production. The markets become less capable of supplying their own Class I needs and supplemental milk supplies needed to meet Class I needs are not likely to be supplied without reliance on additional transportation credits.
The pooling of diverted milk associated with supplemental milk would seem to offer substantial benefits to cooperative suppliers. The record reveals that when transportation credits were first implemented, well over 90 percent of hauling costs were offset. The record further reveals that more recent conditions suggest that only about 45 percent is being reimbursed. This clearly represents a burden borne by the cooperatives supplying supplemental milk.
Pooling diverted milk at locations far from the marketing areas based on supplemental milk eligible to receive transportation credits would provide additional revenue to help offset hauling costs not covered by the current transportation credit assessment rates. This diverted milk receives the blend price of the order where it is pooled. The benefit is that the blend price received on such diverted milk, on either the Appalachian or Southeast order, is historically higher than the price the milk would otherwise receive.
As presented above, this final decision adopts a variable mileage rate factor that will reimburse hauling costs at a level more reflective of actual costs, in addition to a significantly higher transportation credit assessment. To the extent that it is necessary to offset the higher costs of transporting supplemental milk, the adoption of a variable MRF and the increase in the transportation credit assessment rates should significantly reduce or eliminate the need to seek generating revenue to offset hauling costs at the expense of the producers who are regularly and consistently supplying milk to meet the Class I needs of the two marketing areas.
LOL took exception with the proposed zero diversion limit standard arguing that it would shift the burden of balancing the southeastern markets' seasonal milk needs onto the markets' supplemental milk suppliers. LOL also argued that USDA should provide an analysis to verify that adoption of this standard would, in fact, increase the orders' blend prices.
The transportation credit provisions of the Southeast and Appalachian orders are designed to attract supplemental milk supplies for Class I use when the orders' regular supplies cannot meet demand. Supplemental suppliers choose to provide this service and are subsequently compensated by receiving the orders' blend price and the ability to receive a transportation credit to reimburse them for part of the hauling cost. If, at any time, a supplemental supplier does not believe they are adequately compensated for their service, they may cease providing supplemental supplies. This decision continues to find that allowing milk diversions on supplemental milk supplies receiving a transportation credit lowers the TCBF monies available to supplemental milk loads that are actually delivered to the southeastern markets, and ultimately decreases the blend price paid to the orders' producers. A quantitative assessment is
Briefs, proposed findings, and conclusions were filed on behalf of certain interested parties. These briefs, proposed findings, conclusions, and the evidence in the record were considered in making the findings and conclusions set forth above. To the extent that the suggested findings and conclusions filed by interested parties are inconsistent with the findings and conclusions set forth herein, the claims to make such findings or reach such conclusions are denied for the reasons previously stated in this decision.
The findings and determinations hereinafter set forth supplement those that were made when the Appalachian and Southeast orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
The following findings are hereby made with respect to the aforesaid marketing agreements and orders:
(a) The tentative marketing agreements and the orders, as hereby proposed to be amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2 of the Act are not reasonable with respect to the price of feeds, available supplies of feeds, and other economic conditions that affect market supply and demand for milk in the marketing area, and the minimum prices specified in the tentative marketing agreements and the orders, as hereby proposed to be amended, are such prices as will reflect the aforesaid factors, ensure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(c) The tentative marketing agreements and the orders, as hereby proposed to be amended, will regulate the handling of milk in the same manner as, and will be applicable only to persons in the respective classes of industrial and commercial activity specified in, the marketing agreements upon which a hearing have been held.
In arriving at the findings and conclusions, and the regulatory provisions of this decision, each of the exceptions received was carefully and fully considered in conjunction with the record evidence. To the extent that the findings and conclusions and the regulatory provisions of this decision are at variance with any of the exceptions, such exceptions are hereby overruled for the reasons previously stated in this decision.
Annexed hereto and made a part hereof are two documents—a Marketing Agreement regulating the handling of milk and an Order amending the order regulating the handling of milk in the Appalachian and Southeast marketing areas, that was approved by producers and published in the
The month of July 2013 is hereby determined to be the representative period for the purpose of ascertaining whether the issuance of the order, as amended and as hereby proposed to be amended, regulating the handling of milk in the Appalachian and Southeast marketing areas is approved or favored by producers, as defined under the terms of the order as hereby proposed to be amended, who during such representative period were engaged in the production of milk for sale within the aforesaid marketing area.
Milk Marketing Orders.
This order shall not become effective until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.
The findings and determinations hereinafter set forth supplement those that were made when the orders were first issued and when they were amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.
(a)
Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1) The said orders as hereby amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(2) The parity prices of milk, as determined pursuant to section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the aforesaid marketing areas. The minimum prices specified in the orders as hereby amended are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(3) The said orders as hereby amended regulate the handling of milk in the same manner as, and are applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held.
For the reasons set forth in the preamble, 7 CFR parts 1005 and 1007 are proposed to be amended as follows:
7 U.S.C. 601–674, and 7253.
(d) * * *
(3) The total quantity of milk so diverted during the month by a
(4) The operator of a pool plant that is not a cooperative association may divert any milk that is not under the control of a cooperative association that diverts milk during the month pursuant to paragraph (d) of this section. The total quantity of milk so diverted during the month shall not exceed 25 percent during the months of July through November, January, and February, and 35 percent during the months of December and March through June, of the producer milk physically received at such plant (or such unit of plants in the case of plants that pool as a unit pursuant to § 1005.7(d) during the month, excluding the quantity of producer milk received from a handler described in § 1000.9(c) of this chapter and excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in § § 1005.82(c)(2)(ii) and (iii), and for which a transportation credit is requested;
(a) On or before the 12th day after the end of the month (except as provided in § 1000.90 of this chapter), each handler operating a pool plant and each handler specified in § 1000.9(c) shall pay to the market administrator a transportation credit balancing fund assessment determined by multiplying the pounds of Class I producer milk assigned pursuant to § 1005.44 by $0.15 per hundredweight or such lesser amount as the market administrator deems necessary to maintain a balance in the fund equal to the total transportation credits disbursed during the prior June–February period. In the event that during any month of the June–February period the fund balance is insufficient to cover the amount of credits that are due, the assessment should be based upon the amount of credits that would had been disbursed had the fund balance been sufficient.
(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90) the assessment pursuant to paragraph (a) of this section for the following month.
(d) * * *
(2) * * *
(ii) Multiply the number of miles so determined by the mileage rate for the month computed pursuant to § 1005.83(a)(6);
(3) * * *
(iv) Multiply the remaining miles so computed by the mileage rate for the month computed pursuant to § 1005.83(a)(6);
(a) The market administrator shall compute a mileage rate each month as follows:
(1) Compute the simple average rounded to three decimal places for the most recent four (4) weeks of the Diesel Price per Gallon as reported by the Energy Information Administration of the United States Department of Energy for the Lower Atlantic and Gulf Coast Districts combined.
(2) From the result in paragraph (a)(1) in this section subtract $1.42 per gallon;
(3) Divide the result in paragraph (a)(2) of this section by 5.5, and round down to three decimal places to compute the fuel cost adjustment factor;
(4) Add the result in paragraph (a)(3) of this section to $1.91;
(5) Divide the result in paragraph (a)(4) of this section by 480;
(6) Round the result in paragraph (a)(5) of this section down to five decimal places to compute the mileage rate.
(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the mileage rate pursuant to paragraph (a) of this section for the following month.
(d) * * *
(3) The total quantity of milk diverted during the month by a cooperative association shall not exceed 25 percent during the months of July through November, January, and February, and 35 percent during the months of December and March through June, of the producer milk that the cooperative association caused to be delivered to, and physically received at, pool plants during the month, excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in section 1007.82(c)(2)(ii) and (iii), and for which a transportation credit is requested;
(4) The operator of a pool plant that is not a cooperative association may divert any milk that is not under the control of a cooperative association that diverts milk during the month pursuant to paragraph (d) of this section. The total quantity of milk so diverted during the month shall not exceed 25 percent during the months of July through November, January and February, and 35 percent during the months of December and March through June of the producer milk physically received at such plant (or such unit of plants in the case of plants that pool as a unit pursuant to § 1007.7(e)) during the month, excluding the quantity of producer milk received from a handler described in § 1000.9(c) of this chapter, excluding the total pounds of bulk milk received directly from producers meeting the conditions as described in section 1007.82(c)(2)(ii) and (iii), and for which a transportation credit is requested.
(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the assessment pursuant to paragraph (a) of this section for the following month.
(d) * * *
(2) * * *
(ii) Multiply the number of miles so determined by the mileage rate for the month computed pursuant to § 1007.83(a)(6); * * * * *
(3) * * *
(iv) Multiply the remaining miles so computed by the mileage rate for the month computed pursuant to § 1007.83(a)(6);
(a) The market administrator shall compute the mileage rate each month as follows:
(1) Compute the simple average rounded to three decimal places for the most recent 4 weeks of the Diesel Price per Gallon as reported by the Energy Information Administration of the United States Department of Energy for the Lower Atlantic and Gulf Coast Districts combined.
(2) From the result in paragraph (a)(1) in this section subtract $1.42 per gallon;
(3) Divide the result in paragraph (a)(2) of this section by 5.5, and round down to three decimal places to compute the fuel cost adjustment factor;
(4) Add the result in paragraph (a)(3) of this section to $1.91;
(5) Divide the result in paragraph (a)(4) of this section by 480;
(6) Round the result in paragraph (a)(5) of this section down to five decimal places to compute the MRF.
(b) The market administrator shall announce publicly on or before the 23rd day of the month (except as provided in § 1000.90 of this chapter) the mileage rate pursuant to paragraph (a) of this section for the following month.
[This marketing agreement will not appear in the Code of Federal Regulations.]
The parties hereto, in order to effectuate the declared policy of the Act, and in accordance with the rules of practice and procedure effective thereunder (7 CFR part 900), desire to enter into this marketing agreement and do hereby agree that the provisions referred to in paragraph I hereof, as augmented by the provisions specified in paragraph II hereof, shall be and are the provisions of this marketing agreement as if set out in full herein.
I. The findings and determinations, order relative to handling, and the provisions of § __ to __
II. The following provisions: § __
(a) Record of milk handled. The undersigned certifies that he/she handled during the month of ___,
(b) Authorization to correct typographical errors. The undersigned hereby authorizes the Deputy Administrator, or Acting Deputy Administrator, Dairy Programs, Agricultural Marketing Service, to correct any typographical errors which may have been made in this marketing agreement.
Effective date. This marketing agreement shall become effective upon the execution of a counterpart hereof by the Department in accordance with Sec. 900.14(a) of the aforesaid rules of practice and procedure.
In Witness Whereof, The contracting handlers, acting under the provisions of the Act, for the purposes and subject to the limitations herein contained and not otherwise, have hereunto set their respective hands and seals.
Nuclear Regulatory Commission.
Draft interim staff guidance; withdrawal.
The U.S. Nuclear Regulatory Commission (NRC) is announcing the withdrawal of draft Spent Fuel Storage and Transportation Interim Staff Guidance No. 26A (SFST–ISG–26A), Revision 0, “Shielding and Radiation Protection Review Effort and Licensing Parameters for 10 CFR Part 72 Applications.”
The withdrawal is effective as of March 7, 2014.
Please refer to Docket ID NRC–2013–0051 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document using any of the following methods:
•
•
•
Mr. Michel Call, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9183; email:
Draft SFST–ISG–26A proposed guidance for the NRC staff to use when reviewing the shielding and radiation protection portions of applications for certificates of compliance (CoC), specific licenses, and amendments
The staff began writing draft SFST–ISG–26A as a response to an event involving the use of a high dose-rate transfer cask. Its first intent was to provide reviewers guidance on how to review these systems. The scope had been expanded to also provide NRC reviewers with guidance on performing graded reviews based on system dose rates which modify the review “priority” as defined in NUREG–1536. The staff developed this part of the ISG in response to industry comments regarding the amount of details the staff reviewed in response to a 10 CFR part 72 license, certificate or amendment application.
The staff published a notice of opportunity for public comment on draft SFST–ISG–26A in the
The staff considered the comments and has decided to defer pursuing action on the draft ISG. Thus, draft SFST–ISG–26A is being withdrawn. From the comments received, the staff concluded that the guidance as written is not clear and would require substantial revision to be well understood as well as meet the needs of the staff. Although the staff still finds that guidance regarding the issues addressed in draft SFST–ISG–26A would be useful, especially in relation to high dose-rate transfer casks, there are recent developments that also touch on some of these issues that the staff finds are appropriate to pursue in lieu of the ISG. This includes the staff's consideration of a petition to make changes to 10 CFR Part 72 (PRM–72–7) and the staff's consideration of an update to NUREG–1745, “Standard Format and Content for Technical Specifications for 10 CFR part 72 Cask Certificates of Compliance.”
The staff finds withdrawing the draft ISG is appropriate considering the initiating event that caused the staff to write draft SFST–ISG–26A has thus far been an isolated event from several years ago, and the staff has not seen any applications for the use of high dose-rate transfer casks since then. However, the staff will continue to monitor for events or actions (particularly those involving transfer casks) that may indicate there is a need for the ISG prior to completion of, or in addition to, the other efforts.
With regard to the review procedure priority levels, the staff currently finds that the generic priority levels in NUREG–1536 sufficiently meet the staff's commitment of ensuring the appropriate level of effort for these reviews. However, the staff will also monitor the use of these procedures to determine any further need for enhancement.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 series airplanes; Model A300 B4–600, B4–600R, and F4–600R series airplanes; Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes); and Model A310 series airplanes. This proposed AD was prompted by reports of rupture of the uplock springs of the nose landing gear (NLG) and main landing gear (MLG) doors and legs. This proposed AD would require repetitive inspections of the uplock springs of the NLG and MLG doors and legs for broken and damaged springs, and corrective actions if necessary. We are proposing this AD to detect and correct improper free fall extension of the MLG or NLG, which could lead to possible loss of control of the airplane on the ground, and consequent damage to the airplane and injury to occupants.
We must receive comments on this proposed AD by April 21, 2014.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
•
•
•
For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA,
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 2013–0150, dated July 16, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Some cases of Nose Landing Gear (NLG) and Main Landing Gear (MLG) Door and Leg Uplock spring ruptures on A300, A310 or A300–600 aeroplanes have been reported in service.
Springs within the uplock are used to either lock the gear or the door in the up position, or to participate in emergency mechanical unlocking.
The springs are positioned in pairs, and in case of rupture of one spring the other one remains to fulfill the function, whereas the rupture of both springs will disable the locking function or the emergency unlocking function.
This condition, if not detected and corrected, could prevent proper free fall extension of the MLG or NLG, possibly leading to loss of control of the aeroplane on the ground, consequently resulting in damage to the aeroplane and injury to occupants.
For the reason described above, this [EASA] AD requires [repetitive] detailed visual inspection[s] of the NLG and MLG Door and Leg Uplock springs [for broken and damaged springs] and, depending of findings, their replacement.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Mandatory Service Bulletins A300–32–0465, A300–32–6111, and A310–32–2147, all Revision 01, all dated April 25, 2013. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 156 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
In addition, we estimate that any necessary replacement would take about 9 work-hours for a cost of $765 per product. The cost of parts is minimal. We have no way of determining the number of aircraft that might need this action.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. 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.
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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 21, 2014.
None.
This AD applies to the Airbus airplanes specified in paragraphs (c)(1), (c)(2), (c)(3), (c)(4), (c)(5), and (c)(6) of this AD; certificated in any category; all serial numbers.
(1) Model A300 B2–1A, B2–1C, B2K–3C, B2–203, B4–2C, B4–103, and B4–203 airplanes.
(2) Model A300 B4–601, B4–603, B4–620, and B4–622 airplanes.
(3) Model A300 B4–605R and B4–622R airplanes.
(4) Model A300 F4–605R and F4–622R airplanes.
(5) Model A300 C4–605R Variant F airplanes.
(6) Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of rupture of the uplock springs of the nose landing gear (NLG) and main landing gear (MLG) doors and legs. We are issuing this AD to detect and correct improper free fall extension of the MLG or NLG, which could lead to possible loss of control of the airplane on the ground, and consequent damage to the airplane and injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 18 months after the effective date of this AD: Perform a detailed inspection of the uplock springs of the MLG and NLG legs and doors for broken and damaged springs, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD. Repeat the inspection thereafter at intervals not to exceed 18 months.
(1) Airbus Mandatory Service Bulletin A300–32–0465, Revision 01, dated April 25, 2013 (for Model A300 series airplanes).
(2) Airbus Mandatory Service Bulletin A300–32–6111, Revision 01, dated April 25, 2013 (for Model A300–600 series airplanes).
(3) Airbus Mandatory Service Bulletin A310–32–2147, Revision 01, dated April 25, 2013 (for Model A310 series airplanes).
The corrective actions required by paragraphs (h)(1), (h)(2), and (h)(3) of this AD do not constitute terminating actions for the repetitive inspections required by paragraph (g) of this AD.
(1) If, during any inspection required by paragraph (g) of this AD, one spring on the MLG or NLG door uplock is found broken or damaged, within 2 months after the inspection, replace the affected MLG or NLG door uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(2) If, during any inspection required by paragraph (g) of this AD, one spring on the MLG or NLG leg uplock is found broken or damaged, repeat the inspection required by paragraph (g) of this AD thereafter at intervals not to exceed 50 flight cycles. Replacement of any affected leg uplock, as required by paragraph (h)(2)(i) or (h)(2)(ii) of this AD, as applicable, constitutes terminating action for the repetitive inspections required by paragraph (h)(2) of this AD.
(i) If, during any inspection required by paragraph (h)(2) of this AD, the second free fall spring on the MLG or NLG leg uplock is found broken or damaged, before further flight, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(ii) Within 1,000 flight cycles after doing the inspection required by paragraph (g) of this AD during which the spring has been found broken, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(3) If, during any inspection required by paragraph (g) of this AD, two free fall springs on the same MLG or NLG leg uplock are found broken or damaged, before further flight, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
This paragraph provides credit for the applicable actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraph (i)(1), (i)(2), or (i)(3) of this AD.
(1) Airbus Mandatory Service Bulletin A300–32–0465, dated July 20, 2012.
(2) Airbus Mandatory Service Bulletin A300–32–6111, dated July 20, 2012.
(3) Airbus Mandatory Service Bulletin A310–32–2147, dated July 20, 2012.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency Airworthiness Directive 2013–0150, dated July 16, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Occupational Safety and Health Administration (OSHA), Labor.
Request for information; extension of comment period.
The Occupational Safety and Health Administration (OSHA) is extending the deadline for submitting comments on the Request for Information on Process Safety Management and Prevention of Major Chemical Accidents.
The comment due date for the proposed rule published in the
Submit comments and additional material using any of the following methods:
OSHA published a request for information (RFI) on December 09, 2013, on Process Safety Management and Prevention of Major Chemical Accidents (78 FR 73756) in response to Section 6(e) of Executive Order 13650: Improving Chemical Facility Safety and Security. The RFI notice requested comments by March 10, 2014. Section 6(a) of the Executive Order requests public input on options for policy, regulation, and standards modernization. The comment period for Section 6(a) runs until March 31, 2014. OSHA received comments from several stakeholders who are preparing responses to the Section 6(a) docket, as well as comments in response to the RFI. These stakeholders noted that much of the subject matter in Section 6(a) is similar to the subject matter addressed by the RFI. Accordingly, the stakeholders requested that the deadline for submitting comments to the RFI correspond to the deadline for the Section 6(a) comment period, which is March 31, 2014, thereby allowing them to prepare complete and accurate comments for both records. Therefore, to allow commenters adequate time to prepare complete and accurate comments to the RFI, OSHA is, with this notice, extending the deadline for submitting comments in response to the RFI to March 31, 2014.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice pursuant to 29 U.S.C. 653, 655, 657, 40 U.S.C. 333, 33 U.S.C. 941, Secretary of Labor's Order No. 1–2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR part 1911.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing uses that
Comments must be submitted by April 21, 2014. Any party requesting a public hearing must notify the contact person listed below by 5 p.m. Eastern Standard Time on March 12, 2014. If a hearing is requested it will be held on March 24, 2014. EPA will post information regarding a hearing, if one is requested, on the Ozone Protection Web site
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2014–0065, by one of the following methods:
•
•
•
•
•
•
For further information about this proposed rule, contact Jeremy Arling by telephone at (202) 343–9055, or by email at
This proposed rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critical uses during calendar years 2014 and 2015. Under the Clean Air Act, methyl bromide consumption (consumption is defined under section 601 of the CAA as production plus imports minus exports) and production were phased out on January 1, 2005, apart from allowable exemptions, such as the critical use and the quarantine and preshipment (QPS) exemptions. With this action, EPA is proposing and seeking comment on the uses that will qualify for the critical use exemption as well as specific amounts of methyl bromide that may be produced and imported for proposed critical uses for the 2014 and 2015 control periods. EPA also seeks comment on the amendments to the regulatory framework to remove provisions related to sale of pre-phaseout inventory for critical uses.
Entities and categories of entities potentially regulated by this proposed action include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2014 and 2015 critical use exemption including growers of vegetable crops, fruits, and nursery stock, and owners of stored food commodities and structures such as grain mills and processors. This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this proposed action. To determine whether your facility, company, business, or organization could be regulated by this proposed action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• 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.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Methyl bromide is an odorless, colorless, toxic gas which is used as a broad-spectrum pesticide and is controlled under the CAA as a Class I ozone-depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information on methyl bromide can be found at
Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as well as by States under their own statutes and regulatory authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and State requirements governing their sale, distribution, and use. Nothing in this proposed rule implementing Title VI of the Clean Air Act is intended to derogate from provisions in any other Federal, State, or local laws or regulations governing actions including, but not limited to, the sale, distribution, transfer, and use of methyl bromide. Entities affected by this proposal must comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distributing, transferring, or using methyl bromide. The provisions in this proposed action are intended only to implement the CAA restrictions on the production, consumption, and use of methyl bromide for critical uses exempted from the phaseout of methyl bromide.
The regulatory requirements of the stratospheric ozone protection program that limit production and consumption of ozone-depleting substances are in 40 CFR part 82, subpart A. The regulatory program was originally published in the
Methyl bromide was added to the Protocol as an ozone-depleting substance in 1992 through the Copenhagen Amendment to the Protocol. The Parties to the Montreal Protocol (Parties) agreed that each developed country's level of methyl bromide production and consumption in 1991 should be the baseline for establishing a freeze on the level of methyl bromide production and consumption for developed countries. EPA published a final rule in the
At the Seventh Meeting of the Parties (MOP) in 1995, the Parties agreed to adjustments to the methyl bromide control measures and agreed to reduction steps and a 2010 phaseout date for developed countries with exemptions permitted for critical uses. At that time, the United States continued to have a 2001 phaseout date in accordance with section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to further adjustments to the phaseout schedule for methyl bromide in developed countries, with reduction steps leading to a 2005 phaseout. The Parties also established a phaseout date of 2015 for Article 5 countries.
In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to align the U.S. phaseout of methyl bromide with the schedule specified under the Protocol, and to authorize EPA to provide certain exemptions. These amendments were contained in Section 764 of the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 105–277, October 21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl bromide production and consumption in a rulemaking on November 28, 2000 (65 FR 70795), which allowed for the reduction in methyl bromide consumption specified under the Protocol and extended the phaseout to 2005 while creating a placeholder for critical use exemptions. EPA amended the regulations to allow for an exemption for quarantine and preshipment (QPS) purposes through an interim final rule on July 19, 2001 (66 FR 37751), and a final rule on January 2, 2003 (68 FR 238).
On December 23, 2004 (69 FR 76982), EPA published a rule (the “Framework Rule”) that established the framework for the critical use exemption, set forth a list of approved critical uses for 2005, and specified the amount of methyl bromide that could be supplied in 2005 from stocks and new production or import to meet the needs of approved critical uses. EPA subsequently published rules applying the critical use exemption framework for each of the annual control periods from 2006 to 2012. In the 2013 rule, EPA amended the framework to remove certain requirements related to sale of pre-phaseout inventory for critical uses.
Under authority of section 604(d)(6) of the CAA, EPA is proposing the uses that will qualify as approved critical uses for two separate control periods (2014 and 2015) as well as the amount of methyl bromide that may be produced or imported to satisfy those uses in each of those years. EPA is also proposing to amend the regulatory framework to remove additional provisions related to sale of pre-phaseout inventory for critical uses. The proposed critical uses and amounts for 2014 reflect Decision XXIV/5, taken at the Twenty-Fourth Meeting of the Parties in November 2012. The proposed critical uses and amounts for 2015 reflect Decision XXV/4, taken at the Twenty-Fifth Meeting of the Parties in October 2013.
In accordance with Article 2H(5) of the Montreal Protocol, the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of critical uses. The status of Decisions is addressed in
Article 2H of the Montreal Protocol established the critical use exemption provision. At the Ninth Meeting of the Parties in 1997, the Parties established the criteria for an exemption in Decision IX/6. In that Decision, the Parties agreed that “a use of methyl bromide should qualify as `critical' only if the nominating Party determines that: (i) The specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption; and (ii) there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances of the nomination.” EPA promulgated these criteria in the definition of “critical use” at 40 CFR 82.3. In addition, the Parties decided that production and consumption, if any, of methyl bromide for critical uses should be permitted only if a variety of conditions have been met, including that all technically and economically feasible steps have been taken to minimize the critical use and any associated emission of methyl bromide, that research programs are in place to develop and deploy alternatives and substitutes, and that methyl bromide is not available in sufficient quantity and quality from existing stocks of banked or recycled methyl bromide.
EPA requested critical use exemption applications through
EPA reviews the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economically feasible alternatives available for a particular use of methyl bromide, and whether there would be a significant market disruption if no exemption were available. In addition, an interagency workgroup reviews other parameters of the exemption applications such as dosage and emissions minimization techniques and applicants' research or transition plans. As required in section 604(d)(6) of the CAA, for each exemption period, EPA consults with the United States Department of Agriculture (USDA) and other departments and institutions of the Federal government that have regulatory authority related to methyl bromide. This assessment process culminates in the development of the U.S. critical use nomination (CUN). Annually since 2003, the U.S.
On January 31, 2012, the United States submitted the tenth
On January 24, 2013, the United States submitted the eleventh
The December 23, 2004, Framework Rule established the framework for the critical use exemption program in the United States, including definitions, prohibitions, trading provisions, and recordkeeping and reporting obligations. The preamble to the Framework Rule included EPA's determinations on key issues for the critical use exemption program.
Since publishing the Framework Rule, EPA has annually promulgated regulations to exempt specific quantities of production and import of methyl bromide, to determine the amounts that may be supplied from pre-phaseout inventory, and to indicate which uses meet the criteria for the exemption program for that year. See 71 FR 5985 (February 6, 2006), 71 FR 75386 (December 14, 2006), 72 FR 74118 (December 28, 2007), 74 FR 19878 (April 30, 2009), 75 FR 23167 (May 3, 2010), 76 FR 60737 (September 30, 2011), 77 FR 29218 (May 17, 2012), and 78 FR 43797 (July 22, 2013).
Unlike in previous years, EPA today proposes critical uses for both 2014 and 2015. EPA is proposing to do so to expedite the issuance of 2015 allowances. EPA has received repeated comments in recent years that a failure to issue CUE allowances in a timely fashion places manufacturers and distributors, who need to plan for the upcoming growing season, in a difficult position. For 2013, the final rule was not effective until July 22, 2013, and EPA recognizes that this late date could cause difficulties for growers as well as manufacturers and distributors. EPA seeks to avoid such difficulties for 2015 by issuing the authorization for that year in this rulemaking.
Today's proposed action continues the approach established in the 2013 rule for determining the amounts of Critical Use Allowances (CUAs) to be allocated for critical uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 kilogram (kg) of methyl bromide for an approved critical use during the specified control period. A control period is a calendar year. See 40 CFR 82.3. The two control periods at issue in this rule are 2014 and 2015. Each year's allowances expire at the end of that control period and, as explained in the Framework Rule, are not bankable from one year to the next.
The 2013 Rule also removed from the regulatory framework the restriction that limits the sale of inventory for critical uses through allocations of Critical Stock Allowances (CSA). A CSA was the right granted through 40 CFR part 82 to sell 1 kg of methyl bromide from inventory produced or imported prior to the January 1, 2005, phaseout date for an approved critical use during the specified control period. Under the framework, the sale of pre-phaseout inventories for critical uses in excess of the amount of CSAs held by the seller was prohibited. Today, EPA is proposing to remove all of the remaining provisions in 40 CFR part 82 related to critical stock allowances.
In Decision XXIV/5, taken in November 2012, the Parties to the Protocol agreed “to permit, for the agreed critical-use categories for 2014 set forth in table A of the annex to the present decision for each party, subject to the conditions set forth in the present decision and in decision Ex.I/4 to the extent that those conditions are applicable, the levels of production and consumption for 2014 set forth in table B of the annex to the present decision, which are necessary to satisfy critical uses . . .” The following uses are those set forth in table A of the annex to Decision XXIV/5 for the United States:
In Decision XXV/4, taken in October 2013, the Parties to the Protocol agreed “[t]o permit, for the agreed critical-use categories for 2015 set forth in table A of the annex to the present decision for each party, subject to the conditions set forth in the present decision and in decision Ex.I/4 to the extent that those conditions are applicable, the levels of production and consumption for 2015 set forth in table B of the annex to the present decision, which are necessary to satisfy critical uses . . .” The following uses are those set forth in table A of the annex to Decision XXV/4 for the United States:
EPA is proposing to modify the table in 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use categories identified in Decision XXIV/5 and Decision XXV/4. EPA is proposing to amend the table of critical uses and critical users based on the authorizations in Decision XXIV/5 and Decision XXV/4 and the technical analyses contained in the 2014 and 2015 U.S. nominations that assess data
EPA is seeking comment on the technical analyses contained in the U.S. nominations (available for public review in the docket). Specifically, EPA requests information regarding any changes to the registration (including cancellations or registrations), use, or efficacy of alternatives that have occurred after the nominations were submitted. EPA recognizes that as the market for alternatives evolves, the thresholds for what constitutes “significant market disruption” or “technical and economic feasibility” may change. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the analysis that underpins EPA's determination as to which uses and what amounts of methyl bromide qualify for the CUE.
The following are proposed changes to the existing appendix, starting with changes due to the applications and analysis conducted for the 2014 control period. For 2014, EPA is proposing to remove Georgia growers of cucurbits, eggplants, peppers, and tomatoes. These groups did not submit applications for 2014 and therefore were not included in the 2014 U.S. nomination.
EPA is proposing to remove sectors or users that applied for a critical use in 2014 but that the United States did not nominate for 2014. EPA conducted a thorough technical assessment of each application and considered the effects that the loss of methyl bromide would have for each agricultural sector, and whether significant market disruption would occur as a result. As a result of this technical review, the United States Government (USG) determined that certain sectors or users did not meet the critical use criteria in Decision IX/6 and the United States therefore did not include them in the 2014 Critical Use Nomination. EPA notified these sectors of their status by letters dated February 7, 2012. These sectors are orchard replant for California wine grape growers and Florida growers of eggplants, peppers, and tomatoes. For each of these uses, EPA found that there are technically and economically feasible alternatives to methyl bromide.
Some sectors that were not included in the 2014 Critical Use Nomination submitted supplemental applications for 2014. These sectors are: The California Association of Nursery and Garden Centers; California stone fruit, table and raisin grape, walnut, and almond growers; ornamental growers in California and Florida; California strawberry nurseries; stored walnuts; and the U.S. Golf Course Superintendents Association. For those sectors the USG came to a decision that the sectors not nominated have not provided rigorous and convincing evidence that they meet the criteria laid out in Decision IX/6, and further that no new problem or large yield/quality loss had been demonstrated that warranted seeking a supplemental authorization from the Parties to the Montreal Protocol.
The following are proposed changes to the existing appendix due to the applications and analysis conducted for the 2015 control period. For 2015 EPA is proposing to remove California wine grape growers and Florida growers of eggplants, peppers, tomatoes, and strawberries. These groups did not submit applications for 2015 and therefore were not included in the 2015 U.S. nomination.
EPA is proposing to remove sectors or users that applied for a critical use in 2015 but that the United States did not nominate for 2015. As described above EPA conducted a thorough technical assessment of each application and the USG determined that certain sectors or users did not meet the critical use criteria. EPA notified these sectors of their status by letters dated March 26, 2013. These sectors are rice millers, pet food manufacturing facilities, members of the North American Millers Association, and California entities storing walnuts, dried plums, figs, and raisins. In addition, EPA is proposing to remove entities storing dates as a critical use for 2015. While the United States nominated this sector for 2015, MBTOC did not recommend that this sector be a critical use in 2015 and the Parties did not authorize this use.
EPA has received supplemental applications for 2015 from sectors that the United States did not nominate for 2015. These sectors are: Michigan cucurbit, eggplant, pepper, and tomato growers; Florida eggplant, pepper, tomato, and strawberry growers; the California Association of Nursery and Garden Centers; California stone fruit, table and raisin grape, walnut, and almond growers; ornamental growers in California and Florida; the U.S. Golf Course Superintendents Association; and stored walnuts, dried plums, figs, and raisins in California. The USG is currently reviewing these supplemental applications for 2015 and EPA is not proposing at this time to authorize critical use for these sectors. EPA is not proposing at this time to authorize critical use for these sectors but may take future action as appropriate.
Finally, EPA is adding information to Column B of appendix L to clarify which critical uses are approved for which control periods. EPA is not proposing other changes to the table but is repeating the following clarifications made in previous years for ease of reference. The “local township limits prohibiting 1,3-dichloropropene” are prohibitions on the use of 1,3-dichloropropene products in cases where local township limits on use of this alternative have been reached. In addition, “pet food” under subsection B of Food Processing refers to food for domesticated dogs and cats. Finally, “rapid fumigation” for commodities refers to instances in which a buyer provides short (two working days or fewer) notification for a purchase or there is a short period after harvest in which to fumigate and there is limited silo availability for using alternatives.
Table A of the annex to Decision XXIV/5 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol for 2014. The maximum amount of new production and import for U.S. critical uses, specified in Table B of Decision XXIV/5, is 442,337 kg, minus available stocks. This figure is equivalent to 1.7% of the U.S. 1991 methyl bromide consumption baseline of 25,528,270 kg.
Similarly, Table A of the annex to Decision XXV/4 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol for 2015. The maximum amount of new production and import for U.S. critical uses, specified in Table B of Decision XXV/4, is 376,900 kg, minus available stocks. This figure is equivalent to 1.5% of the U.S. 1991 methyl bromide consumption baseline.
For 2014 and 2015, EPA is proposing to determine the level of new production and import according to the framework and as modified by the 2013 Rule. Under this approach, the amount of new production for each control period would equal the total amount authorized by the Parties to the Montreal Protocol in their Decisions minus any reductions for available stocks, carryover, and the uptake of alternatives. These terms (available stocks, carryover, and the uptake of alternatives) are discussed in detail below. As established in the 2013 Rule, EPA would not allocate critical stock allowances. EPA would still determine whether there are any “available stocks” and reduce the new production allocation by that amount. Applying this approach, EPA is proposing to allocate allowances to exempt 442,337 kg of new production and import of methyl bromide for critical uses in 2014 and
The Parties to the Protocol recognized in their Decisions that the level of existing stocks may differ from the level of available stocks. Both Decision XXIV/5 and Decision XXV/4 state that “production and consumption of methyl bromide for critical uses should be permitted only if methyl bromide is not available in sufficient quantity and quality from existing stocks. . . .” In addition, the Decisions recognize that “parties operating under critical-use exemptions should take into account the extent to which methyl bromide is available in sufficient quantity and quality from existing stocks. . . .” Earlier Decisions also refer to the use of “quantities of methyl bromide from stocks that the Party has recognized to be available.” Thus, it is clear that individual Parties may determine their level of available stocks. Section 604(d)(6) of the CAA does not require EPA to adjust the amount of new production and import to reflect the availability of stocks; however, as explained in previous rulemakings, making such an adjustment is a reasonable exercise of EPA's discretion under this provision.
In the 2013 CUE Rule (78 FR 43797, July 22, 2013), EPA established an approach that considered whether a percentage of the existing inventory was available. In that rule, EPA took comment on whether 0% or 5% of the existing stocks was available. The final rule found that 0% was available to be allocated for critical use in 2013 for a number of reasons including: A pattern of significant underestimation of inventory drawdown; the increasing concentration of critical users in California while inventory remained distributed nationwide; and the recognition that the agency cannot compel distributors to sell inventory to critical users. For further discussion, please see the 2013 CUE Rule. EPA believes these circumstances remain true for 2014 and 2015.
In addition, the 2013 CUE Rule removed the restriction that critical stock allowances be expended to sell inventory to critical uses. As a result, for the first time in the history of the CUE program, distributors were free to sell their entire remaining inventory to critical users. At this time, EPA is unable to calculate what effect this policy change may have had on the remaining inventory, although the agency will docket end of year inventory data that will be reported to EPA in February 2014. EPA notes that it may be difficult to assess the impact of this change, which went into effect in mid-2013, simply from updated inventory data. EPA solicits comments on whether, and how, to draw inferences as to the availability of stocks for critical uses based on inventory figures as of December 31, 2013, (e.g., whether the magnitude of the reduction in pre-phaseout stocks could be evidence of the degree of availability for critical uses).
For these reasons, EPA is proposing to find 0% of the existing inventory available for 2014 and 2015. EPA specifically invites comment on whether 0% or 5% of existing inventory will be available to critical users in 2014 and/or 2015, taking into consideration the recent history of inventory drawdown, the removal of the critical stock allowance provisions, the quantity and geographical location of authorized uses, and the quantity and location of stocks.
Existing stocks, as of December 31, 2012, were equal to 627,066 kg. Therefore, 5% would be 31,353 kg. Were EPA to find 5% of existing stocks to be available, EPA would reduce the amount of new production for 2014 and/or for 2015 by 31,353 kg. EPA notes that it is not proposing to allocate a corresponding amount of critical stock allowances, as had been the case prior to 2013. EPA removed the requirement to expend critical stock allowances when selling inventory to critical users in the 2013 CUE Rule. EPA notes that it will receive updated end of year inventory data in February 2014. EPA anticipates that inventory will have been further drawn down, and therefore 5% of the existing stocks, based on the updated data, is likely to be significantly less than 31,353 kg. EPA solicits comment on whether, if EPA concludes some portion of existing stocks are “available,” EPA should calculate the portion that is available for 2014 and/or 2015 based on the updated data for inventory as of December 31, 2013.
All critical use methyl bromide that companies reported to be produced or imported in 2012 was sold to end users. 759 MT of critical use methyl bromide was produced or imported in 2012. Slightly more than the amount produced or imported was actually sold to end-users. This additional amount was from distributors selling material that was carried over from the prior control period. Therefore, EPA is proposing to apply the carryover deduction of 0 kg to the new production amount for 2014. EPA's calculation of the amount of carryover at the end of 2012 is consistent with the method used in previous CUE rules, and with the format in Decision XVI/6 for calculating column L of the U.S. Accounting Framework. Past U.S. Accounting Frameworks, including the one for 2012, are available in the public docket for this rulemaking.
Production, import, and sales data for 2013 will be reported to EPA in February 2014. Without these data, the agency is unable to calculate how, or whether, a reduction for carryover would affect the 2015 allocation amount. However, EPA anticipates that the carryover will remain 0 kg, as it has been at that level since 2009. Based on information available, EPA believes that the demand for critical use methyl bromide continues to be high and all material produced or imported for a particular control period is sold in that control period. Therefore, while the proposed allocation amount for 2015 assumes 0 kg of carryover in 2013, EPA proposes to use the reported data to calculate the actual carryover amount
Since the United States submitted the 2014 CUN on January 31, 2012, the California Department of Pesticide Regulation has proposed control measures for the use of chloropicrin with the intent of reducing risk from acute exposures that might occur near fields fumigated with products containing chloropicrin. Because this regulation is at the proposed stage and has not been finalized, EPA is unable to state what effects these changes may have on the availability of methyl bromide alternatives for 2014. It is more likely that the proposed changes to the chloropicrin regulation would affect the 2015 control period and EPA specifically invites comments on the implications for 2015. However EPA is not proposing to make any reductions for either the 2014 or 2015 control periods because of these uncertainties. The critical use exemption program has historically only relied on final actions when determining the availability of alternatives. EPA is not aware of any other actions regarding alternatives that would lead to either an increase or decrease in 2014 and 2015.
EPA is not proposing to make any other modifications to CUE amounts to account for availability of alternatives. Rates of transition to alternatives have already been applied for authorized 2014 and 2015 critical use amounts through the nomination and authorization process. EPA will consider new data received during the comment period and continues to gather information about methyl bromide alternatives through the CUE application process, and by other means. EPA also continues to support research and adoption of methyl bromide alternatives, and to request information about the economic and technical feasibility of all existing and potential alternatives.
EPA is proposing to allocate the 2014 and 2015 allowances to the four companies that hold baseline allowances. The proposed allocations, as in previous years, are in proportion to those baseline amounts, as shown in the proposed changes to the table in 40 CFR 82.8(c)(1). Paragraph 3 of Decision XXIV/5 and paragraph 5 of Decision XXV/4 state that “parties shall endeavour to license, permit, authorize or allocate quantities of methyl bromide for critical uses as listed in table A of the annex to the present decision.” This is similar to language in prior Decisions authorizing critical uses. These Decisions call on Parties to endeavor to allocate critical use methyl bromide on a sector basis. The proposed Framework Rule contained several options for allocating critical use allowances, including a sector-by-sector approach. The agency evaluated various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined in the final Framework Rule that a lump-sum, or universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, was the most efficient and least burdensome approach that would achieve the desired environmental results, and that a sector-by-sector approach would pose significant administrative and practical difficulties. For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), and because of the limited number of authorized uses, the agency believes that under the approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties' decisions.
The 2013 Rule removed the provisions at § 82.4(p)(ii) and (iii) requiring the use of critical stock allowances for sales of inventory to critical users. In addition, EPA made some necessary conforming changes to 40 CFR Part 82, which follow from removing those restrictions including removing the reference to the restriction on selling inventory pursuant to a CSA from the definition of “critical use methyl bromide.”
The 2013 Rule also stated that EPA believed additional conforming changes may be appropriate but that it would address those changes in a future rulemaking. Today EPA is proposing and taking comment on removing the remaining references to critical stock allowances in 40 CFR Part 82. EPA believes these provisions are no longer necessary if the agency is not allocating separate critical stock allowances. Specifically, EPA is proposing to remove the definitions of “critical stock allowance,” “critical stock allowance holder,” and “unexpended critical stock allowance” from § 82.3. EPA is proposing to no longer allow for the intercompany transfer of critical stock allowances at § 82.12(a)
In 2013 EPA held discussions with USDA and the Department of State on tools that could potentially address immediate and unforeseen needs for methyl bromide including whether emergency situations may arise that warrant the use of methyl bromide consistent with the treaty, recognizing that emergency uses are not intended as a replacement for CUE uses. In August, EPA held a stakeholder meeting to present, among other things, the findings of those discussions and noted that the three agencies had not yet identified any specific situations that could not be addressed by current mechanisms. The U.S. government is committed to using flexibility in the Protocol's existing mechanisms as an avenue to address changes in national circumstance that affect the transition to alternatives. EPA welcomes comments on specific emergency situations that may necessitate the use of methyl bromide, consistent with the
Decision XXIV/5 and Decision XXV/4 call on Parties to apply the conditions and criteria listed in Decisions Ex. I/4 (to the extent applicable) and IX/6 paragraph 1 to exempted critical uses for the 2014 and 2015 control periods. A discussion of the agency's application of the criteria in paragraph 1 of Decision IX/6 appears in sections V.A., and V.C. of this preamble. Section V.C. solicits comments on the technical and economic basis for determining that the uses listed in this proposed rule meet the criteria of the critical use exemption. The CUNs detail how each proposed critical use meets the criteria in paragraph 1 of Decision IX/6, apart from the criterion located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4.
The criterion in Decision IX/6 paragraph (1)(b)(ii), which refers to the use of available stocks of methyl bromide, is addressed in section V.D. of this preamble. The agency has previously provided its interpretation of the criterion in Decision IX/6 paragraph (1)(a)(i) regarding the presence of significant market disruption in the absence of an exemption. EPA refers readers to the preamble to the 2006 CUE rule (71 FR 5989, February 6, 2006) as well as to the memo in the docket titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America” for further elaboration. As explained in those documents, EPA's interpretation of this term has several dimensions, including looking at potential effects on both demand and supply for a commodity, evaluating potential losses at both an individual level and at an aggregate level, and evaluating potential losses in both relative and absolute terms.
The remaining considerations are addressed in the nomination documents including: The lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize use and emissions of methyl bromide where technically and economically feasible; the development of research and transition plans; and the requests in Decision Ex. I/4 paragraphs 5 and 6 that Parties consider and implement MBTOC recommendations, where feasible, on reductions in the critical use of methyl bromide and include information on the methodology they use to determine economic feasibility.
Some of these criteria are evaluated in other documents as well. For example, the United States has considered the adoption of alternatives and research into methyl bromide alternatives (see Decision IX/6 paragraph (1)(b)(iii)) in the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005, updated in October 2009. The National Management Strategy addresses all of the aims specified in Decision Ex.I/4 paragraph 3 to the extent feasible and is available in the docket for this rulemaking.
There continues to be a need for methyl bromide in order to conduct the research required by Decision IX/6. A common example is an outdoor field experiment that requires methyl bromide as a standard control treatment with which to compare the trial alternatives' results. As discussed in the preamble to the 2010 CUE rule (75 FR 23179, May 3, 2010), research is a key element of the critical use process. Research on the crops shown in the table in Appendix L to subpart A remains a critical use of methyl bromide. While researchers may continue to use newly produced material for field, post-harvest, and emission minimization studies requiring the use of methyl bromide, EPA encourages researchers to use pre-phaseout inventory. EPA also encourages distributors to make inventory available to researchers, to promote the continuing effort to assist growers to transition critical use crops to alternatives.
Previous Decisions of the Parties have stated that critical users shall employ emission minimization techniques such as virtually impermeable films, barrier film technologies, deep shank injection and/or other techniques that promote environmental protection, whenever technically and economically feasible. EPA developed a comprehensive strategy for risk mitigation through the 2009 Reregistration Eligibility Decision (RED) for methyl bromide, which is implemented through restrictions on how methyl bromide products can be used. This approach means that methyl bromide labels require that treated sites be tarped (except for California orchard replant where EPA instead requires deep (18 inches or greater) shank applications). The RED also incorporated incentives for applicators to use high-barrier tarps, such as virtually impermeable film (VIF), by allowing smaller buffer zones around those sites. In addition to minimizing emissions, use of high-barrier tarps has the benefit of providing pest control at lower application rates. The amount of methyl bromide nominated by the United States reflects the lower application rates necessary when using high-barrier tarps, where such tarps are allowed.
EPA will continue to work with the U.S. Department of Agriculture—Agricultural Research Service (USDA–ARS) and the National Institute for Food and Agriculture (USDA–NIFA) to promote emission reduction techniques. The federal government has invested substantial resources into developing and implementing best practices for methyl bromide use, including emission reduction practices. The Cooperative Extension System, which receives some support from USDA–NIFA provides locally appropriate and project-focused outreach education regarding methyl bromide transition best practices. Additional information on USDA research on alternatives and emissions reduction can be found at:
Users of methyl bromide should continue to make every effort to minimize overall emissions of methyl bromide. EPA also encourages researchers and users who are using such techniques to inform EPA of their experiences and to provide such information with their critical use applications.
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this proposal is a “significant regulatory action” because it was deemed to raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to interagency recommendations have been documented in the docket for this action.
This action does not impose any new information collection burden. The application, recordkeeping, and reporting requirements have already been established under previous critical use exemption rulemakings. This rule
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201 (see Table below); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
Agricultural producers of minor crops and entities that store agricultural commodities are categories of affected entities that contain small entities. This proposed rule would only affect entities that applied to EPA for an exemption to the phaseout of methyl bromide. In most cases, EPA received aggregated requests for exemptions from industry consortia. On the exemption application, EPA asked consortia to describe the number and size distribution of entities their application covered. EPA estimated that 3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised this estimate in 2011 down to 1,800 end users of critical use methyl bromide. EPA believes that the number continues to decline as growers cease applying for the critical use exemption. Since many applicants did not provide information on the distribution of sizes of entities covered in their applications, EPA estimated that, based on the above definition, between one-fourth and one-third of the entities may be small businesses. In addition, other categories of affected entities do not contain small businesses based on the above description.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Instead, this action would provide an exemption for the manufacture and use of a phased out compound and would not impose any new requirements on any entities. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action. EPA specifically solicits additional comment on this proposed action from tribal officials.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This rule affects the level of environmental protection equally for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population.
This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed rule does not pertain to any segment of the energy production economy nor does it regulate any manner of energy use. Therefore, we have concluded that this proposed rule is not likely to have any adverse energy effects.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it affects the level of environmental protection equally for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Any ozone depletion that results from this proposed rule will impact all affected populations equally because ozone depletion is a global environmental problem with environmental and human effects that are, in general, equally distributed across geographical regions in the United States.
Environmental protection, Chemicals, Exports, Imports, Ozone depletion.
For the reasons stated in the preamble, 40 CFR part 82 is proposed to be amended as follows:
42 U.S.C. 7414, 7601, 7671–7671q.
(c) * * *
(1) * * *
(a) Inter-company transfers. (1) Until January 1, 1996, for all class I controlled substances, except for Group VI, and until January 1, 2005, for Group VI, any person (“transferor”) may transfer to any other person (“transferee”) any amount of the transferor's consumption allowances or production allowances, and effective January 1, 1995, for all class I controlled substances any person (“transferor”) may transfer to any other person (“transferee”) any amount of the transferor's Article 5 allowances. After January 1, 2002, any essential-use allowance holder (including those persons that hold essential-use allowances issued by a Party other than the United States) (“transferor”) may transfer essential-use allowances for CFCs to a metered dose inhaler company solely for the manufacture of essential MDIs. After January 1, 2005, any critical use allowance holder (“transferor”) may transfer critical use allowances to any other person (“transferee”).
The revised text reads as follows.
(f) * * *
(3) * * *
(iv) The producer's total of expended and unexpended production allowances, consumption allowances, Article 5 allowances, critical use allowances (pre-plant), critical use allowances (post-harvest), and amount of essential-use allowances and destruction and transformation credits conferred at the end of that quarter;
(g) * * *
(4) * * *
(vii) The importer's total sum of expended and unexpended consumption allowances by chemical as of the end of that quarter and the total sum of expended and unexpended critical use allowances (pre-plant) and unexpended critical use allowances (post-harvest);
Legal Services Corporation.
Proposed program letter.
This proposed program letter serves as a companion to 45 CFR part 1626. The proposed program letter should have been published in the
Comments on the proposed program letter are due April 7, 2014.
Written comments must be submitted to Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007; (202) 337–6519 (fax) or
Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007, (202) 295–1563 (phone), (202) 337–6519 (fax),
In 2003, LSC added a list of documents establishing the eligibility of aliens for legal assistance from LSC funding recipients as an appendix to part 1626. 68 FR 55540, Sept. 26, 2003. The appendix has not changed since 2003, although immigration documents and forms have changed and Congress has authorized LSC recipients to provide legal assistance to new categories of eligible aliens. LSC believes that the frequently changing nature of immigration documents and forms requires a more flexible and responsive means of informing recipients of the changes than the informal rulemaking process provides. Consequently, in a notice of proposed rulemaking published on August 21, 2013, LSC announced its intention to remove the appendix to part 1626 and publish the information contained in the appendix as a program letter. 78 FR 51696, Aug. 21, 2013. Because the initial revision of the appendix and reclassification as a program letter is a change to the regulation, it is being done pursuant to the LSC rulemaking protocol. As such, LSC is publishing the program letter in the
LSC published a FNPRM on February 5, 2014 proposing requesting comment on additional revisions to part 1626. 79 FR 6859, Feb. 5, 2014. The proposed program letter was intended to accompany the FNPRM. The comment period for this program letter will remain open for thirty days from the date of publication of the letter in the
LSC published a final rule revising 45 C.F.R. Part 1626, “Restrictions on Legal Assistance to Aliens,” on [DATE]. Revised Part 1626 was published without the Appendix. The information contained in the Appendix will be published instead as a Program Letter and an accompanying chart describing the categories of aliens eligible for legal assistance from LSC recipients and containing a non-exhaustive list of examples of acceptable documentation showing eligibility under Part 1626. These documents should be read together with Part 1626 in making eligibility determinations.
The documents identified as acceptable to establish eligibility fall into one of two categories: 1) documents regarding the immigration status of an alien; or 2) documents providing evidence that the alien has experienced qualifying abuse or otherwise meets the requirements of 45 C.F.R. § 1626.4 regarding the Violence Against Women Act (VAWA) and other anti-abuse statutes.
Victims of trafficking are covered by different provisions of 45 C.F.R. § 1626.4 depending on the nature of the trafficking activity. Recipients should determine whether an alien is a victim of trafficking under VAWA or section 101(a)(15)(U) of the Immigration and Nationality Act, or a victim of severe forms of trafficking under the Trafficking Victims Protection Act, 22 U.S.C. § 7101 et seq. The facts of an alien's situation may indicate that the alien is eligible for assistance under one or more of these statutes.
Eligibility for assistance based on qualifying for a U-visa or being a victim of severe forms of trafficking requires consideration of other statutory factors in addition to the qualifying crime.
If you have any questions or concerns regarding this Program Letter or for further guidance, please contact LSC General Counsel Ronald S. Flagg. Additional information regarding the documentation contained in the chart can be found at the U.S. Customs and Immigration Service Web site (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, request for comments and information.
NMFS has received a request from the U.S. Navy (Navy), Naval Air Warfare Center Weapons Division (NAWCWD) for authorization to take marine mammals incidental to missile launches from San Nicolas Island (SNI) from June 2014 through June 2019. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue regulations and subsequent Letters of Authorization (LOAs) to the Navy to incidentally harass marine mammals.
Comments and information must be received no later than April 21, 2014.
You may submit comments, identified by 0648–BD80, by either of the following methods:
• Electronic submissions: submit all electronic public comments via the Federal eRulemaking Portal (
• Hand delivery or mailing of paper, disk, or CD–ROM comments should be addressed to Jolie Harrison, Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
An electronic copy of the Navy's application may be obtained by writing to the address specified above, telephoning the contact listed below (see
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108–136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
On July 24, 2013, NMFS received an application from the Navy for the taking of marine mammals incidental to missile launches from San Nicolas Island (SNI). NMFS determined that the application was adequate and complete on November 18, 2013.
The Navy proposes to continue a launch program for missiles and targets from several launch sites on SNI. The proposed activity would occur between June 2014 and June 2019 and may involve up to 40 launches per year. Take, by Level B Harassment only, of individuals of northern elephant seal (
The Navy is currently operating under an authorization to take marine mammals incidental to missile launches from SNI, which expires June 2, 2014 (74 FR 26587).
The Navy plans to continue a launch program for missiles and targets from several launch sites on SNI. Missiles vary from tactical and developmental weapons to target missiles used to test defensive strategies and other weapons systems. Some launch events involve a single missile, while others involve the launch of multiple missiles either in quick succession or at intervals of a few hours. Up to 200 missiles may be launched over the 5-year period, but the number and type of launch varies depending on operational needs.
The purpose of these launches is to support testing and training activities associated with operations on the NAWCWD Point Mugu Sea Range. The Sea Range is used by the U.S. and allied military services to test and evaluate sea, land, and air weapon systems; to provide realistic training opportunities; and to maintain operational readiness of these forces. Some of the launches are used for practicing defensive drills against the types of weapons simulated by these missiles and some launches are conducted for the related purpose of testing new types of targets.
Launches of this type have been occurring at SNI for many years and are expected to continue indefinitely into the future. The Navy has requested a 5-year Letter of Authorization for missile launches taking place between June 2014 and June 2019. The timing of these launches is variable and subject to testing and training requirements and meteorological and logistical limitations. To meet the Navy's operational testing and training requirements, launches may be required at any time of year and any time of day. Up to 200 missiles (40 missiles per year) may be launched over the 5-year period and the Navy is proposing that up to 10 launches per year may occur at night. Given the launch acceleration and flight speed of the missiles, most launch events are of extremely short duration. Strong launch sounds are typically detectable near the surrounding beaches for no more than a few seconds per launch (Holst
SNI is one of the eight Channel Islands in the Southern California Bight, located about 105 kilometers (km) southwest of Point Mugu. Missile launches would occur from the western part of SNI (see Figure 2 in the Navy's LOA application). The missiles fly generally westward through the Point Mugu Sea Range. The primary launch locations are the Alpha Launch Complex, which is located on the west-central part of SNI, and Building 807 Launch Complex, which is located at the western end of SNI. Other launch pads are located nearby.
Missiles included in the Navy's request range from relatively small and quieter missiles like the Rolling Airframe Missile to larger and louder missiles like the Terrier Black-Brant. While other missiles may be launched in the future, the largest missile analyzed here is 23,000 kilograms (kg). The following is a description of the types of missiles that may be launched at SNI during the 5-year period.
At SNI, RAMs are launched from the Building 807 Launch Complex, near the shoreline. Previous RAM launches have resulted in flat-weighted sound pressure levels up to 126 decibels (dB) near the launcher and 99 dB at a nearshore site located 1.6 km from the three-dimensional closest point of approach. Flat-weighted sound exposure level ranged from 84 to 97 dB reference 20 micropascals (20 μPa), and M-weighted sound exposure levels for pinnipeds in air ranged from 76 to 96 dB reference 20 micropascals squared per second (20 μPa
The Coyote uses the Vandal launcher, currently installed at the Alpha Launch Complex on SNI. Previous Coyote launches produced flat-weighted sound pressure levels ranging from 126 to 134 dB re μPa
The MSST is launched from the Alpha Launch Complex on SNI. Previous MSST launches had flat-weighted sound pressure levels of 78.7 to 96.6 dB re 20 μPa and M-weighted sound exposure levels of 62.3 to 83.3 re 20 μPa
A Terrier-Orion produced a flat-weighted sound pressure level of 91 dB re 20 µPa, a flat-weighted sound exposure level of 96 dB 20 μPa
Missiles of the BQM–34 or BQM–74 type could also be launched. These are small, unmanned aircraft that are launched using jet-assisted take-off rocket bottles and then continue offshore powered by small turbojet engines. The larger of these, the BQM–34, is 7 m long and has a mass of 1,134 kg plus the jet-assisted take-off rocket bottle. The smaller BQM–74 is up to 420 cm long and has a mass of 250 kg plus the solid propellant jet-assisted take-off rocket bottles. Burgess and Greene (1998) reported that A-weighted sound pressure levels ranged from 92 dBA re 20 μPa at a closest point of approach distance of 370 m, to 145 dB at 15 m for a launch in 1997. If launches of other missile types occur, they would be included within the total of 40 launches anticipated per year.
Movements of personnel are restricted near the launch sites at least several hours prior to a launch for safety reasons. No personnel are allowed on the western end of SNI during launches. Movements of personnel or missiles near the island's beaches are also restricted at other times of the year for purposes of environmental protection and preservation of cultural resource sites. Launch monitoring equipment would be deployed and activated prior to the launches.
There are seven species of marine mammals with possible or confirmed occurrence in the area of the specified activity: Northern elephant seals, harbor seals, California sea lion, northern fur seals (
Further information on the biology and local distribution of these species can be found in the Navy's application (see
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., missile launch noise) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented, and how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
Potential effects of the specified activity on marine mammals involve both acoustic and non-acoustic effects. Acoustic effects are related to sound produced by the engines of all launch vehicles, and, in some cases, their booster rockets. Potential non-acoustic effects could result from the physical presence of personnel during placement of video and acoustical monitoring equipment. However, careful deployment of monitoring equipment is not expected to result in any disturbance to pinnipeds hauled out nearby. Any visual disturbance caused by passage of a vehicle overhead is likely to be minor and brief as the launch vehicles are relatively small and move at great speed.
The effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
(1) The noise may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well-being of the marine mammal; these can range from temporary alert responses to active avoidance reactions, such as stampedes into the sea from terrestrial haul-out sites;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent and unpredictable in occurrence (as are vehicle launches), and associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;
(6) If marine mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and
(7) Very strong sounds have the potential to cause temporary or
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall
• Low-frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz (however, a study by Au
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Pinnipeds in water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, three marine mammal species (pinnipeds only) are likely to occur in the proposed action area. A species functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.
Acoustic impacts of the specified activity could result from sound produced by the engines of all launch vehicles, and, in some cases, their booster rockets. Noises with sudden onset or high amplitude relative to the ambient noise level may elicit a behavioral response from pinnipeds resting on shore. Some pinnipeds tolerate high sound levels without reacting strongly, whereas others may react strongly when sound levels are lower. Published papers and available technical reports describing behavioral responses of pinnipeds to the types of sound recorded near haul-out sites on SNI indicate that there is much variability in the responses. Responses can range from momentary startle reactions to animals fleeing into the water or otherwise away from their resting sites in what has been termed a stampede. Studies of pinnipeds during missile launch events have demonstrated that different pinniped species, and even different individuals in the same haul-out group, can exhibit a range of responses from alert to stampede. It is this variation that makes setting reaction criteria difficult. An acoustic stimulus with sudden onset (such as a sonic boom) may be analogous to a looming visual stimulus (Hayes and Saif, 1967), which can be especially effective in eliciting flight or other responses (Berrens
Previous to the start of monitoring work at SNI under an Incidental Harassment Authorization issued in 2001, most existing data on reactions of hauled-out pinnipeds to sonic booms or launch noise involved far larger launch missiles than the Coyotes and other missiles that would be launched from SNI. In most cases, where the species of pinnipeds occurring in the Sea Range have been exposed to the sounds of large missile launches (such as the Titan IV from Vandenberg Air Force Base), animals did not flush into the sea unless the sound level to which they were exposed was relatively high. The reactions of harbor seals to even these large missile launches have been limited to short-term (5–30 minute) abandonment of haul-out sites.
Holst
The most common type of reaction to missile launches at SNI is expected to be a momentary “alert” response. When the animals hear or otherwise detect the launch, they are likely to become alert, and (at least momentarily) to interrupt prior activities in order to pay attention to the launch. Animals that are well to the side of the launch trajectory are likely to not show any additional reaction. Animals that are closer to the trajectory may show a momentary alert response, or they may react more strongly. Previous observations indicate that elephant seals, in particular, will rarely if ever show more than a momentary alert reaction (Stewart, 1981; Stewart
Video recordings of pinnipeds around the periphery of western SNI during launches on SNI in 2001–2012 have shown that some pinnipeds react to a nearby launch by moving into the water or along the shoreline (Holst
Northern elephant seals exhibited little reaction to launch sounds (Holst
As expected, responses of California sea lions to the launches varied by individual and age group (Holst
During the majority of launches at SNI, most harbor seals within the audible range of the launch left their haul-out sites on rocky ledges to enter the water and did not return during the duration of the video-recording period (which sometimes extended up to several hours after the launch) (Holst
The type of missile being launched is also important in determining the nature and extent of pinniped reactions to launch sounds. Holst
Bowles and Stewart (1980) reported that harbor seals on San Miguel Island reacted to low-altitude jet overflights with alert postures and often with rapid movement across the haul-out sites, especially when aircraft were visible. These harbor seals flushed into the water in response to some sonic booms and to a few of the overflights by light aircraft, jets above 244 meters (m) and helicopters below 305 m. Sometimes the harbor seals did not return to land until the next day, although they more commonly returned the same day. These authors postulated that such disturbance-induced stampedes or other mother-pup separations could be a source of increased mortality. However, observations during actual sonic booms and tests with a carbide cannon simulating sonic booms at San Miguel and SNI provide no evidence of such pinniped injury or mortality (Stewart, 1982) and no mortality has been observed during missile launches (Holst
It is possible, although unlikely, that launch-induced stampedes could have adverse impacts on individual pinnipeds on the west end of SNI. However, during missile launches in 2001–2012, there was no evidence of launch-related injuries or deaths (Holst et al., 2005, 2008, 2010, 2012; Ugoretz and Greene, 2012). On several occasions, harbor seals and California sea lion adults moved over pups as the animals moved in response to the launches, but the pups did not appear to be injured. Given the large numbers of pinnipeds giving birth on SNI, it is expected that injuries and deaths will occur as a result of natural causes. For example, during the 1997–1998 El Niño event, pup mortality reached almost 90 percent for northern fur seals at nearby San Miguel Island, and some adults may have died as well (Melin
During the period of the proposed activity, three species of pinnipeds will use various beaches around SNI as places to rest, molt, and breed. These beaches consist of sand, rock ledges, and rocky cobble. Pinnipeds continue to use beaches around the western end of SNI, and are expanding their use of some beaches, despite ongoing launch activities for many years. Similarly, it appears that sounds from prior launches have not affected use of coastal areas at Vandenberg Air Force Base where similar missile launches occur.
Pinnipeds do not feed when hauled out on these beaches and the airborne launch sounds will not persist in the water near the island for more than a few seconds. Therefore, it is not expected that the launch activities will have any impact on the food or feeding success of these pinnipeds.
Boosters from missiles may be jettisoned shortly after launch and fall on the island, but are not expected to impact beaches. Fuel contained in these boosters is consumed rapidly and completely, so there would be no risk of contamination even in the very unlikely event that a booster did land on a beach. Thus, the proposed activity is not expected to have any effects on marine mammal habitat.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the ITA process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact of the effectiveness of the “military readiness activity.” The activities described in the Navy's application are considered military readiness activities.
As during launches conducted under previous regulations, where practicable, the Navy proposes the following mitigation measures, provided that doing so will not compromise operational safety, human safety, national security, or other requirements or mission goals:
(1) Limit activities near the beaches in advance of launches;
(2) Avoid launch activities during harbor seal pupping season (February through April);
(3) Limit launch activities during other pinniped pupping seasons;
(4) Not launch missiles from the Alpha Complex at low elevation (less than 305 m) on launch azimuths that pass close to pinniped haul-out sites when occupied;
(5) Avoid launching multiple missiles in quick succession over haul-out sites, especially when young pups are present; and
(6) Aircraft and helicopter flight paths during missile launch operations would maintain a minimum altitude of 305 m from pinniped haul-outs and rookeries, except in emergencies or for real-time security incidents (e.g., search-and-rescue, fire-fighting, adverse weather conditions), which may require approaching pinniped haul-outs and rookeries closer than 305 m.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation, including consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of noise, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of noise, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of noise, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. The Navy submitted a marine mammal monitoring plan as part of their application. It can be found in section 13 of their application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below.
2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of noise that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS.
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information).
b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information).
c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli.
4. An increased knowledge of the affected species.
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The Navy proposes to conduct the following monitoring measures, which are further detailed in section 13 of their application:
• The Navy would continue a standard, ongoing, land-based monitoring program to assess effects on harbor seals, northern elephant seals, and California sea lions on SNI. This monitoring would occur at up to three sites at different distances from the launch site before, during, and after each launch, depending upon presence of pinnipeds during each launch. The monitoring would be via autonomous video or Forward Looking Infrared (FLIR) cameras. Pinniped behavior on the beach would be documented prior to the planned launch operations, during the launch, and following the launch. Northern elephant seals would not be specifically targeted for monitoring, though may be present in the field of view when monitoring other species.
• During each launch, the Navy would obtain calibrated recordings of the sounds of the launches as received at different distances from the missile's flightline. The Navy anticipates that acoustic data would be acquired at each video monitoring location, to estimate sounds received by pinnipeds, and at the launch site to estimate maximum potential sound received. These recordings would provide for a thorough description of launch sounds as received at different locations on western SNI, and of the factors that affect received sound levels. By analysis of the paired data on behavioral observations and received sound levels, the Navy would further characterize the relationship between the two. If there is a clear correlation, the Navy would determine the “dose-response” relationship.
• Identify and document any change in behavior or movements that may occur at the time of the launch;
• Compare received levels of launch sound with pinniped responses, based on acoustic and behavioral data from up to three monitoring sites at different distances from the launch site and missile path during each launch and attempt to establish the dose-response relationship for launch sounds under different launch conditions;
• Ascertain periods or launch conditions when pinnipeds are most and least responsive to launch activities; and
• Document take by harassment and, although unlikely, any mortality or injury.
The launch monitoring program would include remote video recordings before, during, and after launches when pinnipeds are present in the area of potential impact, and visual assessment by trained observers before and after the launch. Remote cameras are essential during launches because safety rules prevent personnel from being present in most of the areas of interest. In addition, video techniques would allow simultaneous observations at up to three different locations, and would provide a permanent record that could be reviewed in detail. No specific effort would be made to monitor elephant seals, though they may be present in mixed groups when monitoring other species.
The Navy would submit annual interim technical reports to NMFS no later than December 31 for the duration of the regulations. These reports would provide full documentation of methods, results, and interpretation pertaining to all monitoring tasks for launches during each calendar year. However, only preliminary information would be included for any launches during the 60-day period immediately preceding submission.
The Navy would submit a draft comprehensive technical report to NMFS 180 days prior to the expiration of the regulations, providing full documentation of the methods, results, and interpretation of all monitoring tasks for launches to date. A revised final comprehensive technical report, including all monitoring results during the entire period of the regulations would be due 90 days after the regulations expire.
The Navy would ensure that NMFS is notified immediately if an injured or dead marine mammal is judged to result from launch activities at any time.
Between 2001 and 2012, a maximum of 1,990 California sea lions, 395 harbor seals, and 130 northern elephant seals were estimated to have been potentially harassed in any single monitoring year incidental to missile launches at SNI (Holst
The NDAA of 2004 (Pub. L. 103–136) removed the “small numbers” and specified “geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
Any takes of marine mammals are most likely to result from operational noise as launch missiles pass near haul-out sites, and/or associated visual cues. This section estimates maximum potential take and the likely annual take of marine mammal species during the proposed missile launch program at SNI.
The launch sounds could be received for several seconds and, to be conservative, are considered to be prolonged rather than transient sounds. Given the variety of responses documented previously for the sounds of man-made activities lasting several seconds, a sound exposure level of 100 dB re 20 microPascals
Based on the reaction criterion, the distance to which it is assumed to
To estimate the potential maximum numbers of northern elephant seals that might be exposed to sound levels at or above 100 dB in 2014, the highest pup counts within map areas K, L, and M (see Figure 16 of the Navy's application) in any year between 2000 and 2010 were used (yielding a total of 1,854), and a continuing growth rate of 7.3 percent since 2010 was applied. This results in a maximum potential pup count of 2,458 for those map areas in 2014. Based on data collected from 1988 to 2010, the total count of all age classes expected to be hauled out is approximately twice the number of pups hauled out. Therefore, the maximum number hauled out in areas of potential impact for 2014 was approximated by doubling the maximum potential calculated pup count. Thus, the maximum expected number of elephant seals that may be exposed to sound levels at or above 100 dB during 2014 is estimated to be 4,916.
In the absence of any contrary data, it is assumed that elephant seals exhibit high site fidelity when they return to shore, and that the 4,916 elephant seals calculated above represent the maximum total number that might be exposed to “strong” (at or above 100 dB) sounds during the year, assuming missiles are launched when all animals are hauled out and all beaches within the area receive strong sounds. If some seals haul out on different beaches at various times during the year, sometimes within and sometimes outside the area exposed to levels at or above 100 dB, then the number of times an individual elephant seal might be exposed to strong launch sounds would be reduced. However, the total number of individuals that would be exposed at least once over the course of the year would probably be increased. Movements from one beach to another may be more likely for juveniles than for older seals, given that this has been observed in other pinniped species (such as for harbor seal pups; Thompson
Published studies and results from the 2001–2012 monitoring at SNI indicate that elephant seals are more tolerant of transient noise and other forms of disturbance than are California sea lions or harbor seals. If so, the actual impact zone is smaller than assumed here, and the number of elephant seals that might be taken by harassment would be substantially lower than the number of seals present within the area where sound levels are at or above 100 dB. For example, during the 2001–2012 launch program, the majority of northern elephant seals did not exhibit more than brief startle reactions in response to launches (Holst
Therefore, the Navy estimates that up to 10 percent of 4,916 elephant seals (or 492 seals) might be taken by Level B harassment during each year of planned launch operations.
To determine the potential numbers of harbor seals that might be taken by harassment, the Navy used the maximum total harbor seal count for SNI (858) and assumed that the population has remained relatively stable. Previous monitoring from 2001–2012 showed that most monitored harbor seals entered the water in response to launches. Previous monitoring also indicates that about 70 percent of harbor seals that haul out on SNI use the beaches within areas K, L, and M. The Navy conservatively estimates that 80 percent of harbor seals on SNI may be impacted by missile launches. Therefore, the Navy estimates that a maximum of 686 harbor seals might be taken by Level B harassment during a 1-year period.
To estimate the maximum potential number of sea lions that might be hauled out within areas exposed to sound levels at or above 100 dB, the Navy calculated the maximum number of sea lions occurring within map areas K, L, and M (Figure 16 of the Navy's application) in any year from 2001–2011. The Navy adjusted this maximum, 14,963 sea lions, for a population growth rate of 5.6 percent per year, which results in a maximum of 20,749 sea lions of all ages and sexes that might be hauled out within the areas exposed to sound levels at or above 100 dB in a single year. For most of the year, only females and pups are expected to be ashore, so the number of animals exposed to these sound levels from any one launch is likely less than the estimated total number.
Based on past monitoring, approximately 10 percent of the California sea lions exposed to launch sounds during each year of launch activity might exhibit behavioral disturbance. Therefore, the Navy estimates that a maximum of 2,740 California sea lions on SNI might be taken by Level B harassment during a 1-year period.
NMFS proposes to authorize take according to the Navy's estimates. The estimated take numbers are provided in Table 2 below for each marine mammal species. These take estimates do not take mitigation measures into consideration.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.
NMFS has preliminarily determined that target and missile launch activities and aircraft and helicopter operations from SNI, as described in this document and in the Navy's application, will result in no more than Level B harassment of northern elephant seals, harbor seals, and California sea lions. The effects of these military readiness activities will be limited to short-term, localized changes in behavior, including temporarily vacating haul-outs, and possible temporary threshold shift in the hearing of any pinnipeds that are in close proximity to a launch pad at the time of a launch. These effects are not likely to have a significant or long-term impact on feeding, breeding, or other important biological functions. No take by injury or mortality is anticipated, and the potential for permanent hearing impairment is unlikely. Harassment takes will be at the lowest level practicable due to incorporation of the proposed mitigation measures mentioned previously in this document. NMFS has proposed regulations for the specified activity that prescribe the means of effecting the least practicable adverse impact on marine mammals and their habitat and set forth requirements pertaining to the monitoring and reporting of that taking.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the Navy's missile launches will have a negligible impact on the affected marine mammal species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have any unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No species listed under the ESA are expected to be affected by these activities. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
In May 2009, NMFS prepared an Environmental Assessment on the Navy's missile launches at SNI. NMFS is currently updating this analysis, pursuant to NEPA, to determine whether or not this proposed activity may have a significant effect on the human environment. This analysis will be completed prior to the issuance or denial of an authorization.
NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed Rulemaking for the Navy's missile launch activities at SNI. Please include with your comments any supporting data or literature citations to help inform our final decision on the Navy's request for an MMPA authorization.
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The RFA requires federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a federal agency may certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that would be affected by this rulemaking, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, would be applicable only to the Navy. NMFS does not expect the issuance of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect the Navy and not any small entities, NMFS concludes that the action would not result in a significant economic impact on a substantial number of small entities. Therefore, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.
For reasons set forth in the preamble, 50 CFR Part 217 is proposed to be amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the incidental taking of marine mammals specified in paragraph (b) of this section by the Naval Air Warfare Center Weapons Division, U.S. Navy, and those persons it authorizes to engage in target missile launch activities and associated aircraft and helicopter operations at the Naval Air Warfare Center Weapons Division facilities on San Nicolas Island, California.
(b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is limited to the following species: northern elephant seals (
(c) This Authorization is valid only for activities associated with the launching of a total of 40 Coyote (or similar sized) vehicles from Alpha Launch Complex and smaller missiles and targets from Building 807 on San Nicolas Island, California.
(a) Regulations in this subpart become effective upon issuance of the final rule.
(b) [Reserved].
(a) Under Letters of Authorization issued pursuant to § 216.106 and 217.57 of this chapter, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment, within the area described in § 217.50, provided the activity is in compliance with all terms, conditions, and requirements of the regulations and the appropriate Letter of Authorization.
(b) The activities identified in § 217.50 must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals is authorized for the species listed in § 217.50(b) and is limited to Level B Harassment.
Notwithstanding takings contemplated in § 217.50 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter, no person in connection with the activities described in § 217.50 may:
(a) Take any marine mammal not specified in § 217.50(b);
(b) Take any marine mammal specified in § 217. 50(b) other than by incidental, unintentional harassment;
(c) Take a marine mammal specified in § 217.50(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter.
(a) When conducting operations identified in § 217.50(c), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 217.57 must be implemented. These mitigation measures include, but are not limited to:
(1) The holder of the Letter of Authorization must prohibit personnel from entering pinniped haul-out sites below the missile's predicted flight path for 2 hours prior to planned missile launches.
(2) The holder of the Letter of Authorization must avoid, whenever possible, launch activities during harbor seal pupping season (February to April), unless constrained by factors including, but not limited to, human safety, national security, or for vehicle launch trajectory necessary to meet mission objectives.
(3) The holder of the Letter of Authorization must limit, whenever possible, launch activities during other pinniped pupping seasons, unless constrained by factors including, but not limited to, human safety, national security, or for vehicle launch trajectory necessary to meet mission objectives.
(4) The holder of the Letter of Authorization must not launch vehicles from the Alpha Complex at low elevation (less than 1,000 feet (305 m)) on launch azimuths that pass close to pinniped haul-out sites when occupied.
(5) The holder of the Letter of Authorization must avoid, where practicable, launching multiple target missiles in quick succession over haul-out sites, especially when young pups are present.
(6) The holder of the Letter of Authorization must limit launch activities during nighttime hours, except when required by the test objectives.
(7) Aircraft and helicopter flight paths must maintain a minimum altitude of 1,000 feet (305 m) from pinniped haul-outs and rookeries, except in emergencies or for real-time security incidents (e.g., search-and-rescue, fire-fighting), which may require approaching pinniped haul-outs and rookeries closer than 1,000 feet (305 m).
(8) If post-launch surveys determine that an injurious or lethal take of a marine mammal has occurred or there is an indication that the distribution, size, or productivity of the potentially affected pinniped populations has been affected, the launch procedure and the monitoring methods must be reviewed, in cooperation with NMFS, and, if necessary, appropriate changes must be made through modification to a Letter of Authorization, prior to conducting the next launch of the same vehicle under that Letter of Authorization.
(9) Additional mitigation measures as contained in a Letter of Authorization.
(b) [Reserved]
(a) The Holder of the Letter of Authorization issued pursuant to §§ 216.106 and 217.57 of this chapter for activities described in § 217.50 are required to cooperate with NMFS, and any other federal, state, or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of
(b) The National Marine Fisheries Service must be informed immediately of any changes or deletions to any portions of the proposed monitoring plan submitted, in accordance with the Letter of Authorization.
(c) The holder of the Letter of Authorization must designate biologically trained, on-site individual(s), approved in advance by NMFS, to record the effects of the launch activities and the resulting noise on pinnipeds.
(d) The holder of the Letter of Authorization must implement the following monitoring measures:
(1)
(i) Prior to each missile launch, an observer(s) will place three autonomous digital video cameras overlooking chosen haul-out sites located varying distances from the missile launch site. Each video camera will be set to record a focal subgroup within the larger haul-out aggregation for a maximum of 4 hours or as permitted by the videotape capacity.
(ii) Systematic visual observations, by those individuals, described in paragraph (c) of this section, on pinniped presence and activity will be conducted and recorded in a field logbook a minimum of 2 hours prior to the estimated launch time and for no less than 1 hour immediately following the launch of Coyote and similar types of target missiles.
(iii) Systematic visual observations, by those individuals, described in paragraph (c) of this section, on pinniped presence and activity will be conducted and recorded in a field logbook a minimum of 2 hours prior to launch, during launch, and for no less than 1 hour after the launch of the BQM–34, BQM–74, Tomahawk, RAM target and similar types of missiles.
(iv) Documentation, both via autonomous video camera and human observer, will consist of:
(A) Numbers and sexes of each age class in focal subgroups;
(B) Description and timing of launch activities or other disruptive event(s);
(C) Movements of pinnipeds, including number and proportion moving, direction and distance moved, and pace of movement;
(D) Description of reactions;
(E) Minimum distances between interacting and reacting pinnipeds;
(F) Study location;
(G) Local time;
(H) Substratum type;
(I) Substratum slope;
(J) Weather condition;
(K) Horizontal visibility; and
(L) Tide state.
(2)
(i) During all target missile launches, calibrated recordings of the levels and characteristics of the received launch sounds will be obtained from three different locations of varying distances from the target missile's flight path. To the extent practicable, these acoustic recording locations will correspond with the haul-out sites where video and human observer monitoring is done.
(ii) Acoustic recordings will be supplemented by the use of radar and telemetry systems to obtain the trajectory of target missiles in three dimensions.
(iii) Acoustic equipment used to record launch sounds will be suitable for collecting a wide range of parameters, including the magnitude, characteristics, and duration of each target missile.
(e) The holder of the Letter of Authorization must implement the following reporting requirements:
(1) For each target missile launch, the lead contractor or lead observer for the holder of the Letter of Authorization must provide a status report to NMFS, Southwest Regional Office, providing reporting items found under the Letter of Authorization, unless other arrangements for monitoring are agreed upon in writing.
(2) The Navy shall submit an annual report describing their activities and including the following information:
(i) Timing, number, and nature of launch operations;
(ii) Summary of mitigation and monitoring implementation;
(iii) Summary of pinniped behavioral observations; and
(iv) Estimate of the amount and nature of all takes by harassment or by other means.
(3) The Navy shall submit a draft comprehensive technical report to the Office of Protected Resources and Southwest Regional Office, NMFS, 180 days prior to the expiration of the regulations in this subpart, providing full documentation of the methods, results, and interpretation of all monitoring tasks for launches to date plus preliminary information for missile launches during the first 6 months of the regulations.
(4) A revised final comprehensive technical report, including all monitoring results during the entire period of the Letter of Authorization will be due 90 days after the end of the period of effectiveness of the regulations in this subpart.
(5) Both the 60-day and final reports will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final comprehensive technical report prior to acceptance by NMFS.
(f) Activities related to the monitoring described in paragraphs (c) and (d) of this section, or in the Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter, including the retention of marine mammals, may be conducted without the need for a separate scientific research permit.
(g) In coordination and compliance with appropriate Navy regulations, at its discretion, the NMFS may place an observer on San Nicolas Island for any activity involved in marine mammal monitoring either prior to, during, or after a missile launch in order to monitor the impact on marine mammals.
To incidentally take marine mammals pursuant to the regulations in this subpart, the U.S. citizen (as defined by § 216.06 of this chapter) conducting the activity identified in § 217.50 (the U.S. Navy) must apply for and obtain either an initial LOA in accordance with § 217.57 or a renewal under § 217.58.
(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring, and reporting.
(c) Issuance and renewal of the Letter of Authorization will be based on a
(a) A Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter for the activity identified in § 217.50 will be renewed or modified upon request of the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision of this chapter), and;
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 and 217.57 of this chapter for the activity identified in § 217.50 may be modified by NMFS under the following circumstances:
(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data could contribute to the decision to modify the mitigation, monitoring, and reporting measures in an LOA:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the
(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.50(b), a Letter of Authorization may be modified without prior notice or opportunity for public comment. Notice would be published in the
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has received a petition from the Monsanto Company seeking a determination of nonregulated status of maize designated as event MON 87411, which has been genetically engineered for protection against corn rootworm and resistance to the herbicide glyphosate. The petition has been submitted in accordance with our regulations concerning the introduction of certain genetically engineered organisms and products. We are making the Monsanto Company petition available for review and comment to help us identify potential environmental and interrelated economic issues and impacts that the Animal and Plant Health Inspection Service may determine should be considered in our evaluation of the petition.
We will consider all comments that we receive on or before May 6, 2014.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2014–0007, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road, Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
The petition is also available on the APHIS Web site at:
Dr. John Turner, Director, Environmental Risk Analysis Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737–1236; (301) 851–3954, email:
Under the authority of the plant pest provisions of the Plant Protection Act (7 U.S.C. 7701
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR Part 340. Paragraphs (b) and (c) of § 340.6 describe the form that a petition for a determination of nonregulated status must take and the information that must be included in the petition.
APHIS has received a petition (APHIS Petition Number 13–290–01p) from the Monsanto Company (Monsanto) of St. Louis, MO, seeking a determination of nonregulated status of maize (
As described in the petition, Monsanto developed MON 87411 maize by adding a suppression cassette that expresses an inverted repeat sequence designed to match the sequence of corn rootworm. The expression of the suppression cassette results in the formation of a double-stranded RNA (dsRNA) transcript containing the
Field tests conducted under APHIS oversight allowed for evaluation in a natural agricultural setting while imposing measures to minimize the risk of persistence in the environment after completion of the tests. Data are gathered on multiple parameters and used by the applicant to evaluate agronomic characteristics and product performance. These and other data are used by APHIS to determine if the new variety poses a plant pest risk.
Paragraph (d) of § 340.6 provides that APHIS will publish a notice in the
In accordance with § 340.6(d) of the regulations and our process for soliciting public input when considering petitions for determinations of nonregulated status for GE organisms, we are publishing this notice to inform the public that APHIS will accept written comments regarding the petition for a determination of nonregulated status from interested or affected persons for a period of 60 days from the date of this notice. The petition is available for public review and comment, and copies are available as indicated under
After the comment period closes, APHIS will review all written comments received during the comment period and any other relevant information. Any substantive issues identified by APHIS based on our review of the petition and our evaluation and analysis of comments will be considered in the development of our decisionmaking documents.
As part of our decisionmaking process regarding a GE organism's regulatory status, APHIS prepares a plant pest risk assessment to assess its plant pest risk and the appropriate environmental documentation—either an environmental assessment (EA) or an environmental impact statement (EIS)—in accordance with the National Environmental Policy Act (NEPA), to provide the Agency with a review and analysis of any potential environmental impacts associated with the petition request. For petitions for which APHIS prepares an EA, APHIS will follow our published process for soliciting public involvement (see footnote 1) and publish a separate notice in the
7 U.S.C. 7701–7772 and 7781–7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Forest Service, USDA.
Notice of meetings.
The Humboldt County Resource Advisory Committee (RAC) will meet in Eureka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meetings are to provide updates regarding status of Secure Rural Schools Title II program and funding, discuss funding strategies and review and recommend potential projects eligible for funding.
The meetings will start at 5:30 p.m. and be held on the following dates:
• April 9, 2014.
• April 15, 2014.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Six Rivers National Forest Office, 1330 Bayshore Way, Eureka, California.
Written comments may be submitted as described under
Lynn Wright, RAC Coordinator, by phone at 707–441–3562 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed above.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
Forest Service, USDA.
Notice of meetings.
The Del Norte Resource Advisory Committee (RAC) will meet in Eureka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meetings are to provide updates regarding status of Secure Rural Schools Title II program and funding, discuss funding strategies and review and recommend potential projects eligible for funding.
The meetings will all start at 6:00 p.m. on the following dates:
• April 1, 2014
• April 8, 2014
• April 24, 2014
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Del Norte County Unified School District, Redwood Room, 301 West Washington Boulevard, Crescent City, California.
Written comments may be submitted as described under
Lynn Wright, RAC Coordinator, by phone at 707–441–3562 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed above.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
Enforcement and Compliance, International Trade Administration, Department of Commerce; Office of Insular Affairs, Department of the Interior.
Notice.
This action allocates calendar year 2014 duty exemptions for watch assembly producers (“program producers”) located in the United States Virgin Islands (“USVI”) pursuant to Public Law 97–446, as amended by Public Law 103–465, Public Law 106–36 and Public Law 108–429 (“the Act”).
Supriya Kumar, Subsidies Enforcement Office; phone number: (202) 482–3530; fax number: (202) 501–7952; and email address:
Pursuant to the Act, the Departments of the Interior and Commerce (“the Departments”) share responsibility for the allocation of duty exemptions among program producers in the United States territories of Guam, American Samoa and the Northern Mariana Islands.
In accordance with section 303.3(a) of the regulations (15 CFR 303.3(a)), the total quantity of duty-free insular watches and watch movements for calendar year 2013 is 1,866,000 units for the USVI. This amount was established in
The criteria for the calculation of the calendar year 2014 duty-exemption allocations among program producers within a particular territory are set forth in section 303.14 of the regulations (15 CFR 303.14). The Departments have verified and, where appropriate, adjusted the data submitted in application form ITA–334P by USVI program producers and have inspected these producers' operations in accordance with section 303.5 of the regulations (15 CFR 303.5).
In calendar year 2013, USVI program producers shipped 62,424 watches and watch movements into the customs territory of the United States under the Act. The dollar amount of corporate income taxes paid by USVI program producers during calendar year 2013, and the creditable wages and benefits paid by these producers during calendar year 2013 to residents of the territory was a combined total of $1,087,105. The calendar year 2014 USVI annual duty exemption allocations, based on the data verified by the Departments, are as follows:
The balance of the units allocated to the USVI is available for new entrants into the program or existing program producers who request a supplement to their allocation.
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
On February 18, 2014, the United States Court of International Trade (“CIT”) sustained the Department of Commerce's (“the Department”) results of redetermination,
Effective February 28, 2014.
Irene Gorelik, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC, 20230; telephone: (202) 482–6905.
On January 27, 2004, the Department initiated the antidumping duty investigations of certain frozen and canned warmwater shrimp from Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam.
On September 11, 2013, the Department released the draft redetermination of remand and invited interested parties to comment. The Department received no comments on the draft redetermination
In its decision in
Because there is now a final court decision with respect to the 29 litigants, the revised separate rate dumping margin is as follows:
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
On February 19, 2014, the United States Court of International Trade (CIT) sustained the Department of Commerce's (Department's) results of redetermination, which recalculated the countervailable subsidy rate for the Zhongya Companies
Effective March 3, 2014.
Robert Copyak, Office III, AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, C129, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202–482–2209.
On April 4, 2011, the Department published the
In
In its final results of redetermination pursuant to
On February 19, 2014, the CIT affirmed the Department's final results of redetermination pursuant to remand.
In its decision in
Because there is now a final CIT decision with respect to the
The cash deposit rate for the Zhongya Companies will be the rate listed above, effective March 3, 2014, and the Department will instruct U.S. Customs and Border Protection accordingly. This notice is issued and published in accordance with sections 516A(c)(1), 751(a)(1), and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in April, May, and June of 2014. Certain fishermen and shark dealers are
The Atlantic Shark Identification Workshops will be held on April 10, May 15, and June 4, 2014.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on April 10, April 29, May 7, May 14, June 3, and June 27, 2014.
See
The Atlantic Shark Identification Workshops will be held in Wilmington, NC; Bohemia, NY; and Manahawkin, NJ.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Manahawkin, NJ; Kitty Hawk, NC; Kenner, LA; Warwick, RI; Palm Coast, FL; and Ronkonkoma, NY.
See
Rick Pearson by phone: (727) 824–5399, or by fax: (727) 824–5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 95 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location that first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 172 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.
1. April 10, 2014, 9 a.m.–5 p.m., Holiday Inn, 151 Route 72 East, Manahawkin, NJ 08050.
2. April 29, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 5353 North Virginia Dare Trail, Kitty Hawk, NC 27949.
3. May 7, 2014, 9 a.m.–5 p.m., Hilton Inn, 901 Airline Drive, Kenner, LA 70062.
4. May 14, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 1 Thurber Street, Warwick, RI 02886.
5. June 3, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 55 Town Center Boulevard, Palm Coast, FL 32164.
6. June 27, 2014, 9 a.m.–5 p.m., Clarion Inn, 3845 Veterans Memorial Highway, Ronkonkoma, NY 11779.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682–0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to the National Marine Fisheries Service's Southeast Fisheries Science Center (SEFSC), 75 Virginia Beach Drive, Miami, Florida 33149 [Principal Investigator: Dr. Keith Mullin] to conduct research on marine mammals.
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376;
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281–9328; fax (978) 281–9394; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824–5312; fax (727) 824–5309.
Kristy Beard, (301) 427–8401.
On October 19, 2009, notice was published in the
The permit authorizes takes by harassment during aerial and vessel-based line-transect sampling, acoustic sampling, behavioral observations, and vessel-based photo-identification and biopsy sampling. Tissue samples collected in other countries may be imported into the U.S. The permit is valid for five years from the date of issuance.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit:
(1) was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds products to the Procurement List that will be furnished by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and a service from the Procurement List previously furnished by such agencies.
Effective April 7, 2014.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703)
On January 24, 2014 (79 FR 4154–4155), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the products to the Government.
2. The action will result in authorizing small entity to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
On January 24, 2014 (79 FR 4154–4155) and January 31, 2014 (79 FR 5383), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 USC 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing a new information collection titled, “Debt Collection Survey from the Consumer Credit Panel.”
Written comments are encouraged and must be received on or before May 6, 2014 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
• Electronic:
• Mail/Hand Delivery/Courier: Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW., Washington, DC 20552.
Documentation prepared in support of this information collection request is available at
Bureau of Consumer Financial Protection.
Notice; Extension of Application Period.
On January 15, 2014, Director Richard Cordray of the Consumer Financial Protection Bureau (“Bureau”) published an invitation to the public for application to its Consumer Advisory Board (the “Board”), Community Bank Advisory Council, and Credit Union Advisory Council in the
The application deadline for the Consumer Advisory Board and Councils Solicitation of Application published January 15, 2014, 79 FR 2636, is extended. Complete application packets must be received on or before 5:00 p.m. on or before March 14, 2014.
Complete application packets are required from each applicant. The three components of a complete application are: a résumé, a completed application, and a letter of recommendation from a third party. The appropriate forms can be accessed at:
If electronic submission is not possible, the completed application packet may be mailed to Christopher Banks, Consumer Financial Protection Bureau, 1700 G Street NW., 6108 E–A, Washington, DC 20552.
All applications for membership on the Board and Advisory Council should be sent:
•
•
•
Requests for additional information should be directed to Christopher Banks, Program Analyst, Consumer Financial Protection Bureau, (202) 435–9064.
The Bureau is charged with regulating “the offering and provision of consumer financial products or services under the Federal consumer financial laws,” so as to ensure that “all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.” Pursuant to Section 1021(c) of the Wall Street Reform and Consumer Protection Act, Public Law 111–203 (“Dodd-Frank Act”), the Bureau's primary functions are:
1. Conducting financial education programs;
2. Collecting, investigating, and responding to consumer complaints;
3. Collecting, researching, monitoring, and publishing information relevant to the function of markets for consumer financial products and services to identify risks to consumers and the proper functioning of such markets;
4. Supervising persons covered under the Dodd-Frank Act for compliance with Federal consumer financial law, and taking appropriate enforcement action to address violations of Federal consumer financial law;
5. Issuing rules, orders, and guidance implementing Federal consumer financial law; and
6. Performing such support activities as may be needed or useful to facilitate the other functions of the Bureau.
As described in more detail below, Section 1014 of the Dodd-Frank Act calls for the Director of the Bureau to establish a Consumer Advisory Board to advise and consult with the Bureau regarding its functions, and to provide information on emerging trends and practices in the consumer financial markets.
Pursuant to Section 1014(b) of the Dodd-Frank Act, in appointing members
Pursuant to Section 5 of the Community Bank Advisory Council Charter, in appointing members to the Advisory Council the Director shall seek to assemble experts in consumer protection, financial services, community development, fair lending and civil rights, and consumer financial products or services and representatives of community banks that primarily serve underserved communities, and representatives of communities that have been significantly impacted by higher-priced mortgage loans, and shall strive to have diversity in terms of points of view. Only current bank or thrift employees (CEOs, compliance officers, government relations officials, etc.) will be considered for membership. Membership is limited to employees of banks and thrifts with total assets of $10 billion or less that are not affiliates of depository institutions or credit unions with total assets of more than $10 billion.
Pursuant to section 5 of the Credit Union Advisory Council Charter, in appointing members to the Advisory Council the Director shall seek to assemble experts in consumer protection, financial services, community development, fair lending and civil rights, and consumer financial products or services and representatives of credit unions that primarily serve underserved communities, and representatives of communities that have been significantly impacted by higher-priced mortgage loans, and shall strive to have diversity in terms of points of view. Only current credit union employees (CEOs, compliance officers, government relations officials, etc.) will be considered for membership. Membership is limited to employees of credit unions with total assets of $10 billion or less that are not affiliates of depository institutions or credit unions with total assets of more than $10 billion.
The Bureau has a special interest in ensuring that women, minority groups, and individuals with disabilities are adequately represented on the Board and Councils, and therefore, encourages applications from qualified candidates from these groups. The Bureau also has a special interest in establishing a Board that is represented by a diversity of viewpoints and constituencies, and therefore encourages applications from qualified candidates who:
1. Represent the United States' geographic diversity; and
2. Represent the interests of special populations identified in the Dodd-Frank Act, including service members, older Americans, students, and traditionally underserved consumers and communities.
Any interested person may apply for membership on the Board or Advisory Council.
A complete application packet must include:
1. A recommendation letter from a third party describing the applicant's interests and qualifications to serve on the Board or Council;
2. A complete résumé or curriculum vitae for the applicant; and
3. A complete application.
To evaluate potential sources of conflicts of interest, the Bureau will ask prospective candidates to provide information related to financial holdings and/or professional affiliations, and to allow the Bureau to perform a background check. The Bureau will not review applications and will not answer questions from internal or external parties regarding applications until the application period has closed.
The Bureau will not entertain applications of federally registered lobbyists and individuals who have been convicted of a felony for a position on the Board and Councils.
Only complete applications will be given consideration for review of membership on the Board and Councils.
The Board of Directors of the Corporation for National and Community Service gives notice of the following meeting:
Tuesday, March 11, 2014, 2:30–3:30 p.m. (ET).
Corporation for National and Community Service, 1201 New York Avenue NW., Suite 8312, Washington, DC 20525 (Please go to 10th floor reception area for escort).
This meeting is available to the public through the following toll-free call-in number: 888–790–3155 conference call access code number 9145451. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and CNCS will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Replays are generally available one hour after a call ends. The toll-free phone number for the replay is 800–677–4660, replay passcode 5040. The end replay date is March 18, 2014, 10:59 p.m. (CT).
Open.
The Corporation for National and Community Service provides reasonable accommodations to individuals with disabilities where appropriate. Anyone who needs an interpreter or other accommodation should notify Ida Green
Jenny Mauk, Special Assistant to the CEO, Corporation for National and Community Service, 1201 New York Avenue NW., Washington, DC 20525. Phone: 202–606–6615. Fax: 202–606–3460. TTY: 800–833–3722. Email:
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 13–77 with attached transmittal, policy justification, and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Norway has requested a possible sale of 36 AIM–120C–7 Advanced Medium Range Air-to-Air Missiles (AMRAAM), 8 Captive Air Training Missiles (CATMs), containers, support equipment, spare and repair parts, Common Munitions Bit/Reprogramming Equipment (CMBRE), publications and technical documentation, U.S. Government and contractor logistics support services, and other related elements of logistics support. The estimated cost is $80 million.
The proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a NATO ally which has been, and continues to be, an important force for political stability and economic progress in Europe.
The Government of Norway requires these capabilities for mutual defense, regional security, force modernization, and U.S. and NATO interoperability. This sale will enhance the Royal Norwegian Air Force's ability to defend Norway against future threats and contribute to current and future NATO operations.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Raytheon Corporation in Waltham, Massachusetts. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Norway.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. AIM–120C–7 Advanced Medium Range Air-to-Air Missile (AMRAAM): The AIM–120 is a radar guided missile featuring digital technology and micro-miniature solid-state electronics. AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high- and low-flying and maneuvering targets. The AMRAAM All Up Round (AUR) is classified Confidential, major components and subsystems range from Unclassified to Confidential, and technical data and other documentation are classified up to Secret.
2. A determination has been made that Norway can provide substantially the same degree of protection for the sensitive information being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objective outlined in the Policy Justification.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
4. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Norway.
National Defense University, DoD.
Notice of open meeting.
The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the National Defense University Board of Visitors (BOV) will take place. This meeting is open to the public.
The meeting will be held on Friday, March 14, 2014, from 2:30 p.m. to 4:30 p.m.
The Board of Visitors meeting will be held at Lincoln Hall, Building 64, Room 2315, the National Defense University, 300 5th Avenue SW., Fort McNair, Washington, DC 20319–5066.
The point of contact for this notice of open meeting is Ms. Joycelyn Stevens at (202) 685–0079, Fax (202) 685–3920 or
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150. Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165, and the availability of space, this meeting is open to the public.
The agenda will focus on curricula changes at the National Defense University. Limited space made available for observers will be allocated on a first come, first served basis. Pursuant to 41 CFR 102–3.105(j) and 102–3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, written statements to the committee may be submitted to the committee at any time or in response to a stated planned meeting agenda by FAX or email to the point of contact person listed in the
Due to events beyond the control of the Designated Federal Officer, the meeting agenda for the scheduled meeting of National Defense University Board of Visitors for March 14, 2014, the requirements of 41 CFR 102–3.150(a) were not met. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102–3.150(b), waives the 15-calendar day notification requirement.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary
Comments regarding this proposed information collection must be received on or before May 6, 2014. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to LaReina Parker, Office of Nonproliferation and International Security, NA–24, National Nuclear Security Administration, Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, telephone, (202) 586–6493, or by fax at (202) 586–2164, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to LaReina Parker, Office of Nonproliferation and International Security, NA–24, National Nuclear Security Administration, Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, telephone, (202) 586–6493;
This information collection request contains: (1) OMB No. 1901–0263; (2) Information Collection Request Title: Assistance to Foreign Atomic Energy Activities; (3) Type of Request: Reinstatement; (4) Purpose: Information will be collected from persons who directly or indirectly engage or participate in the development or production of special nuclear material outside the United States. Information will be used to inform commercial nuclear licensing and policy decisions; (5) Annual Estimated Number of Respondents: 145; (6) Annual Estimated Number of Total Responses: 322; (7) Annual Estimated Number of Burden Hours: 966; (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $999.50.
Section 57 b.(2) of the Atomic Energy Act (AEA) of 1954, as amended by section 302 of the Nuclear Nonproliferation Act of 1978 (NNPA) enacted by Public Law 95–242.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability 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 5:00 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:
This is a supplemental notice in the above-referenced proceeding Union Carbide Corporation's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Proceduren (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is March 20, 2014.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Energy Utility Group, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is March 21, 2014.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of The Dow Chemical Company's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is March 20, 2014.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped chronologically, in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to the FR Notice Published 01/03/2014; Extending Comment Period from 03/03/2014 to 03/18/2014.
Federal Election Commission.
Thursday March 6, 2014 At The Conclusion Of The Open Meeting.
999 E Street NW., Washington, DC.
This Meeting Will Be Closed To The Public.
Compliance matters pursuant to 2 U.S.C. 437g.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
An Investigation of Lung Health at an Indium-Tin Oxide Production Facility—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety and health at work for all people through research and prevention. The Occupational Safety and Health Act, Public Law 91–596 (section 20[a][1]), authorizes NIOSH to conduct research to advance the health and safety of workers. NIOSH is proposing to conduct a study regarding the lung health of workers at an indium-tin oxide production facility.
Indium-tin oxide (ITO) is a sintered material used in the manufacture of devices such as liquid crystal displays, touch panels, solar cells, and architectural glass. Indium lung disease is a novel, potentially fatal industrial disease that has occurred in workers making, using, or recycling ITO. This project aims to understand and prevent this occupational lung disease by investigating the relationship between exposure and lung health among current ITO manufacturing workers.
CDC requests Office of Management and Budget (OMB) approval to collect standardized information from current employees of the ITO production facility through an informed consent document, an interviewer-administered questionnaire, and a contact information form. As part of the same project, employees will be offered the opportunity to participate in medical testing and personal air sampling.
The questionnaire will collect contact information, demographic information, respiratory symptoms and diagnoses, work history, and cigarette smoking history. The questionnaire will allow NIOSH to report individual medical test results to each participant and to analyze aggregate data from the workforce to determine risk factors for abnormal lung health indices derived from the medical test results. The individual results will be used by employees and their personal physicians to make medical decisions, such as whether to pursue additional testing. The aggregate results will be used by NIOSH, facility management, and employees in ongoing efforts to reduce exposures and monitor key health indices.
For this study, we will recruit all current employees of the ITO production facility. Participation is voluntary. We anticipate approximately 100 study participants. Employees who wish to participate in the questionnaire and medical testing will review and sign an informed consent document. Employees who wish to participate in the personal air sampling and would like to receive personal results will complete a contact information form. Participants who wish to release medical records to NIOSH or to have NIOSH release the results of our medical testing to a personal physician will need to complete the appropriate records release forms.
The questionnaire will be administered privately at the workplace during normal working hours by trained NIOSH staff. Employees who are not available at the workplace during the study will be offered the opportunity to respond to the questionnaire at a later date by telephone.
There are no costs to participants other than their time.
The total estimated burden for the one-time collection of data is 254 hours.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to LeRoy Richardson, 1600 Clifton Road, MS D–74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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. Written comments should be received within 60 days of this notice.
Annual Survey of Colorectal Cancer Control Activities Conducted by States and Tribal Organizations—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In July 2009, the Centers for Disease Control and Prevention's Division of Cancer Prevention and Control, National Center for Chronic Disease Prevention and Health Promotion, funded the Colorectal Cancer Control Program (CRCCP) for a five-year period. Through a competitive application process, 22 states and four tribal organizations received cooperative agreement awards. In 2010, three additional states were funded, bringing the total number of grantees to 29. The purpose of the CRCCP is to promote colorectal cancer (CRC) screening to increase population-level screening rates to 80% and, subsequently, to reduce CRC incidence and mortality (
The CRCCP is based on a social-ecological framework that emphasizes the implementation of evidence-based strategies at the interpersonal, organizational, community, and policy levels. Grantees are strongly encouraged to implement one or more of the five evidence-based strategies that are recommended in the
As a comprehensive, organized screening program, the CRCCP supports activities including program management, partnership development, public education and targeted outreach, screening and diagnostic services, patient navigation, quality assurance and quality improvement, professional development, data management and utilization, and program monitoring and evaluation. For clinical service delivery, grantees fund health care providers in their state or tribal organization to deliver colorectal cancer screening, diagnostic evaluation, and treatment referrals for those diagnosed with cancer. Through direct screening efforts in the first three years of the CRCCP, 26,565 individuals were screened, 4,059 cases of precancerous polyps were detected and removed, and 74 cancers were diagnosed and treated.
The purpose of the proposed data collection is to annually assess program implementation, particularly related to the use of evidence-based strategies. The primary survey audience is CRCCP program grantees (program directors or managers); however, the survey will also be administered to a comparison group of states or tribes that do not currently receive CRCCP funding. Respondents for the non-CRCCP funded survey group will be program directors or managers from the National Breast and Cervical Cancer Early Detection Program (NBCCEDP), a comparable group with whom the Centers for Disease Control and Prevention (CDC) has an established relationship.
The Web-based survey includes questions about respondent background, program activities, clinical service delivery, monitoring and evaluation, partnerships, training and technical assistance needs, and program management and integration. Questions are of various types including dichotomous and multiple response. The estimated burden per response is 75 minutes. There are two versions of the survey: One for CRCCP-funded states and tribal organizations, and one for states and tribal organizations that do not currently receive CRCCP funding. All information will be collected electronically.
The assessment will enable CDC to gauge progress in meeting CRCCP program goals, identify implementation activities, monitor efforts aimed at impacting population-based screening, identify technical assistance needs of state, tribe and territorial health department cancer control programs, and identify implementation models with potential to expand and transition to new settings to increase program impact and reach.
The assessment will also identify successful activities that should be maintained, replicated, or expanded as well as provide insight into areas that need improvement. Current CRCCP funding is through June 2015, however, CDC anticipates that the program will be renewed. Data obtained from the unfunded states or tribes will provide comparison data to facilitate identification of similarities or differences, if any, in colorectal cancer screening activities, including the use of evidence-based strategies to promote and provide cancer screening. OMB approval is requested for three years. Participation in the survey is voluntary and there are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
Coal Workers' Health Surveillance Program (CWHSP)—(0920–0200, Expiration 06/30/2014)—Revision—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH would like to submit an Information Collection Request (ICR) to revise the data collection instruments being utilized within the Coal Workers' Health Surveillance Program (CWHSP). The current ICR incorporates all four components that fall under the CWHSP. Those four components include: Coal Workers' X-ray Surveillance Program (CWXSP), B Reader Program, Enhanced Coal Workers' Health Surveillance Program (ECWHSP), and National Coal Workers' Autopsy Study (NCWAS).
The CWHSP is a congressionally-mandated medical examination program for monitoring the health of underground coal miners, established under the Federal Coal Mine Health and Safety Act of 1969, as amended in 1977 and 2006, PL–95–164 (the Act). The Act provides the regulatory authority for the administration of the CWHSP. This Program is useful in providing information for protecting the health of miners (whose participation is entirely voluntary), and also in documenting trends and patterns in the prevalence of coal workers' pneumoconiosis (`black lung' disease) among miners employed in U.S. coal mines. The 4,420 estimated annualized hours of burden is based on the following:
• Coal Mine Operators Plan (2.10)—Under 42 CFR 37.4, every coal operator and construction contractor for each underground coal mine must submit a coal mine operator's plan every 3 years, providing information on how they plan to notify their miners of the opportunity to obtain the chest radiographic examination. To complete this form with all requested information (including a roster of current employees) takes approximately 30 minutes.
• Facility Certification Document (2.11)—X-ray facilities seeking NIOSH-approval to provide miner radiographs under the CWHSP must complete an approval packet which requires approximately 30 minutes for completion.
• Miner Identification Document (2.9)—Miners who elect to participate in the CWHSP must fill out this document which requires approximately 20 minutes. This document records demographic and occupational history, as well as information required under the regulations from x-ray facilities in relation to coal miner examinations. In addition to completing this form, the process of capturing the chest image takes approximately 15 minutes.
• Chest Radiograph Classification Form (2.8)—Under 42 CFR part 37, NIOSH utilizes a radiographic classification system developed by the International Labour Office (ILO), in the determination of pneumoconiosis among underground coal miners. Physicians (B Readers) fill out this form regarding their interpretations of the radiographs (each image has at least two separate interpretations). Based on prior practice it takes the physician approximately three minutes per form.
• Physician Application for Certification (2.12)—Physicians taking the B Reader examination are asked to complete this registration form which provides demographic information as well as information regarding their medical practices. It typically takes the physician about 10 minutes to complete this form.
• Spirometry Testing—Miners participating in the ECWHSP component of the Program are asked to perform a spirometry test which requires no additional paperwork on the part of the miner, but does require approximately 15 to 20 minutes for the test itself. Since spirometry testing is offered as part of the ECWHSP only, the 2,500 respondents listed in the burden table below account for about half of the total participants in the CWHSP.
• Pathologist Invoice—42 CFR 37.202 specifies procedures for the NCWAS. The invoice submitted by the pathologist must contain a statement that the pathologist is not receiving any other compensation for the autopsy. Each participating pathologist may use their individual invoice as long as this statement is added. It is estimated that only five minutes is required for the pathologist to add this statement to the standard invoice that they routinely use.
• Pathologist Report—42 CFR 37.203 provides the autopsy specifications. The pathologist must submit information found at autopsy, slides, blocks of tissue, and a final diagnosis indicating presence or absence of pneumoconiosis. The format of the autopsy reports are variable depending on the pathologist conducting the autopsy. Since an autopsy report is routinely completed by a pathologist, the only additional
• Consent, Release and History Form (2.6)—This form documents written authorization from the next-of-kin to perform an autopsy on the deceased miner. A minimum of essential information is collected regarding the deceased miner including the occupational history and smoking history. From past experience, it is estimated that 15 minutes is required for the next-of-kin to complete this form.
There are no costs to respondents other than their time.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Leroy Richardson, 1600 Clifton Road, MS D–74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (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. Written comments should be received within 60 days of this notice.
SEARCH for Diabetes in Youth Study (OMB No. 0920–0904, exp. 11/30/2014)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Diabetes is one of the most common chronic diseases among children in the United States. When diabetes strikes during childhood, it is routinely assumed to be type 1, or juvenile-onset, diabetes. Type 1 diabetes (T1D) develops when the body's immune system destroys pancreatic cells that make the hormone insulin. Type 2 diabetes begins when the body develops a resistance to insulin and no longer uses it properly. As the need for insulin rises, the pancreas gradually loses its ability to produce sufficient amounts of insulin to regulate blood sugar. Reports of increasing frequency of both type 1 and type 2 diabetes in youth have been among the most concerning aspects of the evolving diabetes epidemic. In response to this growing public health concern, the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) funded the SEARCH for Diabetes in Youth Study.
The SEARCH for Diabetes in Youth Study began in 2000 as a multi-center, epidemiological study, conducted in six geographically dispersed clinical study centers that reflected the racial and ethnic diversity of the U.S. Phases 1 (2000–2005) and 2 (2005–2010) produced estimates of the prevalence and incidence of diabetes among youth age <20 years, according to diabetes type, age, sex, and race/ethnicity, and characterized selected acute and chronic complications of diabetes and their risk factors, as well as the quality of life and quality of health care. In Phases 1 and 2, the clinical centers and a data coordinating center were funded through cooperative agreements. The information collected at that time was not provided directly to CDC.
Phase 3 (2011–present) builds upon previous efforts. Five clinical sites collect patient-level information that is compiled by a data coordinating center. CDC obtained OMB approval to receive the information in 2011 (SEARCH for Diabetes in Youth, OMB No. 0920–0904, exp. 11/30/2014). Phase 3 includes a case registry of youth <20 years of age who have been diagnosed with diabetes, and a longitudinal cohort research study about SEARCH cases whose diabetes was incident in 2002 or later. To date, SEARCH Phase 3 has identified an average of 1,361 incident cases of diabetes among youth under 20 years each year of the study and has completed an average of 1,088 participant surveys each year (80% participation rate among registry study participants). As of November 2013,
CDC plans to continue information collection for two additional years, with minor changes. Participants in the registry study will continue to complete a Medication Inventory and an Initial Participant Survey; however, the in-person study examination will be discontinued. This change will result in a decrease in burden per respondent. CDC estimates that each clinical site will identify and register an average of 255 cases per year, for a total 1,275 cases across all sites.
No data collection changes are planned for the cohort study. CDC estimates that each clinical site will conduct follow-up on an average of 142 cases per year, for a total of 710 cases across all sites. The items collected for each case include a Health Questionnaire (Youth version), an additional Health Questionnaire (Parent version), Center for Epidemiologic Study-Depression, Quality of Care, Pediatric Quality of Life Survey (Peds QL), SEARCH Michigan Neuropathy Screening Instrument, Diabetes Eating Survey, Low Blood Sugar Survey, Supplemental Survey, Tanner Stage, Retinal Photo, Family Conflict Survey, Pediatric Diabetes Quality of Life Scale, Physical Exam, Specimen Collection, and Food Frequency Questionnaire.
Findings from the registry study will be used to estimate the incidence of diabetes in youth in the U.S. Findings from the cohort study will be used to estimate the prevalence and incidence of risk factors and complications associated with diabetes in youth, including chronic microvascular complications (retinopathy, nephropathy, and autonomic neuropathy) and selected markers of macrovascular complications (hypertension, arterial stiffness) of diabetes.
Participation is voluntary and there are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
Pulmonary Function Testing Course Approval Program, 29 CFR 1910.1043 (OMB No. 0920–0138, Expiration 8/31/2014)—Revision—The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH has the responsibility under the Occupational Safety and Health Administration's Cotton Dust Standard, 29 CFR 1920.1043, for approving courses to train technicians to perform pulmonary function testing in the cotton industry. Successful completion of a NIOSH-approved course is mandatory under the standard.
To carry out its responsibility, NIOSH maintains a Pulmonary Function Testing Course Approval Program. The program consists of an application submitted by potential sponsors (universities, hospitals, and private consulting firms) who seek NIOSH approval to conduct courses, and if approved, notification to NIOSH of any course or faculty changes during the approval period, which is limited to five years. The application form and added materials, including an agenda,
Course sponsors also voluntarily submit an annual report to inform NIOSH of their class activity level and any faculty changes. Sponsors who elect to have their approval renewed for an additional 5 year period submit a renewal application and supporting documentation for review by NIOSH staff to ensure the course curriculum meets all current standard requirements.
Approved course sponsors that elect to offer NIOSH-Approved Spirometry Refresher Courses must submit a separate application and supporting documents for review by NIOSH staff. Institutions and organizations throughout the country voluntarily submit applications and materials to become course sponsors and carry out training. Submissions are required for NIOSH to evaluate a course and determine whether it meets the criteria in the standard and whether technicians will be adequately trained as mandated under the standard. NIOSH will disseminate a one-time customer satisfaction survey to course directors and sponsor representatives to evaluate our service to courses, the effectiveness of the program changes implemented since 2005, and the usefulness of potential Program enhancements.
The annualized figures slightly over-estimate the actual burden, due to rounding of the number of respondents for even allocation over the three-year clearance period. The estimated annual burden to respondents is 201 hours. There are no costs to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by May 6, 2014.
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under 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. The term “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 requires federal agencies to publish a 60-day notice in the
The statute limited the demonstration to 4,000 beneficiaries and $45 million, including administrative expenses for implementation and evaluation as well as benefit costs. The statute also required that an evaluation of the demonstration be conducted. Under this demonstration, Medicare will issue under Part B a bundled payment for all medically necessary supplies and services to administer IVIG in the home to enrolled beneficiaries who are not otherwise homebound and receiving home health care benefits. In order to implement the demonstration and ensure that statutory limits are not exceeded, it is necessary to positively enroll beneficiaries in the demonstration.
This collection of information is for the application to participate in the demonstration. Participation is voluntary and may be terminated by the beneficiary at any time. Beneficiaries who do not participate will continue to be eligible to receive all of the regular Medicare Part B benefits that they would be eligible for in the absence of the demonstration.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by April 7, 2014
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (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. The term “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
1.
2.
States seeking to establish a Marketplace must build one that meets the requirements set out in Section 1311(d) of the Affordable Care Act and 45 CFR 155.105. In order to ensure that a State seeking approval as a State-based Marketplace, State-based SHOP Marketplace, or State Partnership Marketplace meet all applicable requirements, the Secretary will require a state to submit a Blueprint for approval and to demonstrate operational readiness through virtual or on-site readiness review.
Administration for Native Americans, ACF, HHS.
Notice for Public Comment.
Pursuant to Section 814 of the Native American Programs Act of 1974 (NAPA), as amended, the Administration for Native Americans (ANA) is required to provide members of the public an opportunity to comment on changes in interpretive rules, general statements of policy, and rules of agency procedure or practice that affect programs, projects, and activities authorized under the NAPA. In accordance with notice requirements of NAPA, ANA herein describes its planned changes to interpretive rules, general statements of policy, and rules of agency procedure or practice as they relate to the Fiscal Year (FY) 2014 Funding Opportunity Announcement (FOA) for the Native Asset Building Initiative, HHS–2014–ACF–ANA–NO–0786 (hereinafter referred to as NABI).
Projects funded under this initiative receive two grant awards from two Administration for Children and Families (ACF) Program Offices—ANA and the Office of Community Services (OCS). Grantees under the NABI program implement economic capacity building projects that are targeted toward increasing the economic stability of low-income individuals and families, through the establishment of Individual Development Accounts (IDAs) and related services that motivate individuals to save, invest, and accumulate assets. NABI is part of a national Assets for Independence (AFI) demonstration project, authorized under the Assets for Independence Act of 1998, to test, demonstrate, and develop knowledge about the impact of IDAs and related services. For additional information about NABI, please see the Health and Human Services (HHS) Grants Forecast at the following link:
The deadline for receipt of comments is April 7, 2014.
Comments in response to this notice should be sent via email to Lillian Sparks Robinson, Commissioner, Administration for Native Americans, at
Carmelia Strickland, Director, Division of Program Operations, ANA, (877) 922–9262.
1. ANA will clarify the conflict of interest standards to ensure they align with the rule at 45 CFR 1336.50(f). This rule authorizes the Office of the Chief Executive of a federally recognized Indian tribal government to be paid salary and expenses with ANA grant funds provided such costs are related to a project funded under ANA FOAs and that the costs exclude any portion of salaries and expenses that are a cost of general government. Given this rule regarding the allowable use of grant funds, we would adopt a limited exception to previously published conflict of interest standards that previously did not include the
2. ANA intends to adopt the following policy for the NABI FOA:
ACF encourages all eligible applicants to participate in the Assets for Independence demonstration project; therefore awards made under this FOA will be exempt from the following Administrative Policies regarding limitation of ANA awards: “Limitation on the Number of Awards under a Single CFDA Number,” and “Limitation on the Number of Awards Based on Two Consecutive Funding Cycles.” (Please see FOA Index for a full statement of these policies).
Since NABI was developed as a special initiative between ANA and OCS to increase Native American participation in the national Asset for Independence demonstration project, ANA also will remove the related disqualification factor titled “Only One Active Award per CFDA.” This disqualification factor had been included in the FY 2013 version of the NABI FOA to ensure the “Limitation on Number of Awards per CDFA Number” Administrative Policy. The exemption from the Administrative Policy coupled with the removal of the disqualification factor is intended to encourage increased participation in the NABI program.
ANA and OCS are required by statute to evaluate the impact of their funding. To fulfill the evaluation requirements, ANA and OCS will implement a federally sponsored evaluation strategy to assess the success and impact of approved projects. The federal evaluation strategy will include grantee-level documentation. In accepting a grant award, all grantees will agree to participate fully in the federal evaluation if selected and to follow all evaluation protocols established by ANA and OCS or their designee contractor.
1. Projects for which a grantee would provide training and technical assistance to other tribes or Native American organizations to the extent such training or technical assistance is duplicative of ANA-funded training and technical assistance available to tribes and other entities that are eligible to apply for ANA funding. This does not apply to “train-the-trainer” capacity building projects.
2. Projects from consortia of tribes that do not include documentation from each participating consortium member specifying their role and support. Projects from consortia must have goals and objectives that will encompass the participating communities. ANA will not fund projects by a consortium of tribes that duplicates activities for which participating member tribes also receive funding from ANA.
If any confidential or sensitive information will be collected during the course of the project, whether from staff (e.g., background investigations) or project participants and/or project beneficiaries, then provide a description of the methods that will be used to ensure that confidential and/or sensitive information is properly handled and safeguarded. Also provide a plan for the disposition of such information at the end of the project period.
1. Changes to Criteria: ANA would add three additional criteria to the FOA, titled: Need for Assistance, Objective Work Plan (OWP), and Organizational Capacity. The concept of Need for Assistance was articulated as the Problem Statement and was evaluated under the Outcomes Expected criteria in prior years' FOAs. The OWP and Organizational Capacity were
2. Titles and Assigned Weight: ANA would adjust the maximum point values of the evaluation criteria scores to further prioritize elements that are important to project monitoring and success. ANA proposes to use the following criteria values for the FY 2014 NABI FOA:
3. Scoring Guidance: ANA intends to provide guidance to reviewers to utilize the table below when allocating points for applications in order to ensure consistency and equivalence in scoring between different panels and panel reviewers. ANA would add the following table to all FY 2014 FOAs:
Based on the ranked order of applications, ANA staff will perform an internal review and analysis of the highest ranked applications in order to determine their consistency with the purposes of NAPA, all relevant statutory and regulatory requirements, and the requirements of this FOA. ANA's Commissioner has discretion to make all final funding decisions. In the exercise of such discretion, the Commissioner would consider whether the project:
1. Would further the purpose of this funding opportunity as described in
2. Fails to provide documented commitment of non-federal cash contributions as described in
3. Allows any one community, or region, to receive a disproportionate share of the funds available for award.
4. Is essentially identical or similar in whole, or in part, to previously funded projects proposed by the same applicant, or activities or projects proposed by a consortium that duplicates activities for which any consortium member also receives funding from ANA.
5. Provides couples or family counseling activities that are medically based.
6. Originated with and/or was designed by consultants who provide a major role for themselves and are not members of the applicant organization, tribe, or village.
7. Contains contingent activities that may impede, or indefinitely delay, the progress of the project.
8. Has the potential to cause unintended harm or that could negatively impact the safety or privacy of individuals.
9. May be used for the purpose of providing loan capital. Federal funds awarded under this FOA may not be used for the purpose of providing loan capital. This is not related to loan capital authorized under Sec. 803A of NAPA [42 U.S.C. 2991b–1(a)(1)] for the purpose of the Hawaiian Revolving Loan fund.
10. Includes human subject research as defined at 45 CFR 45.102(d) and (f).
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) is announcing the following public workshop entitled “Advancing Regulatory Science for High Throughput Sequencing Devices for Microbial Identification and Detection of Antimicrobial Resistance Markers.” The purpose of the public workshop is to discuss the clinical and public health applications and performance validation of these devices, the quality criteria for establishing the accuracy of reference databases for regulatory use and ways to streamline clinical trials for microbial identification. This discussion is essential to establish the safety and effectiveness of high throughput sequencing devices when used to test human specimens or clinical isolates for the diagnosis of infectious diseases and detection of antimicrobial resistance markers.
If you need special accommodations due to a disability, please contact Susan Monahan, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4321, Silver Spring, MD 20993–0002, 301–796–5661, email:
To register for the public workshop, please visit FDA's Medical Devices News & Events-Workshops & Conferences calendar at
In advance of the meeting, registered attendees will receive a draft of FDA's proposed concept for the performance evaluation of High Throughput Sequencing Devices for Microbial Identification and Detection of Antimicrobial Resistance Markers. Additional information, including a workshop agenda, will be available at a later date.
High throughput sequencing devices for the diagnosis of infectious diseases, including detection of antimicrobial resistance markers, are a new generation of diagnostic products that have the capability to simultaneously identify and differentiate a large number of microbial pathogens using a single clinical specimen or clinical isolate. These devices have already emerged as a critical tool in many research areas and soon they will become both a fixture in clinical microbiology reference laboratories and a routine part of diagnostic laboratory workflows. Use of this technology requires a process of sample/library preparation, sequencing, and output de-convolution/results interpretation. The identification of the organism or resistance marker is often based on genomic sequence information in comparison to reference databases that were created by the device manufacturer or are otherwise publicly available.
High throughput sequencing devices have the potential to dramatically change clinical microbiology. These diagnostic devices present several advantages, such as identifying potential disease etiology in situations where many different pathogens share a common clinical manifestation without the need for any a priori target specific information to select the appropriate test. However, the processes of selecting the methods used to establish and validate the performance of these devices to make informed clinical and public health decisions pose significant scientific and regulatory challenges.
The purpose of the public workshop is to discuss the implementation of high throughput sequencing devices for the diagnosis of infectious disease. Specifically, the FDA seeks input from clinical laboratories, infectious disease physicians, industry, government, academia, and other stakeholders on the following topics: Clinical applications and public health needs; device performance validation; reference databases; and ways to streamline clinical evaluations/trials for microbial identification. This information is viewed as essential in establishing the safety and effectiveness of high throughput sequencing devices when used for the clinical diagnosis of infectious diseases and markers of antimicrobial resistance from human specimens or clinical isolates.
This public workshop will consist of brief presentations providing information to frame the goals of the workshop, and an interactive discussion. The presentations will focus on current and anticipated uses for high throughput sequencing devices, a proposal for the performance evaluation approach preferred by FDA, and information on the criteria for acceptable reference databases. Following the presentations there will be a moderated discussion where the participants will be asked to provide their individual perspectives. The outcome of the meeting will be captured and released as a draft guidance document.
The draft guidance document is expected to be available at a later date. This information will be placed on file in the public docket (docket number found in brackets in the heading of this document), which is available at
FDA will seek input on its proposed performance evaluation approach, which will include the following topics:
1. Clinical applications and public health needs: Identify specific applications where high throughput sequencing could be used for diagnosis of infectious diseases and markers of antimicrobial resistance from human specimens or clinical isolates.
2. Device validation: Develop and adapt standards for the microbial genome sequencing process (from sample collection to result reporting), discuss best practices for sample/library preparation, variant identification, genome annotation, output de-convolution/results interpretation, and reporting.
3. Reference databases: Develop quality criteria to establish accurate reference databases, methods for curating, maintaining, and updating these databases.
4. Streamline clinical evaluations/trials for microbial identification: Establish a new comparator paradigm for high throughput sequencing as the reference method to augment or replace existing reference testing methods.
Please be advised that as soon as a transcript is available, it will be accessible at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kristina Toliver at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given of the following meeting:
Further information regarding NACNEP, including the roster of members, Reports to Congress, and minutes from previous meetings is available at the following Web site:
Members of the public and interested parties should request to participate in the meeting by contacting our Staff Assistant, Jeanne Brown, to obtain access information. Access will be granted upon request only and will be granted on a first-come, first-served basis. Space is limited.
Jeanne Brown, Staff Assistant, National Advisory Council on Nurse Education and Practice, Parklawn Building, Room 9–61, 5600 Fishers Lane, Rockville, Maryland 20857; email
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.
This notice announces the next meeting of the National Toxicology Program (NTP) Board of Scientific Counselors (BSC). The BSC, a federally chartered, external advisory group composed of scientists from the public and private sectors, will review and provide advice on programmatic activities. The meeting is open to the public as indicated below, and preregistration is requested for both attendance and oral comment and required to access the webcast. Parts of the meeting will be closed as indicated on the agenda. Information about the meeting and registration are available at
Dr. Lori White, Designated Federal Officer for the BSC, Office of Liaison, Policy and Review, Division of NTP, NIEHS, P.O. Box 12233, K2–03, Research Triangle Park, NC 27709. Phone: 919–541–9834, Fax: 301–480–3272, Email:
The BSC will provide input to the NTP on programmatic activities and issues. A preliminary agenda, roster of BSC members, background materials, public comments, and any additional
The public may attend the meeting in person or view the webcast of the open sessions, which begin at 2 p.m. on April 17, 2014. Registration is required to view the webcast; the URL for the webcast will be provided in the email confirming registration. Individuals who plan to provide oral comments (see below) are encouraged to preregister online at the BSC meeting Web site (
Time is allotted during the open portion of the meeting for the public to present oral comments to the BSC on the agenda topics. Public comments can be presented in-person at the meeting at NIEHS or by teleconference line. There are 50 lines for this call; availability is on a first-come, first-served basis. The available lines will be open from 2:00 p.m. on April 17 and from 8:30 a.m. on April 18 until adjournment, although the BSC will receive public comments only during the formal public comment periods, which are indicated on the preliminary agenda. Each organization is allowed one time slot per agenda topic. Each speaker is allotted at least 7 minutes, which if time permits, may be extended to 10 minutes at the discretion of the BSC chair. Persons wishing to present oral comments should register on the BSC meeting Web site by April 9, 2014, indicate whether they will present comments in-person or via the teleconference line, and indicate the topic(s) on which they plan to comment. The access number for the teleconference line will be provided to registrants by email prior to the meeting. On-site registration for oral comments will also be available on the meeting day, although time allowed for presentation by these registrants may be less than that for pre-registered speakers and will be determined by the number of persons who register at the meeting.
Persons registering to make oral comments are asked to send a copy of their statement and/or PowerPoint slides to the Designated Federal Officer by April 9, 2014. Written statements can supplement and may expand upon the oral presentation. If registering on-site and reading from written text, please bring 40 copies of the statement for distribution to the BSC and NTP staff and to supplement the record.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 7–1051, One Choke Cherry Road, Rockville, Maryland 20857; 240–276–2600 (voice), 240–276–2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100–71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires strict standards that laboratories and IITFs must meet in order to conduct drug and
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following HHS-certified laboratories and IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Pursuant to Public Law 92–463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Treatment (CSAT) National Advisory Council will meet April 2, 2014, 9:30 a.m.–5:00 p.m.
The meeting is open to the public and will include a discussion of the Center's current administrative, legislative, and program developments. Public comments are welcome. To attend on-site, or request special accommodations for persons with disabilities, please register at SAMHSA Committees' Web site,
Individuals interested in making oral comments or obtaining the meeting number and passcode are encouraged to notify Ms.Graham, on or before March 24. Substantive program information, a summary of the meeting and a roster of Council members may be obtained 30 days following the meeting by accessing the SAMHSA Committee Web site at
Pursuant to Public Law 92–463, notice is hereby given for the meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Prevention National Advisory Council (CSAP NAC) on April 2, 2014.
The Council was established to advise the Secretary, Department of Health and Human Services (HHS); the Administrator, SAMHSA; and Center Director, CSAP concerning matters relating to the activities carried out by and through the Center and the policies respecting such activities.
The meeting will be open to the public and include discussion of prevention in the context of primary care, SAMHSA's Strategic Initiative on the Prevention of Substance Abuse and Mental Illness, communications, and CSAP program and budget developments.
To attend the public portion of the meeting onsite, submit written or brief oral comments, request special accommodations for persons with disabilities, or participate via Webcast, please register at the SAMHSA Committees' Web site,
Substantive program information, a summary of the meeting, and a roster of committee members may be obtained either by accessing the SAMHSA Committee's Web site after the meeting,
Pursuant to Public Law 92–463, notice is hereby given of a meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) National Advisory Council (NAC) on April 4, 2014.
The meeting will include discussions of SAMHSA's Leadership Role in an Integrated Health Environment, SAMHSA and Military Families, and SAMHSA's Communication Strategy.
The meeting is open to the public and will be held at the SAMHSA building, 1 Choke Cherry Road, Rockville, MD 20857 in the Sugarloaf Conference Room. Attendance by the public will be limited to space available. Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions should be forwarded to the contact person on or before one week prior to the meeting. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact on or before one week prior to the meeting. Five minutes will be allotted for each presentation.
The meeting may be accessed via teleconference. The meeting will be available via teleconference at 888–390–0854, Participant passcode: SAMHSA. To attend on site, obtain the call-in number and access code, submit written
Substantive meeting information and a roster of Committee members may be obtained either by accessing the SAMHSA Committees' Web site at
Pursuant to Public Law 92–463, notice is hereby given of a meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) Advisory Committee for Women's Services (ACWS) on April 2, 2014. The meeting is open to the public. It will include an update from the SAMHSA Women's Coordinating Committee and discussions of Behavioral Health and Primary Care Integration and other ACWS related topics.
The meeting is open to the public and will be held at the SAMHSA building, 1 Choke Cherry Road, Rockville, MD 20857, in the VTC Room. Attendance by the public will be limited to space available. Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions should be forwarded to the contact person on or before one week prior to the meeting. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact on or before one week prior to the meeting. Five minutes will be allotted for each presentation.
The meeting may be accessed via teleconference. The meeting will be available via teleconference at 800–593–7178, Participant passcode: SAMHSA. To attend on site, obtain the call-in number and access code, submit written or brief oral comments, or request special accommodations for persons with disabilities, please register on-line at
Pursuant to Public Law 92–463, notice is hereby given of the combined meeting on April 3, 2014, of the Substance Abuse and Mental Health Services Administration's (SAMHSA) four National Advisory Councils (the SAMHSA National Advisory Council (NAC), the Center for Mental Health Services NAC, the Center for Substance Abuse Prevention NAC, the Center for Substance Abuse Treatment NAC), and the two SAMHSA Advisory Committees (Advisory Committee for Women's Services, and the Tribal Technical Advisory Committee).
The Councils were established to advise the Secretary, Department of Health and Human Services (HHS), the Administrator, SAMHSA, and Center Directors, concerning matters relating to the activities carried out by and through the Centers and the policies respecting such activities.
Under Section 501 of the Public Health Service Act, the Advisory Committee for Women's Services (ACWS) is statutorily mandated to advise the SAMHSA Administrator and the Associate Administrator for Women's Services on appropriate activities to be undertaken by SAMHSA and its Centers with respect to women's substance abuse and mental health services.
Pursuant to Presidential Executive Order No. 13175, November 6, 2000, and the Presidential Memorandum of September 23, 2004, SAMHSA established the Tribal Technical Advisory Committee (TTAC) for working with Federally-recognized Tribes to enhance the government-to-government relationship, honor Federal trust responsibilities and obligations to Tribes and American Indian and Alaska Natives. The SAMHSA TTAC serves as an advisory body to SAMHSA.
The April 3 combined meeting will include a report from the SAMHSA Administrator, an update on SAMHSA's Budget, and discussions related to the impact of behavioral health and healthcare integration on SAMHSA, a report from the Youth Members of the Councils, an update of SAMHSA's current and future strategic initiatives and SAMHSA's internal operating strategies.
The meeting is open to the public and will be held at the SAMHSA building, 1 Choke Cherry Road, Rockville, MD 20857 in the 1st floor Conference Rooms. Attendance by the public will be limited to space available. Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions should be forwarded to the contact person on or before one week prior to the meeting. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact on or before one week prior to the meeting. Five minutes will be allotted for each presentation.
The meeting may be accessed via teleconference at 1–866–652–5200, Participant passcode: SAMHSA. To
Substantive meeting information and a roster of Committee members may be obtained either by accessing the SAMHSA Committees' Web site at
Pursuant to Public Law 92–463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Mental Health Services (CMHS) National Advisory Council will meet April 2, 2014, 9:00 a.m. to 4:30 p.m.
The meeting will be open to the public from 9:00 a.m. to 4:30 p.m. as determined by the SAMHSA Administrator, in accordance with Title 5 U.S.C. 552b(c)(9)(b) and 5 U.S.C. App. 2, Section 10(d). The meeting will include discussion of the Center's policy issues, and current administrative, legislative, and program developments.
Substantive program information, a summary of the meeting and a roster of Council members may be obtained as soon as possible after the meeting, by accessing the SAMHSA Committee Web site at
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Office of Enterprise Support Programs, Program Support Center, HHS, Room 12–07, 5600 Fishers Lane, Rockville, MD 20857; (301) 443–2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Office of the Secretary, Interior.
Call for nominations.
The
All nominations must be received on or before the close of business on May 15, 2014.
A complete nomination package should be submitted by hard copy to Elise Hsieh, Executive Director,
Questions should be directed to Cherri Womac,
The
The Trustee Council consists of representatives of the Department of the Interior, Department of Agriculture, National Oceanic and Atmospheric Administration, Alaska Department of Fish and Game, Alaska Department of Environmental Conservation, and Alaska Department of Law. Appointment to the Public Advisory Council will be made by the Secretary of the Interior.
The Public Advisory Committee consists of 10 members to reflect balanced representation from each of the following principal interests: Aquaculturist/mariculturist, commercial tourism business person, conservationist/environmentalist, recreation user, subsistence user, commercial fisher, public-at-large, native landowner, sport hunter/fisher, and scientist/technologist.
Nominations for membership may be submitted by any source.
Nominations should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Public Advisory Committee and permit the Department of the Interior to contact a potential member.
Individuals who are currently federally registered lobbyists are ineligible to serve on all Federal Advisory Committee Act (FACA) and non-FACA boards, committees, or councils.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of Availability (NOA) of the Final Programmatic Environmental Impact Statement (EIS) for proposed G&G Activities on the Mid- and South Atlantic OCS.
Consistent with the regulations implementing the National Environmental Policy Act (NEPA), as amended (42 U.S.C. 4321
Comments should be submitted no later than April 7, 2014.
Comments may be submitted in one of the following three ways:
1. In written form enclosed in an envelope labeled “Comments on the Final Programmatic EIS for the Mid- and South Atlantic” and mailed (or hand carried) to Mr. Gary D. Goeke, Chief, Environmental Assessment Section, Office of Environment (GM 623E), Bureau of Ocean Energy Management, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123–2394;
2. Electronically to BOEM's email address:
3. Through the regulations.gov web portal: Navigate to
For more information on the Final Programmatic EIS, you may contact Mr. Gary D. Goeke, Chief, Environmental Assessment Section, Office of Environment (GM 623E), Bureau of Ocean Energy Management, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123–2394, or by email at
The Programmatic EIS was prepared to analyze potential environmental impacts from multiple G&G activities in the OCS Mid- and South Atlantic Planning Areas, and interconnected or interrelated activities in adjacent State waters. Development of this Programmatic EIS was also directed under the Conference Report accompanying the FY 2010 Department of the Interior, Environment and Related Agencies Appropriations Act (Pub. L. 111–88).
The Area of Interest (AOI), also known as the affected environment or area of potential effects, for the Programmatic EIS includes U.S. Atlantic waters and submerged lands from the mouth of Delaware Bay to just south of Cape Canaveral, Florida, and from the shoreline to 350 nautical miles from shore. While G&G activities in State waters are not within the jurisdiction of BOEM, the AOI also encompasses adjacent State waters (excluding estuaries) because related G&G activities could extend into State waters or because G&G activities in waters overlying the OCS could impact resources in or migrating through adjacent State waters, e.g. through the introduction of acoustic energy into those waters. The activity scenario and associated impact assessment contained in the Final Programmatic EIS extend to 2020.
The Draft Programmatic EIS was published on March 30, 2012 and the public comment period closed on July 2, 2012. BOEM received over 55,000 comment submissions from federal, state and local governmental organizations, non-governmental organizations, industry and private
The Final Programmatic EIS identifies BOEM's Preferred Alternative which provides programmatic-level mitigation, monitoring and reporting requirements meant to reduce the potential for adverse impacts to Mid- and South Atlantic resources from reasonably foreseeable G&G activities across all three BOEM program areas. It also includes an adaptive management strategy that, through site-specific NEPA analysis, will incorporate new information, establish additional measures and/or adjust existing measures based on monitoring results.
Please note that the Final Programmatic EIS does not address the potential environmental effects of oil and gas leasing, development, or production in the Mid- and South Atlantic. BOEM has not proposed oil and gas leasing, development or production in the Mid- and South Atlantic at this time, and additional environmental analyses would be necessary prior to proceeding with any such activities.
1. You may request a hard copy or compact disc of the Final Programmatic EIS from the Bureau of Ocean Energy Management, Gulf of Mexico OCS Region, Public Information Office (GM 335A), 1201 Elmwood Park Boulevard, Room 250, New Orleans, Louisiana 70123–2394 (1–800–200–GULF (4853)).
2. You may download or view the Final Programmatic EIS on BOEM's project Web site at
Several libraries along the Atlantic Coast have been sent copies of the Final Programmatic EIS. To find out which libraries have copies of the Final Programmatic EIS for review, you may contact BOEM's Public Information Office or visit BOEM's Internet Web site at
This NOA is published pursuant to the regulations (40 CFR part 1503) implementing the provisions of NEPA, as amended (42 U.S.C. 4321
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Acting 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 Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed behalf of Baxter International Inc., Baxter Healthcare Corporation, and Baxter Healthcare SA, on February 28, 2014. 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 hemostatic products and components thereof. The complaint name as respondents Johnson and Johnson Inc. Brunswick, NJ, Ethicon, Inc., Somerville, NJ, Ferrosan Medical Devices A/S, Denmark, Packaging Coordinators, Inc., Philadelphia, PA. The complainant requests that the Commission issue a permanent limited exclusion order, permanent cease and desist orders, and impose a bond during any Presidential Review period.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would 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 requested
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3003”) in a prominent place on the cover page and/or the first page. (
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 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Drug Enforcement Administration (DEA), Department of Justice.
Notice of a proposed 2014 aggregate production quota for four synthetic cannabinoids.
Four synthetic cannabinoids: quinolin-8-yl 1-pentyl-1
The DEA cannot issue individual manufacturing quotas for PB–22, 5F–PB–22, AB–FUBINACA, or ADB–PINACA unless and until it establishes an aggregate production quota. Therefore, this notice proposes a 2014 aggregate production quota for PB–22, 5F–PB–22, AB–FUBINACA, and ADB–PINACA.
Comments or objections should be received on or before April 7, 2014.
To ensure proper handling of comments, please reference “Docket No. DEA–390P” on all electronic and written correspondence. The DEA encourages that all comments be submitted electronically through
Ruth A. Carter, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone: (202) 598–6812.
The Freedom of Information Act applies to all comments received. All comments received are considered part of the public record and made available for public inspection online at
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively
Personal identifying information and confidential business information identified and located as set forth above will be redacted, and the comment, in redacted form, will be posted online and placed in the DEA's public docket file.
If you wish to inspect the DEA's public docket file in person by appointment, please see the
Section 306 of the CSA (21 U.S.C. 826) requires that the Attorney General establish aggregate production quotas for each basic class of controlled substance listed in schedules I and II each year. This responsibility has been delegated to the Administrator of the DEA by 28 CFR 0.100. The Administrator, in turn, has redelegated this function to the Deputy Administrator, pursuant to 28 CFR 0.104.
The DEA established the 2014 aggregate production quotas for substances in schedules I and II on September 9, 2013 (78 FR 55099). Subsequently, on January 10, 2014, the DEA published in the
PB-22, 5F-PB-22, AB-FUBINACA, and ADB-PINACA were non-controlled substances when the aggregate production quotas for schedule I and II substances were established, therefore, no aggregate production quotas for PB-22, 5F-PB-22, AB-FUBINACA, and ADB-PINACA were established at that time.
In determining the 2014 aggregate production quotas of these four cannabinoids, the Deputy Administrator considered the following factors in accordance with 21 U.S.C. 826(a) and 21 CFR 1303.11: (1) Total estimated net disposal of each substance by all manufacturers; (2) estimated trends in the national rate of net disposal; (3) total estimated inventories of the basic class and of all substances manufactured from the class; (4) projected demand for each class as indicated by procurement quotas requested pursuant to 21 CFR 1303.12; and (5) other factors affecting medical, scientific, research, and industrial needs of the United States and lawful export requirements, as the Deputy Administrator finds relevant. These quotas do not include imports of controlled substances for use in industrial processes.
The Deputy Administrator, therefore, proposes that the year 2014 aggregate production quotas for the following temporarily controlled schedule I controlled substances, expressed in grams of anhydrous acid or base, be established as follows:
Pursuant to 21 CFR 1303.11, any interested person may submit written comments on or objections to these proposed determinations. Based on comments received in response to this notice, the Deputy Administrator may hold a public hearing on one or more issues raised. In the event the Deputy Administrator decides in his sole discretion to hold such a hearing, the Deputy Administrator will publish a notice of any such hearing in the
Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a webinar meeting of DOJ's National Motor Vehicle Title Information System (NMVTIS) Federal Advisory Committee to discuss various issues relating to the operation and implementation of NMVTIS.
The meeting will take place on Wednesday March 26, 2014, from 1:00 p.m. to 3:00 p.m. ET.
This will be a webinar meeting. Those wishing to participate are asked to email their request to the Designated Federal Employee (DFE) listed below.
Todd Brighton, Designated Federal Employee (DFE), Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street NW., Washington, DC 20531; Phone: (202) 616–3879 [note: this is not a toll-free number]; Email:
This meeting is open to the public. Members of the public who wish to participate in the webinar must register with Mr. Brighton at the above address at least seven (7) days in advance of the meeting. Registrations will be accepted on a space available basis. Access to the meeting will not be allowed without registration. Interested persons whose registrations have been accepted may be permitted to participate in the discussions at the discretion of the meeting chairman and with approval of the DFE.
Anyone requiring special accommodations should notify Mr. Brighton at least seven (7) days in advance of the meeting.
The NMVTIS Federal Advisory Committee will provide input and recommendations to the Office of Justice
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, the Occupational Safety and Health Administration (“OSHA” or the “Agency”) revokes an experimental variance and interim order granted by OSHA in 1976 and 1978, respectively, to Interlake Stamping Corp., (“Interlake” or the “applicant”) from several provisions of the OSHA standard that regulates mechanical power presses at 29 CFR 1910.217. In April 2011, Interlake submitted an application request for a permanent variance from these provisions, but later withdrew the application, stating that it would be too costly to comply with the conditions of the variance. Therefore, OSHA is revoking Interlake's experimental variance and the interim order.
The revocation becomes effective on March 7, 2014.
Information regarding this notice is available from the following sources:
On August 31, 1976, OSHA granted Interlake Stamping Corp., 4732 East 355th Street, Willoughby, OH 44094, an experimental variance from the provisions of OSHA standards that regulate mechanical power presses at 29 CFR 1910.217 (41 FR 36702). Below is a description of the history of this experimental variance:
(1) On May 20, 1974, OSHA published a notice in the
The applicant states that he has purchased a 22-ton Bliss OBI mechanical power press equipped with an air friction clutch and an Erwin Sick electronic light curtain. The press is equipped with special controls and a highly reliable brake monitoring system. The applicant further proposes to use the electronic light curtain as both a protective device and as a means of cycling the press. The applicant states that electronic light curtain devices are used as a tripping means in Europe and a large body of standards governing their design and use in this manner has been accumulated . . . .
(2) On June 3, 1974, OSHA published a notice in the
(3) On February 3, 1976, OSHA published a
(4) On August 31, 1976, OSHA published a notice in the
(5) On September 9, 1977, OSHA published a
(6) On March 17, 1978, OSHA published a notice in the
(7) On March 6, 1979, OSHA published a notice in the
(8) On May 29, 1981, OSHA published a
(9) In 1988, OSHA added paragraph (h) to 29 CFR 1910.217 (53 FR 8353). Paragraph (h) allows employers to install and use PSDI systems, but requires that OSHA-approved third parties validate the PSDI systems at the time of installation and annually thereafter. To date, no third party has requested OSHA's approval to validate PSDI systems. In the interim, Interlake continued operating mechanical power presses using PSDI systems under the interim order granted in 1978. However, on March 24, 2011, OSHA informed Interlake that it must submit an application for a permanent variance if it wanted to continue this practice (Ex. OSHA–2013–0011–002).
On April 8, 2011, OSHA received Interlake's application seeking a permanent variance from Appendices A and C of 29 CFR 1910.217 (see Ex. OSHA–2013–0011–002). Appendix A sets forth requirements for certification/validation of PSDI systems, and Appendix C specifies requirements for OSHA recognition of third-party validation organizations for PSDI systems. Interlake proposed to use PSDI systems as tripping mechanisms under conditions similar to the conditions specified by the experimental variance granted to Interlake by OSHA in 1976 (see previous discussion).
In its variance application, and in its responses to OSHA's follow-up questions (Ex. OSHA–2013–0011–004), Interlake provided a detailed description of its proposed alternate means of worker protection during operation of the PSDI system, including a description of the power presses and light curtains used; the equipment-guarding means and worker training provided; and inspection, testing, and maintenance procedures. Additionally, in its responses to OSHA's follow-up questions, Interlake stated that it never had a worker injured while using PSDI systems during the 36 years it operated the systems under the conditions specified by the experimental variance.
On August 2, 2012, OSHA conducted a site-evaluation visit at Interlake's Willoughby, Ohio, plant. The purpose of the visit was to review and confirm the continued safe operation of the two mechanical power presses equipped with PSDI systems. Based on the results of the site-evaluation visit, OSHA, on March 13, 2013, proposed in a letter to Interlake several additional conditions that the Agency believed Interlake should include in its variance application (Ex. OSHA–2013–0011–005). On April 30, 2013, Interlake responded to this proposal (Ex. OSHA–2013–0011–006). OSHA reviewed Interlake's responses and modified several of the proposed conditions. In a letter dated September 4, 2013, OSHA notified Interlake of the Agency's revisions to the proposed conditions (Ex. OSHA–2013–0011–007). After reviewing these revisions, Interlake notified OSHA on September 17, 2013, that it is withdrawing its application for a permanent variance, stating:
[T]he management team at Interlake Stamping has decided not to pursue the permanent variance for use of the Presence Sensing Device Initiation (PSDI). We feel it would be too costly for us to comply with all of the requirements mandated in the OSHA response going forward, and would be more economical for us to discontinue its use completely. We understand that the experimental variance that Interlake was granted will no longer be in effect and we have removed the connections completely disabling the PSDI system as of this date. (Emphasis in original; Ex. OSHA–2013–0011–008.)
Based on its review of the record, and the applicant's request to withdraw its application for a permanent variance, OSHA finds that Interlake no longer needs the experimental variance. Therefore, under the authority specified by 29 CFR 1905.13(a)(2), OSHA is revoking the experimental variance granted to Interlake on August 31, 1976, and extended through April 30, 1982. With this notice, OSHA also is revoking the interim order granted to Interlake on March 17, 1978, under which Interlake continued to comply with the conditions of the experimental variance from May 1, 1982, to September 17, 2013.
Accordingly, Interlake must comply fully with the requirements of 29 CFR 1910.217(h) if it decides to use PSDI systems.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC, authorized the preparation of this notice. OSHA is issuing this notice under the authority specified by 29 U.S.C. 655, Secretary of Labor's Order No. 1–2012 (76 FR 3912; Jan. 25, 2012), and 29 CFR part 1905.
Nuclear Regulatory Commission.
Draft supplemental generic environmental impact statement; issuance, public meeting, and request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment a draft plant-specific Supplement 52 to the “Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants,” NUREG–1437, regarding the renewal of operating license NPF–3 for an additional 20 years of operation for Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). Davis-Besse is located in Ottawa County, Ohio. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. The NRC staff plans to hold two public meetings during the public comment period to present an overview of the draft plant-specific supplement to the
Submit comments by April 21, 2014. Comments received after this date will be considered, if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Elaine Keegan, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–8517 or by email at
Please refer to Docket ID NRC–2010–0298 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document by any of the following methods:
•
•
•
Please include Docket ID NRC–2010–0298 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is issuing for public comment a draft plant-specific Supplement 52 to the GEIS, regarding the renewal of operating license NPF–3 for an additional 20 years of operation for Davis-Besse. Supplement 52 to the GEIS includes the preliminary analysis that evaluates the environmental impacts of the proposed action and alternatives to the proposed action. The NRC's preliminary recommendation is that the adverse environmental impacts of license renewal for Davis-Besse are not great enough to deny the option of license renewal for energy planning decisionmakers.
The NRC staff will hold public meetings prior to the close of the public comment period to present an overview of the draft plant-specific supplement to the GEIS and to accept public comment on the document. Two meetings will be held at the Camp Perry Conference Center, 1000 Lawrence Road, Bldg. 600, Port Clinton, Ohio 43453 on Tuesday, March 25, 2014. The first session will convene at 2:00 p.m. and will continue until 4:00 p.m., as necessary. The second session will convene at 7:00 p.m. and will continue until 9:00 p.m., as necessary. The meetings will be transcribed and will include: (1) A presentation of the contents of the draft plant-specific supplement to the GEIS, and (2) the opportunity for interested government agencies, organizations, and individuals to provide comments on the draft report. Additionally, the NRC staff will host informal discussions one hour prior to the start of each session at the same location. No comments on the draft supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing. Persons may pre-register to attend or present oral comments at the meeting by contacting Elaine Keegan, the NRC Environmental Project Manager, at 1–800–368–5642, extension 8517, or by email at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and issuing License Amendment No. 10 to Combined Licenses (COL), NPF–93 and NPF–94. The COLs were issued to South Carolina Electric and Gas (SCE&G) and South Carolina Public Service Authority (Santee Cooper) (the licensee), for construction and operation of the Virgil C. Summer Nuclear Station (VCSNS), Units 2 and 3 located in Fairfield County, South Carolina. The amendment changes the VCSNS Tier 1 (COL Appendix C) Figure 2.3.10–1, Liquid Radwaste System (WLS), and Updated Final Safety Analysis Report (UFSAR) Tier 2 tables, text and figures to align VCSNS Tier 1 with Tier 2 information provided in the UFSAR and to achieve consistency within VCSNS Tier 1 material by (1) changing the safety classification of the Passive Core Cooling System (PXS) and Chemical and Volume Control System (CVS) compartment drain hubs, (2) changing the connection type from the PXS Compartments drains A and B to a header to match the design description, (3) changing the valve types for three valves in the Tier 1 figure to conform to the design description and (4) changing depiction of Tier 1 WLS components to conform to Tier 1 Figure Conventions.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
Please refer to Docket ID NRC–2008–0441 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document, using any of the following methods:
•
•
•
Denise McGovern, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–0681; email:
• The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of Appendix D, “Design Certification Rule for the AP1000 Design,” to part 52 of Title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4. of Appendix D to 10 CFR Part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML13354B798.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VCSNS Units 2 and 3 (COLs NPF–93 and NPF–94). These documents can be found in ADAMS under Accession Nos. ML13354B740 and ML13354B768. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF–93 and NPF–94 are available in ADAMS under Accession Nos. ML13354B723 and ML13354B731. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VCSNS Units 2 and 3. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated August 30, 2013, and revised by the letter dated October 15, 2013, South Carolina Electric & Gas Company (licensee) requested from the Nuclear Regulatory Commission (Commission) an exemption from the provisions of Title 10 of the
For the reasons set forth in Section 3.1 of the NRC staff Safety Evaluation, which can be found at ADAMS Accession Number ML13354B798, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption to the provisions of 10 CFR Part 52, Appendix D, Section III.B, to allow deviations from the certified Design Control Document Tier 1 Figure 2.3.10–1, as described in the licensee's request dated August 30, 2013, and revised by the letter dated October 15, 2013. This exemption is related to, and necessary for the granting of License Amendment No. 10, which is being issued concurrently with this exemption.
3. As explained in Section 5.0 of the NRC staff Safety Evaluation, this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of January 8, 2013.
By letter dated August 30, 2013, the licensee requested that the NRC amend the COLs for VCSNS Units 2 and 3, COLs NPF–93 and NPF–94. The licensee revised this application on October 15, 2013. The proposed amendment would depart from Tier 2 Material previously incorporated into the UFSAR. Additionally, these Tier 2 changes involve changes to Tier 1 Information in the UFSAR, and the proposed amendment would also revise the associated material that has been included in Appendix C of each of the VCSNS, Units 2 and 3 COLs. The requested amendment would amend Combined License Nos. NPF–93 and NPF–94 for the VCSNS Units 2 and 3 by departing from the Combined License Appendix C information and the plant-specific DCD Tier 2 material by revising the safety function and classification of WLS drain hubs in the CVS and PXS compartments. In addition, the proposed changes would modify the PXS compartment drain piping connection; WLS valve types, and depiction of components in the WLS figures.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on August 30, 2013, and revised by letter dated October 15, 2013. The exemption and amendment were issued on January 8, 2014 as part of a combined package to the licensee (ADAMS Accession No. ML13354B699).
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting the addition of Priority Mail Contract 79 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Brian Corcoran, Acting General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed six attachments: A copy of the contract, a redacted copy of Governors' Decision No. 11–6, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2014–20 and CP2014–33 to
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than March 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–20 and CP2014–33 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments by interested persons in these proceedings are due no later than March 7, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting an amendment to Priority Mail Contract 70. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Brian Corcoran, Acting General Counsel, at 202–789–6820.
On February 25, 2014, the Postal Service filed notice that it has agreed to an amendment to the existing Priority Mail Contract 70 subject to this docket (Amendment).
• Attachment A—a redacted copy of the Amendment to the existing Priority Mail Contract 70.
• Attachment B—certified statement of compliance with 39 U.S.C. 3633(a).
The Postal Service also filed the supporting financial documentation and the unredacted Amendment under seal. Notice at 1. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of customer-identifying information that it has filed under seal.
The Amendment broadens the application of the contract to include prices for Priority Mail packages having weights and sizes different than those described in the original contract.
Interested persons may submit comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR Part 3020, subpart B. Comments are due no later than March 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.
1. The Commission reopens Docket No. CP2014–9 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 7, 2014.
4. The Secretary shall arrange for publication of this order in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing an amendment to Priority Mail Express & Priority Mail Contract 14. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Brian Corcoran, Acting General Counsel, at 202–789–6820.
On February 26, 2014, the Postal Service filed notice that it has agreed to an amendment to the existing Priority
• Attachment A—a redacted copy of the Amendment to the existing Priority Mail Express & Priority Mail Contract 14.
• Attachment B—a certified statement of compliance with 39 U.S.C. 3633(a).
The Postal Service also filed supporting financial documentation and the unredacted Amendment under seal. Notice at 1. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of materials filed under seal.
The Amendment changes the prices for some of the customer's Priority Mail contract packages.
Interested persons may submit comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than March 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission previously appointed Pamela A. Thompson to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2013–79 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Pamela A. Thompson will continue to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
3. Comments are due no later than March 7, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Aventura Equities, Inc. (“Aventura”) because of questions concerning the adequacy and accuracy of publicly available information about Aventura, including, among other things, its financial condition, the control of the company, its business operations, and trading in its securities. Aventura is a Florida corporation based in Georgetown, South Carolina, and is traded under the symbol “AVNE.”
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
Small Business Administration.
Notice of open Federal Interagency Task Force Meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for its public meeting of the Interagency Task Force on Veterans Small Business Development. The meeting will be open to the public.
Thursday, March 20, 2014, from 9:00 a.m. to 12:00 p.m.
SBA 409 3rd Street NW., Washington, DC 20419.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Interagency Task Force on Veterans Small Business Development. The Task Force is established pursuant to Executive Order 13540 and focused on coordinating the efforts of Federal agencies to improve capital, business development opportunities and pre-established Federal contracting goals for small business concerns owned and controlled by veterans (VOB's) and service-disabled veterans (SDVOSB'S). Moreover, the Task Force shall coordinate administrative and regulatory activities and develop proposals relating to “three focus areas”: (1) Training, Counseling & Capital; (2) Federal Contracting & Verification; (3) Improved Federal Support on November 1, 2011, the Interagency Task Force on Veterans Small Business Development submitted its first report to the President, which included 18 Recommendations. In addition, the Task Force will allow time to obtain public comment from individuals and representatives of organizations regarding the areas of focus.
The meeting is open to the public, however, advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Task Force must contact Barbara Carson, by February 28, 2014 by email in order to be placed on the agenda. Comments for the Record should be applicable to the “three focus areas” of the Task Force and emailed prior to the meeting for inclusion in the public record, verbal presentations; however, will be limited to five minutes in the interest of time and to accommodate as many presenters as possible. Written comments should be emailed to Barbara Carson, Designated Federal Officer Office of Veterans Business Development, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416, at the email address for the Task Force,
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective March 23, 2014. Comments must be received on or before April 7, 2014.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA–2011–0366], using any of the following methods:
• Federal eRulemaking Portal: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.
• Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Fax: 1–202–493–2251.
Elaine M. Papp, Chief, Medical Programs Division, 202–366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 10 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 10 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (77 FR 5874; 77 FR 17117). Each of these 10 applicants has requested renewal of the exemption and has submitted evidence showing that
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by April 7, 2014.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 10 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 46 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective March 7, 2014. The exemptions expire on March 7, 2016.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On December 26, 2013, FMCSA published a notice of receipt of Federal diabetes exemption applications from
FMCSA has evaluated the eligibility of the 46 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 46 applicants have had ITDM over a range of 1 to 23 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the December 26, 2013,
FMCSA received one comment in this proceeding. The comment is discussed and considered below.
Antonio A. Sena expressed his thanks and appreciation to the FMCSA staff for their help and guidance throughout the application process.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 46 exemption applications, FMCSA exempts William B. Andrus (AL), Chad E. Anger (WI), Thomas C. Aston (MD), Jared F. Beard (ND), Edward Blake (GA), Jerrel F. Bower (MO), Jerry A. Campbell (OH), Brian M. Chase (VA), Charles R. Clayton (NJ), Phillip Covel (NE), Ariel Cuevas (NJ), Glen C. Davis (TN), Nicholas P. Dube (RI), Arthur W. Ehrenzeller (PA), Manuael Elizondo (TX), Michael K. Farris (IN), Merino Fernandes (IL), Craig J. Gadley, Sr. (NY), Daniel Grove, Jr. (PA), Mary F. Guilfoy (IN), James M. Hatcher (MS), Edward S. Ionescu (IL), Jeffrey James (AK), Hayward S. Mason (NY), Guy B. Mayes (WA), Ashun R. Merritt (GA), Herbert A. Morton (CA), Colby A. Nutter (VA), Jayrome D. Rimolde (MN), Gale Roland (PA), Larry J. Sanders (MD), Kelly T. Scholl (MN), Antonio A. Sena (CA), Gregory G. Sisco (IA), Travers L. Stephens (GA), Brittany K. Tomasko (CA), Johnny G. Wallace (AR), Daren Warren (NY), Aaron E. Webb (WA), Billy J. Webb, Jr. (MS), Alan T. Whalen (NY), Thomas L. Whitley (IN), Randall S. Williams (PA), Tomme J. Wirth (IA), Charles J. Wirth (WI), Thomas A. Wysocki (NJ) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Transit Administration, DOT.
Notice of request for comments.
The Federal Transit Administration invites public comment about our intention to request the Office of Management and Budget's (OMB) approval to renew the following information collections:
The information collected is necessary to determine eligibility of applicants and ensure the proper and timely expenditure of federal funds within the scope of each program. The
Comments must be submitted before April 7, 2014. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Tia Swain, Office of Administration, Office of Management Planning, (202) 366–0354.
“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
To achieve this purpose, each Federal department and agency which provides financial assistance for any program or activity is authorized and directed by the Department of Justice (DOJ) to effectuate provisions of Title VI for each program or activity by issuing generally applicable regulations or requirements. The Department of Transportation (DOT) has issued its regulation implementing this DOJ mandate.
In this regard, the responsibility of the FTA is to ensure that Federally-supported transit services and benefits are distributed by applicants, recipients, and subrecipients of FTA assistance in a manner consistent with Title VI. The employment practices of a grant applicant, recipient, or subrecipient are also covered under Title VI if the primary purpose of the FTA-supported program is to provide employment or if those employment practices would result in discrimination against beneficiaries of FTA-assisted services and benefits.
FTA policies and requirements are designed to clarify and strengthen Title VI (service equity) procedures for FTA grant recipients by requiring submission of written plans and approval of such plans by the agency. All project sponsors receiving financial assistance pursuant to an FTA-funded project shall not discriminate in the provision of services because of race, color, or national origin. Experience has demonstrated that a program requirement at the application stage is necessary to assure that benefits and services are equitably distributed by grant recipients. The requirements prescribed by the Office of Civil Rights are designed to accomplish this objective and diminish possible vestiges of discrimination among FTA grant recipients. FTA's assessment of the requirements indicated that the formulation and implementation of the Title VI Program should occur with a decrease in costs to such applicants and recipients.
All entities receiving Federal financial assistance from FTA are prohibited from discriminating against any employee or applicant for employment because of race, color, creed, sex, national origin, age, or disability. To ensure that FTA's EEO procedures are followed, FTA requires grant recipients to submit written EEO plans to FTA for approval. FTA's assessment of this requirement shows that formulating, submitting, and implementing EEO programs should minimally increase costs for FTA applicants and recipients. To determine a grantee's compliance with applicable laws and requirements, grantee submissions are evaluated and analyzed based on the following criteria. First, an EEO program must include an EEO policy statement issued by the chief executive officer covering all employment practices, including recruitment, selection, promotions, terminations, transfers, layoffs, compensation, training, benefits, and other terms and conditions of employment. Second, the policy must be placed conspicuously so that employees, applicants, and the general public are aware of the agency's EEO commitment. The data derived from written EEO and affirmative action plans will be used by the Office of Civil Rights in monitoring grantees' compliance with applicable EEO laws and regulations. This monitoring and enforcement activity will ensure that minorities and women have equitable access to employment opportunities and that recipients of federal funds do not discriminate against any employee or applicant because of race, color, creed, sex, national origin, age, or disability.
The requirements of 49 U.S.C. 5323(d) are implemented in FTA's charter regulation (Charter Service Rule) at 49 CFR part 604. Amended in 2008, the Charter Service Rule now contains five (5) provisions that impose information collection requirements on FTA recipients of financial assistance from FTA under Federal Transit Law.
First, 49 CFR Section 604.4 requires all applicants for Federal financial assistance under Federal Transit Law, unless otherwise exempted under 49 CFR Section 604.2, to enter into a “Charter Service Agreement,” contained in the Certifications and Assurances for FTA Assistance Programs. The Certifications and Assurances become a part of the Grant Agreement or
Second, 49 CFR Section 604.14(3) requires a recipient of Federal funds under Federal Transit Law, unless otherwise exempt, to provide email notification to all registered charter providers in the recipient's geographic service area each time the recipient receives a request for charter service that the recipient is interested in providing.
Third, 49 CFR Section 604.12(c) requires a recipient, unless otherwise exempt under 49 CFR part 604.2, to submit on a quarterly basis records of all instances that the recipient provided charter service.
Fourth, 49 CFR Section 604.13 requires a private charter provider to register on FTA's Charter Registration Web site at
Lastly, 49 CFR Section 604.7 permits recipients to provide charter service to Qualified Human Service Organizations (QHSO) under limited circumstances. QHSOs that do not receive Federal funding under programs listed in Appendix A to part 604 and seek to receive free or reduced rate services from recipients must register on FTA's Charter Registration Web site (49 CFR Section 604.15(a)).
All written comments must refer to the docket number that appears at the top of this document and be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725—17th Street NW. Washington, DC 20503, Attention: FTA Desk Officer.
Surface Transportation Board, DOT.
Proposed railroad cost recovery procedures productivity adjustment.
In a decision served on March 4, 2014, we proposed to adopt 1.010 (1.0% per year) as the measure of average change in railroad productivity for the 2008–2012 (5-year) averaging period. This represents an increase of 0.1% from the average for the 2007–2011 period. The Board's March 4, 2014 decision in this proceeding stated that comments may be filed addressing any perceived data and computational errors in our calculation. It also stated that, if there were no further action taken by the Board, the proposed productivity adjustment would become effective on March 19, 2014.
The productivity adjustment is effective March 19, 2014. Comments are due by March 17, 2014.
Send comments (an original and 10 copies) referring to Docket No. EP 290 (Sub-No. 4) to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001.
Michael Smith, (202) 245–0322. Federal Information Relay Service (FIRS) for the hearing impaired: (800) 877–8339.
Additional information is contained in the Board's decision, which is available on our Web site,
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
By the Board, Chairman Elliott and Vice Chairman Begeman.
Internal Revenue Service, Treasury.
Notice of Proposed Alterations to Privacy Act Systems of Records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Department of the Treasury, Internal Revenue Service, gives notice of proposed alterations to systems of records entitled:
46.002, Criminal Investigation Management Information System (CIMIS) and case files;
46.003, Confidential Informants;
46.005, Electronic Surveillance Files;
46.009, Centralized Evaluation and Processing of Information Items (CEPIIs), Evaluation and Processing of Information (EOI);
46.015, Relocated Witnesses; and
46.050, Automated Information Analysis System.
Comments must be received no later than April 7, 2014. These altered systems of records will be effective April 16, 2014 unless the IRS receives comments that would result in a contrary determination.
Comments should be sent to Anne Jensen, Tax Law Specialist, Office of Privacy, Governmental Liaison, and Disclosure, 1111 Constitution Avenue NW., Room 1621, Washington, DC 20224. Comments will be available for inspection and copying in the Freedom of Information Reading Room (Room 1621), at the above address. The telephone number for the Reading Room is (202) 317–4997 (not a toll-free number).
Anne Jensen, Tax Law Specialist, Office of Privacy, Governmental Liaison, and Disclosure, 1111 Constitution Avenue NW., Room 1621, Washington, DC 20224. Ms. Jensen may be reached via telephone at (202) 317–4997 (not a toll-free number).
The IRS proposes to revise Criminal Investigation's six existing systems of records. In conjunction with these revisions, the IRS will delete one of the existing systems of records, leaving five remaining systems of records. The purpose of these revisions and deletions is to better reflect the reorganization and realignment of Criminal Investigation, a business unit under the Deputy Commissioner (Services and Enforcement) following enactment of the IRS Restructuring and Reform Act of 1998, to simplify the notices, to more closely reflect the nature of the work currently performed by the various components of Criminal Investigation, both in headquarters and in the field, and to enumerate certain additional routine uses that may be made of the individually identifiable information maintained in these systems of records. This revision should enable individuals to more readily identify the systems of records in which Criminal Investigation may maintain records about them. The revised routine uses more fully describe the circumstances under which the agency may use these records. A final exemption rule, which does not alter the exemptions claimed for the individually identifiable information maintained in these consolidated systems of records, is being published separately under the rules section of the
The IRS currently maintains six systems of records related to the functions of Criminal Investigation. Notices describing these systems of records were most recently published at 77 FR 47984–47987 (August 10, 2012). The IRS proposes to delete the system of records described below:
The IRS proposes to revise the five systems of records listed below:
A final rule exempting the proposed altered systems of records from certain provisions of the Privacy Act will be published separately in the
As required by 5 U.S.C. 552a(r), a report of altered systems of records has been provided to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget.
The five proposed revised systems of records, described above, are published in their entirety below.
Management Information System and Case Files, Criminal Investigation—Treasury/IRS.
Headquarters, Field, Campus, and Computing Center offices. (See the Appendix published in the
Subjects and potential subjects of Criminal Investigation (CI) investigations and other individuals of interest to CI, such as witnesses and associates of subjects or potential subjects of CI investigations; individuals about whom CI has received information alleging their commission of, or involvement with, a violation of Federal laws within IRS jurisdiction, including individuals who may be victims of identity theft or other fraudulent refund or tax schemes; individuals identified as potentially posing a threat to the Commissioner, other Agency officials, or visiting dignitaries, or as having inappropriately contacted the Commissioner or other Agency officials; IRS employees assigned to work matters handled by CI.
Records pertaining to possible violations of laws under the enforcement jurisdiction of the IRS, received by the IRS from other sources or developed during investigative activities, that identify or may identify criminal or civil noncompliance with Federal tax laws and other Federal laws delegated to CI for investigation or enforcement; information arising from investigative activities conducted by CI in conjunction with other Federal, state, local, or foreign law enforcement, regulatory, or intelligence agencies; personal, identification, criminal history, and other information, including information sources, pertaining to individuals identified as person(s) of interest by Special Agents assigned to the Dignitary Protection Detail; personnel and workload management information. Records include biographical, travel, communication, financial, and surveillance information.
5 U.S.C. 301; 26 U.S.C. 7801 and 7803; 31 U.S.C. 5311 et seq.; Department of the Treasury Delegation Orders and Directives authorizing CI to conduct investigations into specified non-tax crimes.
To maintain, analyze, and process sensitive investigative information that identifies or may identify criminal noncompliance with Federal tax laws and other Federal laws delegated to CI for investigation or enforcement, and that identifies or may identify the individuals connected to such activity. To establish linkages between identity theft and refund or other tax fraud schemes, and the individuals involved in such schemes, that may be used to further investigate such activity and to perfect filters that identify fraudulent returns upon filing and to facilitate tax account adjustments for taxpayers victimized by these schemes.
Disclosure of returns and return information may be made only as provided by 26 U.S.C. 6103. Material covered by rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed only as permitted by that rule. Disclosure of information covered by 31 U.S.C. 5311, et seq. or 12 U.S.C. 1951, et seq. (Bank Secrecy Act) may be made only as provided by Title 31, U.S.C., and Treasury guidelines. Other records may be used as described below if the IRS deems that the purpose of the disclosure is compatible with the purpose for which the IRS collected the records and no privilege is asserted.
(1) Disclose information to the Department of Justice (DOJ) when seeking legal advice, or for use in any proceeding, or in preparation for any proceeding, when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her individual capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by the proceeding,
(2) Disclose information in a proceeding (including discovery) before a court, administrative tribunal, or other adjudicative body when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her personal capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by, the proceeding, and the IRS or the DOJ determines that the information is relevant and necessary. Information may be disclosed to the adjudicative body to resolve issues of relevancy, necessity, or privilege pertaining to the information.
(3) Disclose information to Federal, State, local, tribal, and foreign law enforcement and regulatory agencies regarding violations or possible violations of Bank Secrecy Act, money laundering, tax, and other financial laws when relevant and necessary to obtain information for an investigation or enforcement activity.
(4) Disclose information to a Federal, State, local, or tribal agency, or other public authority responsible for implementing, enforcing, investigating, or prosecuting the violation of a statute, rule, regulation, order, or license, when a record on its face, or in conjunction with other records, indicates a potential violation of law or regulation and the information disclosed is relevant to any regulatory, enforcement, investigative, or prosecutorial responsibility of the receiving authority.
(5) Disclose information to a contractor hired by the IRS, including an expert witness or a consultant, to the extent necessary for the performance of a contract.
(6) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(7) Disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.
(8) Disclose information to foreign governments in accordance with international agreements.
(9) Disclose information to the news media as described in IRS Policy Statement 11–94 (formerly P–1–183), News Coverage to Advance Deterrent Value of Enforcement Activities Encouraged, IRM 1.2.19.1.9.
(10) Disclose information to a defendant in a criminal prosecution, the DOJ, or a court of competent jurisdiction when required in criminal discovery or by the Due Process Clause of the Constitution.
(11) Disclose information, to the extent deemed necessary and appropriate for use in announcements to the general public that the IRS or the Department of the Treasury seeks to locate, detain, or arrest specified individuals in connection with criminal activity under CI's investigative jurisdiction.
(12) Disclose information to appropriate agencies, entities, and persons when (a) the IRS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the IRS 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 the IRS or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with IRS efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
Paper records and electronic media.
By name, address, taxpayer identification number, or telephone, passport, financial account, driver or professional license, or criminal record numbers, or other identifying detail contained in the investigative records, including financial information, geographical location/travel information, surveillance records, communication and contact information, or biographical data of the subject or an associate of the subject, a witness, or a victim of alleged identity theft or other fraudulent refund or tax scheme; identity of the individual(s) who provided information; name or employee number of assigned employee(s).
Access controls are not less than those published in IRM 10.2, Physical Security Program, and IRM 10.8, Information Technology (IT) Security.
Records pertaining to persons of interest identified by Special Agents assigned to the Dignitary Protection Detail are maintained until such time that the individual or group no longer poses a threat. Other records are retained and disposed of in accordance with the record control schedules applicable to the records of Criminal Investigation, IRM 1.15.30.
Chief, Criminal Investigation. (See the Appendix published in the
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Written inquiries should be addressed as stated in the Appendix published in the
See “Notification Procedure” above.
See “Notification Procedure” above. 26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law enforcement purposes whose sources need not be reported.
Records in this system are exempt from sections (c)(3)–(4), (d)(1)–(4), (e)(1)–(3), (e)(4)(G)–(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). (See 31 CFR 1.36.)
Confidential Informant Records, Criminal Investigation—Treasury/IRS.
Headquarters and Field offices. (See the Appendix published in the
Current and former confidential informants; subjects of confidential informants' reports.
Information about current and former confidential informants, including their personal and financial information and investigative activities with which each confidential informant is connected.
5 U.S.C. 301; 26 U.S.C. 7801 and 7803; 31 U.S.C. 5311 et seq.; Department of the Treasury delegation orders and directives authorizing CI to conduct investigations into specified non-tax crimes.
To maintain a file of the identities and background material of current and former confidential informants.
Disclosure of returns and return information may be made only as provided in 26 U.S.C. 6103. Material covered by rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed only as permitted by that rule. Disclosure of information covered by 31 U.S.C. 5311, et seq. or 12 U.S.C. 1951, et seq. (Bank Secrecy Act) may be made only as provided by Title 31, U.S.C., and Treasury guidelines. Other records may be used as described below if the IRS deems that the purpose of the disclosure is compatible with the purpose for which the IRS collected the records and no privilege is asserted.
(1) Disclose information to the Department of Justice (DOJ) when seeking legal advice, or for use in any proceeding, or in preparation for any proceeding, when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her individual capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by the proceeding, and the IRS determines that the records are relevant and useful.
(2) Disclose information in a proceeding (including discovery) before a court, administrative tribunal, or other adjudicative body when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her personal capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by, the proceeding, and the IRS or the DOJ determines that the information is relevant and necessary. Information may be disclosed to the adjudicative body to resolve issues of relevancy, necessity, or privilege pertaining to the information.
(3) Disclose information to Federal, State, local, tribal, and foreign law enforcement and regulatory agencies regarding violations or possible violations of Bank Secrecy Act, money laundering, tax, and other financial laws when relevant and necessary to obtain information for an investigation or enforcement activity.
(4) Disclose information to a Federal, State, local, or tribal agency, or other public authority responsible for implementing, enforcing, investigating, or prosecuting the violation of a statute, rule, regulation, order, or license, when a record on its face, or in conjunction with other records, indicates a potential violation of law or regulation and the information disclosed is relevant to any regulatory, enforcement, investigative, or prosecutorial responsibility of the receiving authority.
(5) Disclose information to a contractor hired by the IRS, including an expert witness or a consultant, to the extent necessary for the performance of a contract.
(6) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(7) Disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.
(8) Disclose information to foreign governments in accordance with international agreements.
(9) Disclose information to the news media as described in the IRS Policy Statement 11–94 (formerly P–1–183), News Coverage to Advance Deterrent Value of Enforcement Activities Encouraged, IRM 1.2.19.1.9.
(10) Disclose information to a defendant in a criminal prosecution, the DOJ, or a court of competent jurisdiction when required in criminal discovery or by the Due Process Clause of the Constitution.
(11) Disclose information to appropriate agencies, entities, and persons when (a) the IRS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the IRS 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 the IRS or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with IRS efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
Paper records and electronic media
By confidential informant's name, address, or taxpayer identification number; investigation number; or other identifying detail (such as telephone, driver's license, passport, or financial account numbers); name of the subject or other persons identified in the confidential informant's report or memoranda; name or employee number of assigned employee(s).
Access controls are not less than those published in IRM 10.2, Physical Security Program, and IRM 10.8, Information Technology (IT) Security.
Records are retained and disposed of in accordance with the record control schedules applicable to the records of Criminal Investigation, IRM 1.15.30.
Chief, Criminal Investigation. (See the Appendix published in the
Individuals seeking notification of and access to any records contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Written inquiries should be addressed as stated in the Appendix published in the
See “Notification Procedure” above.
See “Notification Procedure” above. 26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law
Records in this system are exempt from sections (c)(3)–(4), (d)(1)–(4), (e)(1)–(3), (e)(4)(G)–(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). (See 31 CFR 1.36.)
Electronic Surveillance and Monitoring Records, Criminal Investigation—Treasury/IRS.
Headquarters office. (See the Appendix published in the
Subjects of electronic surveillance, including associates identified by the surveillance or otherwise.
Information received or developed during CI's investigative activities relating to authorized electronic surveillance activities; investigative reports and files regarding electronic surveillance conducted by CI independently or in conjunction with other Federal, state, local, or foreign law enforcement, or intelligence agencies.
5 U.S.C. 301; 26 U.S.C. 7801 and 7803; 31 U.S.C. 5311 et seq.; Department of Treasury Delegation Orders and Directives authorizing CI to conduct investigations into specified non-tax crimes.
To maintain, analyze, and process sensitive investigative data obtained through authorized electronic surveillance that identifies or may identify criminal noncompliance with Federal tax law or other laws delegated to CI for enforcement.
Disclosure of returns and return information may be made only as provided in 26 U.S.C. 6103. Material covered by rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed only as permitted by that rule. Disclosure of information covered by 31 U.S.C. 5311, et seq. or 12 U.S.C. 1951, et seq. (Bank Secrecy Act) may be made only as provided by Title 31, U.S.C., and Treasury guidelines. Other records may be used as described below if the IRS deems that the purpose of the disclosure is compatible with the purpose for which the IRS collected the records and no privilege is asserted.
(1) Disclose information to the Department of Justice (DOJ) when seeking legal advice, or for use in any proceeding, or in preparation for any proceeding, when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her individual capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by the proceeding, and the IRS determines that the records are relevant and useful.
(2) Disclose information in a proceeding (including discovery) before a court, administrative tribunal, or other adjudicative body when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her personal capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by, the proceeding, and the IRS or the DOJ determines that the information is relevant and necessary. Information may be disclosed to the adjudicative body to resolve issues of relevancy, necessity, or privilege pertaining to the information.
(3) Disclose information to Federal, State, local, tribal, and foreign law enforcement and regulatory agencies regarding violations or possible violations of Bank Secrecy Act, money laundering, tax, and other financial laws when relevant and necessary to obtain information for an investigation or enforcement activity.
(4) Disclose information to a Federal, State, local, or tribal agency, or other public authority responsible for implementing, enforcing, investigating, or prosecuting the violation of a statute, rule, regulation, order, or license, when a record on its face, or in conjunction with other records, indicates a potential violation of law or regulation and the information disclosed is relevant to any regulatory, enforcement, investigative, or prosecutorial responsibility of the receiving authority.
(5) Disclose information to a contractor hired by the IRS, including an expert witness or a consultant, to the extent necessary for the performance of a contract.
(6) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(7) Disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.
(8) Disclose information to foreign governments in accordance with international agreements.
(9) Disclose information to the news media as described in the IRS Policy Statement 11–94 (formerly P–1–183), News Coverage to Advance Deterrent Value of Enforcement Activities Encouraged, IRM 1.2.19.1.9.
(10) Disclose information to a defendant in a criminal prosecution, the DOJ, or a court of competent jurisdiction when required in criminal discovery or by the Due Process Clause of the Constitution.
(11) Disclose information to appropriate agencies, entities, and persons when (a) the IRS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the IRS 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 the IRS or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with IRS efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
Paper records and electronic media.
By name, address, taxpayer identification number, or other identifying detail (telephone, driver's license, passport, criminal record, or financial account numbers) of the subject or an associate of the subject; investigation number; address, telephone number, or other locational criteria of the person or location under surveillance; name or employee number of assigned employee(s).
Access controls are not less than those published in IRM 10.2, Physical Security Program, and IRM 10.8, Information Technology (IT) Security.
Records are retained and disposed of in accordance with the record control schedules applicable to the records of Criminal Investigation, IRM 1.15.30.
Chief, Criminal Investigation. (See the Appendix published in the
Individuals seeking notification and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Written inquiries should be addressed as stated in the Appendix published in the
See “Notification Procedure” above.
See “Notification Procedure” above. 26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law enforcement purposes whose sources need not be reported.
Records in this system are exempt from sections (c)(3)–(4), (d)(1)–(4), (e)(1)–(3), (e)(4)(G)–(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). (See 31 CFR 1.36.)
Relocated Witness Records, Criminal Investigation—Treasury/IRS.
Headquarters office. (See the Appendix published in the
Individuals who are recommended by IRS for placement in the Federal witness security program.
Personal information about individuals recommended by IRS for placement in the Federal witness security program, including reasons for recommendation and status of the recommendation (pending, accepted, denied). Records include information about individuals denied acceptance (including reasons for denial) and individuals accepted and the relocation and other services provided or offered to these individuals.
5 U.S.C. 301; 26 U.S.C. 7801 and 7803; 31 U.S.C. 5311
To maintain information on individuals who are recommended by IRS for placement in the Federal witness security program. Records are used to ensure that appropriate services are provided to each individual.
Disclosure of returns and return information may be made only as provided in 26 U.S.C. 6103. Material covered by rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed only as permitted by that rule. Disclosure of information covered by 31 U.S.C. 5311,
(1) Disclose information to the Department of Justice (DOJ) when seeking legal advice, or for use in any proceeding, or in preparation for any proceeding, when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her individual capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by the proceeding, and the IRS determines that the records are relevant and useful.
(2) Disclose information in a proceeding (including discovery) before a court, administrative tribunal, or other adjudicative body when: (a) the IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her personal capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by, the proceeding, and the IRS or the DOJ determines that the information is relevant and necessary. Information may be disclosed to the adjudicative body to resolve issues of relevancy, necessity, or privilege pertaining to the information.
(3) Disclose information to Federal, State, local, tribal, and foreign law enforcement and regulatory agencies regarding violations or possible violations of Bank Secrecy Act, money laundering, tax, and other financial laws when relevant and necessary to obtain information for an investigation or enforcement activity.
(4) Disclose information to a Federal, State, local, or tribal agency, or other public authority responsible for implementing, enforcing, investigating, or prosecuting the violation of a statute, rule, regulation, order, or license, when a record on its face, or in conjunction with other records, indicates a potential violation of law or regulation and the information disclosed is relevant to any regulatory, enforcement, investigative, or prosecutorial responsibility of the receiving authority.
(5) Disclose information to a contractor hired by the IRS, including an expert witness or a consultant, to the extent necessary for the performance of a contract.
(6) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(7) Disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.
(8) Disclose information to foreign governments in accordance with international agreements.
(9) Disclose information to the news media as described in the IRS Policy Statement 11–94 (formerly P–1–183), News Coverage To Advance Deterrent Value of Enforcement Activities Encouraged, IRM 1.2.19.1.9.
(10) Disclose information to a defendant in a criminal prosecution, the DOJ, or a court of competent jurisdiction when required in criminal discovery or by the Due Process Clause of the Constitution.
(11) Disclose information to appropriate agencies, entities, and persons when (a) the IRS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the IRS has determined that as a result of the
Paper records and electronic media.
By the name, address, taxpayer identification number, or other identifying detail (such as telephone, driver's license, passport, or financial account numbers); investigation number pertaining to the individual whom CI recommends enter the Federal witness protection program; the identity of the person against whom that individual testified.
Access controls are not less than those published in IMR 10.2, Physical Security Program, and IRM 10.8, Information Technology (IT) Security.
Records are retained and disposed of in accordance with the record control schedules applicable to the records of Criminal Investigation, IRM 1.15.30.
Chief, Criminal Investigation. (See the Appendix published in the
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Written inquiries should be addressed as stated in the Appendix published in the
See “Notification Procedure” above.
See “Notification Procedure” above. 26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law enforcement purposes whose sources need not be reported.
Records in this system are exempt from sections (c)(3)–(4), (d)(1)–(4), (e)(1)–(3), (e)(4)(G)–(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). (See 31 CFR 1.36.)
Automated Information Analysis and Recordkeeping, Criminal Investigation—Treasury/IRS.
Headquarters, Field, Campus, and Computing Center offices. (See the Appendix published in the
Individuals involved in financial transactions that require the reporting of information reflected in the `Categories of Records' below.
Financial records pertaining to transactions with reporting requirements under the Internal Revenue Code, the Bank Secrecy Act, or other Federal law, and reports of suspicious activity pertaining to such transactions. Such transactions include international transportation of currency or monetary instruments, cash payments over $10,000 received in a trade or business, financial institution currency transaction reports, registrations of money services businesses, and maintenance of accounts in banks or other financial institutions outside the U.S. Some records in this system are copied from other systems of records, including: Individual Master File (Treasury/IRS 24.030); Business Master File (Treasury/IRS 24.046); Currency Transaction Reports (CTRs) (FinCEN .003); Report of International Transportation of Currency or Monetary Instruments (CMIRs) (FinCEN .003); Suspicious Activity Reports (SARs) (FinCEN .002); Foreign Bank and Financial Accounts (FBARs) (FinCEN .003); Reports of Cash Payments over $10,000 Received in a Trade or Business (FinCEN .003); Registration of Money Services Business; and other forms required by the Bank Secrecy Act (FinCEN .003).
5 U.S.C. 301; 26 U.S.C. 7801 and 7803; 31 U.S.C. 5311
To maintain, analyze, and process records and information that may identify patterns of financial transactions indicative of criminal and/or civil noncompliance with tax, money laundering, Bank Secrecy Act, and other financial laws and regulations delegated to CI for investigation or enforcement, and that identifies or may identify the individuals connected to such activity. To establish linkages between fraudulent transactions or other activities, and the individuals involved in such actions, that may be used to further investigate such activity and to perfect filters that identify information pertaining to such activity.
Disclosure of returns and return information may be made only as provided in 26 U.S.C. 6103. Material covered by rule 6(e) of the Federal Rules of Criminal Procedure may be disclosed only as permitted by that rule. Disclosure of information covered by 31 U.S.C. 5311, et seq. or 12 U.S.C. 1951, et seq. (Bank Secrecy Act) may be made only as provided by Title 31, U.S.C., and Treasury guidelines. Other records may be used as described below if the IRS deems that the purpose of the disclosure is compatible with the purpose for which the IRS collected the records and no privilege is asserted.
(1) Disclose information to the Department of Justice (DOJ) when seeking legal advice, or for use in any proceeding, or in preparation for any proceeding, when: (a) The IRS or any component thereof; (b) any IRS employee in his or her official capacity; (c) any IRS employee in his or her individual capacity if the IRS or the DOJ has agreed to provide representation for the employee; or (d) the United States is a party to, has an interest in, or is likely to be affected by the proceeding, and the IRS determines that the records are relevant and useful.
(2) Disclose information in a proceeding (including discovery) before a court, administrative tribunal, or other adjudicative body when: (a) The IRS or
(3) Disclose information to Federal, State, local, tribal, and foreign law enforcement and regulatory agencies regarding violations or possible violations of Bank Secrecy Act, money laundering, tax, and other financial laws when relevant and necessary to obtain information for an investigation or enforcement activity.
(4) Disclose information to a Federal, State, local, or tribal agency, or other public authority responsible for implementing, enforcing, investigating, or prosecuting the violation of a statute, rule, regulation, order, or license, when a record on its face, or in conjunction with other records, indicates a potential violation of law or regulation and the information disclosed is relevant to any regulatory, enforcement, investigative, or prosecutorial responsibility of the receiving authority.
(5) Disclose information to a contractor hired by the IRS, including an expert witness or a consultant, to the extent necessary for the performance of a contract.
(6) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(7) Disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 when relevant and necessary to their duties of exclusive representation.
(8) Disclose information to foreign governments in accordance with international agreements.
(9) Disclose information to the news media as described in the IRS Policy Statement 11–94 (formerly P–1–183), News Coverage to Advance Deterrent Value of Enforcement Activities Encouraged, IRM 1.2.19.1.9.
(10) Disclose information to a defendant in a criminal prosecution, the DOJ, or a court of competent jurisdiction when required in criminal discovery or by the Due Process Clause of the Constitution.
(11) Disclose information to appropriate agencies, entities, and persons when (a) the IRS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the IRS 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 the IRS or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with IRS efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
Paper records and electronic media.
By name, address, taxpayer identification number, or other identifying detail (such as telephone, driver license, passport, criminal record, financial account, or professional license numbers) of the subject or an associate of the subject, a witness, or a victim of alleged identity theft or other fraudulent refund or tax scheme; identity of the individual who provided information; name or employee number of the assigned employee(s).
Access controls are not less than those published in IRM 10.2, Physical Security Program, and IRM 10.8, Information Technology (IT) Security.
Records are retained and disposed of in accordance with the record control schedules applicable to the records of Criminal Investigation, IRM 1.15.30.
Chief, Criminal Investigation. (See the Appendix published in the
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Written inquiries should be addressed as stated in the Appendix published in the
See “Notification Procedure” above.
See “Notification Procedure” above. 26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law enforcement purposes whose sources need not be reported.
Records in this system are exempt from sections (c)(3)–(4), (d)(1)–(4), (e)(1)–(3), (e)(4)(G)–(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). See 31 CFR 1.36.)
Veterans Health Administration, Department of Veterans Affairs.
Notice; withdrawal of request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521), the Department of Veterans Affairs (VA) published a collection of information notice in the
This document withdraws the Notices at 78 FR 52824 (August 26, 2013) and 79 FR 3276 (January 17, 2014).
Crystal Rennie, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 632–7492.
By direction of the Secretary.
The Department of Veterans Affairs gives notice under 92 (Federal Advisory Committee Act) that the meeting of the Advisory Committee on Disability Compensation scheduled to be held at VA Central Office, 810 Vermont Avenue NW., Washington, DC on March 3–4, 2014
For more information, please contact Ms. Nancy Copeland, Designated Federal Officer at (202) 461–9684.
(b) A member of the Task Force may designate a senior-level official who is from the member's department, agency, or office, and is a full-time officer or employee of the Federal Government, to perform the day-to-day Task Force functions of the member. At the direction of the Chair, the Task Force may establish subgroups consisting exclusively of Task Force members or their designees under this subsection, as appropriate.
(c) The Deputy Secretary of Education shall serve as Executive Director of the Task Force, determine its agenda, convene regular meetings of the Task Force, and supervise its work under the direction of the Chair. The Department of Education shall provide funding and administrative support for the Task Force to the extent permitted by law and within existing appropriations. Each executive department or agency shall bear its own expenses for participating in the Task Force.
(b) The Task Force shall focus on evidence-based intervention points and issues facing boys and young men of color up to the age of 25, with a particular focus on issues important to young men under the age of 15. Specifically, the Task Force shall focus on the following issues, among others: access to early childhood supports; grade school literacy; pathways to college and a career, including issues arising from school disciplinary action; access to mentoring services and support networks; and interactions with the criminal justice system and violent crime.
(c) Within 30 days of the date of this memorandum, each member of the Task Force shall provide recommended indicators of life outcomes for the public Web site described in subsection (a)(i) of this section, and a plan for providing data on such indicators.
(d) Within 45 days of the date of this memorandum, each member of the Task Force shall identify any relevant programs and data-driven assessments within the member's department or agency for consideration in the portal described in subsection (a)(iii) of this section.
(e) Within 90 days of the date of this memorandum, the Task Force shall provide the President with a report on its progress and recommendations with respect to the functions set forth in subsection (a) of this section. Additionally, the Task Force shall provide, within 1 year of the date of this memorandum, a status report to the President regarding the implementation of this memorandum.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of Education is hereby authorized and directed to publish this memorandum in the
Department of Homeland Security.
Final rule.
The Department of Homeland Security (DHS) is issuing regulations setting standards to prevent, detect, and respond to sexual abuse and assault in DHS confinement facilities.
This rule is effective May 6, 2014.
Alexander Y. Hartman, Office of Policy; U.S. Immigration and Customs Enforcement, Department of Homeland Security; Potomac Center North, 500 12th Street SW., Washington, DC 20536; Telephone: (202) 732–4292 (not a toll-free number).
The purpose of this regulatory action is to set standards to prevent, detect, and respond to sexual abuse in Department of Homeland Security (DHS) confinement facilities.
Until recently . . . the public viewed sexual abuse as an inevitable feature of confinement. Even as courts and human rights standards increasingly confirmed that prisoners have the same fundamental rights to safety, dignity, and justice as individuals living at liberty in the community, vulnerable men, women, and children continued to be sexually victimized by other prisoners and corrections staff. Tolerance of sexual abuse of prisoners in the government's custody is totally incompatible with American values.
DHS is committed to preventing, detecting, and responding to sexual abuse in facilities used to detain individuals for civil immigration purposes. Sexual abuse is not an inevitable feature of detention, and with DHS's strong commitment, DHS immigration detention and holding facilities have a culture that promotes safety and refuses to tolerate abuse. DHS is fully committed to its zero-tolerance policy against sexual abuse in its confinement facilities, and these standards will strengthen that policy across DHS confinement facilities. DHS is also fully committed to the full implementation of the standards in DHS confinement facilities, and to robust oversight of these facilities to ensure this implementation.
The standards build on current U.S. Immigration and Customs Enforcement (ICE) Performance Based National Detention Standards (PBNDS) and other DHS detention policies. The standards also respond to the President's May 17, 2012 Memorandum, “Implementing the Prison Rape Elimination Act,” which directs all agencies with Federal confinement facilities to work with the Attorney General to create rules or procedures setting standards to prevent, detect, and respond to sexual abuse in confinement facilities, and to the Violence Against Women Reauthorization Act of 2013 (VAWA Reauthorization), which directs DHS to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of aliens detained for a violation of U.S. immigrations laws.
The DHS provisions span eleven categories that were originally used by the NPREC to discuss and evaluate prison rape elimination standards: Prevention planning, responsive planning, training and education, assessment for risk of sexual victimization and abusiveness, reporting, official response following a detainee
For example, DHS has broken down the standards to cover two distinct types of facilities: (1) Immigration detention facilities, which are overseen by ICE and used for longer-term detention of aliens in immigration proceedings or awaiting removal from the United States; and (2) holding facilities, which are used by ICE and U.S. Customs and Border Protection (CBP) for temporary administrative detention of individuals pending release from custody or transfer to a court, jail, prison, other agency or other unit of the facility or agency.
In addition, the standards reflect the characteristics of the population encountered by DHS in carrying out its border security and immigration enforcement missions by providing, for example, language assistance services for limited English proficient (LEP) detainees, safe detention of family units, and other provisions specific to DHS's needs. A more detailed discussion of all of the provisions in the rulemaking is included below in Section V of this preamble, “Discussion of PREA Standards,” including a section-by-section analysis of the DHS rule.
In this final rule, DHS has modified the proposed regulatory text in multiple areas, including the following:
• In addition to implementing these standards at both DHS facilities and at non-DHS facilities whenever there is a new contract or contract renewal, DHS will also implement the standards at non-DHS facilities whenever there is a substantive contract modification.
• In addition to requiring that assessments for risk of victimization or abusiveness include an evaluation of whether the detainee has been incarcerated previously, DHS is now also requiring consideration of whether the detainee has been detained previously.
• DHS now requires immigration detention facilities to notify a regional ICE supervisor no later than 72 hours after the initial placement into segregation whenever a detainee has been held in administrative segregation on the basis of a vulnerability to sexual abuse or assault. Upon receipt of such notification, the official must conduct a review of the placement to consider whether continued segregation is warranted, whether any less restrictive housing or custodial alternatives may exist (such as placing the detainee in a less restrictive housing option at another facility or other appropriate custodial options), and whether the placement is only as a last resort and when no other viable housing options exist.
• DHS now requires immigration detention facilities to notify a regional ICE supervisor whenever a detainee victim has been held in administrative segregation for longer than 72 hours. Upon receipt of such notification, the official must conduct a review of the placement to consider whether placement is only as a last resort and when no other viable housing options exist, and, in cases where the detainee victim has been held in segregation for longer than five days, whether the placement is justified by extraordinary circumstances or is at the request of the detainee.
• DHS is now requiring immigration detention facilities to complete sexual abuse incident reviews within 30 days of the completion of the investigation, and is requiring that the review include consideration of whether the incident or allegation was motivated by, among other things, sexual orientation or gender identity.
• DHS is now requiring explicitly that facilities keep data collected on sexual abuse and assault incidents in a secure location.
• DHS is now requiring that the agency maintain sexual abuse data for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
The anticipated costs of full nationwide compliance with the rule as well as the benefits of reducing the prevalence of sexual abuse in DHS immigration detention facilities and holding facilities, are discussed at length in section VI, entitled “Statutory and Regulatory Requirements—Executive Orders 12866 and 13563” and in the accompanying Regulatory Impact Analysis (RIA), which is found in the docket for this rulemaking.
As shown in the Summary Table below, DHS estimates that the full cost of compliance with these standards at all covered DHS confinement facilities would be approximately $57.4 million over the period 2013–2022, discounted at 7 percent, or $8.2 million per year when annualized at a 7 percent discount rate. This is the estimated cost of compliance if all facilities adopt and implement the standards within the first year after the rule is finalized. This is an accurate reflection of implementation of these standards in holding facilities, which are fully owned and operated by DHS agencies. However, the annual cost for implementation at immigration detention facilities, most of which are governed by a contract with another entity, will likely be less, because it depends on the pace of contract renewals and substantive modifications which are unlikely to be universally completed in the first year after the rule is finalized. DHS has not endeavored in the RIA to project the actual pace of implementation.
With respect to benefits, DHS conducts what is known as a “break even analysis,” by first estimating the monetary value of preventing various types of sexual abuse (incidents involving violence, inappropriate touching, or a range of other behaviors) and then, using those values, calculating the reduction in the annual number of victims that would need to occur for the benefits of the rule to equal the cost of compliance. This analysis begins by estimating the recent levels of sexual abuse in covered facilities using data from 2010, 2011, and 2012. In 2010, ICE had four substantiated sexual abuse allegations in immigration detention facilities, two in 2011, and one in 2012. There were no substantiated allegations by individuals detained in a DHS holding facility. (This does not include allegations involved in still-open investigations or allegations outside the scope of these regulations.) In the RIA, DHS extrapolates the number of substantiated and unsubstantiated allegations at immigration detention facilities based on the premise that there may be additional detainees who may have experienced sexual abuse, but did not report it.
Next, DHS estimates how much monetary benefit (to the victim and to society) accrues from reducing the annual number of victims of sexual abuse. This is, of course, an imperfect endeavor, given the inherent difficulty in assigning a dollar figure to the cost of such an event. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify, and directs agencies to use the best available techniques to quantify benefits and costs. Executive Order 13563 also states that agencies “may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” Each of these values is relevant here, including human dignity, which is offended by acts of sexual abuse.
DHS uses the Department of Justice (DOJ) estimates of unit avoidance values for sexual abuse, which DOJ extrapolated from the existing economic and criminological literature regarding
There are additional benefits of the rule that DHS is unable to monetize or quantify. Not only will victims benefit from a potential reduction in sexual abuse in facilities, so too will DHS agencies and staff, other detainees, and society as a whole. As noted by Congress, sexual abuse increases the levels of violence within facilities. Both staff and other detainees will benefit from a potential reduction in levels of violence and other negative factors. 42 U.S.C. 15601(14). This will improve the safety of the environment for other detainees and workplace for facility staff. In addition, long-term trauma from sexual abuse in confinement may diminish a victim's ability to reenter society resulting in unstable employment. Preventing these incidents will decrease the cost of health care, spread of disease, and the amount of public assistance benefits required for victims upon reentry into society, whether such reentry is in the United States or a detainee's home country.
Chapter 3 of the RIA presents detailed descriptions of the monetized benefits and break-even results. The Summary Table, below, presents a summary of the benefits and costs of the final rule. The costs are discounted at seven percent.
Rape is violent, destructive, and a crime, no matter where it takes place. In response to concerns related to incidents of rape of prisoners in Federal, State, and local prisons and jails, as well as the lack of data available about such incidents, the Prison Rape Elimination Act (PREA) was enacted in September 2003.
To accomplish these ends, PREA established the National Prison Rape Elimination Commission (NPREC) to conduct a “comprehensive legal and factual study of the penalogical, physical, mental, medical, social, and economic impacts of prison rape in the United States,” and to recommend national standards for the reduction of prison rape. 42 U.S.C. 15606(d). PREA charged the Attorney General, within one year of NPREC issuing its report, to “publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape . . . based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by [NPREC] . . . and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.” 42 U.S.C. 15607(a)(1)–(2).
The NPREC released its findings and recommended national standards in a report (the NPREC report) dated June 23, 2009. The report is available at
In response to the NPREC report, a DOJ PREA Working Group reviewed the NPREC's proposed standards to assist in the rulemaking process. DOJ published an advance notice of proposed rulemaking (ANPRM) on March 10, 2010 (75 FR 11077). Commenters on the ANPRM generally supported the broad goals of PREA and the overall intent of the NPREC's recommendations, with some division over the merits of a number of the NPREC's recommended national standards.
DOJ then issued a notice of proposed rulemaking (NPRM) on February 3, 2011, setting forth proposed national PREA standards. 76 FR 6248 (Feb. 3, 2011). In response to the NPRM, DOJ received over 1,300 comments that provided general assessments of DOJ's efforts as well as specific and detailed recommendations regarding each standard. Pertinent to DHS, there was specific concern expressed by the commenters with respect to NPREC's recommended supplemental standards for immigration detention number six, which proposed to mandate that immigration detainees be housed separately from criminal detainees. The DOJ NPRM noted that several comments to the DOJ ANPRM raised a concern that this requirement would impose a significant burden on jails and prisons, which often do not have the capacity to house immigration detainees and criminal detainees separately.
Following the public comment period for its NPRM, DOJ issued a final rule setting a national framework of standards to prevent, detect, and respond to prison rape at DOJ confinement facilities, as well as State prisons and local jails. 77 FR 37106 (June 20, 2012).
DOJ's NPRM interpreted PREA to bind only facilities operated by the Bureau of Prisons (BOP), and extended the standards to U.S. Marshals Service (USMS) facilities under other authorities of the Attorney General. 76 FR 6248, 6265. Numerous commenters criticized this interpretation of the statute. In light of those comments, DOJ re-examined whether PREA extends to Federal facilities beyond those operated by DOJ and concluded that PREA does, in fact, encompass any Federal confinement facility “whether administered by [the] government or by a private organization on behalf of such government.” 42 U.S.C. 15609(7).
In its final rule, DOJ further concluded that, in general, each Federal department is accountable for, and has statutory authority to regulate, the operations of its own facilities and, therefore, is best positioned to determine how to implement the Federal laws and rules that govern its own operations, the conduct of its own employees, and the safety of persons in its custody. 77 FR 37106, 37113. In particular, DOJ noted that DHS possesses great knowledge and experience regarding the specific characteristics of its immigration facilities, which differ in certain respects from DOJ, State, and local facilities with regard to the manner in which they are operated and the composition of their populations. Thus, and given each department's various statutory authorities to regulate conditions of detention, DOJ stated that Federal departments with confinement facilities, like DHS, would work with the Attorney General to issue rules or procedures consistent with PREA.
On May 17, 2012, the same day DOJ released its final rule, President Obama issued a Presidential Memorandum reiterating the goals of PREA and directing Federal agencies with confinement facilities that are not already subject to the DOJ final rule to propose rules or procedures necessary to satisfy the requirements of PREA within 120 days of the Memorandum. In the Memorandum, the President firmly establishes that sexual violence, against any victim, is an assault on human dignity and an affront to American values, and that PREA established a “zero-tolerance standard” for rape in prisons in the United States. The Memorandum further expresses the Administration's conclusion that PREA encompasses all Federal confinement facilities, including those operated by executive departments and agencies other than DOJ, whether administered by the Federal Government or by an organization on behalf of the Federal Government, and that each agency is responsible for, and must be accountable for, the operations of its own confinement facilities. The President charged each agency, within the agency's own expertise, to determine how to implement the Federal laws and rules that govern its own operations, but to ensure that all agencies that operate confinement facilities adopt high standards to prevent, detect, and respond to sexual abuse. The President directed all agencies with Federal confinement facilities that are not already subject to the DOJ final rule, such as DHS, to work with the Attorney General to propose rules or procedures that will satisfy the requirements of PREA.
Additionally, on March 7, 2013, the VAWA Reauthorization was enacted, which included a section addressing sexual abuse in custodial settings.
Sexual abuse in custodial environments is a serious concern with dire consequences for victims. DHS is firmly committed to protecting detainees from all forms of sexual abuse. By this regulation, DHS responds to and fulfills the President's directive and the requirements of the VAWA Reauthorization by creating comprehensive, national regulations for the detection, prevention, and reduction of sexual abuse at DHS immigration detention facilities and at DHS holding facilities that maintain custody of aliens detained for violating U.S. immigration laws.
On December 19, 2012, DHS published an NPRM entitled
Commenters included private citizens, professional organizations, social service providers, and advocacy organizations concerned with issues involving detainee safety and rights, sexual violence, discrimination, and the mental health of both the detainees and the facility employees. In general, commenters supported the goals of PREA and DHS's proposed rule. However, some commenters, particularly advocacy groups concerned with protecting the health and safety of the detainees, expressed concern that the proposed rule did not go far enough towards achieving the goals that PREA set forth. Some comments were outside the scope of the proposed rule, and therefore have not been included in the DHS responses and changes in the final rule below. DHS thanks the public for its interest and participation.
Members of Congress and others have also expressed interest in this rulemaking. In describing the potential positive impacts of the VAWA Reauthorization, Senator Richard Durbin—both a PREA and VAWA Reauthorization legislative co-sponsor—referred to the importance of the bill's provision regarding implementation of PREA standards by DHS. Specifically, Senator Durbin applauded DHS's efforts, through its proposed rule, to implement rules consistent with PREA's goals. 159 Cong. Rec. S503 (daily ed. Feb. 7, 2013) (statement of Sen. Durbin). Senator Durbin noted that, “It was critical . . . to have a provision in this VAWA Reauthorization that clarifies that standards to prevent custodial rape must apply to immigration detainees—all immigration detainees—a provision that codifies the good work DHS is now doing and ensures strong regulations pertaining to immigration will remain in place in the future.”
When the public comment period closed, DHS carefully reviewed each comment and deliberated internally on the revisions that the commenters proposed.
This rule applies to just two types of confinement facilities: (1) Immigration detention facilities and (2) holding facilities.
Section 115.5 defines an immigration detention facility as a “confinement facility operated by or pursuant to contract with [ICE] that routinely holds persons for over 24 hours pending resolution or completion of immigration removal operations or processes, including facilities that are operated by ICE, facilities that provide detention services under a contract awarded by ICE, or facilities used by ICE pursuant to an Intergovernmental Service Agreement.” These facilities are designed for long-term detention (more than 24 hours) and house the largest number of DHS detainees. ICE is the only DHS component agency with immigration detention facilities, and it has several types of such facilities: Service processing center (SPC) facilities are ICE-owned facilities staffed by a combination of Federal employees and contract staff; CDFs are owned by private companies and contracted directly with ICE; and detention services at IGSA facilities are provided to ICE by States or local governments through agreements and may be owned by the State or local government, or a private entity.
The standards set forth in Subpart A of these proposed regulations are meant ultimately to apply to all of these various types of immigration detention facilities—but not, notably, to facilities authorized for use by ICE pursuant to agreements with BOP or pursuant to agreements between DOJ and state or local governments or private entities (e.g., USMS IGA facilities). Those facilities and their immigration detainees are covered by the DOJ PREA standards and not the provisions within Subpart A of these proposed rules.
These regulations do not apply to CDF and IGSA facilities directly; rather, standards for these facilities will be phased in through new contracts, contract renewals, or substantive contract modifications. Specifically, the regulations require that when contracting for the confinement of detainees in immigration detention facilities operated by non-DHS private or public agencies or other entities, DHS component agencies include in any new contracts, contract renewals, or substantive contract modifications the obligation to adopt and comply with these standards. (Covered substantive contract modifications would include, for example, changes to the bed/day rate or the implementation of stricter standards, but not the designation of a new Contracting Officer.) In other words, DHS intends to enforce the standards though terms in its contracts with facilities.
Section 115.5 defines a holding facility similarly to DOJ's definition of “lockup.” A “holding facility” is a facility that contains holding cells, cell blocks, or other secure enclosures that are: (1) Under the control of the agency; and (2) primarily used for the short-term confinement of individuals who have recently been detained pending release or transfer to or from a court, jail, prison, or other agency. These facilities, which are operated by ICE, CBP, or other DHS components, are designed for confinement that is short-term in nature, but are permanent structures intended primarily for the purpose of such confinement. Temporary-use hold rooms and other types of short-term confinement areas not primarily used for confinement are not amenable to compliance with these standards, but are covered by other DHS policies and procedures. We discuss the distinctions between these facilities in more detail later in this rule.
As stated above, the NPREC report contained eleven recommended standards for facilities with immigration detainees and four recommended standards specifically addressing family facilities. ICE oversees immigration detention facilities nationwide. The vast majority of facilities are operated through government contracts, State and local entities, private entities, or other Federal agencies. ICE Enforcement and Removal Operations (ERO) is the program within ICE that manages ICE operations related to the immigration detention system.
ERO is responsible for providing adequate and appropriate custody management to support the immigration removal process. This includes providing traditional and alternative custody arrangements for those in removal proceedings, providing aliens access to legal resources and representatives of advocacy groups, and facilitating the appearance of detained aliens at immigration court hearings.
The ERO Custody Management Division (CMD) provides policy and oversight for the administrative custody of immigration detainees, a highly transient population and one of the most diverse of any correctional or detention system in the world. CMD's mission is to manage ICE detention operations efficiently and effectively to provide for the safety, security and care of aliens in ERO custody.
As of spring 2012, ERO was responsible for providing custody management to approximately 158 authorized immigration detention facilities, consisting of 6 SPCs, 7 CDFs, 9 dedicated IGSA facilities, and 136 non-dedicated IGSA facilities (of which 64 are covered by the DOJ PREA rule, not this rule, because they are USMS IGA facilities). ERO has 91 other authorized immigration detention facilities that typically hold detainees for more than 24 hours and less than 72 hours, including 55 USMS IGA facilities and 36 non-dedicated IGSA facilities. In addition, ICE has 149 holding facilities that hold detainees for less than 24 hours. These holding facilities are nationwide and are located within ICE ERO Field and Sub-Field Offices.
These regulations for immigration detention facilities and holding facilities support existing sexual abuse policies promulgated by ICE, including ICE's PBNDS 2011 and its 2012 Sexual Abuse and Assault Prevention and Intervention Directive (SAAPID),
ICE's PBNDS 2011 standard on “Sexual Abuse and Assault Prevention and Intervention” was developed in order to enhance protections for immigration detainees as well as ensure a swift and effective response to allegations of sexual abuse. This standard derived in significant part from earlier policies contained in ICE's PBNDS 2008, promulgated in response to the passage of PREA, and took into consideration the subsequently released recommendations of the NPREC (including those for facilities housing immigration detainees) in June 2009 and ensuing draft standards later issued by DOJ in its ANPRM in March 2010. In drafting the PBNDS 2011, ICE also incorporated the input of the DHS Office for Civil Rights and Civil Liberties (CRCL), local and national advocacy organizations, and representatives of DOJ (including correctional experts from BOP) on methods for accomplishing the objectives of PREA in ICE's operational context, and closely consulted information and best practices reflected in policies of international corrections systems, statistical data on sexual violence collected by the DOJ Bureau of Justice Statistics (BJS), and reports published by the United Nations High Commissioner for Refugees and the Inter-American Commission on Human Rights of the Organization of American States regarding sexual abuse and other issues affecting vulnerable populations in U.S. correctional systems. The PBNDS 2011 establish responsibilities of all immigration detention facility staff with respect to preventative measures such as screening, staff training, and detainee education, as well as effective response to all incidents of sexual abuse, including timely reporting and notification, protection of victims, provision of medical and mental health care, investigation, and monitoring of incident data.
The PBNDS 2008 standard on Sexual Abuse and Assault Prevention and Intervention and the Family Residential Standards also contain robust safeguards against sexual abuse of ICE detainees, establishing similar requirements with respect to each of the issues covered by the PBNDS 2011 Sexual Abuse standard. In addition, ICE has made great strides in incorporating standards specific to sexual abuse and assault in NDS facilities. In fact, since the publication of the NPRM a substantial number of NDS facilities with which ICE maintains IGSAs have agreed to implement the PBNDS 2011's Sexual Abuse and Assault Prevention and Intervention standard. Excluding those detainees who are held in DOJ-contracted facilities (and are therefore covered by the DOJ rule), as of July 2013 approximately 94% of ICE detainees, on average, are housed in facilities that have adopted a sexual abuse and assault standard under PBNDS 2011, PBNDS 2008, or Family Residential Standards.
The 2012 ICE SAAPID complements the requirements established by the detention standards by delineating ICE-wide policy and procedures and corresponding duties of employees for reporting, responding to, investigating, and monitoring incidents of sexual abuse. Regardless of the standards applicable to a particular facility, ICE personnel are required under this Directive to ensure that the substantive response requirements of PBNDS 2011 are met, and that incidents receive timely and coordinated agency follow-up. In conjunction with the PBNDS, the SAAPID ensures an integrated and comprehensive system of preventing and responding to all incidents or allegations of sexual abuse of individuals in ICE custody.
On September 4, 2013, ICE issued a directive entitled “Review of the Use of Segregation for ICE Detainees.” The directive establishes policy and procedures for ICE review of detainees placed into segregated housing. It is intended to complement the requirements of the 2011 PBNDS, the 2008 PBNDS, NDS and other applicable policies. The directive states that placement in segregation should occur only when necessary and in compliance with applicable detention standards, and includes a notification requirement whenever a detainee has been held continuously in segregation for 14 days out of any 21 day period and a 72-hour notification requirement for detainees placed in segregation due to a special vulnerability, including for detainees susceptible to harm due to sexual orientation or gender identity, and detainees who have been victims—in or
ICE's combined policies prescribe a comprehensive range of protections against sexual abuse, addressing prevention planning, reporting, response and intervention, investigation, and oversight, including: Articulation of facility zero-tolerance policies; designation of facility and component sexual assault coordinators; screening and classification of detainees; staff training; detainee education; detainee reporting methods; staff reporting and notification; first responder duties following incidents or allegations of sexual abuse (including to protect victims and preserve evidence); emergency and ongoing medical and mental health services; investigation procedures and coordination; discipline of assailants; and sexual abuse incident data collection and review.
These policies are tailored to the particular operational and logistical circumstances encountered in the DHS confinement system in order to maximize the effective achievement of the goals of PREA within the immigration detention context. To further improve transparency and enforcement, DHS has decided to issue this regulation and adopt the overall structure of the DOJ standards, as well as the wholesale text of various individual DOJ standards where DHS has deemed them appropriate and efficacious, to meet the President's goal of setting high standards, government-wide, consistent with the goals of PREA and Congress's expressed intent that DHS adopt national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in immigration confinement settings. Where appropriate, DHS also has used the results of DOJ research and considered public comments submitted in response to the DOJ ANPRM and NPRM in formulating the DHS standards.
CBP has a priority mission of keeping terrorists and their weapons out of the United States. CBP also is responsible for securing and facilitating trade and travel while enforcing hundreds of U.S. statutes and regulations, including immigration and drug laws. All persons, baggage, and other merchandise arriving in or leaving the United States are subject to inspection and search by CBP officials for a number of reasons relating to its immigration, customs, and other law enforcement activities.
CBP detains individuals in a wide range of facilities. CBP detains some individuals in secured detention areas, while others are detained in open seating areas where agents or officers interact with the detainee. CBP uses “hold rooms” in its facilities for case processing and to search, detain, or interview persons who are being processed. CBP does not currently contract for law enforcement staff within its holding facilities; CBP employees oversee detainees directly.
CBP generally detains individuals for only the short time necessary for inspection and processing, including pending release or transfer of custody to appropriate agencies. Some examples of situations in which CBP detains individuals prior to transferring them to other agencies are: (1) Persons processed for administrative immigration violations may, for example, be repatriated to a contiguous territory or transferred to ICE pending removal from the United States or removal proceedings with the Executive Office of Immigration Review; (2) unaccompanied alien children placed in removal proceedings under § 240 of the Immigration and Nationality Act (INA), 8 U.S.C. 1229a, are transferred, in coordination with ICE, to the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR); and (3) persons detained for criminal prosecution are temporarily held pending case processing and transfer to other Federal, State, local or tribal law enforcement agencies. CBP policies and directives currently cover these and other detention scenarios.
The various CBP policies and directives containing guidance on the topics addressed in these regulations include, but are not limited to:
CBP Directive No. 3340–030B,
U.S. Border Patrol Policy No. 08–11267,
DHS referenced all of these policies in its consideration of DHS-wide standards to prevent, detect, and respond to sexual abuse in DHS confinement facilities. The policies are available, redacted as appropriate, in the docket for this rule at
With this final rule, DHS reiterates that sexual violence against any victim is an assault on human dignity. Such acts are particularly damaging in the detention environment, where the power dynamic is heavily skewed against victims and recourse is often limited. Until recently, however, this has been viewed by some as an inevitable aspect of detention within the United States. This view is not only incorrect but incompatible with American values.
As noted in the NPRM, DHS keeps records of any known or alleged sexual abuse incidents in its facilities. DHS reiterates that the allegations that have been tracked are unacceptable, both to DHS and the Administration, which has articulated a “zero-tolerance” standard for sexual abuse in confinement facilities. Accordingly, DHS continues to work to achieve its mandate to eliminate all such incidents.
With respect to this rule, DHS did not begin its work from a blank slate. Many correctional administrators have developed and implemented policies and practices to more effectively prevent and respond to sexual abuse in confinement facilities, including DHS confinement facilities. DHS applauds these efforts, and views them as an excellent first step. However, as noted in the NPRM, DHS has decided to promulgate regulations to meet PREA's goals and comply with the President's directive that can be applied effectively to all covered facilities in light of their particular physical characteristics, the nature of their diverse populations, and resource constraints.
DHS appreciates the considerable work DOJ has done in this area, and also recognizes that each DHS component has extensive expertise regarding its own facilities, particularly those housing unique populations, and that each DHS component is best positioned to determine how to implement the Federal laws and rules that govern its own operations, the conduct of its own employees, and the safety of persons in its custody. Thus DHS, because of its own unique circumstances, has adopted the overall structure of DOJ's regulations and has used its content to inform the provisions of the NPRM and this final rule, but has tailored individual provisions to maximize their efficacy in DHS confinement facilities.
DHS also reemphasizes that these standards are not intended to establish a safe harbor for otherwise constitutionally-deficient conditions regarding detainee sexual abuse. Likewise, while the DHS standards aim to include a variety of best practices due to the need to adopt standards applicable to a wide range of facilities while accounting for costs of implementation, the standards do not incorporate every promising avenue of combating sexual abuse. The standards represent policies and practices that are attainable by DHS components and their contractors, while recognizing that other DHS policies and procedures can, and in some cases currently do, exceed these standards in a variety of ways. DHS applauds such efforts, and encourages its components and contractors to further support the identification and adoption of additional innovative methods to protect detainees from sexual abuse.
The DHS rule follows the DOJ rule in devising separate sets of standards tailored to different types of confinement facilities utilized by DHS: Immigration detention facilities and holding facilities. Each set of standards consists of the same eleven categories used by the DOJ rule: Prevention planning, responsive planning, training and education, assessment for risk of sexual victimization and abusiveness, reporting, official response following a detainee report, investigations, discipline, medical and mental care, data collection and review, and audits and compliance. As in the DOJ rule, a General Definitions section applicable to both sets of standards is provided.
Sections 115.5 and 115.6 provide definitions for key terms used in the standards, including definitions related to sexual abuse. The definitions in this section largely mirror those used in the DOJ rule, with adjustments as necessary for DHS operational contexts. DHS has also largely relied on the NPREC's definitions in the Glossary sections that accompanied the NPREC's four sets of standards, but has made a variety of adjustments and has eliminated definitions for various terms that either do not appear in the DHS standards or whose meaning is sufficiently clear so as not to need defining.
DHS has considered these comments and decided to adopt the scope of the proposed rule—immigration detention facilities and holding facilities. DHS notes that some standards indirectly cover custodial transport. For example, the DHS standards cover all staff conduct, including staff and employee conduct while transporting detainees.
In addition, DHS has addressed custodial transport in numerous other contexts. The written zero tolerance policy applies to all forms of sexual abuse and assault by agency employees and contractors. This policy applies to transport of detainees in DHS custody to and from holding facilities and immigration detention facilities, between a holding facility and a detention facility, and to custodial transport for the purposes of removal. Moreover, the ICE SAAPID provides protection for all detainees when they are in ICE custody, including custodial transport. And whenever DHS is alerted to an alleged incident of sexual abuse and assault during DHS transport to or from a holding facility or immigration detention facility or during DHS custodial transport for the purposes of removal, such allegations are required to be documented and promptly reported to the Joint Intake Center (JIC) and the PSA Coordinator, and will promptly receive appropriate follow-up, including a sexual abuse incident review at the conclusion of the investigation by the appropriate investigative authorities. In situations involving transportation between a holding facility maintained by one DHS component and an immigration detention facility maintained by another component, the Prevention of Sexual Assault (PSA) Coordinators at each component will be responsible for addressing the allegation in their respective annual reports.
By including explicit references to such custodial transportation in its policies, DHS reaffirms its commitment to preventing, detecting, and responding to sexual abuse and assault against individuals detained in DHS custody. Consistent with DOJ's approach, however, DHS declines to include additional separate standards on transportation.
One advocacy group, basing its comment on ICE standards under PBNDS, suggested a separate section in the final rule addressing transportation that would require that two transportation staff members be assigned to transport a single detainee, including at least one staff member of the same gender as the detainee, except in exigent circumstances. The suggested standards would specify similar requirements for multiple-detainee transit, provide detailed timekeeping accountability guidelines for exigent circumstances situations, provide documentation requirements when aberrations from the above suggestions occur, and provide separate rules for conduct and documentation requirements of pat-downs during transportation. The group also suggested the standards require minors to be separated from unrelated adults at all times during transport, seated in an area of the vehicle near officers, and remain under their close supervision. Additionally, the commenter suggested detainees of different genders be transported separately—or, if in one vehicle, in separately partitioned areas—with transgender detainees being transported in a manner corresponding to their gender identity.
As noted above, DHS recognizes the importance of protecting detainees in all custodial settings, including during transport. For this reason, and as noted by the commenters, ICE has promulgated, and is currently in the process of implementing, 2011 PBNDS, which provides greater protection for
Following careful review, DHS determined that the combination of generally applicable provisions of this final rule and other existing policies address the commenters' concerns in an effective and operationally practicable way. Therefore, DHS has decided not to add specific transportation standards to the regulation and instead, relies on existing policies and guidelines which provide for detainee protection.
DHS reiterates that its zero-tolerance policy applies to all of its detention settings, and additional existing policies also cover temporary-use holding rooms. Moreover, any allegation of sexual abuse and assault will be reported to the JIC promptly and will promptly receive appropriate follow-up, regardless of the particular setting within DHS control in which the allegation arises. As DHS noted in the proposed rule, this rulemaking defines facility and holding facility broadly, including a number of settings that, while built for the purpose of detaining individuals, are used infrequently. DHS declines to further extend the requirements of the rule to settings that are not built for the purposes of detaining individuals, as many of the provisions, including those pertaining to supervision and monitoring and upgrades to facilities and technologies, would be impracticable, inefficient, and at times impossible to apply outside of the contexts contemplated in the rule as drafted.
Former NPREC Commissioners commented that based on the proposed rule's definition of facility, it is unclear whether external audit standards apply to contract facilities. To clarify, DHS notes that the external audit standards do apply to all facilities, including contract facilities, in which the standards have been adopted.
After considering these comments, DHS has determined to retain the definition in the final rule. The definition in § 115.5 is properly tailored to ensure that standards are followed except in “temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility or a threat to the safety or security of any person.” It is necessary for operational purposes to carve out a limited exception to certain standards. For example, threats to the safety of a detainee or officer must be considered. In addition, a facility might have to adjust to the unforeseen absence of a staff member whose presence is typically necessary to carry out a specific standard.
While DHS must take steps to ensure the safety of minors in its custody, the agency also recognizes the important goal of keeping families intact. DHS has revised the “family unit” definition in the final rule to provide a more straightforward regulatory description in a manner that accords with current ICE policy and that recognizes the need for flexibility due to the operational realities of ensuring a safe detention environment. DHS's revised definition states that family unit means a group of detainees that includes one or more non-United States citizen juvenile(s) accompanied by his/her/their parent(s) or legal guardian(s), whom the agency will evaluate for safety purposes to protect juveniles from sexual abuse and violence. This modified definition ensures the necessary language to qualify as a “family unit” under the
Revising the “family unit” definition as applied in Subpart A to allow all individuals with a non-violent criminal history to stay with minors, and to expand the definition of family to include non-parental family members or family friends, as recommended by commenters, potentially could conflict with the intent behind ICE's Family Detention and Intake Guidance, which seeks to protect children from abuse and human trafficking. DHS therefore declines to incorporate that specific recommendation into the revised definition.
One commenter suggested revising the definition of family unit to include not only non-U.S. citizen juvenile(s) accompanied by their parents or legal guardians, but also non-U.S. citizen juveniles accompanied by “a sponsor approved by” HHS/ORR. The commenter stated that “[i]n the context of apprehension and enforcement, a family unit should be broadened to include ORR-approved sponsors because they have the authority to release unaccompanied children to a `suitable family member' per 8 U.S.C. 1232(c).”
The definition of “family unit” relates to placement in the ICE Family Residential Program. An unaccompanied alien child without a parent or legal guardian would not meet the criteria set forth in the definition of a “family unit” for these purposes. An unaccompanied alien child would not be accompanied by a sponsor approved by HHS/ORR until after they are transferred from DHS to HHS/ORR. Once an unaccompanied alien child is transferred to HHS/ORR, they are no longer within DHS's jurisdiction. Furthermore, because the purpose of this final rule is to prevent, detect, and respond to sexual abuse and assault in confinement facilities, addressing the treatment of a family unit during apprehension and enforcement is outside the scope of this rule.
After considering the comment to include these terms in the final rule, DHS decided not to add them to the definitions section for several reasons. First, DHS used the DOJ PREA final rule—which does not define gay, lesbian, and bisexual—as a general guide when determining which definitions should be included. Second, as a general matter, the regulation currently relies on self-identification for classification and protective purposes.
DHS notes that under the final rule, there is a meaningful difference between security staff and law enforcement staff. Unlike holding facilities, which are staffed by law enforcement officers from either ICE or CBP, immigration detention facilities use a wide range of staffing, including personnel from private companies who are not law enforcement officers. The general definitions of “law enforcement staff” and “security staff” recognize this distinction and allow DHS to tailor its rule to the specific contexts at issue.
It appears that the commenters are comparing the DHS definition of sexual abuse to the definition of sexual harassment in DOJ's standards. DHS has not added this language because the DHS standards already include a similar definition of sexual harassment within the current DHS definition of sexual abuse. Specifically, the DHS definition of sexual abuse in § 115.6 forbids “threats, intimidation, or other actions or communications by one or more detainees aimed at coercing or pressuring another detainee to engage in a sexual act.” DHS believes that this coverage under the definition of sexual abuse is sufficient and accomplishes the objective sought by the commenter. DHS also notes that the standards include sexual harassment in the definition of staff on detainee sexual abuse.
Regarding the proposed rule's provision on inappropriate visual surveillance, certain advocacy groups requested that the standards specifically include within the definition of sexual abuse acts of voyeurism by staff members, contractors, or volunteers. The commenters suggested that explicitly incorporating voyeurism into the definition was necessary in order to capture the complete scope of prohibited behavior. The suggested more expansive definition would include unnecessary or inappropriate visual surveillance of a detainee, including requiring a detainee to expose his or her buttocks, genitals, or breasts, or unnecessarily viewing or taking images of all or part of a detainee's naked body or of a detainee performing bodily functions.
DHS has considered this suggested addition to the standards and the DHS final rule now expressly includes voyeurism by a staff member, contractor, or volunteer as a type of sexual abuse. Voyeurism is defined as “inappropriate visual surveillance of a detainee for reasons unrelated to official duties. Where not conducted for reasons relating to official duties, the following are examples of voyeurism: Staring at a detainee who is using a toilet in his or her cell to perform bodily functions; requiring an inmate detainee to expose his or her buttocks, genitals, or breasts; or taking images of all or part of a detainee's naked body or of a detainee performing bodily functions.”
One commenter suggested that the sexual abuse definition account for a detained child's legal inability to consent to sex with an adult. DHS recognizes the extreme importance of protecting minors while in custody and remains fully committed to that end.
The standards contained in the proposed rule clarified that ICE immigration detention facilities are governed by Subpart A of the rule. DHS holding facilities are governed by Subpart B. DHS recognizes that to effectively prevent, detect, and respond to sexual abuse in its facilities, DHS must have strong standards appropriate to each unique context. Immigration detention facilities and holding facilities are different by nature and need to have a respectively different set of standards tailored to each of them for an effective outcome.
DHS is adopting the regulation as proposed.
The standards in the proposed rule required that each covered agency have a written zero-tolerance policy toward sexual abuse, outlining the agency's approach to preventing, detecting, and responding to such conduct. DHS also proposed that each covered agency appoint an upper-level, agency-wide PSA Coordinator to oversee agency efforts to comply with the DHS standards and that each immigration detention facility covered by Subpart A have its own written zero-tolerance policy and appoint a Prevention of Sexual Assault (PSA) Compliance Manager to oversee facility efforts in this regard.
DHS is adopting the regulation as proposed, with one technical revision to the PSA Coordinator's title.
The standards contained in the proposed rule required that covered agencies that contract for the confinement of detainees include in new contracts or contract renewals the other party's obligation to comply with the DHS sexual abuse standards.
DHS revised §§ 115.12 and 115.112 to require the agency to include the entity's obligation to adopt and comply with these standards in all substantive contract modifications.
Among the commenters that recommended requiring adoption of the standards during any contract modification, some commenters suggested a set timeline of 90 days after the standards' effective date for DHS to proactively initiate contract modification or modification-related negotiations with any existing non-DHS facility. One such commenter suggested eliminating “contact renewals” as a scenario for when compliance with the standards would be triggered. The commenters also proposed that any such negotiations conclude within 270 days of the standards' effective date. Additionally the commenters, in paragraph (b), would also include “contract modifications” in the monitoring process, to allow DHS to monitor compliance for modified contracts. Commenters also recommended that DHS create a new requirement that any failure to adopt the changes via contract in the specified
DHS remains committed to protecting its immigration detainees from incidents of sexual abuse and assault. With that goal in mind, DHS, through ICE, will endeavor to ensure that SPCs, CDFs, and dedicated IGSAs adopt the standards set forth in this regulation within 18 months of the effective date. These facilities currently hold more than half of the immigration detainees in ICE custody and therefore should be DHS's highest priority.
DHS, through ICE, will also make serious efforts to initiate the renegotiation process with the remaining covered facilities as quickly as operational and budgetary constraints will allow. As a matter of policy, DHS will seek to prioritize implementation to reduce the most risk as early as possible, taking into consideration all relevant factors, including the resources necessary to reopen and negotiate contracts, the size and composition of each facility's detainee population, the marginal cost of implementing the standards of each facility, the detention standards currently in effect at each facility, the prevalence of substantiated incidents of sexual abuse at each facility, and other available information related to the adequacy of each facility's existing safeguards against sexual abuse and assault.
In further recognition of DHS's pledge to abide by the principles set forth in this regulation, DHS has revised §§ 115.12 and 115.112 to require components to include these standards in contracts for facilities that undergo any substantive contract modification after the effective date. Under this provision, DHS would include the PREA standards in any contract modification that affects the substantive responsibilities of either party. (Covered substantive contract modifications would include, for example, changes to the bed/day rate or the implementation of stricter standards, but not the designation of a new Contracting Officer.) This change endeavors to ensure that facilities come into compliance with the regulation at a faster rate, but not in a manner that is operationally impossible for DHS.
The former Commissioners also recommended that DHS ensure that its detainees benefit from the most protective standards possible, regardless of whether their detainees happened to be placed in a DOJ-covered facility. To that end, the former Commissioners recommended that DHS avoid comingling DHS detainees with other populations. This would ease application of immigration standards to immigration detainees and provide them the special protections they need, so—for facilities housing inmates and detainees—housing detainees separately throughout their time in custody is necessary.
While some immigration detention facilities only house immigration detainees, for operational and financial reasons, ICE cannot rely solely on such facilities to meet the agency's detention needs. As a result, some detainees are held in non-dedicated IGSAs and a significant number (approximately 20 percent of the average daily population of ICE detainees) are also held in BOP facilities or state, local, and private facilities operated under agreement between the servicing facility and a component of DOJ. Such agreements are often negotiated and executed by USMS. DHS components can benefit from such agreements as authorized users and via other indirect arrangements, which often do not afford DHS an opportunity to negotiate specific terms and conditions at length. For these facilities, DHS relies on DOJ's national standards to provide a baseline of PREA protections.
In part because DHS does not currently maintain privity of contract with these facilities, however, DHS does not consider them to fall within the ambit of §§ 115.12 and 115.112. The standards set forth in Subpart A do not apply to facilities used by ICE pursuant to an agreement with a DOJ entity (e.g., BOP facilities) or between a DOJ entity (e.g., USMS) and a state or local government or private entity. These facilities are not immigration detention facilities as the term is defined in the regulation because they are not “operated by or pursuant to contract with U.S. Immigration and Customs Enforcement.” Instead, the servicing facility, including its immigration detainees, is covered by the DOJ PREA standards.
Similarly, holding facilities that are authorized for use by ICE and CBP pursuant to an agreement between a DOJ entity and a state or local government or a private entity are not included in the definition of holding facility in § 115.5 or the scope provision in § 115.112 because DHS is not a party to the agreement with the servicing facility and these facilities are not under the control of the agency.
DHS recognizes that facilities might find it easier to comply with a single set of standards, rather than multiple standards simultaneously. DHS has attempted to strike a balance that covers as many detainees as possible, without imposing unnecessary burdens on facilities. DHS's approach in this area is consistent with the Presidential Memorandum, which specifically directed Federal agencies with confinement facilities that are not already subject to the DOJ final rule to establish standards necessary to satisfy the requirements of PREA. The Memorandum stated clearly that each agency is responsible for, and must be accountable for, the operations of its own confinement facilities. VAWA 2013
In short, DHS believes that facilities will know which standards to apply based on their relationship with DHS and the agreements they have executed. DHS and DOJ are committed to ensuring smooth implementation of their respective standards. If implementation reveals that facilities would benefit from further guidance regarding the applicability of each agency's standards, DHS and DOJ will work to provide such guidance. DHS makes no changes to the regulatory text as a result of this comment.
DHS included § 115.112(c) in Subpart B because DHS rarely uses contractors to run holding facilities and would only need to use contractors on a short-term basis. In rare instances where DHS contracts for holding facility space, paragraph (c) provides an additional layer of protection; despite the short-term nature of the detention, contractors must be fully aware of the obligation to abide by the standards set forth in this rule.
Currently at ICE, ERO contracts for independent inspectors to review conditions of confinement at ICE facilities on an annual or biennial basis, with follow-up inspections scheduled as required. All ICE facilities with an average daily population of 50 or more detainees are inspected on an annual basis. In addition, ERO employs 40 on-site Federal Detention Service Managers (DSMs) at key ICE detention facilities to monitor and inspect components of facility operations for compliance with ICE detention standards. Currently, DSMs are assigned to 52 detention facilities, covering approximately 83 percent of ICE's detained population. ERO also contracts for a Quality Assurance Team (QAT) comprised of three subject matter experts in the fields of corrections and detention. The QAT performs quality assurance reviews at the facilities that have assigned DSMs. The purpose of the QAT reviews is to ensure that DSMs are effectively monitoring the operations of the facility and addressing concerns.
The ICE Office of Detention Oversight (ODO), within the Office of Professional Responsibility (OPR), conducts compliance inspections at selected detention facilities where detainees are housed for periods in excess of 72 hours. ODO selects facilities to inspect based on a variety of considerations, including significant compliance issues or deficiencies identified during ERO inspections, concerns identified or raised by the DSMs, detainee complaints, and allegations reported or referred by the DHS Office of Inspector General (OIG) or the ICE JIC. ODO provides its compliance inspection reports, recommendations and identified best practices to ERO and ICE leadership who ensure appropriate corrective action plans are developed and put in place at detention facilities.
At the Department level, CRCL reviews allegations related to civil rights and civil liberties issues in immigration detention facilities. The OIG also may
The standards contained in the proposed rule required the agency or the facility to make its own comprehensive assessment of adequate supervision levels, taking into account its use, if any, of video monitoring or other technology. The agency or facility must reassess such adequate supervision and monitoring at least annually and the assessment will include an examination of the adequacy of resources it has available to ensure adequate levels of detainee supervision and monitoring. Each immigration detention facility must also conduct frequent unannounced security inspections to identify and deter sexual abuse of detainees.
DHS added two factors for the facility to consider when determining adequate levels of detainee supervision and determining the need for video monitoring. These factors are (1) generally accepted detention and correctional practices and (2) any judicial findings of inadequacy.
DHS also made a minor change to § 115.13(d). Instead of prohibiting staff from alerting others that “supervisory rounds” are occurring, DHS prohibits staff from alerting others about the “security inspections.” The purpose of this change is to make the provision more consistent with the rest of the paragraph, which refers to such checks as security inspections rather than supervisory rounds.
Currently, NDS relies on performance-based inspections to determine whether a facility has adequate supervision and monitoring. ICE's 2008 PBNDS and 2011 PBNDS require that facility administrators determine the security needs based on a comprehensive staffing analysis and staffing plan that is reviewed and updated at least annually. Section 115.13 enhances ICE's detention standards by requiring that facilities develop and document comprehensive detainee supervision guidelines which will be reviewed annually. Unlike the facilities that fall under DOJ's final rule, ICE has direct oversight over immigration detention facilities and can, through its well-established inspection process, effectively determine whether a facility's detainee supervision guidelines are inadequate and whether a facility is not providing adequate supervision and monitoring.
Furthermore, requiring every facility to adopt specific staffing ratios under this regulation could significantly increase contract costs without commensurate benefits. In short, DHS has determined that it can make more effective use of limited resources by mandating comprehensive guidelines that each facility will review annually and auditors will examine on a regular basis.
DHS declines to require facilities to document deviations from supervision guidelines because we do not believe this additional documentation would materially assist ICE monitoring of conditions generally and compliance with the supervision guidelines in particular. Through its comprehensive facility oversight and inspection programs, ICE has sufficient tools to ensure that facilities effectively supervise detainees and comply with these regulations. And if ICE determines after an inspection that a facility has failed to meet the standards set forth in § 115.13 or failed adequately justify deviations from supervision guidelines, ICE has direct authority to remove detainees from the facility. DHS has therefore elected to proceed with the proposed rule's approach.
The standards contained in the proposed rule required juveniles to be detained in the least restrictive setting appropriate to the juvenile. The Subpart A standard required immigration detention facilities to hold juveniles apart from adult detainees, minimizing sight, sound, and physical contact, unless the juvenile is in the presence of an adult member of the family unit, and provided there are no safety or security concerns with the arrangement. That standard further required that facilities provide priority attention to unaccompanied alien children, as defined by 6 U.S.C. 279, who would be transferred to an HHS/ORR facility.
DHS made minor changes to § 115.14(a), (d), and (e) of the final rule. The “in general” and “should” language that was suggested in the NPRM was removed in paragraph (a) to ensure a clear requirement that juveniles shall be detained in the least restrictive setting appropriate to the juvenile's age and special needs, provided that such setting is consistent with the need to protect the juvenile's well-being and that of others, as well as with any other laws, regulations, or legal requirements.
DHS made a technical change to paragraph (d) to maintain consistency between this regulation and the statutory provision at 8 U.S.C. 1232(b)(3). DHS clarified that paragraph (e) does not apply if the juvenile described in the paragraph is not also an unaccompanied alien child.
Regarding the Subpart B standard at § 115.114, DHS added the same change in paragraph (a) as in § 115.14(a) for consistency. DHS also added more specific language in paragraph (b) to require that unaccompanied juveniles generally be held separately from adult detainees. The final standard also clarifies that a juvenile may temporarily remain with a non-parental adult family member if the family relationship has been vetted to the extent feasible, and the agency determines that remaining with the non-parental adult family member is appropriate, under the totality of the circumstances.
In promulgating these PREA standards, DHS attempted to codify the fundamental features of its policy in regulation, while maintaining a certain amount of flexibility for situations such as brief confinement in temporary holding facilities. Additionally, DHS, through ICE, must and does enforce the Juvenile Justice and Delinquency Prevention Act, which requires that alien juveniles not charged with any offense not be placed in secure detention facilities or secure correctional facilities and not be detained or confined in any institution in which they have contact with adult inmates.
Regarding the Subpart B standard, a commenter suggested physical contact, sight, and sound restrictions be in place particularly for shared dayrooms, common spaces, shower areas, and sleeping quarters. Similarly, one group comment suggested adding language to define the meaning of “separately” in Subpart B's unaccompanied alien children provision to ensure placement outside of the sight and sound of, and to prevent physical contact with, adult detainees to the greatest degree possible.
The burden of inserting additional specific restrictions would be particularly high because unaccompanied alien children are generally transferred to an HHS/ORR facility within a short period of time—72 hours at most—after determining that he or she is an unaccompanied alien child, except in exceptional circumstances.
Regarding the Subpart B standard, DHS notes that its standard is consistent with, and in some ways more detailed than, the analogous DOJ standard. Finally, DHS intends that the word “separately” be understood according to the plain meaning of the word. To keep the standards straightforward and easily administrable, DHS declines to create a separate definition of the term for purposes of these standards.
• Any individual who claims to be a juvenile during processing or while in detention is immediately separated from the general adult population pending the results of an investigation into the claim;
• All unaccompanied alien children are required to be transferred to an HHS/ORR facility within 72 hours after determining that the child is an unaccompanied alien child, except in exceptional circumstances;
• As stated in § 115.14(b), juveniles will be held with adult members of the family unit only when there are no safety or security concerns with the arrangement; and
• As indicated in § 115.114, if juveniles are detained in holding facilities, they shall generally be held separately from adult detainees. Where, after vetting the familial relationship to the extent feasible, the agency determines it is appropriate, under the totality of the circumstances, the juvenile may temporarily remain with a non-parental family member.
Additionally, the TVPRA mandates that, except in exceptional circumstances, DHS turn over any unaccompanied child to HHS/ORR within 72 hours of determining that the child is an unaccompanied alien child and that ORR promptly place the child in the least restrictive setting that is in the child's best interest.
These concerns appear even further diminished when taking into account that under ICE policy juveniles are to be supervised in an alternate setting which would generally not include administrative segregation. Because Subpart A of these standards implements safeguards that will allow a juvenile to be in the presence of an adult member of the family unit when no safety or security concerns exist, accompanied children remaining in immigration detention will not present situations of serious concern either. For these same reasons, DHS declines to adopt the additional suggested requirements regarding isolation.
With respect to the suggestion that DHS add regulatory language addressing intact family unit detention, DHS declines to adopt such a standard. ICE has found that the PREA standards' definition of family unit and current ICE policy, specifically ICE's Family Detention and Intake Guidance, has worked well, and to the extent that deficiencies might exist, DHS does not believe that addressing them in regulation would be beneficial to the affected population.
With respect to expanding the regulation's treatment of the family unit beyond the parent or legal guardian, DHS declines to expand the “family unit” definition, given the legal requirement for DHS to transfer unaccompanied alien children to HHS, generally within 72 hours of determining that the child is an unaccompanied alien child.
However, for Subpart B, as indicated above, DHS has revised § 115.114 to provide that where the agency determines that it is appropriate, under the totality of the circumstances and after vetting the familial relationship to the extent feasible, the juvenile may temporarily remain with a non-parental adult family member.
The former NPREC Commissioners specifically suggested DHS adopt additional standards that would apply to the family facility setting specifically. Proposed provisions included screening/vetting of immigration detainees in family facilities, reporting of sexual abuse in family facilities, investigations in family facilities, and access to medical and mental health care in family facilities. The former Commissioners believe that these additional measures would improve protections in family settings.
With respect to the former NPREC Commissioners' specific proposals for family unit detention and/or family facilities, ICE already has strong policies in place regarding these matters. These standards and ICE policies include detailed provisions on screening/vetting of immigration detainees, reporting of sexual abuse, investigations, and access to medical and mental health care. Again, in addition to the PREA regulatory standards that address these topics generally for all detainees, the 2007 Residential Standard addressing Sexual Abuse and Assault Prevention and Intervention ensures that individuals in family and residential settings are protected by measures relating to these precise topics.
With respect to juveniles detained outside of family units, as noted above, unaccompanied alien children are generally placed with ORR almost immediately; ORR is responsible for making decisions related to the care and custody of such children in their charge. For the 72-hour intervening period up to which DHS may generally maintain custody, concerns about abuse should be alleviated by the strong requirements in both subparts that generally prohibit juveniles from being held with adult detainees in non-familial situations. DHS believes that the final standards on juvenile and family detainees, with the revisions noted above, sufficiently protect juveniles in immigration detention and holding facilities. Due to these factors, DHS has declined to promulgate a wholly separate set of standards for facilities that house juveniles.
The standards contained in the proposed rule required policies and procedures that enable detainees to shower (where showers are available), perform bodily functions, and change clothing without being viewed by staff of the opposite gender, except in exigent circumstances or when such viewing is incidental to routine cell checks or is otherwise appropriate in connection with a medical examination or bowel movement under medical supervision. The standards also required that staff of the opposite gender announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing. The proposed rule prohibited cross-gender strip searches except in exigent circumstances, or when performed by medical practitioners and prohibits facility staff from conducting body cavity searches of juveniles, requiring instead that all body cavity searches of juveniles be referred to a medical practitioner.
In Subpart A, the proposed rule generally prohibited cross-gender pat-down searches of female detainees, unless in exigent circumstances. The proposed rule permitted cross-gender male detainee pat-down searches when, after reasonable diligence, staff of the same gender was not available at the time the search or in exigent circumstances. The proposed rule required that any cross-gender pat-down search conducted pursuant to these exceptions be documented. The proposed rule required these policies and procedures to be implemented at the same time as all other requirements placed on facilities resulting from this rulemaking. The proposed rule did not prohibit cross-gender pat-down searches in § 115.115 of Subpart B because of the exigencies encountered in the holding facility environment and the staffing and timing constraints in those small and short-term facilities.
In both immigration detention facilities and holding facilities the proposed rule prohibited examinations of detainees for the sole purpose of determining the detainee's gender. The proposed rule further required that all security and law enforcement staff be trained in proper procedures for conducting all pat-down searches.
In paragraph (i) of § 115.15, DHS changed the text to prohibit a facility from searching or physically examining a detainee for the sole purpose of determining the detainee's genital characteristics. The previous language used the phrase “gender” instead of “genital characteristics.” The final rule also revises paragraph (i) to allow a detainee's gender to be determined as part of a standard medical examination that is routine for all detainees during intake or other processing procedures. The final rule also revises §§ 115.15(j)
Multiple commenters, including the NPREC Commissioners, criticized the inclusion of “exigent circumstances” as an exception to cross-gender searches. These commenters perceived the exception to be overly broad. One commenter expressed dissatisfaction with the term “reasonable diligence” for similar reasons. The commenter suggested a standard that would require facilities to have sufficient male and female staff to sharply limit cross-gender pat-down searching of men. Another commenter recommended narrowing the circumstances under which cross-gender pat downs of males are permitted.
A number of advocacy groups suggested explicitly requiring that facilities cannot restrict a detainee's access to regularly available programming or other opportunities in order to comply with the restrictions on cross-gender viewing and searches.
DHS declines to incorporate the commenters' suggestion to extend the same coverage for both male and female pat-down searches. Female detainees are especially vulnerable to sexual abuse during a pat-down search because of their disproportionate likelihood of having previously suffered abuse. According to studies, women with sexual abuse histories are particularly traumatized by subsequent abuse.
Because females are disproportionately vulnerable to sexual abuse and trauma in the cross-gender pat down context, the prohibition of such pat downs unless there are exigent circumstances is a crucial protection in furtherance of PREA. DHS goes a step further than DOJ by also prohibiting cross-gender pat downs of male detainees, but allows for two exceptions—exigent circumstances, and circumstances where staff of the same gender are not available. The slightly different standard reflects the fact that men are less likely to be abused by cross-gender pat-down searches.
A categorical prohibition on cross-gender pat-down searches of male detainees except in exigent circumstances may not be operationally possible at facilities that detain males but have higher proportions of female staff. Such facilities could not guarantee the availability of adequate numbers of male staff without engaging in potential employment discrimination as a result of attempts to inflate staffing of one gender. Likewise, DHS declines to require facilities to maintain male and female staff sufficient to avoid cross-gender pat-down searches in all cases. Such a mandate could result in the unintended consequence of employment discrimination in facilities.
In response to commenters concerned that prohibiting cross-gender pat downs will lead to a restriction of detainees' access to programming, DHS notes that any restriction based on a lack of appropriate staffing for pat downs is unacceptable and is not standard practice. DHS will ensure that immigration detention facilities are allowing detainees equal access to programming without regard to detainee gender or staffing limitations.
Regarding the same provision, another commenter suggested removing “as part of a broader medical examination conducted in private, by a medical practitioner” as a means for making the
Two comments suggested adding a provision in paragraphs (j) and (f), for Subparts A and B, respectively, to require that same-gender searches for transgender and intersex detainees be conducted based on a detainee's gender identity absent a safety-based objection by the detainee. One commenter also suggested that we replace the phrase “existing agency policy” with “these regulations, and compatible agency policy” for clarity.
DHS declines to change the wording of §§ 115.15(j) and 115.115(f) to “compatible agency policy,” because once a facility adopts the standards set forth in this regulation, the facility is expected to abide by the standards in cross-gender viewing and searches. Existing agency policy will not conflict with these standards. In consideration of the commenter's concern, however, DHS has revised the final rule for clarity. The final rule now requires pat-down searches to be conducted “consistent with security needs and agency policy, including consideration of officer safety.”
Given the limited infrastructure of holding facilities (most do not include showers), DHS does not believe that requiring separate showering for transgender and intersex detainees is an efficient use of limited resources.
The standards in the proposed rule required each agency and immigration detention facility to develop methods to ensure that inmates who are LEP or disabled are able to report sexual abuse and assault to staff directly, and that facilities make accommodations to convey sexual abuse policies orally to inmates with limited reading skills or who are visually impaired. The proposed standards required each agency and immigration detention facility to provide in-person or telephonic interpretation services in matters relating to allegations of sexual abuse, unless the detainee expresses a preference for a detainee interpreter and the agency determines that is appropriate.
In response to a comment received regarding another section of the standards, DHS is modifying this language by clarifying that a detainee may use another detainee to provide interpretation where the agency determines that it is both appropriate and consistent with DHS policy.
The final standard, in conjunction with Federal statutes and regulations protecting the rights of individuals with disabilities and LEP individuals, protects all inmates while providing agencies with discretion in how to provide requisite information and interpretation services. The final standard does not go beyond that which is required by statute, but clarifies the agencies' specific responsibilities with regard to PREA related matters and individuals who are LEP or who have disabilities.
The standards in the proposed rule prohibited the hiring of an individual that may have contact with detainees and who previously engaged in sexual abuse in an institutional setting; who has been convicted of engaging in sexual activity in the community facilitated by force, the threat of force, or coercion; or who has been civilly or administratively adjudicated to have engaged in such activity. The standards also required that any substantiated allegation of sexual abuse made against staff be taken into consideration when making promotion decisions. The standards in the proposed rule also required a background investigation before the agency or facility hires employees, contractors, or staff who may have contact with detainees. The standards further required updated background investigations every five years for agency employees and for facility staff who may have contact with detainees and who work in immigration-only facilities.
DHS is adopting the regulation as proposed.
The standards in the proposed rule required agencies and facilities to take into account how best to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring systems or other technology.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standards contained in the proposed rule required agencies and facilities responsible for investigating allegations of sexual abuse to adopt a protocol for the preservation of usable physical evidence as well as to provide detainee victims access to a forensic medical examination at no cost to the detainee. The standard further required that such developed protocols be appropriate for juveniles, where applicable, and that outside victim
In situations when the component agency or facility is not responsible for investigating alleged sexual abuse within their facilities, the proposed standards required them to request that the investigating entity follow the relevant investigatory requirements set out in the standard.
DHS made one change to this provision, providing that a Sexual Assault Forensic Examiner (SAFE) or a Sexual Assault Nurse Examiner (SANE) should be used where practicable.
Second, juveniles in the family residential program would be present as a member of a family unit and therefore would be with an individual who possesses authority for making legal determinations for the juvenile present at the facility.
With respect to the comment about reporting abuse by a parent or guardian, DHS notes that agencies are already required by applicable state laws to report all incidents of child sexual abuse or assault, including incidents where the parent or legal guardian is the perpetrator, to designated law enforcement agencies. The law enforcement official is then responsible for ensuring that child welfare services are notified where appropriate. Therefore, the inclusion of this provision in these standards is not necessary.
As mandated in §§ 115.22(h) and 115.122(e), all alleged detainee victims of sexual abuse that is criminal in nature will be provided U nonimmigrant status (also known as “U visa”) information. OPR and Homeland Security Investigations (HSI) have the delegated authority for ICE to certify USCIS Form I–918, Supplement B for victims of qualifying criminal activity that ICE is investigating where the victim seeks to petition for U nonimmigrant status.
Because these are routine agency practices and subject to agency discretion, DHS has declined to make changes in the final rule to specifically address the various prosecutorial discretion methods that may be used. ICE can and will use these prosecutorial discretion methods for detainees with substantiated sexual abuse and assault claims.
The standards contained in the proposed rule mandated that each allegation of sexual abuse have a
DHS made one clarification to both subparts, in paragraphs (h) and (e), respectively, that replaces the term “U nonimmigrant visa information” with “U nonimmigrant status information.” This change is consistent with the term used in the Form I–918 (Petition for U Nonimmigrant Status). DHS also changed both paragraphs to make clear its intention that the information be timely provided.
DHS agrees that acts of sexual abuse, as defined in this regulation, most often involve “potentially criminal behavior.” DHS anticipates, however, that covered agencies and facilities may at times receive complaints that are framed as sexual abuse allegations, but do not rise to the level of potentially criminal behavior. For consistency with the DOJ standards, and to ensure that mandatory referrals do not deplete scarce criminal investigative resources, DHS declines to require referral to a criminal investigative entity in all cases.
Several advocacy groups, including a number of collective advocate comments, suggested a further provision be added to require that the agency ensure the victim is not removed from the United States if the victim indicates a wish to petition for U nonimmigrant status and moves to file such a petition within a reasonable period, so long as the victim cooperates with the investigation and the allegations are not found to be unfounded. In such a case, one group suggested the agency should be required to ensure the victim is not removed before obtaining necessary certified documents to apply for such status; others suggested a bar on removal unless the U nonimmigrant petition is denied by USCIS.
Furthermore, when a victimized detainee is petitioning for U nonimmigrant status, appears to have been a victim of qualifying criminal activity, and appears to meet the helpfulness requirement for the investigation or prosecution, prosecutorial discretion should be utilized by ICE. To prevent unintended removals, OPR must sign off on any ERO request to remove a victimized detainee when an investigation has been filed and is pending. DHS does not believe that adding the suggested language substantially strengthens the current provision as it is current practice and therefore DHS declines the recommendation.
Given the potentially broad scope of this provision (which applies to all allegations of sexual assault), DHS believes that additional changes would be unnecessary and potentially counterproductive to the goal of providing timely, accurate, and useful access to information. For instance, with respect to the question of who ought to provide U nonimmigrant status information, DHS agrees with the commenter that a facility's PSA Compliance Manager is one good option for providing such information. However, ICE OPR would also provide such information pursuant to the SAAPID, section 5.7, which states that “in cases where the allegation involves behavior that is criminal in nature, OPR, in coordination with the FOD and/or HSI SAC, as appropriate, will ensure any alleged victim of sexual abuse or assault who is an alien is provided access to U non-immigrant visa information. . . .”
DHS does not believe that including these detailed requirements in a regulatory provision or designating the PSA Compliance Manager as the individual responsible for providing the information to qualifying detainees would strengthen this provision or provide more support to the detainee. DHS notes that it also already provides such information to the public on DHS Web sites and through DHS's Blue Campaign to end human trafficking.
In most instances where a detainee would seek to petition for U nonimmigrant status, the appropriate investigative authority and therefore the
The standards in the proposed rule required all employees that have contact with detainees as well as all facility staff receive training concerning sexual abuse, with refresher training provided as appropriate. The standards mandated that current staff complete the training within one year of the effective date of the standard for immigration detention facilities and within two years of the effective date of the standard for holding facilities.
DHS is adopting the regulation as proposed.
With respect to Subpart A specifically, DHS, through CRCL and ICE, has developed a training module on “Preventing and Addressing Sexual Abuse and Assault in ICE Detention” which the ICE Director required in ICE's 2012 SAAPID to have been already completed for all ICE personnel who may have contact with individuals in ICE custody and which is also required for newly hired officers and agents. This module specifically addresses the zero-tolerance policy for sexual abuse and assault, among other issues. The training has recently been updated to incorporate certain terms and language from the proposed rule, and will be updated again following this final rule. ICE believes that this training module addresses the substantive concerns expressed by the commenters.
The standard in § 115.32 of the proposed rule required all volunteers and contractors at immigration detention facilities that have contact with detainees receive training concerning sexual abuse. The standard in § 115.132 of the proposed rule required the agency to make public its zero-tolerance policy regarding sexual abuse and ensure that key information regarding the policy is available for detainees.
DHS clarified that the training requirements in the Subpart A standard apply to contractors who provide services to the facility on a non-recurring basis. DHS also revised the title of the standard for clarity and consistency. As noted above, contractors who provide services to the facility on a recurring basis are covered by § 115.31.
DHS also removed the word “may” from paragraph (c) of the same standard, for consistency with paragraph (a). Prior to the change, the substantive training requirement in this section applied to those “who have contact with detainees,” but the documentation requirement applied to those “who may have contact with immigration detention facility detainees.”
The standard in the proposed rule mandated that upon custody intake, each facility provide detainees information about the agency's and the facility's zero-tolerance policies with respect to all forms of sexual abuse, including instruction on a number of specified topics.
DHS is adopting the regulation as proposed.
Some commenters expressed concerns over the potentially overwhelming nature of the amount of information contained in an up-front education requirement and the possibility that detainees may not fully understand DHS's multi-faceted initiative upon intake, a potentially stressful time.
A number of advocacy groups suggested adding a 30-day time period following intake for completion of instruction on all the areas that were to be addressed upon intake in the proposed standard; within this period, the agency would provide comprehensive education to detainees either in person or through video.
One group suggested requiring facilities to repeat PREA education programs every 30 days, of which the detainee could opt out.
Likewise, there would not be a practical need to provide refresher education after 30 days from intake; this negates the need for any opting-out of such refresher education. Providing the information up-front to detainees is not only the most practical solution given the nature of immigration detention, but also ensures the detainee is informed at the earliest point possible to maximize prevention of sexual abuse and assault.
After the intake education and in cases where intake has taken place prior to the effective date of this final rule, detainees can refer back to aids such as the Detainee Handbook and posters with sexual abuse prevention information, as needed.
The standards in the proposed rule required that the agency or facility provide specialized training to investigators that conduct investigations into allegations of sexual abuse at confinement facilities and that all such investigations be conducted by qualified investigators.
DHS is adopting the regulation as proposed, with a minor technical change clarifying the scope of the documentation requirement.
DHS declines to require the specialized training provision to state that such training be provided separately from staff training. The fact that the PREA standards differentiate between staff training and specialized training and specifically denote the types of agency employees and facility staff who must participate demonstrate DHS's commitment to ensuring that additional higher-level training will be provided to those who require it.
The standard in the proposed rule required that the agency provide specialized training to DHS employees who serve as medical and mental health practitioners in immigration detention facilities where such care is provided.
DHS is adopting the regulation as proposed.
1. Practitioners who are not DHS or agency employees but who work in the facilities should receive similar specialized training, and any facility that does not use DHS medical practitioners should provide training for its own medical providers;
2. Such practitioners should receive the training mandated for employees and for contractors and volunteers under §§ 115.31 and 115.32, respectively, depending upon the practitioner's status at the agency;
3. The agency should maintain documentation that medical and mental health practitioners have received and understand the training, either from the agency or elsewhere;
4. The practitioners should receive special training for sensitivity to culturally diverse populations, including appropriate terms and concepts to use when discussing sex and sexual abuse, and sensitivity and awareness regarding past trauma that may have been experienced by immigration detainees;
5. The training be universally implemented and ingrained into the work of all employees, contractors, and volunteers coming into detainee contact; and
6. A number of groups suggested that the standard contain training specifically on LGBTI issues, including training to ensure competent, appropriate communications with LGBTIGNC detainees.
With respect to the second and third recommendations, DHS believes that adding standards mandating that practitioners receive the training under §§ 115.31 and 115.32, respectively, would also be redundant. The medical and mental health practitioners would already be obligated to receive the training required under §§ 115.31 and 115.32, as the positions fall under the definitions of staff, contractor, and volunteer listed in § 115.5 of this final rule. Under §§ 115.31 and 115.32 the training the practitioners receive would then be documented; as such DHS declines to make this revision.
With respect to the fourth recommendation, DHS believes that adding standards for sensitivity to culturally diverse populations, including appropriate terms and concepts to use when discussing sex and sexual abuse, and sensitivity awareness regarding past trauma that may have been experienced by immigration detainees, would be superfluous and potentially beyond DHS's relative expertise when compared to the extensive training on medical and mental health care already received by certified medical health care professionals. Furthermore, any new or additional terms or concepts will likely be taught during the required training described in § 115.35(c). Adding this specific requirement to this standard would also be redundant and therefore, not add to the goal or integrity of the rule. DHS declines to make this revision.
With respect to the fifth recommendation, DHS believes that additional revisions are unnecessary to ensure that training is universally implemented and ingrained into the work of all employees, contractors, and volunteers coming into detainee contact. The portions of this regulation on training and education are designed to ensure that all employees, contractors, and volunteers are trained and educated to prevent, detect and respond to sexual abuse of detainees while in DHS custody. Inserting additional explicit requirements would be redundant. DHS therefore declines to revise the proposed rule in response to this comment.
With respect to the sixth recommendation, DHS believes that adding a standard requiring training specifically on LGBTI issues, including training to ensure competent, appropriate communications with LGBTI detainees, would be redundant to current ICE practice and policy, as well as provisions of the proposed rule. The 2012 SAAPID—required to have been already completed for all ICE personnel who may have contact with individuals in ICE custody and required for newly hired officers and agents—provides training on vulnerable populations, including ensuring professional, effective communication with LGBTI detainees. Furthermore, under §§ 115.31 and 115.131, practitioners will already be required to receive training relating to this population of detainees. Section 115.32 requires practitioner volunteers and contractors to receive similar training as well, due to their close level of contact to most if not all detainees. DHS therefore declines to revise the proposed rule in response to this comment.
The standards in the proposed rule mandated that the facility assess all detainees on intake to identify those likely to be sexual aggressors or sexual victims and required that the detainees be housed to prevent potential sexual abuse. The standard for immigration detention facilities further required that the facility reassess each detainee's risk of victimization or abusiveness between 60 and 90 days from the date of initial assessment as well as any other time when warranted to avoid incidents of abuse or victimization.
Sections 115.41 and 115.141 of the final rule have been revised to require that assessments for risk of victimization or abusiveness include an evaluation of whether the detainee has been previously detained in addition to previously incarcerated. A technical revision also is incorporated into § 115.41(a) to clarify that the victims that the provision describes are sexual abuse victims.
Moreover, DHS believes that §§ 115.14 and 115.114, in conjunction with §§ 115.41 and 115.141, provide sufficient, comprehensive protection to juvenile detainees in immigration detention and holding facility settings. The §§ 115.14 and 115.114 standards ensure that the need to protect the juvenile's well-being (and that of others) is observed, while providing that the juvenile be detained in the least restrictive setting appropriate to the juvenile's age and special needs. They also reinforce the importance of any other applicable laws, regulations, or legal requirements.
Sections 115.41(a) and 115.141(b) are intended to ensure the safety of all detainees (including juveniles) who may be held overnight in holding facilities with other detainees. Paragraph (c) in both sections also makes certain that the agency considers the age of the detainee as a criterion in assessing the detainee's risk for sexual victimization. This standard, as proposed and in final form, is consistent with DOJ's standards and—in conjunction with §§ 115.14 and 115.114—will protect juveniles in holding facilities.
The DHS standard provides more detailed protection than the DOJ standard by stating explicitly that staff must ask each detainee about his or her own concerns regarding physical safety. Moreover, DHS notes that it is impractical to require, in the context of holding facilities, that all conversations with juveniles take place “out of sight
The standard in the proposed rule required the facilities to use the information obtained in the risk assessment process to separate detainees who are at risk of abuse from those at risk of being sexually abusive. The proposed standard provided that facilities shall make individualized determinations about how to ensure the safety of each detainee, and required that, in placing transgender or intersex detainees, the agency consider on a case-by-case basis whether a placement would ensure the detainee's health and safety, and whether the placement would present management or security problems. The proposed standard also provided that transgender and intersex detainee placement be reassessed at least twice each year, and that such detainee's own views as to their safety be given serious consideration.
DHS is adopting the regulation as proposed.
DHS declines to incorporate the additional specific reference to single-gender facilities, to maintain flexibility to address these issues through guidance, on case-by-case basis, and consistent with developing case law.
The proposed standard provided that vulnerable detainees may be placed in involuntary segregated housing only after an assessment of all available alternatives has been made—and only until an alternative housing arrangement can be implemented. The standard also provided that segregation shall not ordinarily exceed 30 days. In addition, the proposed standard provided that, to the extent possible, involuntary protective custody should not limit access to programming.
The final standard adds a requirement for facilities to notify the appropriate ICE FOD no later than 72 hours after the initial placement into segregation, whenever a detainee has been placed in administrative segregation on the basis of a vulnerability to sexual abuse or assault.
Upon receiving such notification, the ICE FOD must review the placement to consider its continued necessity, whether any less restrictive housing or custodial alternatives may be appropriate and available, and whether the placement is only as a last resort and when no other viable housing options exist.
The final standard clarifies that it applies to administrative segregation of vulnerable detainees for a reason connected to sexual abuse or assault. As noted below, ICE has issued a segregation review policy directive which establishes policy and procedures for ICE review and oversight of segregated housing decisions. The final standard also makes technical changes in paragraphs (a) and (b) for the purpose of clarity.
Some groups suggested DHS consider altogether releasing victim-detainees anytime a facility cannot safely separate them without resorting to protective custody, with such custody being reserved for only limited, emergency, or exigent situations.
Furthermore, ICE has finalized a segregation review policy directive which establishes policy and procedures for ICE review and oversight of segregated housing decisions. The ICE segregation review directive is intended to complement the requirements of PBNDS 2011, PBNDS 2008, NDS, and other applicable ICE policies. Proceeding by policy in this area is consistent with § 115.95 of the regulation, which authorizes both agencies and facilities to implement policies that include additional requirements. The directive would also be consistent with § 115.43(e) of the final rule, which requires facilities to notify the appropriate FOD no later than 72 hours after initial placement into segregation whenever a detainee has
Sections 115.51 and 115.151 of the proposed rule required agencies to enable detainees to privately report sexual abuse, prohibit retaliation for reporting the abuse, and related misconduct. The proposed standards required DHS to provide instruction to detainees on how to confidentially report such misconduct. The proposed standards also required that DHS provide and facilities inform detainees of at least one way to report sexual abuse to an outside public or private entity that is not affiliated with the agency, and that is able to receive and immediately forward the detainee's reports of sexual abuse to agency officials, while allowing the detainee to remain anonymous, upon request.
DHS is adopting the regulation as proposed.
Similarly, § 115.66 requires that volunteers, staff, and contractors who are suspected of perpetrating sexual abuse be removed from duties requiring detainee contact, and § 115.166 requires agency management to take appropriate action when an allegation has been made. Further, §§ 115.64 and 115.164 require covered entities, upon learning of an allegation that a detainee was sexually abused, to separate the alleged victim and abuser. Current policy would prevent an individual who is the subject of an allegation from being responsible for investigating the allegation. Taken together, these factors sufficiently address the concern that underlines the comment, and DHS declines to amend the regulatory text to further address the issue.
With regard to transfers, ICE policy 11022.11, entitled Detainee Transfers, governs the transfer of all aliens in ICE custody. Pursuant to the policy, transfers are discouraged unless a FOD or his or her designee deems the transfer necessary for the following reasons: (a) To provide appropriate medical or mental health care; (b) to fulfill an approved transfer request by the detainee; (c) for the safety and security of the detainee, other detainees, detention personnel, or any ICE employee; (d) at ICE's discretion, for the convenience of the agency when the venue of DOJ Executive Office for Immigration Review proceedings is different than the venue in which the alien is detained; (e) to transfer to a more appropriate facility based on the detainee's individual circumstances and risk factors; (f) upon termination of facility use; or (g) to relieve or prevent facility overcrowding. ICE's transfer policy is designed to limit transfers for all aliens and provides adequate protection for aliens who have sexual abuse complaints or grievances.
Once a detainee has been removed or is otherwise no longer in agency custody, the agency is not obligated to provide reporting procedures. However, it is available to former detainees to contact the OIG, the JIC, CRCL or a private entity to report any incidents even after they are no longer in agency custody.
The standard contained in the proposed rule prohibited the facility from imposing any deadline on the submission of a grievance regarding sexual abuse incidents. The standard mandated that facilities allow detainees to file a formal grievance at any time before, during, after, or in lieu of lodging an informal complaint related to sexual abuse. The standard further required the facility to issue a decision on the grievance within five days of receipt.
DHS is modifying paragraph (e) by adding a requirement that the facility respond to an appeal of the grievance decision within 30 days and by requiring facilities to send all grievances related to sexual abuse to the appropriate ICE Field Office Director at the end of the grievance process.
The standard contained in the proposed rule required agencies to provide detainees with access to outside confidential support services and that the information about these services will be provided to them. The standard further required that detainees and these confidential support services will have reasonable communication in as private a manner as possible.
DHS is adding paragraph (d) requiring facilities to inform detainees, prior to giving them access to outside resources, of the extent to which such communications will be monitored and to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
Section 115.21, which covers forensic medical examinations, requires facilities to make use of outside victim services following sexual abuse incidents. These services include rape crisis center information, a qualified staff member from a community-based organization, or a qualified agency staff member. Section 115.21 also provides that a forensic medical examination shall be arranged when appropriate for medical or evidentiary reasons and at no cost to the detainee.
Sections 115.81–115.83 require referrals for medical follow-up, unimpeded access to emergency medical treatment and crisis intervention services, medical and mental health evaluations, and follow-up services.
As ICE's Detainee Handbook explains, communications between detainees and investigators are private and detainees' medical and administrative files are locked in secure areas to ensure confidentiality.
DHS encourages facilities to establish multiple procedures for detainee victims of sexual abuse to contact external advocacy and support groups. While not ensuring ideal privacy, phones may provide the best opportunity for detainees to ask for assistance in a timely manner. Privacy concerns may be addressed through other means of contacting outside organizations, such as allowing confidential correspondence, opportunities for phone contact in more private settings, or the ability of the detainee to make a request to contact an outside advocate through a chaplain, clinician, or other service provider.
Standards 115.54 and 115.154 in the proposed rule required facilities to establish a method to receive third-party reports of sexual abuse and publicly distribute information on how to report such abuse on behalf of a detainee.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standards in the proposed rule required that staff immediately report: (1) Any knowledge, suspicion, or information regarding an incident of sexual abuse that occurred in a facility; (2) retaliation against detainees or staff who reported such an incident; and (3) any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation. The proposed standards prohibited the agency from revealing any information related to a sexual abuse report to anyone other than to the extent necessary to make medical treatment, investigation, law enforcement, and other security and management decisions.
DHS now explicitly requires covered staff to report retaliation against detainees or staff who participated in an investigation of an incident of sexual abuse that occurred in a facility. Previously, the reporting requirement in these standards did not explicitly cover such retaliation (although it did cover retaliation against detainees or staff who reported an incident of sexual abuse). Otherwise, DHS is adopting the regulation as proposed.
With respect to staff reporting specifically and in response to the comment, DHS revised §§ 115.61(a) and 115.161(a) to require all staff to immediately report retaliation against detainees or staff who reported or participated in an investigation about sexual abuse incidents. Prior to this revision, the reporting requirement did require reporting about retaliation against detainees or staff who reported an incident of sexual abuse, but did not explicitly cover reports of retaliation against individuals who participated in investigations.
The standards contained in the proposed rule required that when an agency employee or facility staff has a reasonable belief that a detainee is subject to a substantial risk of imminent sexual abuse, he or she must take immediate action to protect the detainee.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standards contained in the proposed rule mandated that upon receiving an allegation that a detainee was sexually abused while confined at another facility, the facility receiving the allegation must (1) notify the appropriate office of the facility where the sexual abuse is alleged to have occurred as soon as possible, but no later than 72 hours after receiving the allegation; and (2) document the efforts taken under this section. The agency office that receives such notification, to the extent covered by the regulation, must ensure the allegation is referred for investigation.
DHS is modifying the notification language in paragraph (a) for both § 116.63 and § 115.163 to require agencies and facilities that receive allegations of abuse at a different facility to notify the appropriate office of the agency or the administrator of the facility where the alleged abuse occurred.
For Subpart B facilities, where detention is relatively brief, and in order to minimize delay, the agency official responsible for notifying another confinement facility of an allegation of sexual abuse will depend on which office receives the allegation. DHS believes that specifying “facility head” within this section will limit which office can either notify or be notified and may therefore postpone the communication between facilities which would not be in the best interest of the victim. For this reason, DHS believes that the provision will be most effective as currently written and declines to adopt the “facility head” language.
The standards contained in the proposed rule required that the first employee or staff member that responds to the sexual abuse report separate the alleged victim and abuser and preserve and protect the crime scene until evidence can be collected.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
Sections 115.65 and 115.165 in the proposed rule required a multidisciplinary team approach in the response to an incident of sexual abuse.
DHS revised each standard to clarify that notification requirements related to the transfer of detainee victims of sexual abuse will differ depending on whether or not the receiving facility is covered by these standards. As in the proposed rule, when the receiving facility is not covered by these standards, the sending facility must inform the receiving facility of the incident and the victim's potential need for medical or social services, unless the victim requests otherwise. Otherwise, DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standard in the proposed rule with respect to immigration detention facilities required the agency or facility to remove from all duties requiring detainee contact, pending the outcome of an investigation, staff, contractors, and volunteers suspected of perpetrating sexual abuse. The standard with respect to holding facilities required agency management to consider such removal for each allegation of sexual abuse, and to do so if the seriousness and plausibility of the allegation make removal appropriate.
DHS is adopting the regulation as proposed.
With respect to ICE holding facilities, the SAAPID reinforces the regulation by requiring the removal of an ICE employee, facility employee, contractor, or volunteer suspected of perpetrating sexual abuse or assault to be removed from all duties requiring detainee contact pending the outcome of an investigation. The term “suspected of” is intended to allow the agency or facility a modest exercise of discretion with respect to whether any suspicion exists. By requiring that the individual be “suspected of” perpetrating sexual abuse and assault, DHS intends to
DHS believes that by assigning staff, contractors, and volunteers to duties away from detainees when necessary, DHS will provide sufficient protection to detainees.
The standards contained in the proposed rule required that agency and facility staff and employees not retaliate against any person, including a detainee, who reports, complains about, or participates in an investigation into an allegation of sexual abuse, or for participating in sexual activity as a result of force, coercion, threats, or fear of force.
DHS added a new paragraph (b) to Subpart A of the final rule which requires the agency or facility to “employ multiple protection measures, such as housing changes, removal of alleged staff or detainee abusers from contact with victims, and emotional support services for detainees or staff that fear retaliation for reporting sexual abuse or for cooperating with investigations.”
DHS did not incorporate the language used in DOJ's paragraph (a) because DHS's language provides greater protection by prohibiting retaliation immediately, instead of relying on a policy to be drafted in the future. Given ICE's more direct oversight over its immigration detention facilities, the agency is in a better position to prohibit and take action against acts of retaliation by detainees or staff. DOJ's paragraph (d) was not incorporated for the same reason, and because status checks are redundant—for 90 days following a report of sexual abuse, the agency or facility must monitor to see if there are facts that may suggest possible retaliation by detainees or staff, and shall act promptly to remedy any such retaliation. DHS believes that its final rule is tailored effectively to immigration detention and therefore, does not need to mirror the DOJ rule to provide adequate protection to detainees.
DHS chose not to include proposed language about employing multiple protection measures in Subpart B. Given the relatively short time of detention in holding facilities, housing assignments are not applicable. Section 115.164, Responder Duties, includes a requirement to separate the alleged victim and abuser. With respect to the comment regarding providing emotional support services to staff, note that CBP offers a full range of assistance to agency employees through the WorkLife4You Program and the Employee Assistance Program.
The standard contained in the proposed rule required the facility to place detainee victims of sexual abuse in a supportive environment that is the least restrictive housing option possible. The standard provided that detainee victims shall not be returned to the general population until proper re-assessment is completed. The standard further required that detainee victims are not to be held for longer than five days in any type of administrative segregation, except in unusual circumstances or at the request of the detainee.
The final rule adds a requirement for facilities to notify the appropriate ICE FOD whenever a detainee victim has been held in administrative segregation for 72 hours.
Upon receipt of such notification, the final rule also requires that the ICE FOD conduct a review of the placement to consider whether the placement is only as a last resort and when no other viable housing options exist, and whether—in the case of a detainee victim held in administrative segregation for longer than five days—whether the placement is justified by extraordinary circumstances or is at the detainee's request.
An advocacy group suggested that the agency supervisor be notified when a detainee is placed in administrative custody for more than five days. Once the agency supervisor is notified, this person should be tasked with conducting a review of the segregation as well as looking for other placements for the detainee as long as the detainee is not subject to mandatory detention.
The standards contained in the proposed rule required investigations by the agency or the facility with the responsibility for investigating the allegation(s) of sexual abuse be prompt, thorough, objective, and conducted by specially trained, qualified investigators. The proposed standard also required agencies and facilities to conduct an administrative investigation of (1) any substantiated allegation and (2) any unsubstantiated allegation that, upon review, the agency deems appropriate for further administrative investigation.
DHS made minor revisions to the Subpart B provision, to clarify that responsibility for conducting criminal and administrative investigations or referring allegations to the appropriate investigative authorities ultimately lies with the agency, and not the facility. Otherwise, DHS is adopting the regulation as proposed.
Administrative Stay of Removal (ASR) is another discretionary tool that permits ICE to temporarily delay the removal of an alien. Any alien, or law enforcement agency on behalf of an alien, who is the subject of a final order of removal may request ASR from ICE. An ASR may be granted after the completion of removal proceedings up to the moment of physical removal.
Longer term immigration relief may be available, including in the form of U nonimmigrant status. U nonimmigrant status protects victims of qualifying crimes (including sexual assault and felonious assault) who have suffered substantial mental or physical abuse as a result of the crime and are willing to assist law enforcement authorities in the investigation or prosecution of the criminal activity. U nonimmigrant status is self-petitioning and requires a law enforcement certification.
DHS also routinely considers whether detainees may be suitable candidates for release on their own recognizance or on bond, or participation in an alternative to detention program.
The standards contained in the proposed rule required that agencies not impose a standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse are substantiated.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standard found in § 115.73 in the proposed rule required the agency to notify the detainee of the result of the investigation when the detainee is still in immigration detention, as well as where otherwise feasible.
DHS is adopting the regulation as proposed.
With regard to notifying the detainee of actions taken against an employee, DHS agrees that agency follow-up can be of great importance to victims, and therefore requires the agency to notify the detainee as to the result of the investigation and any responsive action taken. In the immigration detention facility context, DHS has also undertaken to perform this follow-up whenever feasible, even after the detainee has been released from custody. As DHS noted in its proposal, DHS believes that its approach strikes the proper balance between staff members' privacy and the detainee's right to know the outcome of the investigation.
In light of the breadth of the DHS provision, DHS notes that in its experience, state privacy laws and union guidelines may prohibit sharing certain information about disciplinary actions taken against employees. Releasing details about an employee's punishment could be in violation of these privacy laws or policies. DHS cannot require that specific information about sanctions taken against an
The standards contained in the proposed rule provided that staff shall be subject to disciplinary actions up to and including termination for violating agency sexual abuse policies, and that termination shall be the presumptive disciplinary sanction for staff that engaged in or threatened to engage in sexual abuse, as defined in the regulation. The proposed standards further provided that if a staff member is terminated for violating such policies, or if a staff member resigns in lieu of termination, a report must be made to law enforcement agencies (unless the activity was not criminal) and to any relevant licensing bodies, to the extent known.
DHS is adopting the regulation as proposed.
DHS recognizes that detainees who are minors have special vulnerabilities. With the exception of juveniles in the Family Residential Program, and rare cases where minors with criminal records are held in juvenile detention facilities, most juveniles are in the care and custody of HHS/ORR, other than the brief period of time that such unaccompanied juveniles are in ICE custody prior to transfer to ORR. The monitoring of those facilities is within the purview of HHS and outside the scope of DHS authority.
The standards contained in the proposed rule required that any contractor or volunteer who has engaged in sexual abuse be prohibited from contact with detainees. The proposed rule further required that reasonable efforts be made to report to any licensing body, to the extent known, incidents of substantiated sexual abuse by a contractor or volunteer.
DHS is adopting the regulation as proposed.
Contract employees are subject to the same standards as agency employees and investigations into allegations made against contractors are no less thorough than those made against agency employees. All facilities will be closely monitored for how they respond to sexual abuse and assault reports; address safety, medical, and victim services issues; and coordinate criminal and administrative investigative efforts. DHS believes that the best approach to remedy a situation of recurring sexual abuse and assault claims varies with the circumstances, and may include disciplining or removing individual employees involved in the abuse, working with the facility to take corrective and preventive action, regular facility monitoring, as well as terminating a contract with a facility in its entirety.
The standard contained in the proposed rule mandated that detainees be subject to disciplinary sanctions after they have been found to have engaged in sexual abuse. The standard mandates that discipline be commensurate with the severity of the committed prohibited act and pursuant to a formal process that considers the detainee's mental disabilities or mental illness, if any, when subjecting the detainee to disciplinary actions.
DHS is adopting the regulation as proposed.
DHS notes, however, that § 115.83 of the regulation includes provisions for voluntary access to ongoing medical and mental health care for sexual abuse victims and abusers, when deemed appropriate by mental health practitioners. With regard to the second proposal, DHS also rejects the recommendation to prohibit a finding of sexual abuse when there is no element of coercion in sexual activity between detainees. This clarification is unnecessary as the standards define detainee-on-detainee sexual abuse to exclude incidents of consensual sexual conduct between detainees. A provision explicitly authorizing the agency to prohibit all sexual activity between detainees (including consensual sexual activity) is similarly unnecessary, as ICE's detention standards already contain such a prohibition.
The standard contained in the proposed rule required that pursuant to the assessment for risk of victimization and abusiveness in § 115.41, facility staff will ensure immediate referral to a qualified medical or mental health practitioner, as appropriate, for detainees found to have experienced prior sexual victimization or perpetrated sexual abuse. For medical referrals, the medical professional was required to provide a follow-up health evaluation within two working days from the date of the initial assessment. For mental health referrals, the mental health professional was required to provide a follow-up mental health evaluation within 72 hours from the date of the referral.
The final rule includes minor changes to paragraph (a). The phrase “subject to
The standards in the proposed rule required detainee victims of sexual abuse to have timely, unimpeded access to emergency medical treatment at no financial cost to them.
DHS made a minor change to the final rule by deleting the phrase “where appropriate under medical or mental health professional standards” in § 115.82(a) because the phrase was superfluous. DHS revised § 115.182 to clarify that for holding facilities as well as immigration detention facilities, emergency medical treatment and crisis intervention services will be provided in accordance with professionally accepted standards of care. The relevant portion of § 115.182 now mirrors the language in § 115.82. DHS also deleted the phrases “in immigration detention facilities” and “in holding facilities” from § 115.82(a) and § 115.182(a) respectively, to clarify the scope of the provision.
After considering the comments to § 115.82(a), DHS decided not to include the phrase “where appropriate under medical or mental health standards” in the final rule.
The standard in the proposed rule required that victims of sexual abuse in detention receive access to ongoing medical and mental health care as necessary without financial cost to the victim. The standard also requires that this care be consistent with the community level of care for as long as such care is needed.
DHS made one minor change to the final rule by replacing the word “incarcerated” with “detained” in § 115.83(d).
The standards in the proposed rule set forth requirements for sexual abuse incident reviews, including when reviews should take place and who should participate. The standards also required the facility to forward all reports and responses to the agency PSA Coordinator. The proposed rule further required an annual review of all sexual abuse investigations, in order to assess and improve sexual abuse intervention, prevention, and response efforts.
Section 115.86(a) now includes a requirement that facilities must conclude incident reviews within 30 days of the completion of the investigation. Section 115.186(a) now includes a requirement that the agency review shall ordinarily occur within 30 days of the agency receiving the investigation results from the investigative authority. The slightly different formulation for Subpart B reflects the fact that frequently the agency that oversees a holding facility is not the investigative authority.
Section 115.86(b) now requires facility incident review teams to (1) consider whether the incident or allegation was motivated by race, ethnicity, gender identity, or lesbian, gay, bisexual, transgender, or intersex identification status (or perceived status); and (2) consider whether the incident or allegation was motivated by gang affiliation or other group affiliation.
Section 115.86(c) now requires facility incident review teams to prepare a report of their findings and any recommendations for improvement and submit such report to the facility administrator, the FOD or his or her designee, and the agency PSA Coordinator. If no allegations were made at a facility during the annual reporting period, a negative report is required.
DHS agrees, however, that LGBTIGNC status can contribute to vulnerability. DHS is therefore revising the Subpart A standard to require facilities to take into account whether the incident or allegation was motivated by race, ethnicity, gender identity, or lesbian, gay, bisexual, transgender, or intersex identification status (or perceived status); or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility. In practice, this requires the facility to affirmatively consider the possibility that these factors motivated the incident or allegation, and to record this information if known. It does not, however, require facilities to affirmatively inquire as to the victim's sexual orientation and gender identity. DHS also is adding a requirement to §§ 115.87(d)(2) and 115.187(b)(2) that the agency PSA Coordinator must aggregate information regarding whether the victim or perpetrator has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.
1. The review must be concluded within 30 days of the conclusion of the investigation.
2. The review team must include upper-level management officials, with input from line supervisors, investigators, and medical or mental health practitioners.
3. The review team must consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility.
4. The review team must examine the area in the facility where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse.
5. The review team must assess the adequacy of staffing levels in that area during different shifts.
6. The review team must assess whether monitoring technology should be deployed or augmented to supplement supervision by staff.
7. The review team must submit its report to both
Under § 115.88, after this data is reviewed by agency leadership, the agency will issue a report that will identify problem areas and patterns to be improved upon, potentially including items 4–6 in the list above. In short, DHS believes that the final regulation sufficiently accounts for the considerations raised by the commenters.
The standards contained in the proposed rule required the facility (in Subpart A) or agency (in Subpart B) to maintain case records associated with claims of sexual abuse. The standards required the agency to aggregate the incident-based data at least annually. The standards further mandated that upon request the agency would be required to provide all such data from the previous calendar year to CRCL.
Sections 115.87(a) and 115.187(a) now include a requirement that facilities keep data collected on sexual abuse and assault incidents in a secure location. Sections 115.87(d)(2) and 115.187(b)(2) have been revised to also require the PSA Coordinator to aggregate information about whether the victim or perpetrator has self-identified as LGBTIGNC. The requirement under Subpart B for the agency to provide all data collected under § 115.187 to the PSA Coordinator was removed in order to ensure that the requirements in both subparts were consistent. Such a requirement is not necessary and was not originally included under Subpart A because the PSA Coordinator has been designated as the agency point of contact to aggregate relevant data pursuant to this regulation.
The standards contained in the proposed rule described how the collected data would be analyzed and reported. The standards mandated that agencies use the data to identify problem areas, take ongoing corrective action, and prepare an annual report for each facility as well as the agency as a whole, including a comparison with data from previous years. The standards mandated that this report be made public through the agency's Web site or other means to help promote agency accountability.
DHS is adopting the regulation as proposed.
The standards in the proposed rule described how to store, publish, and retain data collected pursuant to §§ 115.87 and 115.187. The standard required that the agency make the aggregated data publicly available at least annually on its Web site and shall remove all personal identifiers.
The final rule adds a requirement in both subparts that the agency maintain sexual abuse data collected pursuant to the above-described standard on data collection (§§ 115.87 and 115.187) for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
The proposed rule mandated that audits under these sections shall be conducted pursuant to §§ 115.201 through 115.205 of Subpart C. In Subpart A, the standard required audits of each immigration detention facility at least once every three years. The proposed rule allowed for expedited audits if the agency has reason to believe that a particular facility is experiencing problems related to sexual abuse. The Subpart B standard required, within three years, an initial round of audits of each holding facility that houses detainees overnight. Following the initial audit, the Subpart B standard required follow-up audits every five years for low-risk facilities and every three years for facilities not identified as low risk. All audits were required to be coordinated by the agency with CRCL.
Section 115.93 previously required the agency to ensure that “each of its immigration detention facilities” is audited at least once during the initial three-year period. Due to confusion expressed by some commenters, DHS now requires the agency to ensure that “each immigration detention facility” is audited at least once during the initial three-year period. In the interest of clarity, DHS modified § 115.93(b) to allow the agency to “require” rather than “request” an expedited audit and allows the agency to provide resource referrals to facilities to assist with PREA-related issues. DHS also revised §§ 115.93 and 115.193 to allow CRCL to request expedited audits if it has reason to believe that such an audit is appropriate.
Regarding the timeframe for implementation of audits, both subparts include a clear standard that for covered facilities established prior to July 6, 2015, ICE and CBP coordinate audits within the timeframe specified. Additionally, under § 115.193, CBP will ensure holding facilities that hold detainees overnight and established after July 6, 2015 are audited within three years.
DHS clarifies that in the immigration detention facility context, a facility will not be audited until it has adopted the PREA standards. However, DHS notes that immigration detention facilities are subject to regular inspections under current contracts and detention standards regardless of whether they are considered a covered facility pursuant to this regulation or whether they have adopted the PREA standards. DHS, through ICE, is committed to endeavoring to ensure that SPCs, CDFs, and dedicated IGSAs adopt the standards set forth in this final rule within 18 months of the effective date. Additionally, DHS, through ICE, will make serious efforts to initiate the renegotiation process so the remaining covered facilities adopt the standards and become subject to auditing as quickly as operational and budgetary constraints will allow. As noted previously, ICE can remove detainees from facilities that do not uphold adopted sexual abuse and assault practices.
Regarding agency ability to request audits, § 115.93(b) was revised in order to clarify that the agency can require an expedited audit if the agency has reason to believe that a particular facility may be experiencing problems relating to sexual abuse. Section 115.193 instructs the agency to prioritize audits based on whether a facility has previously failed to meet the standards.
With this in mind, DHS proposed that all holding facilities that house detainees overnight would be audited within three years of the final rule's effective date. Thereafter, holding facilities would be placed into two categories: (1) Facilities that an independent auditor has designated as low risk, based on its physical characteristics and passing its most recent audit; and (2) facilities that an independent auditor has not designated as low risk. Facilities that are not determined to be low risk will adhere to the three year audit cycle recommended by commenters. Facilities that are determined to be low risk will follow a five year audit cycle.
In making its proposal and considering the comments received, DHS carefully considered the appropriate allocation of resources to ensure an appropriate audit strategy that allocates the greatest portion of limited resources to areas that are potentially higher risk. DHS also took into account the variety of holding facilities. For example, not all holding facilities are consistently used; some may be used to house detainees overnight only a handful of times per year, and some may generally be used to house only one detainee at a time.
With respect to the concerns raised by the former Commissioners of NPREC, DHS agrees that size, physical structure, and past audit history should not eliminate the need for oversight of a facility or agency. Accordingly, DHS is requiring regular, independent, rigorous oversight of all immigration detention facilities and immigration holding facilities, regardless of each facility's size, physical structure, and past audit history. DHS also agrees with the former Commissioners that facilities with apparently “low” incidence of sexual abuse still require careful scrutiny, not least because of the possibility of under-reporting, poor investigative structures, and other factors cited by the former Commissioners. Upon consideration, however, DHS has determined that rather than leading to the conclusion that all facilities must be audited every three years, these factors lead to the conclusion that DHS ought to implement robust standards across the board.
Upon consideration, DHS believes its audit program is comprehensive, robust, and cost-efficient. DHS therefore maintains this program in the final rule.
The standards in the proposed rule provided that the regulations in both Subparts A and B establish minimum requirements for agencies and facilities. Additional requirements from the agencies and facilities may be included.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The standard contained in the proposed rule mandated the coordination with CRCL on the conduct and contents of the audit as well as how the audits are to be conducted.
DHS is adopting the regulation as proposed.
The standard in the proposed rule required an auditor to attain specific qualifications before being eligible for employment by the agency to perform the required audits.
DHS revised the auditor certification provision in paragraph (b), to make explicit agencies' responsibility to certify auditors in coordination with DHS. Otherwise, DHS is adopting the regulation as proposed.
The standard contained in the proposed rule mandated specific information that the auditor is required to include in its report to DHS.
DHS is adopting the regulation as proposed.
The standard contained in the proposed rule required that when a facility “Does Not Meet Standard” after an audit, a 180-day corrective action plan is to be developed and implemented.
The final rule revises paragraph (b)'s description of the roles of the various entities regarding development of the corrective action plan in order to more clearly delineate responsibilities and to ensure the independence of the auditor is not compromised.
With respect to the specific proposals at issue, DHS has concerns that the suggested 180-day period of time to meet the requirements of a corrective action plan and similar 6-month probationary period may not be sufficiently long for many corrective actions, including, for example, actions that require construction or other physical renovation. Corrective action plans themselves are intended to create a process that will lead to full compliance. Therefore, DHS does not believe it is necessary to make changes to this standard.
The standard contained in the proposed rule allowed facilities to appeal the findings from an audit.
DHS is adopting the regulation as proposed.
DHS did not receive any public comments on this provision during the public comment period.
The proposed rule posed several questions specifically regarding audits. The following contains a summary of comments received regarding the questions addressing these standards and the DHS response.
Commenters were nearly unanimous that auditing through random sampling would not be sufficient. A collective comment of advocacy groups stated that random sampling requires some consistency among facilities in the broader sample; because of the variety of facilities at issue, sampling could not be conducted accurately. Commenters also pointed out that the degree of discretion vested in individual facility heads, the differences among the populations being held, and the differences in physical layout make use of random sampling insufficient for measuring compliance across facilities.
Former NPREC Commissioners stated that no rational basis for random sampling existed, as the only way to ensure detainees' safety from abuse is regular audits of all facilities without exception, citing DOJ final rule findings in support of a triennial cycle.
One human rights advocacy group found audits for cause acceptable, but only if in addition to regular, periodic audits, with auditing every three years being sufficient. The group stated that random audits or audits only for cause would not meet objectives such as providing oversight, transparency, accountability, and feedback in every facility. The group agreed with requiring every agency to have a full audit within the first three years after PREA's implementation, and if a facility receives an extremely high audit score, such as 90%, then the standard could allow a subsequent audit three years later to be a more streamlined version. The group expressed concerns with audits based on cause only, because it was unclear who would determine whether cause existed and when and on what basis that decision would be made.
DHS received conflicting comments in response to this question. A collection of various advocacy groups responded negatively to the idea of auditing a random selection of low-risk holding facilities instead of re-auditing each periodically. The groups, rejecting any use of random sampling, stated that any designation of a facility as low risk would be a mistake that does not account for the scope of the culture of change necessary to end the crisis of sexual abuse in confinement facilities.
A commenter agreed that the benefits would outweigh the costs, stating that a realistic, cost-effective monitoring system is critical to the standards' overall effectiveness and impact. Commenters suggested that the external scrutiny, oversight, transparency, accountability, and credible assessment of safety that a qualified independent entity would bring are vitally important for confinement facilities, could identify systemic problems and could offer solutions. Commenters believed that thorough audits will help prevent abuse, improve facility safety, lead to more effective management, and, ultimately, lower fiscal and human costs to the community.
The groups also noted that it seemed DHS cost projections did not account for contract facilities already auditing under DOJ PREA standards, but that—as a cost-related measure—the two audits could be conducted simultaneously if the auditor were properly trained in differences between the standards and wrote separate, but related, reports for each set of standards. The group suggested that DHS consider
While DHS appreciates that some commenters acknowledged that external audits are required by both DOJ and DHS and that the agencies could be seen as conducting and financing redundant external audits, DHS believes that the unique detention missions of each agency warrant a separate audit process. If in the future DHS finds that an expedited certification process is preferable, DHS can implement such a process under § 115.202(b).
A commenter stated affirmatively that a better approach may exist, acknowledging it may include additional but reasonable costs. The groups expressed the following various changes that they believe would be improvements: (1) Audits could be conducted on an unannounced basis to ensure they are reviewing typical conditions; (2) facilities which have been required to take corrective action after an initial audit could be required to undergo a follow-up audit 18 months later to assess improvement; (3) auditors could be required to work in teams that include advocates and/or former detainees to increase comprehensiveness of inspection; (4) such teams could be required to meet with a certain percentage of current and former detainees and employees, contractors, and volunteers to accrue information; and (5) DHS could require that all facilities submit to expedited audits when requested by CRCL.
The collection of groups expressed that they believed DHS could amend its PREA auditing standards at a later date if, for example, after two complete three-year audit cycles under the groups' suggested standard, DHS could then better determine which facilities could appropriately be audited on a less-frequent basis; the data from the two cycles could also allow advocates to have concrete data to comment on such a revised plan.
In response to the specific comments, DHS notes that unannounced audits would be overly burdensome for the facility and for agency personnel. Section 115.204 requires facilities with a finding of “Does Not Meet Standards” with one or more standards have 180 days to develop a corrective action plan. After the 180-day corrective action period, the auditor will issue a final determination as to whether the facility has achieved compliance. The agency will use this assessment to determine what steps are necessary to bring the facility into compliance or to determine that the facility is not safe for detainees and therefore, whether detainees must be transferred to other facilities. This process is an effective safeguard and therefore, an automatic 18-month follow-up audit is not necessary. DHS does not mandate the exact composition of the audit team, but rather requires that the audit be conducted by entities or individuals outside of the agency that have relevant audit experience. Paragraph (g) of § 115.201 already requires that the auditor interview a representative sample of detainees and staff. Finally, the agency does not believe that the agency's resources would be maximized if CRCL could automatically trigger expedited audits. CRCL already has the authority to conduct reviews related to civil rights and civil liberties issues at any facility that houses detainees. However, DHS acknowledges that CRCL will play an important role in developing audit procedures and guidelines. In light of this, §§ 115.93 and 115.193 have been revised to allow CRCL to request expedited audits if it has reason to believe that such an audit is appropriate.
Some commenters described specific types of individuals who would or would not qualify as external auditors, while one set of advocates described typical characteristics contributing to a quality auditor. One commenter stated that such external auditors should consist of members of non-governmental organizations, attorneys, community members, media, and former detainees. Another organization stated that auditors should simply not be employees of DHS or the detention center, seemingly meaning the facility being audited; yet another set of groups stated that prior corrections or detention official experience alone would not suffice. Another commenter suggested that auditing requires a well-founded individual or team with prior expertise and/or training in both sexual violence dynamics and detention environments, with state certification in rape crisis counseling being a strongly-preferred qualification. Commenters wrote that requirements must include demonstrable skills in gathering information from traumatized individuals and ability to ascertain clues of possible concerns that detainees and others may not feel comfortable sharing.
Finally, DHS received a number of generalized comments relevant to the rulemaking but which did not specifically fall within any particular standard as embodied in the proposed rule.
In addition, the need for such a survey is negated by the fact that DHS itself, through ICE, has conducted surveys of the detainee population. The surveys have focused on conditions of detention, including the grievance process, staff retaliation, intake education—including regarding how to contact ICE personnel—posting of legal assistance information, and the Detainee Handbook, with space to add other information that the detainee may wish to share. DHS may consider conducting similar surveys in the future for comparison purposes.
Several commenters generally suggested that various standards should include “critical protections” for LGBTI detainees, in addition to the specific areas where LGBTI-related comments are listed above. Areas where commenters believed these protections are needed include in §§ 115.15, 115.115, Limits to cross-gender viewing and searches; § 115.42, Use of assessment information; § 115.43, Protective custody; §§ 115.62, 115.162, (Agency) Protection duties; § 115.53, Detainee access to outside confidential support services; and § 115.78, Disciplinary sanctions for detainees.
We developed this rule after considering numerous statues and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statues or executive orders.
Executive Orders 13563 and 12866 direct agencies to assess the 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 the costs and benefits of reducing costs of harmonizing rules, and of promoting flexibility. This rule is a “significant regulatory action,” although not an economically significant regulatory action, under § 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation.
Sexual violence against any victim is an assault on human dignity and an affront to American values. Many victims report persistent, even lifelong mental and physical suffering. As the National Prison Rape Elimination Commission (NPREC) explained in its 2009 report:
Until recently . . . the public viewed sexual abuse as an inevitable feature of confinement. Even as courts and human rights standards increasingly confirmed that prisoners have the same fundamental rights to safety, dignity, and justice as individuals living at liberty in the community, vulnerable men, women, and children continued to be sexually victimized by other prisoners and corrections staff. Tolerance of sexual abuse of prisoners in the government's custody is totally incompatible with American values.
In order to address the allegations of sexual abuse at DHS immigration detention and holding facilities, the final rule sets minimum requirements for the prevention, detection, and response to sexual abuse. Specifically, the rule establishes standards for prevention planning; prompt and coordinated response and intervention; training and education of staff, contractors, volunteers and detainees; proper treatment for victims; procedures for investigation, discipline and prosecution of perpetrators; data collection and review for corrective action; and audits for compliance with the standards. DHS estimates that the full cost of compliance with these standards at all covered DHS confinement facilities will be approximately $57.4 million over the period 2013–2022, discounted at 7 percent, or $8.2 million per year when annualized at a 7 percent discount rate.
With respect to benefits, DHS conducts what is known as a “break even analysis,” by first estimating the monetary value of preventing various types of sexual abuse (incidents involving violence, inappropriate touching, or a range of other behaviors) and then, using those values, calculating the reduction in the annual number of victims that would need to occur for the benefits of the rule to equal the cost of compliance. When all facilities and costs are phased into the rulemaking, the break even point would be reached if the standards reduced the annual number of incidents of sexual abuse by 122 from the estimated benchmark levels, which is 147 percent of the total number of assumed incidents in ICE confinement facilities, including an estimated number of those who may not have reported an incident.
There are additional benefits of the rule that DHS is unable to monetize or quantify. Not only will victims benefit from a potential reduction in sexual abuse in facilities, so too will DHS agencies and staff, other detainees, and society as a whole. As noted by Congress, sexual abuse increases the levels of violence within facilities. Both staff and other detainees will benefit from a potential reduction in levels of violence and other negative factors. 42 U.S.C. 15601(14). This will improve the safety of the environment for other detainees and workplace for facility staff. In addition, long-term trauma from sexual abuse in confinement may diminish a victim's ability to reenter society resulting in unstable employment. Preventing these incidents will decrease the cost of health care, spread of disease, and the amount of public assistance benefits required for victims upon reentry into society, whether such reentry is in the United States or a detainee's home country.
Table 2, below, presents a summary of the benefits and costs of the final rule. The costs are discounted at seven percent.
This rule covers two types of confinement facilities: (1) Immigration detention facilities, and (2) holding facilities. Immigration detention facilities, which are operated or supervised by ICE, routinely hold persons for over 24 hours pending resolution or completion of immigration removal or processing. Holding facilities, used and maintained by DHS components including ICE and CBP, tend to be short-term. The analysis below presents immigration detention facilities and holding facilities separately.
This rule directly regulates the Federal Government, notably any DHS agency with immigration detention facilities or holding facilities. This rule also affects private and public entities that operate confinement facilities under contracts or agreements with DHS. The sections below describe and quantify, where possible, the number of affected immigration detention facilities and holding facilities.
ICE is the only DHS component with immigration detention facilities. ICE holds detainees during proceedings to determine whether they will be removed from the United States, and pending their removal, in ICE-owned facilities or in facilities contracting with ICE. Therefore, though this rule directly regulates the Federal Government, it requires that its standards ultimately apply to some State and local governments as well as private entities through contracts with DHS. The types of authorized ICE immigration detention facilities are as follows:
• Service Processing Center (SPC)—full service immigration facilities owned by the government and staffed by a combination of Federal and contract staff;
• Contract Detention Facility (CDF)—owned by a private company and contracted directly with the government; and
• Intergovernmental Service Agreement Facility (IGSA)—facilities at which detention services are provided to ICE by State or local government(s) through agreements with ICE and which may fall under public or private ownership and may be fully dedicated immigration facilities (housing detained aliens only) or non-dedicated facilities (housing various detainees).
ICE enters into IGSAs with States and counties across the country to use space in jails and prisons for civil immigration detention purposes. Some of these facilities are governed by IGSAs that limit the length of an immigration detainee's stay to less than 72 hours. Some of these facilities have limited bed space that precludes longer stays by detainees. Others are used primarily under special circumstances such as housing a detainee temporarily to facilitate detainee transfers or to hold a detainee for court appearances in a different jurisdiction. In some circumstances the under-72-hour facilities house immigration detainees only occasionally.
ICE owns or has contracts with approximately 158 authorized immigration detention facilities that hold detainees for more than 72 hours.
ICE additionally has 91 authorized immigration detention facilities that are contracted to hold detainees for less than 72 hours.
Furthermore, ICE also has two authorized family residential centers. These are IGSA facilities that house only ICE detainees. One of the facilities accommodates families subject to mandatory detention and the other is a dedicated female facility. ICE family residential centers are subject to the immigration detention facility standards proposed in Subpart A. The table below
A holding facility may contain holding cells, cell blocks, or other secure locations that are: (1) under the control of the agency and (2) primarily used for the confinement of individuals who have recently been detained, or are being transferred to another agency.
Most ICE holding rooms are in ICE field offices and satellite offices. These rooms are rooms or areas that are specifically designed and built for temporarily housing detainees in ICE ERO offices. It may also include staging facilities. ICE holding facilities as presented in this analysis are exclusive of hold rooms or staging areas at immigration detention facilities, which are covered by the standards of the immigration detention facility under Subpart A of this rule. ICE has 149 holding facilities that are covered under Subpart B of the rule.
There is a wide range of facilities where CBP detains individuals. Some individuals are detained in secured detention areas, while others are detained in open seating areas where agents or officers interact with the detainee. Hold rooms in CBP facilities where case processing occurs are used to search, detain, or interview persons who are being processed. CBP operates 768 holding facilities at ports of entry and Border Patrol stations, checkpoints, and processing facilities across the country.
The number of detainees in CBP custody fluctuates. Consequently, at times CBP is unable to accommodate its short-term detention needs through its facilities. Similar to ICE, CBP has entered into approximately 14 contracts with State, local, and/or private entity facilities on a rider to a USMS contract that provides for a consistent arrangement with particular facilities to cover instances in which CBP has insufficient space to detain individuals. Because CBP entered into these contracts via a rider to a USMS contract, the impacts to these facilities have been accounted for in the DOJ's PREA rule and to consider them again here would double count any costs and/or benefits associated with these facilities. As such, these facilities are excluded from this analysis.
This rule covers DHS immigration detention facilities and holding facilities. Table 3 summarizes the number of facilities covered by the rulemaking over 10 years.
The cost estimates set forth in this analysis represent the costs of compliance with, and implementation of, the standards in facilities within the scope of the rulemaking.
After analyzing the changes made in this final rule, DHS concludes the only cost change from the NPRM with more than a de minimis impact results from expanding the scope of training requirements for personnel that have contact with detainees under § 115.32. This change resulted in an increase in estimated cost of approximately $16,000 per year. DHS also fixed a mistake in estimating the year audits would begin for facilities. Thus, this analysis estimates that compliance with the standards, in the aggregate, will be approximately $57.4 million, discounted at 7 percent, over the period 2013–2022, or $8.2 million per year when annualized at a 7 percent discount rate. Table 4 below, presents a 10-year summary of the estimated benefits and costs of the final rule.
The total cost, discounted at 7 percent, consists of $34.1 million for immigration detention facilities under Subpart A, and $23.2 million for holding facilities under Subpart B. The largest costs for immigration detention facilities are for staff training, documentation of cross-gender pat downs, duties for the PSA Compliance Manager, and audit requirements. DHS estimates zero compliance costs for ICE holding facilities under this rule as the requirements of ICE's SAAPID and other ICE policies are commensurate with the requirements of the rule. The largest costs for CBP holding facilities are staff training, audits, and facility design modifications and monitoring technology upgrades.
DHS has not estimated the anticipated monetized benefits of this rule or how many incidents or victims of sexual abuse DHS anticipates will be avoided by this rule. Instead, DHS conducts what is known as a “break even analysis,” by first estimating the monetary value of preventing victims of various types of sexual abuse (from incidents involving violence to inappropriate touching) and then, using those values, calculating the reduction in the annual number of victims that would need to occur for the benefits of the rule to equal the cost of compliance. The NPRM estimated the benefits based on sexual abuse data from 2011, the most recent full year of data at that time. DHS has included sexual abuse data from 2010, 2011, and 2012 in this final analysis. In addition, since the publication of the NPRM, ICE's PSA Coordinator has reviewed the individual reports and data from these years and assigned a level of sexual victimization to each based on the levels used in the DOJ PREA RIA.
There are additional benefits of the rule that DHS is unable to monetize or quantify. Not only will victims benefit from a potential reduction in sexual abuse in facilities, so too will DHS agencies and staff, other detainees, and society as a whole. As noted by Congress, sexual abuse increases the levels of violence within facilities. Both staff and other detainees will benefit from a potential reduction in levels of violence and other negative factors. 42 U.S.C. 15601(14). This will improve the safety of the environment for other detainees and workplace for facility staff. In addition, long-term trauma from sexual abuse in confinement may diminish a victim's ability to reenter society resulting in unstable
As alternatives to the regulatory regime discussed in this rule, DHS examined three other options. The first is taking no regulatory action. For over 72-hour immigration detention facilities, the 2011 PBNDS sexual abuse standards might reach all facilities over time as the new version of the standards are implemented at facilities as planned. However, in the absence of regulatory action, sexual abuse standards for ICE's under 72-hour immigration detention facilities and DHS's holding facilities would remain largely the same.
DHS also considered requiring the ICE immigration detention facilities that are only authorized to hold detainees for under 72 hours to meet the standards for holding facilities under Subpart B, rather than the standards for immigration detention in Subpart A, as discussed in the final rule. The standards in Subpart B are somewhat less stringent than those for immigration detention facilities, as appropriate for facilities holding detainees for a much shorter time and with an augmented level of direct supervision.
Finally, DHS considered changing the audit requirements under §§ 115.93 and 115.193. Immigration detention facilities currently undergo several layers of inspections for compliance with ICE's detention standards. This alternative would allow ICE to incorporate the audit requirements for the standards into current inspection procedures. However, it would require outside auditors for all immigration detention facilities. For holding facilities that hold detainees overnight, it would require 10 internal audits, 10 external audits, and three audits by CRCL be conducted annually. The following table presents the 10-year costs of the alternatives compared to the costs of the final rule. These costs of these alternatives are discussed in detail in Chapter 2 of the Final RIA.
This final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. This rule implements the Presidential Memorandum of May 17, 2012 “Implementing the Prison Rape Elimination Act” and the requirements found in the recently enacted VAWA Reauthorization (Mar. 7, 2013) by setting forth national DHS standards for the detection, prevention, reduction, and punishment of sexual abuse in DHS immigration detention and holding facilities. In drafting the standards, DHS was mindful of its obligation to meet the President's objectives and Congress's intent while also minimizing conflicts between State law and Federal interests.
Insofar, however, as the rule sets forth standards that might apply to immigration detention facilities and holding facilities operated by State and local governments and private entities, this rule has the potential to affect the States, the relationship between the Federal government and the States, and the distribution of power and responsibilities among the various levels of government and private entities. With respect to the State and local agencies, as well as the private entities, that own and operate these facilities across the country, the Presidential Memorandum provides DHS with no direct authority to mandate binding standards for their facilities. However, in line with Congress's and the President's statutory direction in the VAWA Reauthorization that the standards are to apply to DHS-operated detention facilities and to detention facilities operated under contract with DHS, including CDFs and detention facilities operated through an IGSA with DHS, these standards impact State, local, and private entities to the extent that such entities make voluntary decisions to contract with DHS for the confinement of immigration detainees or that such entities and DHS agree to enter into a modification or renewal of such contracts. This approach is fully consistent with DHS's historical relationship to State and local agencies in this context. Therefore, in accordance with Executive Order 13132, DHS has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Notwithstanding the determination that the formal consultation process described in Executive Order 13132 is not required for this rule, DHS welcomed consultation with representatives of State and local prisons and jails, juvenile facilities, community corrections programs, and lockups—among other individuals and groups—during the course of this rulemaking.
This regulation meets the applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4, 109 Stat. 48, 2 U.S.C. 1532) generally requires agencies to prepare a statement before submitting any rule that may result in an annual expenditure of $100 million or more (adjusted annually for inflation) by State, local, or tribal governments, or by the private sector. DHS has assessed the probable impact of these regulations and believes these regulations may result in an aggregate expenditure by State and local governments of approximately $4.3 million in the first year.
However, DHS believes the requirements of the UMRA do not apply to these regulations because UMRA excludes from its definition of “Federal intergovernmental mandate” those regulations imposing an enforceable duty on other levels of government which are “a condition of Federal
• These standards are being issued pursuant to the Presidential Memorandum of May 17, 2012, section 1101 of the VAWA Reauthorization, and DHS detention authorities.
• A qualitative and quantitative assessment of the anticipated costs and benefits of these standards appears below in the Regulatory Flexibility Act (RFA) section;
• DHS does not believe that these standards will have an effect on the national economy, such as an effect on productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services;
• Before it issued these final regulations DHS:
(1) Provided notice of these requirements to potentially affected small governments by publishing the NPRM, and by other activities;
(2) Enabled officials of affected small governments to provide meaningful and timely input, via the methods listed above; and
(3) Worked to inform, educate, and advise small governments on compliance with the requirements.
• As discussed above in the RIA summary, DHS has identified and considered a reasonable number of regulatory alternatives and from those alternatives has attempted to select the least costly, most cost effective, or least burdensome alternative that achieves DHS's objectives.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121, DHS wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact DHS via the address or phone number provided in the
DHS drafted this final rule so as to minimize its impact on small entities, in accordance with the RFA, 5 U.S.C. 601–612, while meeting its intended objectives. The term “small entities” comprises small business, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Based on presently available information, DHS is unable to state with certainty that the rule will not have any effect on small entities of the type described in 5 U.S.C. 601(3). Accordingly, DHS has prepared a Final Regulatory Flexibility Impact Analysis in accordance with 5 U.S.C. 604.
In 2003 Congress enacted PREA, Public Law 108–79 (Sept. 4, 2003). PREA directs the Attorney General to promulgate national standards for enhancing the prevention, detection, reduction, and punishment of prison rape. On May 17, 2012, DOJ released a final rule setting national standards to prevent, detect, and respond to prison rape for facilities operated by BOP and USMS. The final rule was published in the
DHS uses a variety of legal authorities, which are listed below in the “Authority” provision preceding the regulatory text, to detain individuals in confinement facilities. Most individuals detained by DHS are detained in the immigration removal process, and normally DHS derives its detention authority for these actions from § 236(a) of the INA, 8 U.S.C. 1226(a), which provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and § 241(a)(2) of the INA, 8 U.S.C. 1231(a)(2), which provides the authority to detain an alien during the period following the issuance of an order of removal. DHS components, however, use many other legal authorities to meet their statutory mandates and to detain individuals during the course of executing DHS missions.
The objective of the rule is to create minimum requirements for DHS immigration detention and holding facilities for the prevention, detection, and response to sexual abuse. The rule will ensure prompt and coordinated response and intervention, proper treatment for victims, discipline and prosecution of perpetrators, and effective oversight and monitoring to prevent and deter sexual abuse.
DHS did not receive any public comments in response to the initial regulatory flexibility analysis.
DHS did not receive comments from the Chief Counsel for Advocacy of the
This rule will affect owners of DHS confinement facilities, including private owners, State and local governments, and the Federal government. DHS has two types of confinement facilities: (1) Immigration detention facilities, and (2) holding facilities. Holding facilities tend to be short-term in nature. ICE, in particular, is charged with administration of the immigration detention facilities while CBP and ICE each have many holding facilities under their detention authority. The analysis below addresses immigration detention facilities and holding facilities separately.
ICE divides its detention facilities into two groups: There are 158 for use over 72 hours, and 91 that typically hold detainees for more than 24 hours and less than 72 hours. These are treated separately, below. Further, there are several types of immigration detention facilities. SPC facilities are ICE-owned facilities and staffed by a combination of Federal and contract staff. CDFs are owned by a private company and contracted directly with ICE. Detention services at IGSA facilities are provided to ICE by State or local governments(s) through agreements with ICE and may be owned by the State or local government, or by a private entity. Finally, there are two types of IGSA facilities: dedicated and non-dedicated. Dedicated IGSA facilities hold only detained aliens whereas non-dedicated facilities hold a mixture of detained aliens and inmates. ICE does not include USMS IGA facilities used by ICE under intergovernmental agreements in the scope of this rulemaking. Those facilities would be covered by the DOJ PREA standards. Any references to authorized immigration detention facilities are exclusive of these 119 USMS IGA facilities.
Of the current 158 ICE detention facilities that are for use over 72 hours, 6 are owned by the Federal government and are not subject to the RFA. An additional 64 are covered not by this rule but by the DOJ PREA rule, as USMS IGA facilities. Of the 88 facilities subject to the RFA, there are 79 distinct entities. DHS uses ICE information and public databases such as Manta.com and data from the U.S. Census Bureau
Of the 79 entities owning immigration detention facilities and subject to the RFA, the search returned 75 entities for which sufficient data are available to determine if they are small entities, as defined by the RFA. The table below shows the North American Industry Classification System (NAICS) codes corresponding with the number of facilities for which data are available. There are 27 small governmental jurisdictions, one small business, and one small not-for-profit. In order to ensure that the interests of small entities are adequately considered, DHS assumes that all entities without available ownership, NAICS, revenue, or employment data are small entities. Therefore, DHS estimates there are a total of 33 small entities to which this rule applies. The table below shows the number of small entities by type for which data are available.
ICE also has shorter-term immigration detention facilities, for several reasons: Some of ICE's immigration detention facilities are governed by IGSAs that limit the length of an immigration detainee's stay to less than 72 hours for various reasons. Some of these facilities have limited bed space that precludes longer stays by detainees. Others are used primarily under special circumstances such as housing a detainee temporarily to facilitate detainee transfers or to hold a detainee for court appearances in a different jurisdiction. In some circumstances the under 72-hour facilities are located in rural areas that only occasionally have immigration detainees.
At the time of writing, ICE has 91 immigration detention facilities which are used to detain individuals for less than 72 hours. Of those, three are owned by the Federal or State government and are not subject to the RFA. An additional 55 are covered not by this rule but by the DOJ PREA rule, as USMS IGA facilities. Of the 33 facilities subject to the RFA, all are owned by distinct entities. Again, DHS uses public databases such as Manta.com and U.S. Census Bureau to search for entity type, primary line of business, employee size, revenue, population, and any other necessary information needed to determine if an entity is considered small by SBA size standards.
Of the 33 entities owning immigration detention facilities and subject to the RFA, all have sufficient data available to determine if they are small entities as defined by the RFA. The table below shows the NAICS codes corresponding with the number of facilities for which data are available. DHS determines there are 10 small governmental jurisdictions, 0 small businesses, and 0 small organizations. The table below shows
At the time of writing, ICE has two immigration detention facilities that are considered family residential facilities. Both are owned by counties. Again, DHS uses public databases such as Manta.com and U.S. Census Bureau to search for entity type, primary line of business, employee size, revenue, population, and any other necessary information needed to determine if an entity is considered small by SBA size standards. DHS was able to obtain sufficient data to determine if they are small entities. Based on the size of the counties, DHS determines neither are considered small governmental jurisdictions as defined by the RFA.
In summary, DHS estimates the number of small entities covered by this rulemaking is 33 over 72-hour immigration detention facilities, 10 under 72-hour facilities, and 2 family residential facilities, for a total of 45 small entities.
With regard to non-DHS facilities, the requirements of the rule are applicable only to new detention contracts with the Federal Government, and to contract renewals. To the extent this rule increases costs to any detainment facilities, which may be small entities, it may be reflected in the cost paid by the Federal Government for the contract. Costs associated with implementing the rule paid by the Federal Government to small entities are transfer payments ultimately born by the Federal Government. However, DHS cannot say with certainty how much, if any, of these costs will be paid in the form of increased bed rates for facilities. Therefore, for the purposes of this analysis, DHS assumes all costs associated with the rule will be borne by the facility. Of the 45 small entities, 37 operate under the NDS. The following discussion addresses the standards that may create implementation costs for facilities that are currently operating under the ICE NDS.
The rule requires that any new contracts or contract renewals comply with the rule and provide for agency contract monitoring to ensure that the contractor is complying with these standards. Therefore, DHS adds a 20-hour opportunity cost of time for the contractor to read and process the modification, determine if a request for a rate increase is necessary, and have discussions with the government if needed. DHS estimates this standard may cost a facility approximately $1,488 (20 hours × $74.41) in the first year.
The rule requires immigration detention facilities to have a written zero-tolerance policy for sexual abuse and establish a PSA Compliance Manager at each facility. ICE is not requiring facilities to hire any new staff for these responsibilities; rather ICE believes the necessary PSA Compliance Manager duties can be collateral duties for a current staff member.
For some of the standards in this rulemaking, the actual effort required to comply with the standard will presumably be undertaken by the PSA Compliance Manager. The costs of compliance with those standards are thus essentially subsumed within the cost of this standard. For this reason, and to avoid double counting, many standards are assessed as having minimal to zero cost even though they will require some resources to ensure compliance; this is because the cost of those resources is assigned to this standard to the extent DHS assumes the primary responsibility for complying with the standard will lie with the PSA Compliance Manager. The table below presents the standards and requirements DHS assumes are the responsibility of the PSA Compliance Manager, and are included in the costs estimated for this standard.
DHS spoke with some SPCs and CDFs who had Sexual Abuse and Assault Prevention Intervention Coordinators required under the 2008 PBNDS. Based on these discussions, DHS estimates a PSA Compliance Manager will spend, on average, 114 hours in the first year and 78 hours thereafter, which includes writing/revising policies related to sexual abuse and working with auditors. DHS estimates this standard may cost a facility approximately $5,330 (114 hours × $46.75) in the first year.
The requirement prohibits cross-gender pat-down searches unless, after reasonable diligence, staff of the same gender is not available at the time the pat-down search is required (for male detainees), or in exigent circumstances (for female and male detainees alike). In addition, it bans cross-gender strip or body cavity searches except in exigent circumstances; requires documentation of all strip and body cavity searches and cross-gender pat-down searches; prohibits physical examinations for the sole purpose of determining genital characteristics; requires training of law enforcement staff on proper procedures for conducting pat-down searches, including transgender and intersex detainees; and, implements policies on staff viewing of showering, performing bodily functions, and changing clothes.
The restrictions placed on cross-gender pat-down searches will be a new requirement for facilities operating under the NDS or 2008 PBNDS, and a modified requirement for facilities operating under the 2011 PBNDS.
DHS does not expect any facilities to hire new staff or lay off any staff specifically to meet the requirement. Instead, DHS expects that facilities which may have an unbalanced gender ratio take this requirement into consideration during hiring decisions resulting from normal attrition and staff turnover. In the IRFA, DHS requested comments from facilities on this conclusion. No comments were received in response to this request.
DHS includes a cost for facilities to examine their staff rosters, gender ratios, and staffing plans for all shifts for maximum compliance with cross-gender pat downs. The length of time it takes for facilities to adjust staffing plans, strategies, and schedules for gender balance while ensuring there is adequate detainee supervision and monitoring pursuant to § 115.13 will vary with the size of the facility. DHS estimates this may take a supervisor 12 hours initially. DHS anticipates facilities will be able to incorporate these considerations into regular staffing decisions in the future. DHS estimates the restrictions on cross-gender pat-downs may cost a facility approximately $561 (12 hours × $46.75) in the first year.
The requirement for documentation of cross-gender pat-down searches is new for all facilities, regardless of the version of the detention standards under which the facility operates. Presumably, cross-gender pat-down searches of female detainees will occur rarely, as the rule allows them in exigent circumstances only. However, cross-gender pat-down searches of male detainees may happen more frequently. DHS believes this requirement may be a notable burden on facilities both for the process of documenting the pat-down, but also keeping these records administratively. Therefore, as we discuss below, DHS estimates an opportunity cost for this provision. ICE does not currently track the number of cross-gender pat-down searches, or any pat-down searches conducted. In the IRFA DHS requested comment from facilities on the number of cross-gender pat-down searches conducted. No comments were received in response to this request.
Because DHS believes this may be a noticeable burden on facilities, DHS includes a rough estimate using assumptions. DHS also requested comment on these assumptions in the IRFA. No comments were received in response to this request. Detainees may receive a pat-down for a number of reasons. All detainees receive a pat- down upon intake at the facility, detainees may receive a pat-down after visitation, before visiting the attorney room, if visiting medical, if in segregation, etc. Therefore, DHS assumes that in any given day, approximately 50 percent of detainees may receive a pat-down. DHS uses the ratio of male guards to male detainees and female guards to female detainees as a proxy for the percentage of these pat-downs that will be cross-gender, realizing that this may not be representative of every facility, the circumstances at the time a pat-down is required, nor the results after the staff realignment previously discussed. As referenced previously, between 72 and 87 percent of guards are male and 90 percent of detainees are male. Therefore, to estimate a rough order of magnitude, DHS assumes between 3 and 18 percent of pat-downs of male detainees may be cross-gender, with a primary estimate of 10 percent.
DHS finds the total average daily population of male detainees at the 43 facilities classified as small entities and takes the average to determine an average daily population of 93 for a facility classified as a small entity (4,457 × 90% ÷ 43). Then DHS applies the methodology described above to estimate that approximately 2,000 cross gender pat-downs may be conducted at an average small entity annually (93 male ADP × 50% receive pat-down daily × 365 days × 10% cross-gender), which is rounded to the nearest thousand due to uncertainty. DHS estimates it will require an average of five minutes of staff for documentation. DHS estimates
The total estimate per small entity for § 115.15 is $5,996 ($561 for staff realignment + $5,435 for cross-gender pat-down documentation).
The rule requires ICE and any of its immigration detention facilities to establish a protocol for the investigation of allegations of sexual abuse or the referral of allegations to investigators. In addition, where appropriate, at no cost to the detainee, a forensic medical exam should be offered and an outside victim advocate shall be made available for support if requested.
DHS includes a cost for facilities to enter into a memorandum of understanding (MOU) with entities that provide victim advocate services, such as rape crisis centers. DHS estimates it will require approximately 20 hours of staff time to negotiate and settle on each MOU. DHS estimates this standard may cost a facility approximately $1,488 (20 hours × $74.41).
Under § 115.31 the rule requires that any facility staff who may have contact with immigration detention facilities have training on specific items related to prevention, detection, and response to sexual abuse. It also requires facilities to maintain documentation that all staff have completed the training requirements. Staff includes any employees or contractors of the agency or facility, including any entity that operates within the facility. Contractor means a person who or entity that provides services on a recurring basis pursuant to a contractual agreement with the agency or facility.
DHS uses the National Institute of Corrections Information Center 2-hour training timeframe as an approximation for the length of the training course to fulfill the proposed requirements. DHS estimates this standard may cost a facility approximately $18,914 (2 hours × 290 staff × $32.61), annually.
In the NPRM, § 115.32 required that any volunteers and contractors who may have contact with immigration detention facilities also receive training on specific items related to prevention, detection, and response to sexual abuse. In the final rule this was changed to volunteers and other contractors. Other contractors are those that do not have training requirements under § 115.31, but who have contact with detainees and provide services on a non-recurring basis to the facility pursuant to a contractual agreement. The standard also requires the agency or facility to maintain documentation that all volunteers and other contractors have completed the training requirements.
The provisions in this standard allow the level and type of training required of volunteers and other contractors to be based upon the services they provide and the level of contact they have with detainees, but sets a minimum level requiring notification of the zero-tolerance policy and reporting responsibilities and procedures. Because of the regular nature of volunteers and the types of duties they perform, DHS uses the same assumptions as staff for the frequency and hours of training required of volunteers. DHS estimates this standard for volunteers may cost approximately $2,008 per facility (2 hours × 30 volunteers × $33.47).
To provide flexibility to facilities to determine the appropriate level of training necessary, the NPRM included training for contractors under § 115.31 and § 115.32 recognizing there are different types of contractors ranging from guards to those that come weekly to service vending machines. In this final rule, DHS proposes to address this flexibility in a different manner. DHS has removed from § 115.32 contractors, as defined under § 115.5 as a “person or entity that provides services on a recurring basis pursuant to a contractual agreement with the agency or facility.” The final rule includes these types of recurring contractors solely under the training requirements of § 115.31. In recognition that there may be other non-recurring contractors with access to detainees, DHS has included a requirement for these other contractors to also undergo training appropriate for the services they provide and level of contact they have with detainees, under § 115.32. This expands the training requirements to a population that was not previously covered under the NPRM. DHS estimates this standard for other contractors may cost approximately $121 per facility (15 minutes × 20 other contractors × $24.24).
Bureau of Labor Statistics, Employer Cost for Employee Compensation, June 2011, Table 1: Employer Costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, Management, professional, and related, Salary and Compensation Percent of Total Compensation, retrieved on October 15, 2012 from
The total estimated cost per facility for volunteer and other contractor training is $2,129 ($2,008 for volunteers + $121 for other contractors).
The rule requires the agency or facility to provide specialized training on sexual abuse and effective cross-agency coordination to agency or facility investigators, respectively, who conduct investigations into alleged sexual abuse at immigration detention facilities.
DHS conducts investigations of all allegations of detainee sexual abuse in detention facilities. The 2012 ICE SAAPID mandates that ICE's OPR provide specialized training to OPR investigators and other ICE staff. Facilities may also conduct their own investigations. However, because ICE conducts investigations into the allegations, training for facility investigators will likely be less specialized than required of ICE investigators. DHS includes a cost for the time required for training investigators. DHS estimates the training may take approximately one hour. DHS estimates this standard may cost a facility approximately $468 (1 hour × 10 investigators × $46.75).
The rule requires specialized training to DHS medical and mental health care staff. In addition, it requires all facilities to have policies and procedures to ensure that the facility trains or certifies all full- or part-time facility medical and mental health care staff in procedures for treating victims of sexual abuse, in facilities where medical or mental health staff may be assigned these activities.
DHS searched for continuing medical education courses that focused on the evaluation and treatment for victims of sexual assault. Based on the results, DHS estimates an average course will be one hour in length and cost between $10 and $15, and can be completed online. DHS estimates this standard may cost a facility approximately $1,957 (30 medical and mental health care practitioners × ($50.23 × 1 hr + $15)).
The rule requires facilities to maintain or attempt to enter into MOUs with organizations that provide legal advocacy and confidential emotional support services for victims of sexual abuse. It also requires notices of these services be made available to detainees, as appropriate.
DHS includes a cost for facilities to enter into a MOU with entities that provide legal advocacy and confidential support services, such as services provided by a rape crisis center. DHS estimates it will require approximately 20 hours of staff time to negotiate and settle on each MOU. DHS estimates this standard may cost a facility approximately $1,488 (20 hours × $74.41).
Facilities may also incur costs for re-audits. Re-audits can be requested in the event that the facility does not achieve compliance with each standard or if the facility files an appeal with the agency regarding any specific finding that it believes to be incorrect. Costs for these audits will be borne by the facility; however, the request for these re-audits is at the discretion of the facility.
Facilities contracting with DHS agencies may incur organizational costs related to proper planning and overall execution of the rulemaking, in addition to the specific implementation costs facilities are estimated to incur for each of the requirements. The burden resulting from the time required to read the rulemaking, research how it might impact facility operations, procedures, and budget, as well as consideration of how best to execute the rulemaking requirements or other costs of overall execution. This is exclusive of the time required under § 115.12 to determine and agree upon the new terms of the contract and the specific requirements expected to be performed by the facility PSA Compliance Manager under § 115.11.
To account for these costs, DHS adds an additional category of implementation costs for immigration detention facilities. Implementation costs will vary by the size of the facility, a facility's current practices, and other facility-specific factors. DHS assumes the costs any additional implementation costs might occur as a result of the standards with start-up costs, such as entering into MOUs, rather than standards with action or on-going costs, such as training. DHS estimates additional implementation costs as 10 percent of the total costs of standards with a start-up cost. DHS requests comment on this assumption. The tables below present the estimates for additional implementation costs. DHS estimates this standard may cost a facility approximately $1,579 in the first year (10% × ($1,488 for § 115.12 + $5,330 for § 115.11 + $5,996 for § 115.15 + $1,488 for § 115.21 + $1,488 for § 115.53)).
DHS estimates the total cost per immigration detention facility under the NDS for compliance with the standards is approximately $40,837 for the first year. In subsequent years, DHS estimates the costs drop to approximately $31,033. The following table summarizes the preceding discussion.
DHS considered a longer phase-in period for small entities subject to the rulemaking. A longer period would reduce immediate burden on small entities with current contracts. The current requirements require that facilities comply with the standards upon renewal of a contract or exercising a contract option. Essentially, this would phase-in all authorized immigration detention facilities within a year of the effective date of the final rule. DHS is willing to work with small facilities upon contract renewal in implementing these standards.
DHS also considered requiring lesser standards, such as those under the NDS or the 2008 PBNDS for small entities. However, DHS rejected this alternative because DHS believes in the importance of protecting detainees from, and providing treatment after, instances of sexual abuse, regardless of a facility's size. In the IRFA DHS requested comment on additional alternatives that might help reduce the impact on small entities. No comments were received in response to this request.
DHS is setting standards for the prevention, detection, and response to sexual abuse in its confinement facilities. For DHS facilities and as incorporated in DHS contracts, these standards require covered facilities to retain and report to the agency certain specified information relating to sexual abuse prevention planning, responsive planning, education and training, and investigations, as well as to collect, retain, and report to the agency certain specified information relating to allegations of sexual abuse within the covered facility. As stated in the NPRM, DHS believes that most of the information collection requirements placed on facilities are already requirements derived from existing contracts with immigration detention facilities. However, DHS included these requirements as part of an information collection request associated with the proposed rule, pursuant to the Paperwork Reduction Act of 1995 (PRA), so as to ensure clarity of requirements associated with this rulemaking.
This final rule contains a new collection of information covered by the PRA. The information collection described by DHS in the proposed rule garnered no comments from the public, and thus no changes were necessitated based upon any comments pertaining to the PRA aspects of the rule. However, changes to the PREA standards made in response to substantive comments on the NPRM and due to additional analysis resulted in the total PRA burden hours being greater than those estimated in DHS's initial information collection request.
DHS has submitted a revised information collection request to OMB for review and clearance in accordance with the review procedures of the PRA.
Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, Part 115 of Title 6 of the Code of Federal Regulations is added to read as follows:
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4); Pub. L. 107–296, 116 Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR part 2.
For purposes of this part, the term—
(1) Under the control of the agency; and
(2) Primarily used for the short-term confinement of individuals who have recently been detained, or are being transferred to or from a court, jail, prison, other agency, or other unit of the facility or agency.
For purposes of this part, the term—
(1) Sexual abuse and assault of a detainee by another detainee; and
(2) Sexual abuse and assault of a detainee by a staff member, contractor, or volunteer.
(1) Contact between the penis and the vulva or anus and, for purposes of this paragraph (1), contact involving the penis upon penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration, however slight, of the anal or genital opening of another person by a hand or finger or by any object;
(4) Touching of the genitalia, anus, groin, breast, inner thighs or buttocks, either directly or through the clothing, with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person; or
(5) Threats, intimidation, or other actions or communications by one or more detainees aimed at coercing or pressuring another detainee to engage in a sexual act.
(1) Contact between the penis and the vulva or anus and, for purposes of this paragraph (1), contact involving the penis upon penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration, however slight, of the anal or genital opening of another person by a hand or finger or by any object that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(4) Intentional touching of the genitalia, anus, groin, breast, inner thighs or buttocks, either directly or through the clothing, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(5) Threats, intimidation, harassment, indecent, profane or abusive language, or other actions or communications, aimed at coercing or pressuring a detainee to engage in a sexual act;
(6) Repeated verbal statements or comments of a sexual nature to a detainee;
(7) Any display of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, detainee, or resident, or
(8) Voyeurism, which is defined as the inappropriate visual surveillance of a detainee for reasons unrelated to official duties. Where not conducted for reasons relating to official duties, the following are examples of voyeurism: staring at a detainee who is using a toilet in his or her cell to perform bodily functions; requiring an inmate detainee to expose his or her buttocks, genitals, or breasts; or taking images of all or part of a detainee's naked body or of a detainee performing bodily functions.
This subpart covers ICE immigration detention facilities. Standards set forth in this subpart A are not applicable to Department of Homeland Security (DHS) holding facilities.
(a) The agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-wide Prevention of Sexual Assault Coordinator (PSA Coordinator) with sufficient time and authority to develop, implement, and oversee agency efforts to comply with these standards in all of its immigration detention facilities.
(c) Each facility shall have a written policy mandating zero tolerance toward all forms of sexual abuse and outlining the facility's approach to preventing, detecting, and responding to such conduct. The agency shall review and approve each facility's written policy.
(d) Each facility shall employ or designate a Prevention of Sexual Assault Compliance Manager (PSA Compliance Manager) who shall serve as the facility point of contact for the agency PSA Coordinator and who has sufficient time and authority to oversee facility efforts to comply with facility sexual abuse prevention and intervention policies and procedures.
(a) When contracting for the confinement of detainees in immigration detention facilities operated by non-DHS private or public agencies or other entities, including other government agencies, the agency shall include in any new contracts, contract renewals, or substantive contract modifications the entity's obligation to adopt and comply with these standards.
(b) Any new contracts, contract renewals, or substantive contract modifications shall provide for agency contract monitoring to ensure that the contractor is complying with these standards.
(a) Each facility shall ensure that it maintains sufficient supervision of detainees, including through appropriate staffing levels and, where applicable, video monitoring, to protect detainees against sexual abuse.
(b) Each facility shall develop and document comprehensive detainee supervision guidelines to determine and meet the facility's detainee supervision needs, and shall review those guidelines at least annually.
(c) In determining adequate levels of detainee supervision and determining the need for video monitoring, the facility shall take into consideration generally accepted detention and correctional practices, any judicial findings of inadequacy, the physical layout of each facility, the composition of the detainee population, the prevalence of substantiated and unsubstantiated incidents of sexual abuse, the findings and recommendations of sexual abuse incident review reports, and any other relevant factors, including but not limited to the length of time detainees spend in agency custody.
(d) Each facility shall conduct frequent unannounced security inspections to identify and deter sexual abuse of detainees. Such inspections shall be implemented for night as well as day shifts. Each facility shall prohibit staff from alerting others that these security inspections are occurring, unless such announcement is related to the legitimate operational functions of the facility.
(a) Juveniles shall be detained in the least restrictive setting appropriate to the juvenile's age and special needs, provided that such setting is consistent with the need to protect the juvenile's well-being and that of others, as well as with any other laws, regulations, or legal requirements.
(b) The facility shall hold juveniles apart from adult detainees, minimizing sight, sound, and physical contact, unless the juvenile is in the presence of an adult member of the family unit, and provided there are no safety or security concerns with the arrangement.
(c) In determining the existence of a family unit for detention purposes, the agency shall seek to obtain reliable evidence of a family relationship.
(d) The agency and facility shall provide priority attention to unaccompanied alien children as defined by 6 U.S.C. 279(g)(2), including transfer to a Department of Health and Human Services Office of Refugee Resettlement facility within 72 hours, except in exceptional circumstances, in accordance with 8 U.S.C. 1232(b)(3).
(e) If a juvenile who is an unaccompanied alien child has been convicted as an adult of a crime related to sexual abuse, the agency shall provide the facility and the Department of Health and Human Services Office of Refugee Resettlement with the releasable information regarding the conviction(s) to ensure the appropriate placement of the alien in a Department of Health and Human Services Office of Refugee Resettlement facility.
(a) Searches may be necessary to ensure the safety of officers, civilians and detainees; to detect and secure evidence of criminal activity; and to promote security, safety, and related interests at immigration detention facilities.
(b) Cross-gender pat-down searches of male detainees shall not be conducted unless, after reasonable diligence, staff of the same gender is not available at the time the pat-down search is required or in exigent circumstances.
(c) Cross-gender pat-down searches of female detainees shall not be conducted unless in exigent circumstances.
(d) All cross-gender pat-down searches shall be documented.
(e) Cross-gender strip searches or cross-gender visual body cavity searches shall not be conducted except in exigent circumstances, including consideration of officer safety, or when performed by medical practitioners. Facility staff shall not conduct visual body cavity searches of juveniles and, instead, shall refer all such body cavity searches of juveniles to a medical practitioner.
(f) All strip searches and visual body cavity searches shall be documented.
(g) Each facility shall implement policies and procedures that enable detainees to shower, perform bodily functions, and change clothing without being viewed by staff of the opposite gender, except in exigent circumstances or when such viewing is incidental to routine cell checks or is otherwise appropriate in connection with a medical examination or monitored bowel movement. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing.
(h) The facility shall permit detainees in Family Residential Facilities to shower, perform bodily functions, and change clothing without being viewed by staff, except in exigent circumstances or when such viewing is incidental to routine cell checks or is otherwise appropriate in connection with a medical examination or monitored bowel movement.
(i) The facility shall not search or physically examine a detainee for the sole purpose of determining the detainee's genital characteristics. If the detainee's gender is unknown, it may be determined during conversations with the detainee, by reviewing medical records, or, if necessary, learning that information as part of a standard medical examination that all detainees must undergo as part of intake or other processing procedure conducted in private, by a medical practitioner.
(j) The agency shall train security staff in proper procedures for conducting pat-down searches, including cross-gender pat-down searches and searches of transgender and intersex detainees. All pat-down searches shall be conducted in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs and agency policy, including consideration of officer safety.
(a) The agency and each facility shall take appropriate steps to ensure that detainees with disabilities (including, for example, detainees who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities) have an equal opportunity to participate in or benefit from all aspects of the agency's and facility's efforts to prevent, detect, and respond to sexual abuse. Such steps shall include, when necessary to ensure effective communication with detainees who are deaf or hard of hearing, providing access to in-person, telephonic, or video interpretive services that enable effective, accurate, and impartial interpretation, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency and facility shall ensure that any written materials related to sexual abuse are provided in formats or through methods that ensure effective communication with detainees with disabilities, including detainees who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency or facility is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans with Disabilities Act, 28 CFR 35.164.
(b) The agency and each facility shall take steps to ensure meaningful access to all aspects of the agency's and facility's efforts to prevent, detect, and respond to sexual abuse to detainees who are limited English proficient, including steps to provide in-person or telephonic interpretive services that enable effective, accurate, and impartial
(c) In matters relating to allegations of sexual abuse, the agency and each facility shall provide in-person or telephonic interpretation services that enable effective, accurate, and impartial interpretation, by someone other than another detainee, unless the detainee expresses a preference for another detainee to provide interpretation and the agency determines that such interpretation is appropriate and consistent with DHS policy. The provision of interpreter services by minors, alleged abusers, detainees who witnessed the alleged abuse, and detainees who have a significant relationship with the alleged abuser is not appropriate in matters relating to allegations of sexual abuse.
(a) An agency or facility shall not hire or promote anyone who may have contact with detainees, and shall not enlist the services of any contractor or volunteer who may have contact with detainees, who has engaged in sexual abuse in a prison, jail, holding facility, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997); who has been convicted of engaging or attempting to engage in sexual activity facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or who has been civilly or administratively adjudicated to have engaged in such activity.
(b) An agency or facility considering hiring or promoting staff shall ask all applicants who may have contact with detainees directly about previous misconduct described in paragraph (a) of this section, in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. Agencies and facilities shall also impose upon employees a continuing affirmative duty to disclose any such misconduct. The agency, consistent with law, shall make its best efforts to contact all prior institutional employers of an applicant for employment, to obtain information on substantiated allegations of sexual abuse or any resignation during a pending investigation of alleged sexual abuse.
(c) Before hiring new staff who may have contact with detainees, the agency or facility shall conduct a background investigation to determine whether the candidate for hire is suitable for employment with the facility or agency, including a criminal background records check. Upon request by the agency, the facility shall submit for the agency's approval written documentation showing the detailed elements of the facility's background check for each staff member and the facility's conclusions. The agency shall conduct an updated background investigation every five years for agency employees who may have contact with detainees. The facility shall require an updated background investigation every five years for those facility staff who may have contact with detainees and who work in immigration-only detention facilities.
(d) The agency or facility shall also perform a background investigation before enlisting the services of any contractor who may have contact with detainees. Upon request by the agency, the facility shall submit for the agency's approval written documentation showing the detailed elements of the facility's background check for each contractor and the facility's conclusions.
(e) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination or withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the confinement of detainees, the requirements of this section otherwise applicable to the agency also apply to the facility and its staff.
(a) When designing or acquiring any new facility and in planning any substantial expansion or modification of existing facilities, the facility or agency, as appropriate, shall consider the effect of the design, acquisition, expansion, or modification upon their ability to protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology in an immigration detention facility, the facility or agency, as appropriate, shall consider how such technology may enhance their ability to protect detainees from sexual abuse.
(a) To the extent that the agency or facility is responsible for investigating allegations of sexual abuse involving detainees, it shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. The protocol shall be developed in coordination with DHS and shall be developmentally appropriate for juveniles, where applicable.
(b) The agency and each facility developing an evidence protocol referred to in paragraph (a) of this section, shall consider how best to utilize available community resources and services to provide valuable expertise and support in the areas of crisis intervention and counseling to most appropriately address victims' needs. Each facility shall establish procedures to make available, to the full extent possible, outside victim services following incidents of sexual abuse; the facility shall attempt to make available to the victim a victim advocate from a rape crisis center. If a rape crisis center is not available to provide victim advocate services, the agency shall provide these services by making available a qualified staff member from a community-based organization, or a qualified agency staff member. A qualified agency staff member or a qualified community-based staff member means an individual who has received education concerning sexual assault and forensic examination issues in general. The outside or internal victim advocate shall provide emotional support, crisis intervention, information, and referrals.
(c) Where evidentiarily or medically appropriate, at no cost to the detainee, and only with the detainee's consent, the facility shall arrange for an alleged victim detainee to undergo a forensic medical examination by qualified health care personnel, including a Sexual Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) where practicable. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified health care personnel.
(d) As requested by a victim, the presence of his or her outside or internal victim advocate, including any available victim advocacy services offered by a hospital conducting a forensic exam, shall be allowed for support during a forensic exam and investigatory interviews.
(e) To the extent that the agency is not responsible for investigating allegations of sexual abuse, the agency or the facility shall request that the investigating agency follow the requirements of paragraphs (a) through (d) of this section.
(a) The agency shall establish an agency protocol, and shall require each facility to establish a facility protocol, to ensure that each allegation of sexual abuse is investigated by the agency or facility, or referred to an appropriate investigative authority. The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse.
(b) The agency shall ensure that the agency and facility protocols required by paragraph (a) of this section, include a description of responsibilities of the agency, the facility, and any other investigating entities; and require the documentation and maintenance, for at least five years, of all reports and referrals of allegations of sexual abuse.
(c) The agency shall post its protocols on its Web site; each facility shall also post its protocols on its Web site, if it has one, or otherwise make the protocol available to the public.
(d) Each facility protocol shall ensure that all allegations are promptly reported to the agency as described in paragraphs (e) and (f) of this section, and, unless the allegation does not involve potentially criminal behavior, are promptly referred for investigation to an appropriate law enforcement agency with the legal authority to conduct criminal investigations. A facility may separately, and in addition to the above reports and referrals, conduct its own investigation.
(e) When a detainee, prisoner, inmate, or resident of the facility in which an alleged detainee victim is housed is alleged to be the perpetrator of detainee sexual abuse, the facility shall ensure that the incident is promptly reported to the Joint Intake Center, the ICE Office of Professional Responsibility or the DHS Office of Inspector General, as well as the appropriate ICE Field Office Director, and, if it is potentially criminal, referred to an appropriate law enforcement agency having jurisdiction for investigation.
(f) When a staff member, contractor, or volunteer is alleged to be the perpetrator of detainee sexual abuse, the facility shall ensure that the incident is promptly reported to the Joint Intake Center, the ICE Office of Professional Responsibility or the DHS Office of Inspector General, as well as to the appropriate ICE Field Office Director, and to the local government entity or contractor that owns or operates the facility. If the incident is potentially criminal, the facility shall ensure that it is promptly referred to an appropriate law enforcement agency having jurisdiction for investigation.
(g) The agency shall ensure that all allegations of detainee sexual abuse are promptly reported to the PSA Coordinator and to the appropriate offices within the agency and within DHS to ensure appropriate oversight of the investigation.
(h) The agency shall ensure that any alleged detainee victim of sexual abuse that is criminal in nature is provided timely access to U nonimmigrant status information.
(a) The agency shall train, or require the training of, all employees who may have contact with immigration detainees, and all facility staff, to be able to fulfill their responsibilities under this part, including training on:
(1) The agency's and the facility's zero-tolerance policies for all forms of sexual abuse;
(2) The right of detainees and staff to be free from sexual abuse, and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of sexual abuse, and methods of preventing and responding to such occurrences;
(6) How to avoid inappropriate relationships with detainees;
(7) How to communicate effectively and professionally with detainees, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming detainees;
(8) Procedures for reporting knowledge or suspicion of sexual abuse; and
(9) The requirement to limit reporting of sexual abuse to personnel with a need-to-know in order to make decisions concerning the victim's welfare and for law enforcement or investigative purposes.
(b) All current facility staff, and all agency employees who may have contact with immigration detention facility detainees, shall be trained within one year of May 6, 2014, and the agency or facility shall provide refresher information every two years.
(c) The agency and each facility shall document that staff that may have contact with immigration facility detainees have completed the training.
(a) The facility shall ensure that all volunteers and other contractors (as defined in paragraph (d) of this section) who have contact with detainees have been trained on their responsibilities under the agency's and the facility's sexual abuse prevention, detection, intervention and response policies and procedures.
(b) The level and type of training provided to volunteers and other contractors shall be based on the services they provide and level of contact they have with detainees, but all volunteers and other contractors who have contact with detainees shall be notified of the agency's and the facility's zero-tolerance policies regarding sexual abuse and informed how to report such incidents.
(c) Each facility shall receive and maintain written confirmation that volunteers and other contractors who have contact with immigration facility detainees have completed the training.
(d) In this section, the term
(a) During the intake process, each facility shall ensure that the detainee orientation program notifies and informs detainees about the agency's and the facility's zero-tolerance policies for all forms of sexual abuse and includes (at a minimum) instruction on:
(1) Prevention and intervention strategies;
(2) Definitions and examples of detainee-on-detainee sexual abuse, staff-on-detainee sexual abuse and coercive sexual activity;
(3) Explanation of methods for reporting sexual abuse, including to any staff member, including a staff member other than an immediate point-of-contact line officer (e.g., the compliance manager or a mental health specialist), the DHS Office of Inspector General, and the Joint Intake Center;
(4) Information about self-protection and indicators of sexual abuse;
(5) Prohibition against retaliation, including an explanation that reporting sexual abuse shall not negatively impact the detainee's immigration proceedings; and
(6) The right of a detainee who has been subjected to sexual abuse to receive treatment and counseling.
(b) Each facility shall provide the detainee notification, orientation, and instruction in formats accessible to all detainees, including those who are limited English proficient, deaf, visually impaired or otherwise disabled, as well as to detainees who have limited reading skills.
(c) The facility shall maintain documentation of detainee participation in the intake process orientation.
(d) Each facility shall post on all housing unit bulletin boards the following notices:
(1) The DHS-prescribed sexual assault awareness notice;
(2) The name of the Prevention of Sexual Abuse Compliance Manager; and
(3) The name of local organizations that can assist detainees who have been victims of sexual abuse.
(e) The facility shall make available and distribute the DHS-prescribed “Sexual Assault Awareness Information” pamphlet.
(f) Information about reporting sexual abuse shall be included in the agency Detainee Handbook made available to all immigration detention facility detainees.
(a) In addition to the general training provided to all facility staff and employees pursuant to § 115.31, the agency or facility shall provide specialized training on sexual abuse and effective cross-agency coordination to agency or facility investigators, respectively, who conduct investigations into allegations of sexual abuse at immigration detention facilities. All investigations into alleged sexual abuse must be conducted by qualified investigators.
(b) The agency and facility must maintain written documentation verifying specialized training provided to investigators pursuant to this section.
(a) The agency shall provide specialized training to DHS or agency employees who serve as full- and part-time medical practitioners or full- and part-time mental health practitioners in immigration detention facilities where medical and mental health care is provided.
(b) The training required by this section shall cover, at a minimum, the following topics:
(1) How to detect and assess signs of sexual abuse;
(2) How to respond effectively and professionally to victims of sexual abuse,
(3) How and to whom to report allegations or suspicions of sexual abuse, and
(4) How to preserve physical evidence of sexual abuse. If medical staff employed by the agency conduct forensic examinations, such medical staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall review and approve the facility's policy and procedures to ensure that facility medical staff is trained in procedures for examining and treating victims of sexual abuse, in facilities where medical staff may be assigned these activities.
(a) The facility shall assess all detainees on intake to identify those likely to be sexual aggressors or sexual abuse victims and shall house detainees to prevent sexual abuse, taking necessary steps to mitigate any such danger. Each new arrival shall be kept separate from the general population until he/she is classified and may be housed accordingly.
(b) The initial classification process and initial housing assignment should be completed within twelve hours of admission to the facility.
(c) The facility shall also consider, to the extent that the information is available, the following criteria to assess detainees for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated or detained;
(5) The nature of the detainee's criminal history;
(6) Whether the detainee has any convictions for sex offenses against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
(d) The initial screening shall consider prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the facility, in assessing detainees for risk of being sexually abusive.
(e) The facility shall reassess each detainee's risk of victimization or abusiveness between 60 and 90 days from the date of initial assessment, and at any other time when warranted based upon the receipt of additional, relevant information or following an incident of abuse or victimization.
(f) Detainees shall not be disciplined for refusing to answer, or for not disclosing complete information in response to, questions asked pursuant to paragraphs (c)(1), (c)(7), (c)(8), or (c)(9) of this section.
(g) The facility shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the detainee's detriment by staff or other detainees or inmates.
(a) The facility shall use the information from the risk assessment under § 115.41 of this part to inform assignment of detainees to housing, recreation and other activities, and voluntary work. The agency shall make individualized determinations about how to ensure the safety of each detainee.
(b) When making assessment and housing decisions for a transgender or intersex detainee, the facility shall consider the detainee's gender self-identification and an assessment of the effects of placement on the detainee's health and safety. The facility shall consult a medical or mental health professional as soon as practicable on this assessment. The facility should not base placement decisions of transgender or intersex detainees solely on the identity documents or physical anatomy of the detainee; a detainee's self-identification of his/her gender and self-assessment of safety needs shall always be taken into consideration as well. The facility's placement of a transgender or intersex detainee shall be consistent with the safety and security considerations of the facility, and placement and programming assignments for each transgender or intersex detainee shall be reassessed at least twice each year to review any threats to safety experienced by the detainee.
(c) When operationally feasible, transgender and intersex detainees shall be given the opportunity to shower separately from other detainees.
(a) The facility shall develop and follow written procedures consistent with the standards in this subpart for
(b) Use of administrative segregation by facilities to protect detainees vulnerable to sexual abuse or assault shall be restricted to those instances where reasonable efforts have been made to provide appropriate housing and shall be made for the least amount of time practicable, and when no other viable housing options exist, as a last resort. The facility should assign detainees vulnerable to sexual abuse or assault to administrative segregation for their protection until an alternative means of separation from likely abusers can be arranged, and such an assignment shall not ordinarily exceed a period of 30 days.
(c) Facilities that place vulnerable detainees in administrative segregation for protective custody shall provide those detainees access to programs, visitation, counsel and other services available to the general population to the maximum extent practicable.
(d) Facilities shall implement written procedures for the regular review of all vulnerable detainees placed in administrative segregation for their protection, as follows:
(1) A supervisory staff member shall conduct a review within 72 hours of the detainee's placement in administrative segregation to determine whether segregation is still warranted; and
(2) A supervisory staff member shall conduct, at a minimum, an identical review after the detainee has spent seven days in administrative segregation, and every week thereafter for the first 30 days, and every 10 days thereafter.
(e) Facilities shall notify the appropriate ICE Field Office Director no later than 72 hours after the initial placement into segregation, whenever a detainee has been placed in administrative segregation on the basis of a vulnerability to sexual abuse or assault.
(f) Upon receiving notification pursuant to paragraph (e) of this section, the ICE Field Office Director shall review the placement and consider:
(1) Whether continued placement in administrative segregation is warranted;
(2) Whether any alternatives are available and appropriate, such as placing the detainee in a less restrictive housing option at another facility or other appropriate custodial options; and
(3) Whether the placement is only as a last resort and when no other viable housing options exist.
(a) The agency and each facility shall develop policies and procedures to ensure that detainees have multiple ways to privately report sexual abuse, retaliation for reporting sexual abuse, or staff neglect or violations of responsibilities that may have contributed to such incidents. The agency and each facility shall also provide instructions on how detainees may contact their consular official, the DHS Office of the Inspector General or, as appropriate, another designated office, to confidentially and, if desired, anonymously, report these incidents.
(b) The agency shall also provide, and the facility shall inform the detainees of, at least one way for detainees to report sexual abuse to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward detainee reports of sexual abuse to agency officials, allowing the detainee to remain anonymous upon request.
(c) Facility policies and procedures shall include provisions for staff to accept reports made verbally, in writing, anonymously, and from third parties and to promptly document any verbal reports.
(a) The facility shall permit a detainee to file a formal grievance related to sexual abuse at any time during, after, or in lieu of lodging an informal grievance or complaint.
(b) The facility shall not impose a time limit on when a detainee may submit a grievance regarding an allegation of sexual abuse.
(c) The facility shall implement written procedures for identifying and handling time-sensitive grievances that involve an immediate threat to detainee health, safety, or welfare related to sexual abuse.
(d) Facility staff shall bring medical emergencies to the immediate attention of proper medical personnel for further assessment.
(e) The facility shall issue a decision on the grievance within five days of receipt and shall respond to an appeal of the grievance decision within 30 days. Facilities shall send all grievances related to sexual abuse and the facility's decisions with respect to such grievances to the appropriate ICE Field Office Director at the end of the grievance process.
(f) To prepare a grievance, a detainee may obtain assistance from another detainee, the housing officer or other facility staff, family members, or legal representatives. Staff shall take reasonable steps to expedite requests for assistance from these other parties.
(a) Each facility shall utilize available community resources and services to provide valuable expertise and support in the areas of crisis intervention, counseling, investigation and the prosecution of sexual abuse perpetrators to most appropriately address victims' needs. The facility shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers or, if local providers are not available, with national organizations that provide legal advocacy and confidential emotional support services for immigrant victims of crime.
(b) Each facility's written policies shall establish procedures to include outside agencies in the facility's sexual abuse prevention and intervention protocols, if such resources are available.
(c) Each facility shall make available to detainees information about local organizations that can assist detainees who have been victims of sexual abuse, including mailing addresses and telephone numbers (including toll-free hotline numbers where available). If no such local organizations exist, the facility shall make available the same information about national organizations. The facility shall enable reasonable communication between detainees and these organizations and agencies, in as confidential a manner as possible.
(d) Each facility shall inform detainees, prior to giving them access to outside resources, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
Each facility shall establish a method to receive third-party reports of sexual abuse in its immigration detention facilities and shall make available to the public information on how to report sexual abuse on behalf of a detainee.
(a) The agency and each facility shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse that occurred in a facility; retaliation against detainees or staff who reported or participated in an investigation about such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation. The agency shall review and approve facility policies and procedures and shall ensure that the facility specifies appropriate reporting procedures, including a method by which staff can report outside of the chain of command.
(b) Staff members who become aware of alleged sexual abuse shall immediately follow the reporting requirements set forth in the agency's and facility's written policies and procedures.
(c) Apart from such reporting, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary to help protect the safety of the victim or prevent further victimization of other detainees or staff in the facility, or to make medical treatment, investigation, law enforcement, or other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
If an agency employee or facility staff member has a reasonable belief that a detainee is subject to a substantial risk of imminent sexual abuse, he or she shall take immediate action to protect the detainee.
(a) Upon receiving an allegation that a detainee was sexually abused while confined at another facility, the agency or facility whose staff received the allegation shall notify the appropriate office of the agency or the administrator of the facility where the alleged abuse occurred.
(b) The notification provided in paragraph (a) of this section shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency or facility shall document that it has provided such notification.
(d) The agency or facility office that receives such notification, to the extent the facility is covered by this subpart, shall ensure that the allegation is referred for investigation in accordance with these standards and reported to the appropriate ICE Field Office Director.
(a) Upon learning of an allegation that a detainee was sexually abused, the first security staff member to respond to the report, or his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request the alleged victim not to take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the sexual abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence and then notify security staff.
(a) Each facility shall develop a written institutional plan to coordinate actions taken by staff first responders, medical and mental health practitioners, investigators, and facility leadership in response to an incident of sexual abuse.
(b) Each facility shall use a coordinated, multidisciplinary team approach to responding to sexual abuse.
(c) If a victim of sexual abuse is transferred between facilities covered by subpart A or B of this part, the sending facility shall, as permitted by law, inform the receiving facility of the incident and the victim's potential need for medical or social services.
(d) If a victim is transferred from a DHS immigration detention facility to a facility not covered by paragraph (c) of this section, the sending facility shall, as permitted by law, inform the receiving facility of the incident and the victim's potential need for medical or social services, unless the victim requests otherwise.
Staff, contractors, and volunteers suspected of perpetrating sexual abuse shall be removed from all duties requiring detainee contact pending the outcome of an investigation.
(a) Staff, contractors, and volunteers, and immigration detention facility detainees, shall not retaliate against any person, including a detainee, who reports, complains about, or participates in an investigation into an allegation of sexual abuse, or for participating in sexual activity as a result of force, coercion, threats, or fear of force.
(b) The agency shall employ multiple protection measures, such as housing changes, removal of alleged staff or detainee abusers from contact with victims, and emotional support services for detainees or staff who fear retaliation for reporting sexual abuse or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency and facility shall monitor to see if there are facts that may suggest possible retaliation by detainees or staff, and shall act promptly to remedy any such retaliation. Items the agency should monitor include any detainee disciplinary reports, housing or program changes, or negative performance reviews or reassignments of staff. DHS shall continue such monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(a) The facility shall take care to place detainee victims of sexual abuse in a supportive environment that represents the least restrictive housing option possible (e.g., protective custody), subject to the requirements of § 115.43.
(b) Detainee victims shall not be held for longer than five days in any type of administrative segregation, except in highly unusual circumstances or at the request of the detainee.
(c) A detainee victim who is in protective custody after having been subjected to sexual abuse shall not be returned to the general population until completion of a proper re-assessment, taking into consideration any increased vulnerability of the detainee as a result of the sexual abuse.
(d) Facilities shall notify the appropriate ICE Field Office Director
(e) Upon receiving notification that a detainee victim has been held in administrative segregation, the ICE Field Office Director shall review the placement and consider:
(1) Whether the placement is only as a last resort and when no other viable housing options exist; and
(2) In cases where the detainee has been held in administrative segregation for longer than 5 days, whether the placement is justified by highly unusual circumstances or at the detainee's request.
(a) If the facility has responsibility for investigating allegations of sexual abuse, all investigations into alleged sexual abuse must be prompt, thorough, objective, and conducted by specially trained, qualified investigators.
(b) Upon conclusion of a criminal investigation where the allegation was substantiated, an administrative investigation shall be conducted. Upon conclusion of a criminal investigation where the allegation was unsubstantiated, the facility shall review any available completed criminal investigation reports to determine whether an administrative investigation is necessary or appropriate. Administrative investigations shall be conducted after consultation with the appropriate investigative office within DHS, and the assigned criminal investigative entity.
(c)(1) The facility shall develop written procedures for administrative investigations, including provisions requiring:
(i) Preservation of direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data;
(ii) Interviewing alleged victims, suspected perpetrators, and witnesses;
(iii) Reviewing prior complaints and reports of sexual abuse involving the suspected perpetrator;
(iv) Assessment of the credibility of an alleged victim, suspect, or witness, without regard to the individual's status as detainee, staff, or employee, and without requiring any detainee who alleges sexual abuse to submit to a polygraph;
(v) An effort to determine whether actions or failures to act at the facility contributed to the abuse; and
(vi) Documentation of each investigation by written report, which shall include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings; and
(vii) Retention of such reports for as long as the alleged abuser is detained or employed by the agency or facility, plus five years.
(2) Such procedures shall govern the coordination and sequencing of the two types of investigations, in accordance with paragraph (b) of this section, to ensure that the criminal investigation is not compromised by an internal administrative investigation.
(d) The agency shall review and approve the facility policy and procedures for coordination and conduct of internal administrative investigations with the assigned criminal investigative entity to ensure non-interference with criminal investigations.
(e) The departure of the alleged abuser or victim from the employment or control of the facility or agency shall not provide a basis for terminating an investigation.
(f) When outside agencies investigate sexual abuse, the facility shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
When an administrative investigation is undertaken, the agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse are substantiated.
The agency shall, when the detainee is still in immigration detention, or where otherwise feasible, following an investigation into a detainee's allegation of sexual abuse, notify the detainee as to the result of the investigation and any responsive action taken.
(a) Staff shall be subject to disciplinary or adverse action up to and including removal from their position and the Federal service for substantiated allegations of sexual abuse or for violating agency or facility sexual abuse policies.
(b) The agency shall review and approve facility policies and procedures regarding disciplinary or adverse actions for staff and shall ensure that the facility policy and procedures specify disciplinary or adverse actions for staff, up to and including removal from their position and from the Federal service, when there is a substantiated allegation of sexual abuse, or when there has been a violation of agency sexual abuse rules, policies, or standards. Removal from their position and from the Federal service is the presumptive disciplinary sanction for staff who have engaged in or attempted or threatened to engage in sexual abuse, as defined under the definition of sexual abuse of a detainee by a staff member, contractor, or volunteer, paragraphs (1)–(4) and (7)–(8) of the definition of “sexual abuse of a detainee by a staff member, contractor, or volunteer” in § 115.6.
(c) Each facility shall report all removals or resignations in lieu of removal for violations of agency or facility sexual abuse policies to appropriate law enforcement agencies, unless the activity was clearly not criminal.
(d) Each facility shall make reasonable efforts to report removals or resignations in lieu of removal for violations of agency or facility sexual abuse policies to any relevant licensing bodies, to the extent known.
(a) Any contractor or volunteer who has engaged in sexual abuse shall be prohibited from contact with detainees. Each facility shall make reasonable efforts to report to any relevant licensing body, to the extent known, incidents of substantiated sexual abuse by a contractor or volunteer. Such incidents shall also be reported to law enforcement agencies, unless the activity was clearly not criminal.
(b) Contractors and volunteers suspected of perpetrating sexual abuse shall be removed from all duties requiring detainee contact pending the outcome of an investigation.
(c) The facility shall take appropriate remedial measures, and shall consider whether to prohibit further contact with detainees by contractors or volunteers who have not engaged in sexual abuse, but have violated other provisions within these standards.
(a) Each facility shall subject a detainee to disciplinary sanctions pursuant to a formal disciplinary process following an administrative or criminal finding that the detainee engaged in sexual abuse.
(b) At all steps in the disciplinary process provided in paragraph (a), any sanctions imposed shall be commensurate with the severity of the committed prohibited act and intended
(c) Each facility holding detainees in custody shall have a detainee disciplinary system with progressive levels of reviews, appeals, procedures, and documentation procedure.
(d) The disciplinary process shall consider whether a detainee's mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed.
(e) The facility shall not discipline a detainee for sexual contact with staff unless there is a finding that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation.
(a) If the assessment pursuant to § 115.41 indicates that a detainee has experienced prior sexual victimization or perpetrated sexual abuse, staff shall, as appropriate, ensure that the detainee is immediately referred to a qualified medical or mental health practitioner for medical and/or mental health follow-up as appropriate.
(b) When a referral for medical follow-up is initiated, the detainee shall receive a health evaluation no later than two working days from the date of assessment.
(c) When a referral for mental health follow-up is initiated, the detainee shall receive a mental health evaluation no later than 72 hours after the referral.
(a) Detainee victims of sexual abuse shall have timely, unimpeded access to emergency medical treatment and crisis intervention services, including emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care.
(b) Emergency medical treatment services provided to the victim shall be without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) Each facility shall offer medical and mental health evaluation and, as appropriate, treatment to all detainees who have been victimized by sexual abuse while in immigration detention.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services consistent with the community level of care.
(d) Detainee victims of sexually abusive vaginal penetration by a male abuser while incarcerated shall be offered pregnancy tests. If pregnancy results from an instance of sexual abuse, the victim shall receive timely and comprehensive information about lawful pregnancy-related medical services and timely access to all lawful pregnancy-related medical services.
(e) Detainee victims of sexual abuse while detained shall be offered tests for sexually transmitted infections as medically appropriate.
(f) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(g) The facility shall attempt to conduct a mental health evaluation of all known detainee-on-detainee abusers within 60 days of learning of such abuse history and offer treatment when deemed appropriate by mental health practitioners.
(a) Each facility shall conduct a sexual abuse incident review at the conclusion of every investigation of sexual abuse and, where the allegation was not determined to be unfounded, prepare a written report within 30 days of the conclusion of the investigation recommending whether the allegation or investigation indicates that a change in policy or practice could better prevent, detect, or respond to sexual abuse. The facility shall implement the recommendations for improvement, or shall document its reasons for not doing so in a written response. Both the report and response shall be forwarded to the agency PSA Coordinator.
(b) The review team shall consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility.
(c) Each facility shall conduct an annual review of all sexual abuse investigations and resulting incident reviews to assess and improve sexual abuse intervention, prevention and response efforts. If the facility has not had any reports of sexual abuse during the annual reporting period, then the facility shall prepare a negative report. The results and findings of the annual review shall be provided to the facility administrator, Field Office Director or his or her designee, and the agency PSA Coordinator.
(a) Each facility shall maintain in a secure area all case records associated with claims of sexual abuse, including incident reports, investigative reports, offender information, case disposition, medical and counseling evaluation findings, and recommendations for post-release treatment, if necessary, and/or counseling in accordance with these standards and applicable agency policies, and in accordance with established schedules. The DHS Office of Inspector General shall maintain the official investigative file related to claims of sexual abuse investigated by the DHS Office of Inspector General.
(b) On an ongoing basis, the PSA Coordinator shall work with relevant facility PSA Compliance Managers and DHS entities to share data regarding effective agency response methods to sexual abuse.
(c) On a regular basis, the PSA Coordinator shall prepare a report for ICE leadership compiling information received about all incidents or allegations of sexual abuse of detainees in immigration detention during the period covered by the report, as well as ongoing investigations and other pending cases.
(d) On an annual basis, the PSA Coordinator shall aggregate, in a manner that will facilitate the agency's ability to detect possible patterns and help prevent future incidents, the incident-based sexual abuse data, including the number of reported sexual abuse allegations determined to be substantiated, unsubstantiated, or unfounded, or for which investigation is ongoing, and for each incident found to be substantiated, information concerning:
(1) The date, time, location, and nature of the incident;
(2) The demographic background of the victim and perpetrator (including citizenship, age, gender, and whether either has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming);
(3) The reporting timeline for the incident (including the name of individual who reported the incident, and the date and time the report was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the facility (e.g., housing placement/custody classification, medical examination, mental health counseling, etc.); and
(6) Any sanctions imposed on the perpetrator.
(e) Upon request, the agency shall provide all data described in this section from the previous calendar year to the Office for Civil Rights and Civil Liberties no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.87 of this part in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each immigration detention facility, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in preventing, detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when appropriate for safety or security, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.87 are securely retained in accordance with agency record retention policies and the agency protocol regarding investigation of allegations.
(b) The agency shall make all aggregated sexual abuse data from immigration detention facilities under its direct control and from any private agencies with which it contracts available to the public at least annually on its Web site consistent with existing agency information disclosure policies and processes.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.87 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
(a) During the three-year period starting on July 6. 2015, and during each three-year period thereafter, the agency shall ensure that each immigration detention facility that has adopted these standards is audited at least once.
(b) The agency may require an expedited audit if the agency has reason to believe that a particular facility may be experiencing problems relating to sexual abuse. The agency may also include referrals to resources that may assist the facility with PREA-related issues.
(c) Audits under this section shall be conducted pursuant to §§ 115.201 through 115.205.
(d) Audits under this section shall be coordinated by the agency with the DHS Office for Civil Rights and Civil Liberties, which may request an expedited audit if it has reason to believe that an expedited audit is appropriate.
The regulations in this subpart A establish minimum requirements for agencies and facilities. Agency and facility policies may include additional requirements.
This subpart B covers all DHS holding facilities. Standards found in subpart A of this part are not applicable to DHS facilities except ICE immigration detention facilities.
(a) The agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-wide PSA Coordinator with sufficient time and authority to develop, implement, and oversee agency efforts to comply with these standards in all of its holding facilities.
(a) An agency that contracts for the confinement of detainees in holding facilities operated by non-DHS private or public agencies or other entities, including other government agencies, shall include in any new contracts, contract renewals, or substantive contract modifications the entity's obligation to adopt and comply with these standards.
(b) Any new contracts, contract renewals, or substantive contract modifications shall provide for agency contract monitoring to ensure that the contractor is complying with these standards.
(c) To the extent an agency contracts for confinement of holding facility detainees, all rules in this subpart that apply to the agency shall apply to the contractor, and all rules that apply to staff or employees shall apply to contractor staff.
(a) The agency shall ensure that each facility maintains sufficient supervision of detainees, including through appropriate staffing levels and, where applicable, video monitoring, to protect detainees against sexual abuse.
(b) The agency shall develop and document comprehensive detainee supervision guidelines to determine and meet each facility's detainee supervision needs, and shall review those supervision guidelines and their application at each facility at least annually.
(c) In determining adequate levels of detainee supervision and determining the need for video monitoring, agencies shall take into consideration the physical layout of each holding facility, the composition of the detainee population, the prevalence of substantiated and unsubstantiated incidents of sexual abuse, the findings and recommendations of sexual abuse
(a) Juveniles shall be detained in the least restrictive setting appropriate to the juvenile's age and special needs, provided that such setting is consistent with the need to protect the juvenile's well-being and that of others, as well as with any other laws, regulations, or legal requirements.
(b) Unaccompanied juveniles shall generally be held separately from adult detainees. The juvenile may temporarily remain with a non-parental adult family member where:
(1) The family relationship has been vetted to the extent feasible, and
(2) The agency determines that remaining with the non-parental adult family member is appropriate, under the totality of the circumstances.
(a) Searches may be necessary to ensure the safety of officers, civilians and detainees; to detect and secure evidence of criminal activity; and to promote security, safety, and related interests at DHS holding facilities.
(b) Cross-gender strip searches or cross-gender visual body cavity searches shall not be conducted except in exigent circumstances, including consideration of officer safety, or when performed by medical practitioners. An agency shall not conduct visual body cavity searches of juveniles and, instead, shall refer all such body cavity searches of juveniles to a medical practitioner.
(c) All strip searches and visual body cavity searches shall be documented.
(d) The agency shall implement policies and procedures that enable detainees to shower (where showers are available), perform bodily functions, and change clothing without being viewed by staff of the opposite gender, except in exigent circumstances or when such viewing is incidental to routine cell checks or is otherwise appropriate in connection with a medical examination or monitored bowel movement under medical supervision. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing.
(e) The agency and facility shall not search or physically examine a detainee for the sole purpose of determining the detainee's gender. If the detainee's gender is unknown, it may be determined during conversations with the detainee, by reviewing medical records (if available), or, if necessary, learning that information as part of a broader medical examination conducted in private, by a medical practitioner.
(f) The agency shall train law enforcement staff in proper procedures for conducting pat-down searches, including cross-gender pat-down searches and searches of transgender and intersex detainees. All pat-down searches shall be conducted in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs and agency policy, including consideration of officer safety.
(a) The agency shall take appropriate steps to ensure that detainees with disabilities (including, for example, detainees who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse. Such steps shall include, when necessary to ensure effective communication with detainees who are deaf or hard of hearing, providing access to in-person, telephonic, or video interpretive services that enable effective, accurate, and impartial interpretation, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure that any written materials related to sexual abuse are provided in formats or through methods that ensure effective communication with detainees with disabilities, including detainees who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans with Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse to detainees who are limited English proficient, including steps to provide in-person or telephonic interpretive services that enable effective, accurate, and impartial interpretation, both receptively and expressively, using any necessary specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency shall provide in-person or telephonic interpretation services that enable effective, accurate, and impartial interpretation, by someone other than another detainee, unless the detainee expresses a preference for another detainee to provide interpretation, and the agency determines that such interpretation is appropriate and consistent with DHS policy. The provision of interpreter services by minors, alleged abusers, detainees who witnessed the alleged abuse, and detainees who have a significant relationship with the alleged abuser is not appropriate in matters relating to allegations of sexual abuse is not appropriate in matters relating to allegations of sexual abuse.
(a) The agency shall not hire or promote anyone who may have contact with detainees, and shall not enlist the services of any contractor or volunteer who may have contact with detainees, who has engaged in sexual abuse in a prison, jail, holding facility, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997); who has been convicted of engaging or attempting to engage in sexual activity facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or who has been civilly or administratively adjudicated to have engaged in such activity.
(b) When the agency is considering hiring or promoting staff, it shall ask all applicants who may have contact with detainees directly about previous misconduct described in paragraph (a) of this section, in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
(c) Before hiring new employees who may have contact with detainees, the agency shall require a background investigation to determine whether the candidate for hire is suitable for employment with the agency. The agency shall conduct an updated background investigation for agency employees every five years.
(d) The agency shall also perform a background investigation before
(e) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination or withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the confinement of detainees, the requirements of this section otherwise applicable to the agency also apply to the facility.
(a) When designing or acquiring any new holding facility and in planning any substantial expansion or modification of existing holding facilities, the agency shall consider the effect of the design, acquisition, expansion, or modification upon the agency's ability to protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology in a holding facility, the agency shall consider how such technology may enhance the agency's ability to protect detainees from sexual abuse.
(a) To the extent that the agency is responsible for investigating allegations of sexual abuse in its holding facilities, the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. The protocol shall be developed in coordination with DHS and shall be developmentally appropriate for juveniles, where applicable.
(b) In developing the protocol referred to in paragraph (a) of this section, the agency shall consider how best to utilize available community resources and services to provide valuable expertise and support in the areas of crisis intervention and counseling to most appropriately address victims' needs.
(c) Where evidentiarily or medically appropriate, at no cost to the detainee, and only with the detainee's consent, the agency shall arrange for or refer the alleged victim detainee to a medical facility to undergo a forensic medical examination, including a Sexual Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) where practicable. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified health care personnel.
(d) If, in connection with an allegation of sexual abuse, the detainee is transported for a forensic examination to an outside hospital that offers victim advocacy services, the detainee shall be permitted to use such services to the extent available, consistent with security needs.
(e) To the extent that the agency is not responsible for investigating allegations of sexual abuse, the agency shall request that the investigating agency follow the requirements of paragraphs (a) through (d) of this section.
(a) The agency shall establish a protocol to ensure that each allegation of sexual abuse is investigated by the agency, or referred to an appropriate investigative authority.
(b) The agency protocol shall be developed in coordination with DHS investigative entities; shall include a description of the responsibilities of both the agency and the investigative entities; and shall require the documentation and maintenance, for at least five years, of all reports and referrals of allegations of sexual abuse. The agency shall post its protocol on its Web site, redacted if appropriate.
(c) The agency protocol shall ensure that each allegation is promptly reported to the Joint Intake Center and, unless the allegation does not involve potentially criminal behavior, promptly referred for investigation to an appropriate law enforcement agency with the legal authority to conduct criminal investigations. The agency may separately, and in addition to the above reports and referrals, conduct its own investigation.
(d) The agency shall ensure that all allegations of detainee sexual abuse are promptly reported to the PSA Coordinator and to the appropriate offices within the agency and within DHS to ensure appropriate oversight of the investigation.
(e) The agency shall ensure that any alleged detainee victim of sexual abuse that is criminal in nature is provided timely access to U nonimmigrant status information.
(a) The agency shall train, or require the training of all employees, contractors, and volunteers who may have contact with holding facility detainees, to be able to fulfill their responsibilities under these standards, including training on:
(1) The agency's zero-tolerance policies for all forms of sexual abuse;
(2) The right of detainees and employees to be free from sexual abuse, and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of sexual abuse, and methods of preventing such occurrences;
(6) Procedures for reporting knowledge or suspicion of sexual abuse;
(7) How to communicate effectively and professionally with detainees, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming detainees; and
(8) The requirement to limit reporting of sexual abuse to personnel with a need-to-know in order to make decisions concerning the victim's welfare and for law enforcement or investigative purposes.
(b) All current employees, contractors and volunteers who may have contact with holding facility detainees shall be trained within two years of the effective date of these standards, and the agency shall provide refresher information, as appropriate.
(c) The agency shall document those employees who may have contact with detainees have completed the training and receive and maintain for at least five years confirmation that contractors and volunteers have completed the training.
The agency shall make public its zero-tolerance policy regarding sexual abuse and ensure that key information regarding the agency's zero-tolerance policy is visible or continuously and readily available to detainees, for example, through posters, detainee handbooks, or other written formats.
(a) In addition to the training provided to employees, DHS agencies
(b) The agency must maintain written documentation verifying specialized training provided to agency investigators pursuant to this section.
(a) Before placing any detainees together in a holding facility, agency staff shall consider whether, based on the information before them, a detainee may be at a high risk of being sexually abused and, when appropriate, shall take necessary steps to mitigate any such danger to the detainee.
(b) All detainees who may be held overnight with other detainees shall be assessed to determine their risk of being sexually abused by other detainees or sexually abusive toward other detainees; staff shall ask each such detainee about his or her own concerns about his or her physical safety.
(c) The agency shall also consider, to the extent that the information is available, the following criteria to assess detainees for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated or detained;
(5) The nature of the detainee's criminal history; and
(6) Whether the detainee has any convictions for sex offenses against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
(d) If detainees are identified pursuant to the assessment under this section to be at high risk of victimization, staff shall provide such detainees with heightened protection, to include continuous direct sight and sound supervision, single-cell housing, or placement in a cell actively monitored on video by a staff member sufficiently proximate to intervene, unless no such option is determined to be feasible.
(e) The facility shall implement appropriate controls on the dissemination of sensitive information provided by detainees under this section.
(a) The agency shall develop policies and procedures to ensure that the detainees have multiple ways to privately report sexual abuse, retaliation for reporting sexual abuse, or staff neglect or violations of responsibilities that may have contributed to such incidents, and shall provide instructions on how detainees may contact the DHS Office of the Inspector General or, as appropriate, another designated office, to confidentially and, if desired, anonymously, report these incidents.
(b) The agency shall also provide, and shall inform the detainees of, at least one way for detainees to report sexual abuse to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward detainee reports of sexual abuse to agency officials, allowing the detainee to remain anonymous upon request.
(c) Agency policies and procedures shall include provisions for staff to accept reports made verbally, in writing, anonymously, and from third parties and to promptly document any verbal reports.
The agency shall establish a method to receive third-party reports of sexual abuse in its holding facilities. The agency shall make available to the public information on how to report sexual abuse on behalf of a detainee.
(a) The agency shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse that occurred to any detainee; retaliation against detainees or staff who reported or participated in an investigation about such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation. Agency policy shall include methods by which staff can report misconduct outside of their chain of command.
(b) Staff members who become aware of alleged sexual abuse shall immediately follow the reporting requirements set forth in the agency's written policies and procedures.
(c) Apart from such reporting, the agency and staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary to help protect the safety of the victim or prevent further victimization of other detainees or staff in the facility, or to make medical treatment, investigation, law enforcement, or other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
When an agency employee has a reasonable belief that a detainee is subject to a substantial risk of imminent sexual abuse, he or she shall take immediate action to protect the detainee.
(a) Upon receiving an allegation that a detainee was sexually abused while confined at another facility, the agency that received the allegation shall notify the appropriate office of the agency or the administrator of the facility where the alleged abuse occurred.
(b) The notification provided in paragraph (a) of this section shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The agency office that receives such notification, to the extent the facility is covered by this subpart, shall ensure that the allegation is referred for investigation in accordance with these standards.
(a) Upon learning of an allegation that a detainee was sexually abused, the first law enforcement staff member to respond to the report, or his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the sexual abuse occurred within a time period that still allows for the collection of physical evidence, request the alleged victim not to take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence and then notify law enforcement staff.
(a) The agency shall develop a written institutional plan and use a coordinated, multidisciplinary team approach to responding to sexual abuse.
(b) If a victim of sexual abuse is transferred between facilities covered by subpart A or B of this part, the agency shall, as permitted by law, inform the receiving facility of the incident and the victim's potential need for medical or social services.
(c) If a victim is transferred from a DHS holding facility to a facility not covered by paragraph (b) of this section, the agency shall, as permitted by law, inform the receiving facility of the incident and the victim's potential need for medical or social services, unless the victim requests otherwise.
Agency management shall consider whether any staff, contractor, or volunteer alleged to have perpetrated sexual abuse should be removed from duties requiring detainee contact pending the outcome of an investigation, and shall do so if the seriousness and plausibility of the allegation make removal appropriate.
Agency employees shall not retaliate against any person, including a detainee, who reports, complains about, or participates in an investigation into an allegation of sexual abuse, or for participating in sexual activity as a result of force, coercion, threats, or fear of force.
(a) If the agency has responsibility for investigating allegations of sexual abuse, all investigations into alleged sexual abuse must be prompt, thorough, objective, and conducted by specially trained, qualified investigators.
(b) Upon conclusion of a criminal investigation where the allegation was substantiated, an administrative investigation shall be conducted. Upon conclusion of a criminal investigation where the allegation was unsubstantiated, the agency shall review any available completed criminal investigation reports to determine whether an administrative investigation is necessary or appropriate. Administrative investigations shall be conducted after consultation with the appropriate investigative office within DHS and the assigned criminal investigative entity.
(c) The agency shall develop written procedures for administrative investigations, including provisions requiring:
(1) Preservation of direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data;
(2) Interviewing alleged victims, suspected perpetrators, and witnesses;
(3) Reviewing prior complaints and reports of sexual abuse involving the suspected perpetrator;
(4) Assessment of the credibility of an alleged victim, suspect, or witness, without regard to the individual's status as detainee, staff, or employee, and without requiring any detainee who alleges sexual abuse to submit to a polygraph;
(5) Documentation of each investigation by written report, which shall include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings; and
(6) Retention of such reports for as long as the alleged abuser is detained or employed by the agency, plus five years. Such procedures shall establish the coordination and sequencing of the two types of investigations, in accordance with paragraph (b) of this section, to ensure that the criminal investigation is not compromised by an internal administrative investigation.
(d) The departure of the alleged abuser or victim from the employment or control of the agency shall not provide a basis for terminating an investigation.
(e) When outside agencies investigate sexual abuse, the agency shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
When an administrative investigation is undertaken, the agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse are substantiated.
(a) Staff shall be subject to disciplinary or adverse action up to and including removal from their position and the Federal service for substantiated allegations of sexual abuse or violating agency sexual abuse policies.
(b) The agency shall review and approve policy and procedures regarding disciplinary or adverse action for staff and shall ensure that the policy and procedures specify disciplinary or adverse actions for staff, up to and including removal from their position and from the Federal service, when there is a substantiated allegation of sexual abuse, or when there has been a violation of agency sexual abuse rules, policies, or standards. Removal from their position and from the Federal service is the presumptive disciplinary sanction for staff who have engaged in or attempted or threatened to engage in sexual abuse, as defined under the definition of sexual abuse of a detainee by a staff member, contractor, or volunteer, paragraphs (1)–(4) and (7)–(8) of the definition of “sexual abuse of a detainee by a staff member, contractor, or volunteer” in § 115.6.
(c) Each facility shall report all removals or resignations in lieu of removal for violations of agency or facility sexual abuse policies to appropriate law enforcement agencies, unless the activity was clearly not criminal.
(d) Each agency shall make reasonable efforts to report removals or resignations in lieu of removal for violations of agency or facility sexual abuse policies to any relevant licensing bodies, to the extent known.
(a) Any contractor or volunteer suspected of perpetrating sexual abuse shall be prohibited from contact with detainees. The agency shall also consider whether to prohibit further contact with detainees by contractors or volunteers who have not engaged in
(b) Contractors and volunteers suspected of perpetrating sexual abuse may be removed from all duties requiring detainee contact pending the outcome of an investigation, as appropriate.
(a) Detainee victims of sexual abuse shall have timely, unimpeded access to emergency medical treatment and crisis intervention services, including emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care.
(b) Emergency medical treatment services provided to the victim shall be without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) The agency shall conduct a sexual abuse incident review at the conclusion of every investigation of sexual abuse and, where the allegation was not determined to be unfounded, prepare a written report recommending whether the allegation or investigation indicates that a change in policy or practice could better prevent, detect, or respond to sexual abuse. Such review shall ordinarily occur within 30 days of the agency receiving the investigation results from the investigative authority. The agency shall implement the recommendations for improvement, or shall document its reasons for not doing so in a written response. Both the report and response shall be forwarded to the agency PSA Coordinator.
(b) The agency shall conduct an annual review of all sexual abuse investigations and resulting incident reviews to assess and improve sexual abuse intervention, prevention and response efforts.
(a) The agency shall maintain in a secure area all agency case records associated with claims of sexual abuse, in accordance with these standards and applicable agency policies, and in accordance with established schedules. The DHS Office of Inspector General shall maintain the official investigative file related to claims of sexual abuse investigated by the DHS Office of Inspector General.
(b) On an annual basis, the PSA Coordinator shall aggregate, in a manner that will facilitate the agency's ability to detect possible patterns and help prevent future incidents, the incident-based sexual abuse data available, including the number of reported sexual abuse allegations determined to be substantiated, unsubstantiated, or unfounded, or for which investigation is ongoing, and for each incident found to be substantiated, such information as is available to the PSA Coordinator concerning:
(1) The date, time, location, and nature of the incident;
(2) The demographic background of the victim and perpetrator (including citizenship, age, gender, and whether either has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming);
(3) The reporting timeline for the incident (including the name of individual who reported the incident, and the date and time the report was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the agency (e.g., supervision, referral for medical or mental health services, etc.); and
(6) Any sanctions imposed on the perpetrator.
(c) The agency shall maintain, review, and collect data as needed from all available agency records.
(d) Upon request, the agency shall provide all such data from the previous calendar year to the Office for Civil Rights and Civil Liberties no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.187 in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in preventing, detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when appropriate for safety or security, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.187 are securely retained in accordance with agency record retention policies and the agency protocol regarding investigation of allegations.
(b) The agency shall make all aggregated sexual abuse data from holding facilities under its direct control and from any private agencies with which it contracts available to the public at least annually on its Web site consistent with agency information disclosure policies and processes.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.187 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
(a) Within three years of July 6, 2015, the agency shall ensure that each of its immigration holding facilities that houses detainees overnight and has adopted these standards is audited. For any such holding facility established after July 6, 2015, the agency shall ensure that the facility is audited within three years. Audits of new holding facilities as well as holding facilities that have previously failed to meet the standards shall occur as soon as practicable within the three-year cycle; however, where it is necessary to prioritize, priority shall be given to facilities that have previously failed to meet the standards.
(1) Audits required under this paragraph (a) shall:
(i) Include a determination whether the holding facility is low-risk based on its physical characteristics and whether it passes the audit conducted pursuant to paragraph (a)(1)(ii) of this section,
(ii) Be conducted pursuant to §§ 115.201 through 115.205, and
(iii) Be coordinated by the agency with the DHS Office for Civil Rights and Civil Liberties, which may request an expedited audit if it has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
(b) Following an audit, the agency shall ensure that any immigration holding facility that houses detainees overnight and is determined to be low-risk, based on its physical characteristics and passing its most recent audit, is audited at least once every five years.
(1) Audits required under this paragraph (b) shall:
(i) Include a determination whether the holding facility is low-risk based on its physical characteristics and whether it passes the audit conducted pursuant to paragraph (b)(1)(ii) of this section,
(ii) Be conducted pursuant to §§ 115.201 through 115.205, and
(iii) Be coordinated by the agency with the DHS Office for Civil Rights and Civil Liberties, which may request an expedited audit if it has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
(c) Following an audit, the agency shall ensure that any immigration holding facility that houses detainees overnight and is determined to not be low-risk, based on its physical characteristics or not passing its most recent audit, is audited at least once every three years.
(1) Audits required under this paragraph (c) shall:
(i) Include a determination whether the holding facility is low-risk based on its physical characteristics and whether it passes the audit conducted by paragraph (c)(1)(ii) of this section,
(ii) Be conducted pursuant to §§ 115.201 through 115.205, and
(iii) Be coordinated by the agency with the DHS Office for Civil Rights and Civil Liberties, which may request an expedited audit if it has reason to believe that an expedited audit is appropriate.
(2) [Reserved]
The regulations in this subpart B establish minimum requirements for agencies. Agency policies may include additional requirements.
(a) The agency shall develop and issue an instrument that is coordinated with the DHS Office for Civil Rights and Civil Liberties, which will provide guidance on the conduct of and contents of the audit;
(b) The auditor shall review all relevant agency policies, procedures, reports, internal and external audits, and accreditations for each facility type.
(c) The audits shall review, at a minimum, a sampling of relevant documents and other records and information for the most recent one-year period.
(d) The auditor shall have access to, and shall observe, all areas of the audited facilities.
(e) The agency shall provide the auditor with relevant documentation to complete a thorough audit of the facility.
(f) The auditor shall retain and preserve all documentation (including, e.g., videotapes and interview notes) relied upon in making audit determinations. Such documentation shall be provided to the agency upon request.
(g) The auditor shall interview a representative sample of detainees and of staff, and the facility shall make space available suitable for such interviews.
(h) The auditor shall review a sampling of any available videotapes and other electronically available data that may be relevant to the provisions being audited.
(i) The auditor shall be permitted to conduct private interviews with detainees.
(j) Detainees shall be permitted to send confidential information or correspondence to the auditor.
(k) Auditors shall attempt to solicit input from community-based or victim advocates who may have insight into relevant conditions in the facility.
(l) All sensitive but unclassified information provided to auditors will include appropriate designations and limitations on further dissemination. Auditors will be required to follow all appropriate procedures for handling and safeguarding such information.
(a) An audit shall be conducted by entities or individuals outside of the agency and outside of DHS that have relevant audit experience.
(b) All auditors shall be certified by the agency, in coordination with DHS. The agency, in coordination with DHS, shall develop and issue procedures regarding the certification process, which shall include training requirements.
(c) No audit may be conducted by an auditor who has received financial compensation from the agency being audited (except for compensation received for conducting other audits, or other consulting related to detention reform) within the three years prior to the agency's retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise financially compensate the auditor for three years subsequent to the agency's retention of the auditor, with the exception of contracting for subsequent audits or other consulting related to detention reform.
(a) Each audit shall include a certification by the auditor that no conflict of interest exists with respect to his or her ability to conduct an audit of the facility under review.
(b) Audit reports shall state whether facility policies and procedures comply with relevant standards.
(c) For each of these standards, the auditor shall determine whether the audited facility reaches one of the following findings: Exceeds Standard (substantially exceeds requirement of standard); Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period); Does Not Meet Standard (requires corrective action). The audit summary shall indicate, among other things, the number of provisions the facility has achieved at each grade level.
(d) Audit reports shall describe the methodology, sampling sizes, and basis for the auditor's conclusions with regard to each standard provision for each audited facility, and shall include recommendations for any required corrective action.
(e) Auditors shall redact any personally identifiable detainee or staff information from their reports, but shall provide such information to the agency upon request.
(f) The agency shall ensure that the auditor's final report is published on the agency's Web site if it has one, or is otherwise made readily available to the public. The agency shall redact any sensitive but unclassified information
(a) A finding of “Does Not Meet Standard” with one or more standards shall trigger a 180-day corrective action period.
(b) The agency and the facility shall develop a corrective action plan to achieve compliance.
(c) The auditor shall take necessary and appropriate steps to verify implementation of the corrective action plan, such as reviewing updated policies and procedures or re-inspecting portions of a facility.
(d) After the 180-day corrective action period ends, the auditor shall issue a final determination as to whether the facility has achieved compliance with those standards requiring corrective action.
(e) If the facility does not achieve compliance with each standard, it may (at its discretion and cost) request a subsequent audit once it believes that is has achieved compliance.
(a) A facility may lodge an appeal with the agency regarding any specific audit finding that it believes to be incorrect. Such appeal must be lodged within 90 days of the auditor's final determination.
(b) If the agency determines that the facility has stated good cause for a re-evaluation, the facility may commission a re-audit by an auditor mutually agreed upon by the agency and the facility. The facility shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.