Agricultural Marketing Service
Forest Service
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
Economic Development Administration
Industry and Security Bureau
International Trade Administration
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Food and Drug Administration
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Agricultural Marketing Service, USDA.
Final rule; correction.
The Agricultural Marketing Service is correcting a final rule that appeared in the
Barry Broadbent or Gary D. Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, Suite 385, Portland, OR 97204;
In FR Doc. AMS-FV-08-0018; FV08-980-1 FR in the
Agricultural Marketing Service, USDA.
Affirmation of interim final rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule that decreased the assessment rate established for the Prune Marketing Committee (Committee), for the 2009-10 and subsequent crop years from $0.30 to $0.16 per ton of salable dried prunes. The Committee locally administers the marketing order that regulates the handling of dried prunes in California. The interim final rule was necessary to align the Committee's expected revenue with decreases in its proposed budget for the 2009-10 and subsequent crop years, which began on August 1. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
Debbie Wray, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA;
Small businesses may obtain information on complying with this, and other marketing order and agreement regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement No. 110 and Marketing Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
Under the order, California dried prune handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable salable dried prunes for the entire crop year, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on August 1 and ends on July 31.
In an interim final rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 900 producers of salable dried prunes in the production area and approximately 20 handlers subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural producers as those whose annual receipts are less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.
Committee data indicates that about 64 percent of the handlers ship under $7,000,000 worth of dried prunes. Dividing the average prune crop value for 2008-09 reported by the National Agricultural Statistics Service (NASS) of $196,080,000 by the number of producers (900) yields an average annual producer revenue estimate of about $217,867. Based on the foregoing, the majority of handlers and dried prune producers may be classified as small entities.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2009-10 and subsequent crop years from $0.30 to $0.16 per ton of salable dried prunes.
The Committee met on June 25, 2009, and unanimously recommended expenses of $54,138 and a decreased assessment rate of $0.16 per ton of salable dried prunes for the 2009-10 crop year. The Committee's budget of expenses of $54,138 includes a slight increase in personnel expenses and decreases in operating expenses and for contingencies. Most of the Committee's expenses reflect its portion of the joint administrative costs of the Committee and the California Dried Plum Board (CDPB). The Committee believes that extra assessment income carried in from the 2008 crop year, plus interest income and 2009-10 crop year assessment income, is adequate to cover its estimated expenses of $54,138.
The assessment rate of $0.16 per ton of salable dried prunes is $0.14 per ton of salable dried prunes lower than the rate currently in effect. The quantity of salable dried prunes for the 2009-10 crop year is currently estimated at 160,000 tons, compared to 125,373 tons of salable dried prunes for the 2008-09 crop year.
The major expenditures recommended by the Committee for the 2009-10 crop year include $26,450 for salaries and benefits, $11,780 for operating expenses, and $15,908 for contingencies. In comparison, budgeted expenses for these items in 2008-09 were $26,248 for salaries and benefits, $12,893 for operating expenses, and $26,459 for contingencies.
The 2009-10 assessment rate was derived by considering the handler assessment revenue needed to meet anticipated expenses, the estimated salable tons of California dried prunes, excess funds carried forward into the 2009-10 crop year, and estimated interest income. Therefore, the Committee recommended an assessment rate of $0.16 per ton of salable dried prunes.
Prior to arriving at its budget of $54,138, the Committee considered information from various sources, including the Committee's Executive Subcommittee. The Executive Subcommittee reviewed the administrative expenses shared between the Committee and the CDPB in recent years. The Executive Subcommittee then recommended the $54,138 budget and $0.16 per ton assessment rate to the Committee. The Committee recommended the same budget and assessment rate to USDA.
Section 993.81(c) of the order provides the Committee the authority to use excess assessment funds from the 2008-09 crop year (estimated at $28,533) for up to 5 months beyond the end of the crop year to meet 2009-10 crop year expenses, which are estimated to be $54,138. At the end of the 5 months, the Committee either refunds or credits excess funds to handlers.
To calculate the percentage of grower revenue represented by the assessment rate for 2008, the assessment rate of $0.30 per ton is divided by the estimated average grower price (according to the NASS). This results in estimated assessment revenue for the 2008-09 crop year as a percentage of grower revenue of .02 percent ($0.30 divided by $1,520 per ton). NASS data for 2009 is not yet available. However, applying the same calculations above using the average grower price for 2006-08 would result in estimated assessment revenue as a percentage of total grower revenue of .01 percent for the 2009-10 crop year ($0.16 divided by $1,453 per ton). Thus, the assessment revenue should be well below 1 percent of estimated grower revenue in 2009.
This action continues in effect the decreased assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 25, 2009, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This action imposes no additional reporting or recordkeeping requirements on either small or large dried prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Comments on the interim final rule were required to be received on or before November 9, 2009. No comments were received. Therefore, for the reasons given in the interim final rule, we are adopting the interim final rule as a final rule, without change.
To view the interim final rule, go to:
This action also affirms information contained in the interim final rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim final rule, without change, as published in the
Marketing agreements, Plums, Prunes, Reporting and recordkeeping requirements.
Social Security Administration.
Final rules.
We are amending our Supplemental Security Income (SSI) regulations by making technical revisions to our rules on income and resources. Many of these revisions reflect legislative changes found in the Consolidated Appropriations Act of 2001 (CAA), the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), an amendment to the National Flood Insurance Act of 1968 (NFIA), the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), and the Social Security Protection Act of 2004 (SSPA). We are also amending our SSI rules to extend the home exclusion to beneficiaries who, because of domestic abuse, leave a home that had otherwise been an excludable resource. Finally, we are updating our “conditional-payment” rule to eliminate the liquid-resource requirement as a prerequisite to receiving conditional-benefit payments.
These final rules are effective on February 10, 2010.
Donna Gonzalez, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-7961, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
The electronic file of this document is available on the date of publication in the
We are revising and making final the rules we proposed in the notice of proposed rulemaking (NPRM) published in the
The primary goal of the SSI program is to ensure a minimum level of income to people who are aged 65 or older, blind, or disabled, and who have limited income and resources. The law provides that SSI payments can be made only to people who have income and resources below specified amounts. Therefore, income and resources are major factors in deciding SSI eligibility and the amount of any SSI payments.
We discuss below the changes we are making in these final rules. We have grouped the changes by the policy areas affected.
Statutory employees are certain independent contractors, including agent-drivers or commission-drivers, certain full-time life insurance salespersons, home workers, and traveling or city salespersons. Social Security Act (Act) at 210(j)(3) (42 U.S.C. 410(j)(3)). We are revising section 416.1110(b) to update the definition of net earnings from self-employment to include the earnings of statutory employees, as provided under section 519 of the CAA, which amended section 1612(a)(1) of the Act (42 U.S.C. 1382a(a)(1)).
We exclude from income the payment of a refundable CTC pursuant to the EGTRRA. Public Law 107-16, section 203, 115 Stat. 49 (June 7, 2001) (referring to Internal Revenue Code section 24, 26 U.S.C. 24). This exclusion, which was effective for SSI purposes for taxable years beginning on or after January 1, 2001, is not currently in our regulations. We also exclude the payment of a refundable CTC from resources for the 9 months following the month of receipt. Currently the resource exclusion is included under section 416.1236, titled “Exclusions from resources; provided by other statutes.” This resource exclusion is now provided in the Act at 1613(a)(11) (42 U.S.C. 1382b(a)(11)), as amended by the SSPA, Public Law 108-203, 431 (Mar. 2, 2004). We are making the following revisions to conform to these changes:
• We are adding new paragraph (m) under the heading “V.
• We are amending section 416.1235 to correctly reflect that the exclusion for payment of a refundable CTC is now provided under the Act. This provision previously appeared in our rules at section 416.1236(a)(24) within a list of exclusions provided by other statutes. We are moving this exclusion to section 416.1235 but we are not making any substantive changes to it. Under this provision, a CTC payment is excluded from resources for SSI purposes during the month the payment is received and the following month for payments received before March 2, 2004, and for the 9 months following the month of receipt for payments received on or after March 2, 2004. We also are changing the title of this section to more accurately reflect its contents.
• We are adding new paragraph (v) to section 416.1210, which provides a list of general resources we do not count when determining SSI eligibility. This new paragraph excludes from resources the payment of a refundable CTC and includes a cross-reference to section 416.1235.
• We are removing from section 416.1236(a) former paragraph (24), which had excluded from resources the payment of a refundable CTC. As
Payments made for flood mitigation activities are not counted as income or resources when determining SSI eligibility and payment amounts. These exclusions are pursuant to an amendment to the NFIA of 1968. NFIA, section 1324, as amended by Public Law 109-64, section 1 (Jan. 7, 2005). We are making the following revisions to conform to these changes:
• We are adding new paragraph (n) under the heading “V.
• We are adding new paragraph (24) to section 416.1236(a) to exclude from resources payments for flood mitigation activities.
Medical benefits and compensation payments made to energy employees because of occupational illnesses are not counted as income or resources for purposes of determining eligibility to receive, or for determining the amount of, certain Federal benefits, including SSI. These exclusions are provided under section 3646 of the Appendix to Public Law 106-398, which established the EEOICPA in October 2000. Public Law 106-398, section 1, app., title XXXVI (October 30, 2000) (section 1 adopting as Appendix H.R. 5408). We are making the following revisions to conform to these changes:
• We are adding new paragraph (o) under the heading “V.
• We are adding new paragraph (25) to section 416.1236(a) to exclude from resources medical benefits and compensation payments made under the EEOICPA.
An SSI applicant's or beneficiary's home and associated land are excluded from resources by section 1613(a)(1) of the Act. Regulations provide that the home is excluded so long as it serves as the principal place of residence, or the SSI applicant or beneficiary maintains an active intent to return to the residence. The home is also not counted as a resource, regardless of the intent to return, if the SSI applicant or beneficiary resides in an institution, and a spouse or dependent relative continues to maintain residence in the home during the period of institutionalization.
Advocacy groups have expressed concern regarding the counting of a home as a resource in instances where a victim of domestic abuse leaves the home and resides elsewhere. Currently, a victim fleeing from domestic abuse may return to a potentially dangerous home environment simply to avoid losing SSI because of an ownership interest in the home. We agree with these concerns and are amending our rules. We are adding new paragraph (d) to section 416.1212 to extend the home exclusion to victims of domestic abuse who flee an abusive situation, but maintain an ownership interest in an otherwise excluded home. This exclusion continues until the SSI applicant or beneficiary establishes a new principal place of residence or takes other action rendering the home no longer excludable.
An individual who meets all but the resource requirements for SSI may have little or nothing on which to live if most of his or her resources are non-liquid and difficult to convert to cash. Section 416.1240(a) contains an exception to our ordinary resource rules, which allows us to pay monthly SSI payments in certain circumstances when an SSI applicant or beneficiary possesses excess non-liquid resources. We can make “conditional payments” to give an SSI applicant or beneficiary some time in which to sell excess non-liquid resources and convert them to cash. We condition these payments on the SSI applicant's or beneficiary's written agreement to sell these non-liquid resources within 9 months for real property and within 3 months for all other non-liquid resources and repay the conditional payments with the proceeds.
Under current rules, we will not make conditional payments if the SSI applicant or beneficiary has countable liquid resources in excess of 3 times the monthly Federal Benefit Rate (FBR). The original purpose of the liquid-resource limit was to ensure that an SSI applicant or beneficiary truly needed the conditional-payment period. If an SSI applicant or beneficiary did not have liquid resources equal to 3 months worth of SSI payments, then we assumed that he or she had inadequate liquid resources to meet day-to-day expenses. However, if this SSI applicant or beneficiary had excess
When we established this rule over 30 years ago, 3 months worth of SSI payments was equal to only about 32% of the resource limit. Since then, the FBR has increased annually, and the resource limit has grown slowly or not at all. As of January 2009, 3 times the monthly FBR is more than the statutory limit on total resources and, therefore, has become meaningless. Accordingly, we are deleting the limitation on liquid resources in paragraph (a)(1) that was a prerequisite to receiving conditional-benefit payments to simplify our conditional-payments rule. We are also adding a technical cross-reference to paragraphs (a)(1) and (a)(2) in paragraphs (b) and (c) of section 416.1240, which was not included in the NPRM.
In the NPRM, we provided the public a 60-day period within which to comment on our proposed changes. That comment period ended on February 9, 2009. We received two comments, one from an individual and another from an organization, both of which indicated full agreement with our proposed changes. Therefore, we are publishing the text of the proposed rules substantively unchanged in these final rules, except we also have added the cross-reference noted above to paragraphs (b) and (c) of section 416.1240.
The Office of Management and Budget (OMB) determined that the proposed rules published on December 9, 2008 at 73 FR 74663, on which we base these final rules, met the criteria for a significant regulatory action under Executive Order 12866. Therefore, those proposed rules were subject to OMB review. We received no adverse comments on the proposed rules and are publishing these final rules substantively as proposed, with the exception noted above to add a cross-reference. Thus, OMB has waived further review of these rules.
We certify that these final rules will not have a significant economic impact
These final rules impose no reporting or recordkeeping requirements subject to OMB clearance.
Administrative practice and procedure; Aged, Blind, Disability benefits; Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
(b)
(m) Payments of the refundable child tax credit made under section 24 of the Internal Revenue Code of 1986, pursuant to section 203 of the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 Stat. 49, 26 U.S.C. 24 note).
(n) Assistance provided for flood mitigation activities as provided under section 1324 of the National Flood Insurance Act of 1968, pursuant to section 1 of Public Law 109-64 (119 Stat. 1997, 42 U.S.C. 4031).
(o) Payments made to individuals under the Energy Employees Occupational Illness Compensation Program Act of 2000, pursuant to section 1 [Div. C, Title XXXVI section 3646] of Public Law 106-398 (114 Stat. 1654A-510, 42 U.S.C. 7385e).
Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
(v) Payment of a refundable child tax credit, as provided in § 416.1235.
(d)
(a) In determining the resources of an individual (and spouse, if any), we exclude for the 9 months following the month of receipt the following funds received on or after March 2, 2004, the unspent portion of:
(1) Any payment of a refundable credit pursuant to section 32 of the Internal Revenue Code (relating to the earned income tax credit);
(2) Any payment from an employer under section 3507 of the Internal Revenue Code (relating to advance payment of the earned income tax credit); or
(3) Any payment of a refundable credit pursuant to section 24 of the Internal Revenue Code (relating to the child tax credit).
(b) Any unspent funds described in paragraph (a) of this section that are retained until the first moment of the
(c)
(a) * * *
(24) Assistance provided for flood mitigation activities under section 1324 of the National Flood Insurance Act of 1968, pursuant to section 1 of Public Law 109-64 (119 Stat. 1997, 42 U.S.C. 4031).
(25) Payments made to individuals under the Energy Employees Occupational Illness Compensation Program Act of 2000, pursuant to section 1, app. [Div. C. Title XXXVI section 3646] of Public Law 106-398 (114 Stat. 1654A-510, 42 U.S.C. 7385e).
(a) Where the resources of an individual (and spouse, if any) are determined to exceed the limitations prescribed in § 416.1205, such individual (and spouse, if any) shall not be eligible for payment except under the conditions provided in this section. Payment will be made to an individual (and spouse, if any) if the individual agrees in writing to:
(1) Dispose of, at current market value, the nonliquid resources (as defined in § 416.1201(c)) in excess of the limitations prescribed in § 416.1205 within the time period specified in § 416.1242; and
(2) Repay any overpayments (as defined in § 416.1244) with the proceeds of such disposition.
(b) Payment made for the period during which the resources are being disposed of will be conditioned upon the disposition of those resources as prescribed in paragraphs (a)(1) and (a)(2) of this section. Any payments so made are (at the time of disposition) considered overpayments to the extent they would not have been paid had the disposition occurred at the beginning of the period for which such payments were made.
(c) If an individual fails to dispose of the resources as prescribed in paragraphs (a)(1) and (a)(2) of this section, regardless of the efforts he or she makes to dispose of them, the resources will be counted at their current market value and the individual will be ineligible due to excess resources. We will use the original estimate of current market value unless the individual submits evidence establishing a lower value (e.g., an estimate from a disinterested knowledgeable source).
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Anika Therapeutics, Inc. The supplemental NADA provides for a revised human food safety warning for use of hyaluronate sodium injectable solution in horses.
This rule is effective January 11, 2010.
Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8337, e-mail:
Anika Therapeutics, Inc., 236 W. Cummings Park, Woburn, MA 01801, filed a supplement to NADA 122-578 that provides for the veterinary prescription use of HYVISC (hyaluronate sodium) Sterile Injection in horses. The supplemental NADA provides for a revised human food safety warning on product labeling. The supplemental NADA is approved as of December 11, 2009, and the regulations are amended in 21 CFR 522.1145 to reflect the approval.
Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.
FDA has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an original new animal drug application (NADA) filed by Intervet, Inc. The NADA provides for veterinary prescription use of a combination injectable solution containing
This rule is effective January 11, 2010.
Cindy L. Burnsteel, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8341, e-mail:
Intervet, Inc., 56 Livingston Ave., Roseland, NJ 07068, filed NADA 141-299 that provides for use RESFLOR GOLD (florfenicol and flunixin meglumine), a combination injectable solution, for treatment of bovine respiratory disease (BRD) associated with
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.
The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(a)
(b)
(c)
(d)
(2)
(3)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Elanco Animal Health, A Division of Eli Lilly & Co. The supplemental NADA provides for administering ractopamine hydrochloride Type C medicated feeds as a top dress to cattle fed in confinement for slaughter.
This rule is effective January 11, 2010.
Suzanne J. Sechen, Center for Veterinary Medicine (HFV-126), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8105, e-mail:
Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed a supplement to NADA 141-221 that provides for use of OPTAFLEXX 45 (ractopamine hydrochloride) Type A medicated articles to formulate Type B and Type C medicated feeds administered to cattle fed in confinement for slaughter for increased rate of weight gain and improved feed efficiency during the last 28 to 42 days on feed. The supplement provides for feeding ractopamine hydrochloride Type C medicated feed as a top dress. The supplemental NADA is approved as of December 11, 2009, and the regulations in 21 CFR 558.500 are amended to reflect the approval.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs, Animal feeds.
21 U.S.C. 360b, 371.
(e) * * *
(2)
Minerals Management Service (MMS), Interior.
Final rule.
The MMS is incorporating by reference the Eleventh Edition of the American Petroleum Institute's Specification for Subsurface Safety Valve Equipment (API Spec 14A) into its regulations. The MMS is incorporating the Eleventh Edition of API Spec 14A because it updated the design validation and functional testing requirements, incorporated new design changes, and corrected ambiguous areas open to misinterpretation. These changes will ensure that lessees and operators use the best available and safest technologies while operating in the Outer Continental Shelf. The rule will also require that lessees and operators provide supporting design verification information for subsurface safety valves intended for use in high pressure high temperature environments.
Wilbon Rhome, Office of Offshore Regulatory Programs, Regulations and Standards Branch at (703) 787-1587.
The MMS uses standards, specifications, and recommended practices developed by standard-setting organizations and the oil and gas industry as a means of establishing requirements for activities on the OCS. This practice, known as incorporation by reference, allows us to incorporate the provisions of technical standards into the regulations. The legal effect of incorporation by reference is that the material is treated as if the entire document were published in the
This rule adds the following API document to those currently incorporated by reference in MMS regulations:
The MMS has reviewed this document and determined that incorporating it into regulations ensures that industry uses the best available and safest technologies for downhole safety valves.
This final rule updates the requirements for subsurface safety valves operating in high pressure, high temperature (HPHT) environments in 30 CFR part 250 Subpart A—General and Subpart H—Oil and Gas Production Safety Systems. Subpart A is amended to incorporate by reference
The Eleventh Edition of API Spec. 14A contains significant technological and design changes that will increase the safety of downhole operations in the Outer Continental Shelf (OCS). The updated API Spec. 14A is an improvement over the current API Spec. 14A, Tenth Edition, incorporated in the regulations because it does the following:
• Strengthens the guidelines for preparation of a functional specification by the user/purchaser to submit to the manufacturer/supplier when ordering equipment addressed by this standard. Functional characteristics in the specification must include, but are not limited to, well parameters, operational parameters, environmental
• Adds new design verification and validation guidelines.
• Clarifies procedures in areas such as design methodology and verification.
• Introduces state-of-the-art technological advances to improve downhole performance.
The new § 250.807 provisions will require the lessee or operator to provide additional information when SSSVs and related equipment are intended to be installed in an HPHT environment. The lessee or operator will be required to include such information in an APD, APM, or DWOP and must demonstrate that the SSSV and related equipment are fit-for-service for performing in HPHT environments. For the purpose of this rulemaking, HPHT exists in any of the following conditions:
1. The completion of the well requires completion equipment or well control equipment with a pressure rating greater than 15,000 psig or a temperature rating greater than 350 degrees Fahrenheit;
2. The maximum anticipated surface pressure or shut-in tubing pressure is greater than 15,000 psig on the seafloor for a well with a subsea wellhead or at the surface for a well with a surface wellhead; or
3. The flowing temperature is equal to or greater than 350 degrees Fahrenheit on the seafloor for a well with a subsea wellhead or the surface for a well with a surface wellhead.
Related equipment refers to wellheads, tubing heads, tubulars, packers, threaded connections, seals, seal assemblies, production trees, equipment associated with coiled tubing, snubbing, operations, chokes, well control equipment, and any other equipment that will be exposed to rated working pressures greater than 15,000 psig or temperatures greater than 350 degrees Fahrenheit.
This final rule is not a significant rule and is not subject to review by the Office of Management and Budget (OMB) under E.O. 12866.
(1) The final rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The primary purpose of this final rule is to establish minimum acceptable requirements for SSSVs. The requirements apply to SSSVs, as well as all components that establish tolerance and/or clearances that may affect performance or interchangeability of SSSVs. This rule also will set minimum requirements for SSSVs and related equipment to conform to international standards. Finally, this rule will establish minimum fitness-for-service criteria for HPHT equipment operating over 15,000 psig or 350 degrees Fahrenheit and will require lessees and operators to provide information that demonstrates to the MMS that their SSSVs are properly designed to operate in HPHT environments.
The oil and gas industry took the lead in revising API Spec 14A, Eleventh Edition. The industry and API have encouraged the promulgation of the final rule incorporating API Spec 14A. The API Spec 14A standard is now accepted as an industry standard both
The impact of the new requirements of § 250.807 will also be negligible. A review of drilling activity indicates that, if the current trend continues, there may not be any HPHT wells that exceed 15,000 psig at the wellhead drilled and completed in the next 3 years. However, there is activity in the Mobile Bay region and in the western Gulf of Mexico where the working environment for SSSVs and related equipment may reach over 350 degrees Fahrenheit, flowing tubing temperature. The MMS estimates that a maximum of 20 APDs or APMs that could be subject to the final rule may be submitted by lessees or operators over the next 3 years. These submittals will be required to provide additional information on SSSVs and related equipment for wells to be drilled and completed that may be classified as HPHT completions.
Section 250.807 will require lessees and operators to provide supporting design verification information. This is the kind of information that a prudent operator should have available for operating in HPHT environments. Companies will be required to gather and present well data that should be readily available if requested by MMS for review. We estimate that the hourly burden to produce this data will be approximately 40 hours for each well at an hourly rate of $100 per hour, totaling $4,000 per well (40 hours × $100 per hour × 1 well = $4,000).
The estimated cost to industry over the next 3 years, based on the high estimate of 20 APDs or APMs per year, will be approximately $80,000 ($4,000 per well × 20 wells = $80,000). This additional cost associated with implementing these new requirements will be negligible in relation to the overall cost of offshore oil and gas production. Additional costs could be incurred if a lessee engages an independent consultant to prepare the fitness-for-service report for the application to install SSSVs and related equipment in an HPHT environment with readily available information. However, these costs are very small when compared to the cost of drilling a well in an HPHT environment, which can cost over $150 million.
(2) The final rule will not create a serious inconsistency or otherwise interfere with action taken or planned by another agency.
(3) This final rule will not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) This final rule will not raise novel legal or policy issues. The final rule simply seeks to improve MMS safety regulations by updating them with improved oil and gas industry standards and requires lessees and operators to demonstrate that SSSVs and related equipment are fit-for-service in HPHT environments.
The Department of the Interior certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The new API Spec 14A will affect lessees and operators of oil and gas leases in the OCS. This includes approximately 130 active Federal oil and gas lessees. Lessees that conduct business under this rule are coded under the Small Business Administration's (SBA) North American Industry Classification System (NAICS) codes 211111, Crude Petroleum and Natural Gas Extraction, and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is defined as one with fewer than 500 employees. Based on this criterion, an estimated 70 percent of these companies are considered small. Therefore, this final rule will affect a substantial number of small entities. This final rule will not, however, have a significant economic effect on a substantial number of small companies because the revised API Spec 14A will not impose significant costs or burdens on any lessees or operators.
With respect to the new § 250.807, the MMS has determined that it is unlikely that a substantial number of small companies are currently involved with HPHT wells in the OCS due to the expense and the advanced technical expertise needed for drilling, completing, and producing HPHT wells. Because very few, if any, small companies will be involved in the activities that will require compliance with these additional requirements for HPHT wells, the costs of the additional requirements will not have a significant economic effect on a substantial number of small companies. Furthermore, as mentioned previously, the costs of complying with these final requirements are very small when compared to the cost of drilling an HPHT well, which can cost over $150 million.
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of the MMS, call toll-free 1-888-734-3247. You may submit comments to the Small Business Administration without concern for retaliation. Allegations of discrimination/retaliation filed with the Small Business Administration will be investigated for appropriate action.
The final rule is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Fairness Act. This final rule:
a. Will not have an annual effect on the economy of $100 million or more. The final rule will not impose any significant costs to lessees or operators. The main purpose of this rule is to update an industry standard that will ensure lessees use the best available and safest technologies for downhole safety valves. The costs associated with the final rule will involve the cost of the new document (API Spec 14A), and any cost associated with gathering and presenting the well data required by the new § 250.807 to MMS. As mentioned previously, the costs of complying with these requirements are very small when compared to the cost of drilling an HPHT well, which can cost over $150 million.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This final rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The final rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in E.O. 12630, this final rule does not have significant takings implications. The final rule is
Under the criteria in E.O. 13132, this final rule does not have federalism implications. This final rule will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this final rule will not affect that role. A Federalism Assessment is not required.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in E.O. 13175, we have evaluated this final rule and determined that it has no substantial effects on federally recognized Indian tribes. There are no Indian or tribal lands in the OCS.
The final revisions to 30 CFR 250, subpart H regulations (§ 250.807) will specify that lessees and operators must submit a detailed description in their APD, APM, or DWOP when SSSVs and related equipment are intended to perform in HPHT environments. The information that will be required by the final rule should be readily available since a prudent operator will already possess this information for daily operations. Lessees and operators must then provide this existing information as part of their APD, APM, or DWOP submissions. The MMS has determined that the number of hours of paperwork burdens currently approved for preparation of APDs (3,135 annual burden hours) and APMs (9,900 annual burden hours) pursuant to the requirements set forth in 30 CFR 250, subpart D (OMB Control Number 1010-0141) and for DWOPs (51,000 annual burden hours) in 30 CFR 250, subpart B (OMB Control Number 1010-0151), are more than enough to accommodate this minor addition to existing submissions. Therefore, due to the fact that the burden hours are effectively included under currently approved OMB information collections, the final rule does not require a submission to OMB for review and approval under section 3507(d) of the PRA (44 USC 3501
The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information and assigns a control number, you are not required to respond. The OMB approved the referenced information collection requirements for 30 CFR 250, subparts B, D, and H under OMB Control Numbers 1010-0151 (321,817 hours; expiration 7/31/08), 1010-0141 (163,954 hours; expiration 8/31/08) and 1010-0059 (17,598 hours; expiration 2/28/09).
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The MMS has analyzed this final rule under the criteria of the National Environmental Policy Act and implementing regulations. This final rule meets the criteria set forth in 516 Departmental Manual 15.4(C)(1) for an MMS “Categorical Exclusion” in that its impacts are limited to administrative, economic, or technological effects. Further, the MMS has analyzed this final rule to determine if it involves any of the extraordinary circumstances that would require an environmental assessment or an environmental impact statement as set forth in 43 CFR § 46.215 and concluded that it does not.
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C § 515, 114 Stat. 2763, 2763A-153-154).
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
Continental shelf, Environmental protection, Incorporation by reference, Public lands—mineral resources, Reporting and recordkeeping requirements.
31 U.S.C. 9701, 43 U.S.C. 1334.
(e) * * *
(a) * * *
(3) * * * All SSSVs must meet the technical specifications of API Specification 14A (incorporated by reference as specified in § 250.198). However, SSSVs and related equipment planned to be used in high pressure high temperature environments must meet the additional requirements set forth in § 250.807.
(a) If you plan to install SSSVs and related equipment in an HPHT environment, you must submit detailed information with your Application for Permit to Drill (APD), Application for Permit to Modify (APM), or Deepwater Operations Plan (DWOP) that demonstrates the SSSVs and related equipment are capable of performing in the applicable HPHT environment. Your detailed information must include the following:
(1) A discussion of the SSSVs' and related equipment's design verification analysis;
(2) A discussion of the SSSVs' and related equipment's design validation and functional testing process and procedures used; and
(3) An explanation of why the analysis, process, and procedures ensure that the SSSVs and related equipment are fit-for-service in the applicable HPHT environment.
(b) For this section, HPHT environment means when one or more of the following well conditions exist:
(1) The completion of the well requires completion equipment or well control equipment assigned a pressure rating greater than 15,000 psig or a temperature rating greater than 350 degrees Fahrenheit;
(2) The maximum anticipated surface pressure or shut-in tubing pressure is greater than 15,000 psig on the seafloor for a well with a subsea wellhead or at the surface for a well with a surface wellhead; or
(3) The flowing temperature is equal to or greater than 350 degrees Fahrenheit on the seafloor for a well with a subsea wellhead or at the surface for a well with a surface wellhead.
(c) For this section, related equipment includes wellheads, tubing heads, tubulars, packers, threaded connections, seals, seal assemblies, production trees, chokes, well control equipment, and any other equipment that will be exposed to the HPHT environment.
Postal Regulatory Commission.
Final rule.
The Commission is adding Express Mail Contract 6 to the Competitive Product List. This action is consistent with changes in a recent law governing postal operations. Republication of the lists of market dominant and competitive products is also consistent with new requirements in the law.
Effective January 11, 2010 and is applicable beginning December 15, 2009.
Stephen L. Sharfman, General Counsel, 202-789-6820 or
The Postal Service seeks to add a new product identified as Express Mail Contract 6 to the Competitive Product List. For the reasons discussed below, the Commission approves the Request.
At the end of October 2009, the Postal Service filed a formal request and associated supporting information pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The contract has been assigned Docket No. CP2010-6.
In support of its Request, the Postal Service filed the following materials: (1) A redacted version of the Governors' Decision authorizing certain types of Express Mail contracts;
In the Statement of Supporting Justification, Mary Prince Anderson, Acting Manager, Sales and Communications, Expedited Shipping, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to coverage of institutional costs, and will increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs. Request, Attachment D, at 1. W. Ashley Lyons, Manager, Regulatory Reporting and Cost Analysis, Finance Department, certifies that the contract complies with 39 U.S.C. 3633(a).
The Postal Service filed much of the supporting materials, including the supporting data and the unredacted contract, under seal. The Postal Service maintains that the contract and related financial information, including the customer's name and the accompanying analyses that provide prices, certain terms and conditions, and financial
In Order No. 330, the Commission gave notice of the two dockets, appointed a public representative, and provided the public with an opportunity to comment.
Comments were timely filed by the Public Representative on November 9, 2009.
The Commission has reviewed the Request, the contract, the financial analysis provided under seal that accompanies the Request, the responses to CHIR Nos. 1 and 2, and the comments filed by the Public Representative.
the Postal Service exercises sufficient market power that it can effectively set the price of such product substantially above costs, raise prices significantly, decrease quality, or decrease output, without risk of losing a significant level of business to other firms offering similar products.
The Commission is further required to consider the availability and nature of enterprises in the private sector engaged in the delivery of the product, the views of those who use the product, and the likely impact on small business concerns. 39 U.S.C. 3642(b)(3).
The Postal Service asserts that its bargaining position is constrained by the existence of other shippers who can provide similar services, thus precluding it from taking unilateral action to increase prices without the risk of losing volume to private companies. Request, Attachment D, para. (d). The Postal Service also contends that it may not decrease quality or output without risking the loss of business to competitors that offer similar expedited delivery services.
No commenter opposes the proposed classification of Express Mail Contract 6 as competitive. Having considered the statutory requirements and the support offered by the Postal Service, the Commission finds that Express Mail Contract 6 is appropriately classified as a competitive product and should be added to the Competitive Product List.
Based on the data and explanations submitted, the Commission finds that Express Mail Contract 6 should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, an initial review of proposed Express Mail Contract 6 indicates that it comports with the provisions applicable to rates for competitive products. The Commission's analysis is provided in Library Reference PRC-CP2010-6-NP-LR1 which is being filed under seal.
Further, while the Commission currently believes that the contract is expected to comply with the applicable requirements of 39 U.S.C. 3633, the Commission seeks to ensure that it is provided with the proper level of detail to make appropriate findings in the FY 2010 Annual Compliance Determination (ACD) with respect to this contract. To that end, the Postal Service should view Library Reference PRC-CP2010-6-NP-LR1 as illustrative of the granularity of the information to be reported with respect to this contract.
In conclusion, the Commission approves Express Mail Contract 6 as a new product. The revision to the Competitive Product List is shown below the signature of this Order and is effective upon issuance of this Order.
1. Express Mail Contract 6 (MC2010-6 and CP2010-6) is added to the Competitive Product List as a new product under Negotiated Service Agreements, Domestic.
2. The Postal Service shall notify the Commission if termination occurs prior to the scheduled termination date.
3. The Postal Service shall view Library Reference PRC-CP2010-6-NP-LR1 as illustrative of the level of detail of information that the Commission seeks with respect to this contract in connection with the FY 2010 Annual Compliance Determination proceeding.
4. The Secretary shall arrange for the publication of this order in the
Administrative practice and procedure; Postal Service.
By the Commission.
Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval of revisions to the Ventura County Air Pollution Control District (VCAPCD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the
EPA has established docket number EPA-R09-OAR-2008-0341 for this action. The index to the docket is available electronically at
Laura Yannayon, EPA Region IX, (415) 972-3534,
Throughout this document, “we,” “us” and “our” refer to EPA.
On November 19, 2008 (73 FR 69593), EPA proposed to approve the following rules into the California SIP.
We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.
EPA's proposed action provided a 30-day public comment period. We did not receive any comments on the proposed action.
No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the CAA, EPA is fully approving VCAPCD Rules 26, 26.1, 26.2, 26.3, 26.4, 26.5, and 26.6 into the California SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 March 12, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a 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 (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(345) * * *
(i) * * *
(C) Ventura County Air Pollution Control District.
(
(350) * * *
(i) * * *
(E) Ventura County Air Pollution Control District.
(
Federal Communications Commission.
Final Rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements associated with Sections 25.132(b)(3), 25.226(a)(6), (b), (c), (d)(1), and (d)(3) of the Commission's rules, and that these rules will take effect as of the date of this notice. On November 4, 2009, the Commission published the summary document of the Report and Order, In the Matter of Amendment of Parts 2 and 25 of the Commission's Rules to Allocate Spectrum and Adopt Service Rules and Procedures to Govern the Use of Vehicle-Mounted Earth Stations in Certain Frequency Bands Allocated to the Fixed-Satellite Service, IB Docket No. 07-101, FCC 09-64, at 74 FR 57092. The Report and Order stated that the Commission will publish a notice in the Federal Register announcing when OMB approval for the rule sections which contain information collection requirements has been received and
47 CFR 25.132(b)(3), 25.226(a)(6), (b), (c), (d)(1), and (d)(3) are effective on January 11, 2010.
Kathleen Collins or Howard Griboff, Policy Division, International Bureau, FCC, (202) 418-1460 or via the Internet at: Kathleen.Collins@fcc.gov and Howard.Griboff@fcc.gov.
This document announces that, on January 4, 2010, OMB approved, for a period of three years, the information collection requirements contained in Sections 25.132(b)(3), 25.226(a)(6), (b), (c), (d)(1), and (d)(3) of the Commission's rules. The Commission publishes this notice to announce the effective date of these rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include OMB Control Number 3060-1106 in your correspondence. The Commission also will accept your comments via the Internet if you send them to PRA@fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202)418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on January 4, 2010, for the information collection requirements contained in the Commission's rules at 47 CFR Sections 25.132(b)(3), 25.226(a)(6), (b), (c), (d)(1), and (d)(3). Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number. The OMB Control Number is 3060-1106 and the total annual reporting burdens and costs for respondents are as follows:
OMB Control Numbers: 3060-1106.
OMB Approval Date: January 4, 2010.
Expiration Date: December 31, 2012.
Title: Licensing and Service Rules for Vehicle-Mounted Earth Stations (VMES).
Form Number: Not Applicable.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities.
Number of Respondents/Responses: 10 respondents; 10 responses.
Estimated Hours per Response: 0.25 hours - 24 hours per response.
Frequency of Response: On occasion reporting requirements; Recordkeeping requirement; Third party disclosure requirement.
Total Annual Burden: 322 hours.
Total Annual Cost: $104,300.
Obligation to Respond: Required to obtain or retain benefits. The Commission has statutory approval for the information collection requirements under Sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y) and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308.
Nature and Extent of Confidentiality: There is no need for confidentiality pertaining to the information collection requirements in this collection.
Privacy Act Assessment: No impact(s).
Needs and Uses: On July 31, 2009, the Federal Communications Commission (Commission) released a Report and Order and Order titled, “In the Matter of Amendment of Parts 2 and 25 of the Commission's Rules to Allocate Spectrum and Adopt Service Rules and Procedures to Govern the Use of Vehicle-Mounted Earth Stations in Certain Frequency Bands Allocated to the Fixed-Satellite Service” (FCC 09-64), IB Docket No. 07-101(hereinafter referred to as ”VMES Report and Order”). The VMES Report and Order adopts Part 2 allocation rules and Part 25 technical and licensing rules for a new domestic Ku-band VMES service. VMES service has the potential to deliver advanced mobile applications through satellite technology, including broadband, which will be beneficial for public safety and commercial purposes.
The PRA information collection requirements contained in the VMES Report and Order are as follows:
1. 47 CFR 25.132(b)(3)
VMES applicant seeking to use antenna that does not meet standards of section 25.209(a) and (b), pursuant to procedures set out in section 25.226, shall submit manufacturer's range test plots of antenna gain patterns.
2. 47 CFR 26.226(a)(6)
VMES licensee shall maintain and provide data (record of vehicle location, transmit frequency, channel bandwidth and satellite used for each relevant VMES transmitter) to Commission, NTIA, FSS operator, FS operator, or frequency coordinator within 24 hours upon request.
3. 47 CFR 25.226(b)(1)(i) OR 47 CFR 25.226(b)(1)(ii)
(i) Any VMES applicant filing an application pursuant to paragraph (a)(1) of this section shall file three tables showing the off-axis EIRP level of the proposed earth station antenna in the direction of the plane of the GSO; the co-polarized EIRP in the elevation plane, that is, the plane perpendicular to the plane of the GSO; and cross-polarized EIRP. Each table shall provide the EIRP level at increments of 0.1° for angles between 0° and 10° off-axis, and at increments of 5° for angles between 10° and 180° off-axis.
OR
4. (ii) A VMES applicant shall include a certification, in Schedule B, that the VMES antenna conforms to the gain pattern criteria of § 25.209(a) and (b), that, combined with the maximum input power density calculated from the EIRP density less the antenna gain, which is entered in Schedule B, demonstrates that the off-axis EIRP spectral density envelope set forth in paragraphs (a)(1)(i)(A) through (a)(1)(i)(C) of this section will be met under the assumption that the antenna is pointed at the target satellite.
5. 47 CFR 25.226(b)(1)(iii)
(iii) A VMES applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(A) of this section shall provide a certification from the equipment manufacturer stating that the antenna tracking system will maintain a pointing error of less than or equal to 0.2° between the orbital location of the target satellite and the axis of the main lobe of the VMES antenna and that the antenna tracking system is capable of ceasing emissions within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the VMES antenna exceeds 0.5°.
6. 47 CFR 25.226(b)(1)(iv)(A), (B)
A VMES applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(B) of this section shall:
(A) declare, in its application, a maximum antenna pointing error and demonstrate that the maximum antenna pointing error can be achieved without exceeding the off-axis EIRP spectral-density limits in paragraph (a)(1)(i) of this section; and (B) demonstrate that the VMES transmitter can detect if the transmitter exceeds the declared maximum antenna pointing error and can cease transmission within 100 milliseconds if the angle between the orbital location of the target satellite and
7. 47 CFR 25.226(b)(2)(i), (ii), (iii), (iv)
A VMES applicant proposing to implement a transmitter under paragraph (a)(2) of this section and using off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(1)(i) of this section shall provide the following certifications and demonstration as exhibits to its earth station application:
(i) A statement from the target satellite operator certifying that the proposed operation of the VMES has the potential to create harmful interference to satellite networks adjacent to the target satellite(s) that may be unacceptable.
(ii) A statement from the target satellite operator certifying that the power-density levels that the VMES applicant provided to the target satellite operator are consistent with the existing coordination agreements between its satellite(s) and the adjacent satellite systems within 6° of orbital separation from its satellite(s).
(iii) A statement from the target satellite operator certifying that it will include the power-density levels of the VMES applicant in all future coordination agreements.
(iv) A demonstration from the VMES operator that the VMES system is capable of detecting and automatically ceasing emissions within 100 milliseconds when the transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator.
8. 47 CFR 25.226(b)(3)
A VMES applicant proposing to implement a VMES system under paragraph (a)(3) of this section and using variable power-density control of individual simultaneously transmitting co-frequency VMES earth stations in the same satellite receiving beam shall provide the following certifications and demonstration as exhibits to its earth station application:
(i) The applicant shall make a detailed showing of the measures it intends to employ to maintain the effective aggregate EIRP-density from all simultaneously transmitting co-frequency terminals operating with the same satellite transponder at least 1 dB below the EIRP-density limits defined in paragraphs (a)(1)(i)(A)-(C) of this section. In this context the term “effective” means that the resultant co-polarized and cross-polarized EIRP-density experienced by any GSO or non-GSO satellite shall not exceed that produced by a single VMES transmitter operating at 1 dB below the limits defined in paragraphs (a)(1)(i)(A)-(C) of this section. The International Bureau will place this showing on Public Notice along with the application.
(ii) An applicant proposing to implement a VMES under (a)(3)(ii) of this section that uses off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(3)(i) of this section shall provide the following certifications, demonstration and list of satellites as exhibits to its earth station application:
(A) A detailed showing of the measures the applicant intends to employ to maintain the effective aggregate EIRP-density from all simultaneously transmitting co-frequency terminals operating with the same satellite transponder at the EIRP-density limits supplied to the target satellite operator. The International Bureau will place this showing on Public Notice along with the application.
(B) A statement from the target satellite operator certifying that the proposed operation of the VMES has the potential to create harmful interference to satellite networks adjacent to the target satellite(s) that may be unacceptable.
(C) A statement from the target satellite operator certifying that the aggregate power density levels that the VMES applicant provided to the target satellite operator are consistent with the existing coordination agreements between its satellite(s) and the adjacent satellite systems within 6° of orbital separation from its satellite(s).
(D) A statement from the target satellite operator certifying that it will include the aggregate power-density levels of the VMES applicant in all future coordination agreements.
(E) A demonstration from the VMES operator that the VMES system is capable of detecting and automatically ceasing emissions within 100 milliseconds when an individual transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator and that the overall system is capable of shutting off an individual transmitter or the entire system if the aggregate off-axis EIRP spectral-densities exceed those supplied to the target satellite operator.
(F) An identification of the specific satellite or satellites with which the VMES system will operate.
(iii) The applicant shall acknowledge that it will maintain sufficient statistical and technical information on the individual terminals and overall system operation to file a detailed report, one year after license issuance, describing the effective aggregate EIRP-density levels resulting from the operation of the VMES system.
9. 47 CFR 25.226 (b)(4)
There shall be an exhibit included with the application describing the geographic area(s) in which the VMESs will operate.
10. 47 CFR 25.226(b)(5)
Any VMES applicant filing for a VMES terminal or system and planning to use a contention protocol shall include in its application a certification that will comply with the requirements of paragraph (a)(4) of this section.
11. 47 CFR 25.226(b)(6)
Application shall include the point of contact with authority and ability to cease all emissions from VMES terminals, as required in paragraph (a)(5) of this section.
12. 47 CFR 25.226 (b)(7)
Any VMES applicant filing for a VMES terminal or system shall include in its application a certification that will comply with the requirements of paragraph (a)(6) of this section.
13. 47 CFR 25.226 (b)(8)
Applicant must submit a radio frequency hazard analysis to determine whether VMES terminals will produce power densities that will exceed the Commission's radio frequency exposure criteria; applicant with terminals that exceed the guidelines in section 1.1310 for radio frequency radiation exposure shall provide a plan for mitigation.
14. 47 CFR 25.226(c)(1)
Licensee shall notify the Commission after completing coordination with NASA and NTIA on current TDRSS sites.
15. 47 CFR 25.226(c)(3)
Licensee shall notify the Commission after completing coordination with NASA and NTIA on future TDRSS sites.
16. 47 CFR 25.226(d)(1)
Operations of VMES licensees in the 14.47-14.5 frequency band are subject to coordination with the National Science Foundation (NSF) and licensee shall notify the Commission's International Bureau and shall submit the coordination agreement once it has completed coordination with NSF for RAS sites listed in paragraph (d)(2) of this section.
17. 47 CFR 25.226(d)(3)
Licensee shall notify the International Bureau once it has completed coordination for any future RAS site and shall submit the coordination agreement once it has completed coordination with NSF.
The information collection requirements accounted for in this collection are necessary to prevent regulatory uncertainty with respect to VMES and other satellite services that operate in the Ku-band within the United States. Prior to this rulemaking, the lack of rules for VMES posed an administrative burden on those entities attempting to provide VMES-type services and on Commission staff because such services could be granted only through the use of waivers and Special Temporary Authority (STA) authorizations for a six-month period of time. The approval of fifteen-year licenses for VMES operators significantly reduces the burden imposed upon both licensees and Commission staff who review and approve the waivers and STAs. Furthermore, without such information the Commission would not be able to take the necessary measures to prevent harmful interference to satellite services from VMES. Finally, the Commission would not be able to advance its goals of managing spectrum efficiently and promoting broadband technologies to benefit American consumers throughout the United States.
Federal Housing Finance Board; Federal Housing Finance Agency.
Notice of proposed rulemaking.
The Federal Housing Finance Agency (FHFA or agency) is issuing notice and opportunity for the public to comment on this proposed regulation on minority and women inclusion. Section 1116 of the Housing and Economic Recovery Act of 2008 amended section 1319A of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, requiring FHFA, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal Home Loan Banks to promote diversity and the inclusion of women and minorities in all activities. The proposed rule will implement this provision.
Written comments on the proposed regulation must be received on or before March 12, 2010.
Submit comments to FHFA by any of the following methods:
•
•
•
Eric Howard, Equal Employment Opportunity and Diversity Director,
FHFA invites comments on all aspects of the proposed regulation and will take all comments into consideration before issuing the final regulation. We will post all public comments we receive without change, including any personal information you provide, such as your name and address, on the FHFA Web site at
Effective July 30, 2008, the Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654, amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501
The Safety and Soundness Act provides that FHFA is headed by a Director with general supervisory and regulatory authority over the regulated entities. FHFA is charged, among other things, with overseeing the prudential operations of the regulated entities and to ensure that they: Operate in a safe and sound manner including maintenance of adequate capital and internal controls; foster liquid, efficient, competitive, and resilient national housing finance markets; comply with the Safety and Soundness Act and rules, regulations, guidelines and orders issued under the Safety and Soundness Act, and the respective authorizing statutes of the regulated entities; and carry out their missions through activities authorized and consistent with the Safety and Soundness Act and their authorizing statutes; and, that the activities and operations of the regulated entities are consistent with the public interest. The Enterprises and the FHLBanks continue to operate under regulations promulgated by OFHEO, FHFB, and as relevant, HUD, until FHFA issues its own regulations.
The FHLBank System (System) was created by the Federal Home Loan Bank Act of 1932 (FHLBank Act) as a government-sponsored enterprise (GSE) to support mortgage lending and related community investment. It is composed of 12 FHLBanks, more than 8,000
Fannie Mae and Freddie Mac are GSEs chartered by Congress for the purpose of establishing secondary market facilities for residential mortgages.
The Enterprises fulfill their statutory mission by purchasing residential mortgages from lenders and either holding these mortgages in their portfolios or packaging the loans into mortgage-backed securities (MBS) that are sold to the public. By packaging mortgages into MBS and guaranteeing the timely payment of principal and interest on the underlying mortgages, Fannie Mae and Freddie Mac attract to the secondary mortgage market investors who might not otherwise invest in mortgages, thereby expanding the pool of funds available for housing. The Enterprises finance purchases of their mortgage-related securities and mortgage loans, and manage their market risks, primarily by issuing debt instruments and entering into derivative contracts in the capital markets. Fannie Mae and Freddie Mac are shareholder-owned companies and their common stock is listed on the New York Stock Exchange. Each Enterprise is a separate corporate entity with its own management and board of directors elected annually by the common stockholders.
Section 1116 of HERA amended section 1319A of the Safety and Soundness Act (12 U.S.C. 4520) to require FHFA to engage in certain activities to promote a diverse workforce. It also requires each Regulated Entity to establish an Office of Minority and Women Inclusion, or designate an office, responsible for carrying out the requirements of the section and such requirements and standards established by the Director. Section 1319A of the Safety and Soundness Act requires the regulated entities to promote diversity in all activities and at every level of the organization, including management, employment and contracting. Furthermore, 12 U.S.C. 1833e, as amended, and Executive Order 11478 require FHFA and the regulated entities to promote equal opportunity in employment and contracting. FHFA will prescribe regulations establishing a minority outreach program to promote diversity in FHFA contracting. The proposed rule supersedes 12 CFR part 906, subpart C, the FHFB regulation on minority and women outreach; therefore, 12 CFR part 906, subpart C will be withdrawn, removed, and deleted upon the effective date of a final rule.
The proposed rule would implement the requirements of 12 U.S.C. 1833e, 4520, and Executive Order 11478 in a single regulation. Section 1313(f) of the Safety and Soundness Act, as amended by section 1201 of HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. The Director may also consider any other differences that are deemed appropriate. In preparing the proposed rule, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors. The Director requests comments from the public about whether differences related to these factors should result in a revision of the proposed rule as it relates to the Banks.
Additionally, although the Office of Finance is not directly covered by section 1116 of HERA, it is subject to the Director's “general regulatory authority” under section 1311(b)(2) of the Safety and Soundness Act (12 U.S.C. 4511(b)(2)), as amended by HERA. The Director has determined that the national policy and purposes of section 1116 of HERA are sufficiently important to treat the Office of Finance in the same manner as the regulated entities for the purposes of this proposed rule.
Subpart A of the proposed rule contains items of general applicability to FHFA, the regulated entities, and the Office of Finance. It defines terms used in this part, addresses FHFA's general policy and purpose of issuance, and explains how this part applies to FHFA's, the regulated entities', and the Office of Finance's equal opportunity programs. The requirements of section 1116 of HERA are limited to minorities and women. The proposed rule expands those requirements to cover disabled populations. HERA authorizes FHFA's Director to establish “standards and requirements” relating to diversity in the “management, employment and business activities” of the regulated entities.
Subpart B of the proposed rule confirms FHFA's commitment to equal
Subpart C of the proposed rule contains requirements for the regulated entities and the Office of Finance. It instructs each regulated entity and the Office of Finance to establish an Office of Minority and Women Inclusion, or designate an office, responsible for carrying out the requirements of the section and such requirements and standards established by the Director. The subpart requires each regulated entity and the Office of Finance to establish an equal opportunity program applying to all areas of the business, including management, employment and contracting, at every level of the organization. It requires each regulated entity and the Office of Finance to establish an outreach program to ensure the inclusion of minorities, women, and individuals with disabilities, and businesses owned by them in contracts entered into by the Regulated Entities or the Office of Finance. Further, proposed subpart C sets forth reporting requirements, including minimum contents of reports to FHFA by the regulated entities and the Office of Finance. The proposed rule observes that FHFA's activity under this subpart C and related guidance, standards, directives or orders is regulatory and supervisory in nature and may lead to regulatory or supervisory actions, including enforcement actions.
FHFA has considered that any data or information reporting requirements present operational and administrative burdens. FHFA does not consider the burden of reporting under the proposed rule to be unreasonable. Congress recognized the importance of promoting diversity in the management, employment and business activities of the Regulated Entities. Consequently, FHFA believes that ensuring compliance with the proposed diversity requirements is a one of its supervisory and regulatory duties. For several decades companies in most industries, including much of the financial services industry, have been subject to reporting requirements and enforcement with respect to diversity. Agencies requiring such reports and enforcing standards include the U.S. Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs in the U.S. Department of Labor. The proposed subpart C does not seek to duplicate reporting burdens imposed by either agency. Instead, FHFA has selected specific types of information that are particularly useful in analyzing the demographic composition of workforces at every level. It also identifies for reporting similar types of data that allow FHFA to analyze diversity among the contractors used by regulated entities and the Office of Finance.
Proposed § 1207.1 defines terms used in this part.
Proposed § 1207.2 expresses FHFA's policy that it, the Regulated Entities, and the Office of Finance shall promote non-discrimination, diversity and the inclusion of women, minorities, and the disabled in all their activities. It explains the purpose to establish minimum standards for FHFA, the regulated entities, and the Office of Finance in carrying out the policy of non-discrimination, diversity and inclusion. Proposed § 1207.2 also makes clear that the regulation applies to FHFA as well as to the regulated entities and the Office of Finance.
Proposed § 1207.3 provides that except as necessary for enforcement by FHFA, the rule does not create any enforceable right or benefit.
Proposed § 1207.10 describes FHFA's program for promoting diversity and equal employment opportunity in its workforce and how FHFA will comply with the specific requirements of section 1116 of HERA and Executive Order 11478.
Proposed § 1207.11 implements 12 U.S.C. 1833e by establishing FHFA's program for ensuring equal opportunity, diversity and inclusion in the use of contractors, and describing the agency's contractor outreach program, record-keeping and complaint resolution process.
Proposed § 1207.20 implements the requirement that each regulated entity and the Office of Finance create an Office of Minority and Women Inclusion or designate an office to fulfill the requirements of this part, section 1116 of HERA, and 12 U.S.C. 1833e(b), and provide the office with adequate resources to perform its responsibilities.
Proposed § 1207.21 establishes minimum requirements for each regulated entity's and the Office of Finance's equal opportunity, diversity and inclusion programs for equal opportunity in regulated entity and Office of Finance employment, management, contracting, and all other business activities.
Proposed § 1207.22 establishes a minimum requirement of an annual report submitted by each regulated entity and the Office of Finance and provides notice that the Director may require additional reports.
Proposed § 1207.23 establishes the format and minimum content required in each regulated entity's and the Office Finance's annual report on Minority and Women Inclusion.
Proposed § 1207.24 explains that FHFA considers non-compliance with this regulation or with standards issued under this regulation by the regulated entities or the Office of Finance to be the basis for enforcement actions under 12 U.S.C. 4513b and 4515, and that the Director may initiate examinations of a regulated entity's or the Office of Finance's compliance under 12 U.S.C. 4517.
The proposed regulation does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Government contracts, Minority businesses.
Disability, Discrimination, Equal employment opportunity, Government contracts, Minority businesses, Office of Finance, Outreach, Regulated entities.
Accordingly, for the reasons stated in the preamble, under the authority of 12 U.S.C. 4526, the Federal Housing Finance Agency proposes to amend chapters IX and XII of Title 12, Code of Federal Regulations, as follows:
1. Remove and reserve subpart C, consisting of §§ 906.10 through 906.13.
2. Add part 1207 to subchapter A to read as follows:
12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478.
The following definitions apply to the terms used in this part:
(1) Qualified as a Service-Disabled Veteran-Owned Small Business Concern as defined in 13 CFR 125.8 through 125.13; or
(2) More than fifty percent (50%) of the ownership or control of which is held by one or more persons with a disability; and
(3) More than fifty percent (50%) of the net profit or loss of which accrues to one or more persons with a disability.
(1) More than fifty percent (50%) of the ownership or control of which is held by one or more minority individuals; and
(2) More than fifty percent (50%) of the net profit or loss of which accrues to one or more minority individuals.
(1) More than fifty percent (50%) of the ownership or control of which is held by one or more women;
(2) More than fifty percent (50%) of the net profit or loss of which accrues to one or more women; and
(3) A significant percentage of senior management positions of which are held by women.
(a)
(b)
(c)
Except as expressly provided herein for enforcement by FHFA, the regulations in this part do not, are not intended to, and should not be construed to create any right or benefit, substantive or procedural, enforceable at law, in equity, or through administrative proceeding, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, a regulated entity or the Office of Finance, their officers, employees or agents, or any other person.
(a)
(b)
(c)
(1) Heavily recruiting at historically Black colleges and universities, Hispanic-serving institutions, women's colleges, and colleges that typically serve the individuals with disabilities and majority minority populations;
(2) Sponsoring and recruiting at job fairs in urban communities and placing employment advertisements in newspapers and magazines oriented toward women and people of color;
(3) Partnering with organizations that are focused on developing opportunities for minorities and women to place talented young minorities and women in industry internships, summer employment and full-time positions; and
(4) Where feasible, partnering with inner-city high schools, girl's schools, and high schools with majority minority populations to establish or enhance financial literacy programs and provide mentoring.
(d)
(1) An EEO policy and complaint procedure for employees and applicants for employment;
(2) A reasonable accommodation request procedure for employees and applicants for employment;
(3) A program for maintaining contact and liaison with internal and external stakeholders, including other government agencies, on matters of diversity and equal opportunity;
(4) Periodic workplace surveys to refresh workforce demographic data;
(5) An alternative dispute resolution process for resolving complaints of employment discrimination;
(6) An annual notice to employees and the public of FHFA's commitment to EEO and non-discrimination that is distributed to all employees and published in a manner accessible to the public;
(7) Ensuring the delivery of training for employees and supervisors with respect to non-discrimination obligations and rights;
(8) Reporting as required on FHFA No FEAR Act training, non-discrimination and diversity training, and No FEAR Act compliance;
(9) Collecting and reporting data on EEO complaints at FHFA;
(10) Collecting, analyzing and reporting FHFA workforce demographic data with respect to all aspects of employment;
(11) Recommending to the Director actions and plans for EEO and diversity enhancement in FHFA's operations, programs and policies, programs, and implementing approved actions and plans;
(12) Evaluating the effectiveness and impact of FHFA policies, programs and practices on diversity in FHFA; and
(13) Maintaining equal opportunity and diversity in contracting policies, training contracting staff in these requirements, analyzing the effectiveness and reporting on agency efforts and outreach to promote diversity in contracting.
(a)
(b)
(1) Identifying contractors that are minorities, women, individuals with disabilities, and minority-, women-, and disabled-owned businesses by obtaining lists and directories maintained by government agencies, trade groups, and other organizations;
(2) Offering technical assistance for minorities, women, individuals with disabilities, and minority-, women-, and disabled-owned businesses to
(3) Advertising contract opportunities through media targeted to reach potential contractors that are minorities, women, individuals with disabilities, and minority-, women-, and disabled-owned businesses;
(4) Participating in events such as conventions, trade shows, seminars, professional meetings and other gatherings intended to promote business opportunities for minorities, women, individuals with disabilities, and minority-, women-, and disabled-owned businesses; and
(5) Ensuring that FHFA contracting staff understands and promotes the outreach program.
(c)
(d)
(a)
(b)
(c)
(a)
(b)
(1) Confirm its adherence to the principles of equal opportunity and non-discrimination in employment and in contracting;
(2) Describe its policy against discrimination in employment and contracting;
(3) Establish internal procedures to receive and attempt to resolve complaints of discrimination in employment and in contracting, which shall include an opportunity to use alternative dispute resolution techniques, when appropriate;
(4) Establish an effective procedure for accepting, reviewing and granting or denying requests for reasonable accommodations of disabilities from employees or applicants for employment. Publication will include at a minimum making the procedure conspicuously accessible to employees and applicants through print, electronic, or alternative (
(5) Encourage the consideration of diversity in nominating or soliciting nominees for positions on boards of directors;
(6) Require that each contract it enters contains a material clause committing the contractor to practice the principles of equal employment opportunity and non-discrimination in all its business activities and requiring each such contractor to include the clause in each subcontract it enters for services or goods provided to the regulated entity or the Office of Finance;
(7) Be published and accessible to employees, applicants for employment, contractors, potential contractors, and members of the public through print, electronic, or alternative (
(8) Be reviewed at the direction of the officer immediately responsible for directing the Office of Minority and Women Inclusion, or other office designated to perform the responsibilities of this part, at least annually to assess their effectiveness and to incorporate appropriate changes.
(c)
(1) Apply to all contracts entered by the regulated entity or the Office of Finance, including contracts with financial institutions, investment banking firms, investment consultants or advisors, financial services entities, mortgage banking firms, asset management entities, underwriters, accountants, brokers, brokers-dealers, and providers of legal services;
(2) Establish standards and procedures requiring publication of contracting opportunities designed to encourage contractors that are minorities, women, individuals with
(3) Ensure the consideration of the diversity of a contractor when the regulated entity or the Office of Finance reviews and evaluates offers from contractors.
(a)
(1) Within (90) days after the effective date of this regulation each regulated entity and the Office of Finance shall submit to the Director or his or her designee a preliminary status report describing actions taken, plans for and progress toward implementing the provisions of 12 U.S.C. 4520 and this part; and including to the extent available the data and information required by this part to be included in an annual report.
(2) FHFA intends to use the preliminary status report solely as material relating to examining the submitting regulated entity or the Office of Finance and reporting to the institution on its operations and the condition of its program.
(b)
(c)
(d)
(a)
(b)
(1) The EEO-1 Employer Information Report (Form EEO-1 used by the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs to collect certain demographic information) or similar reports filed by the regulated entity or the Office of Finance during the reporting year. If the regulated entity or the Office of Finance does not file Form EEO-1 or similar reports, the regulated entity or the Office of Finance shall submit to FHFA a completed Form EEO-1;
(2) All other reports or plans the regulated entity or the Office of Finance submitted to the Equal Employment Opportunity Commission, the Department of Labor, Office of Federal Contract Compliance Programs or Congress (“reports or plans” is not intended to not include separate complaints or charges of discrimination or responses thereto charges of discrimination) during the reporting year;
(3) Data showing by minority, gender, and disability classification the number of individuals applying for employment with the regulated entity or the Office of Finance in each occupational or job category identified on the Form EEO-1 during the reporting year;
(4) Data showing by minority, gender, and disability classification the number of individuals hired for employment with the regulated entity or the Office of Finance in each occupational or job category identified on the Form EEO-1 during the reporting year;
(5) Data showing by minority, gender and disability classification, and categorized as voluntary or involuntary, the number of separations from employment with the regulated entity or the Office of Finance in each occupational or job category identified on the Form EEO-1 during the reporting year;
(6) Data showing the number of requests for reasonable accommodation received from employees and applicants for employment, the number of requests granted, and the disabilities accommodated and the types of accommodation granted during the reporting year;
(7) Data showing for the reporting year by minority, gender, and disability classification the number of individuals applying for promotion at the regulated entity or the Office of Finance—
(i) Within each occupational or job category identified on the Form EEO-1; and
(ii) From one such occupational or job category to another.
(8) Data showing by minority, gender, and disability classification the number of individuals—
(i) Promoted at the regulated entity or the Office of Finance within each occupational or job category identified on the Form EEO-1, after applying for such a promotion;
(ii) Promoted at the regulated entity or the Office of Finance within each
(iii) Promoted at the regulated entity or the Office of Finance from one occupational or job category identified on the Form EEO-1 to another such category, after applying for such a promotion.
(9) A comparison of the data reported under paragraphs (b)(1) through (b)(8) of this section to such data as reported in the previous year together with a narrative analysis;
(10) Descriptions of all regulated entity or Office of Finance outreach activity during the reporting year to low-income, inner city, minority, women, and disabled populations, including activities to provide financial literacy education, to recruit employees, to solicit or advertise for contractors to provide service to the regulated entity or Office of Finance, or to inform such contractors of the regulated entity's or Office of Finance's contracting process or provide technical assistance for participation in the contracting process, including the identification of any partners, organizations, or government offices with which the regulated entity or the Office of Finance participated in such outreach activity;
(11) Cumulative data separately showing the number of contracts entered with minority or minority-owned businesses, women or women-owned businesses, and disabled or disabled-owned businesses during the reporting year;
(12) Cumulative data separately showing for the reporting year the total amount the regulated entity or the Office of Finance paid to contractors that are—
(i) Minority or minority-owned businesses;
(ii) Women or women-owned businesses; and
(iii) Disabled or disabled-owned businesses.
(13) The annual total of amounts paid to contractors and the percentage of which was paid separately to minority or minority-owned businesses, women or women-owned businesses, and disabled or disabled-owned businesses during the reporting year;
(14) Certification of compliance with §§ 1207.20 and 1207.21, together with sufficient documentation to verify compliance;
(15) Data for the reporting year showing, separately, the number of equal opportunity complaints (including administrative agency charges or complaints, arbitral or judicial claims) against the regulated entity or the Office of Finance that—
(i) Claim employment discrimination, by basis or kind of the alleged discrimination (race, sex, disability, etc.) and by result (settlement, favorable, or unfavorable outcome);
(ii) Claim discrimination in any aspect of the contracting process or administration of contracts, by basis of the alleged discrimination and by result; and
(iii) Were resolved through the regulated entity's or the Office of Finance's dispute resolution procedure.
(16) Data showing for the reporting year amounts paid to claimants by the regulated entity or the Office of Finance for settlements or judgments on discrimination complaints—
(i) In employment, by basis of the alleged discrimination; and
(ii) In any aspect of the contracting process or in the administration of contracts, by basis of the alleged discrimination.
(17) A comparison of the data reported under paragraphs (b)(12) and (b)(13) of this section with the same information reported for the previous year;
(18) A narrative identification and analysis of the reporting year's activities the regulated entity or the Office of Finance considers successful and unsuccessful in achieving the purpose and policy of regulations in this part and a description of progress made from the previous year; and
(19) A narrative identification and analysis of business activities, levels, and areas in which the regulated entity's or the Office of Finance's efforts need to improve with respect to achieving the purpose and policy of regulations in this part, together with a description of anticipated efforts and results the regulated entity or the Office of Finance expects in the succeeding year.
The Director may enforce this regulation and standards issued under it in any manner and through any means within his or her authority, including through identifying matters requiring attention, corrective action orders, directives, or enforcement actions under 12 U.S.C. 4513b and 4514. The Director may conduct examinations of a regulated entity's or the Office of Finance's activities under and in compliance with this part pursuant to 12 U.S.C. 4517.
U.S. Small Business Administration.
Notice of public meetings; request for comments.
The U.S. Small Business Administration (SBA) announces it is holding additional meetings in a series of public meetings on the topic of the proposed changes to the 8(a) Business Development (BD) Program Regulations and Small Business Size Regulations. Testimony and comments presented at the public comment meetings will become part of the administrative record as comments addressing the proposed changes to the regulations pertaining to the 8(a) BD program and small business size standards. In conjunction with the public meetings SBA is conducting tribal consultations prior to the end of the comment period for the proposed rulemaking.
1. January 14, 2010, Miami, FL.
2. January 19, 2010, Los Angeles, CA.
1. Miami, FL—SBA, South Florida District Office, 100 South Biscayne Boulevard, 7th Floor, Miami, FL 33131-2011. (Visitors will be subject to a security screening and might be required to present valid photo identification.)
2. Los Angeles, CA—SBA, Los Angeles District Office, 330 North Brand Blvd., Suite 1200, Glendale, CA 91203. (Visitors will be subject to a security screening and might be required to present valid photo identification.)
Send all written comments to Mr. Joseph Loddo, Associate Administrator for Business Development, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
If you have any questions on this proposed rulemaking, call or email LeAnn Delaney, Deputy Associate Administrator, Office of Business Development, at (202) 205-5852, or
On October 28, 2009 (74 FR 55694-55721), SBA issued a Notice of Proposed Rulemaking (NPRM). In that document, SBA proposed to make a number of changes to the regulations governing the 8(a) BD Program Regulations and several changes to its Small Business Size Regulations. Some of the changes involve technical issues. Other changes are more substantive and result from SBA's experience in implementing the current regulations. In addition to written comments, SBA is requesting oral comments on the various approaches for the proposed changes.
The public meeting format will consist of a panel of SBA representatives who will preside over the session. The oral and written testimony will become part of the administrative record for SBA's consideration. Written testimony may be submitted in lieu of oral testimony. SBA will analyze the testimony, both oral and written, along with any written comments received. SBA officials may ask questions of a presenter to clarify or further explain the testimony. The purpose of the public meetings is to allow the general public to comment on SBA's proposed rulemaking. SBA requests that the comments focus on the proposed changes as stated in the NPRM. SBA requests that commentors do not raise issues pertaining to other SBA small business programs. Presenters may provide a written copy of their testimony. SBA will accept written material that the presenter wishes to provide that further supplements his or her testimony. Electronic or digitized copies are encouraged.
In conjunction with the public meetings SBA is conducting tribal consultations prior to the end of the comment period for the proposed rule-making. The meeting notice for these tribal consultations was published in the
The public meetings will be held on the dates listed below for each location from 9 a.m. to 4 p.m. each day.
* Visitors will be subject to a security screening and might be required to present valid photo identification.
Registration requests must be received on or before the respective deadline by 5 p.m., Eastern Standard Time.
Any individual interested in attending and making an oral presentation shall pre-register in advance with SBA. Registration requests must be received by SBA no later than 5 p.m., Eastern Standard Time. Please see registration information in this section for specific dates. Please contact Ms. Latrice Andrews of SBA's Office of Business Development in writing to register at
For information on facilities or services for individuals with disabilities or to request special assistance at the public meetings, contact Ms. Latrice Andrews at the telephone number or e-mail address indicated under the
15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644 and 662(5); and Pub. L. 105-135, sec. 401
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) that applies to all Boeing Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The existing AD currently requires repetitive detailed inspections of the slat track downstop assemblies to verify that proper hardware is installed, one-time torquing of the nut and bolt, and corrective actions if necessary. This proposed AD would also require replacing the hardware of the down stop assembly with new hardware of the down stop assembly, doing a detailed inspection or a borescope inspection of the slat cans on each wing and the lower rail of the slat main tracks for debris, replacing the bolts of the aft side guide with new bolts, and removing any debris found in the slat can. This proposed AD also would remove airplanes from the applicability. This proposed AD results from reports of parts coming off the main slat track downstop assemblies. We are proposing this AD to prevent loose or missing parts from the main slat track downstop assemblies from falling into the slat can and causing a puncture, which could result in a fuel leak and consequent fire.
We must receive comments on this proposed AD by February 25, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes,
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6440; fax (425) 917-6590.
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
On August 28, 2007, we issued AD 2007-18-52, amendment 39-15197 (72 FR 53928, September 21, 2007), for all Boeing Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. That AD superseded emergency AD 2007-18-51 to require a shorter compliance time for the actions originally required in emergency AD 2007-18-51. AD 2007-18-52 requires repetitive detailed inspections of the slat track downstop assemblies to verify that proper hardware is installed, one-time torquing of the nut and bolt, and corrective actions if necessary. That AD resulted from reports of parts coming off the main slat track downstop assemblies. We issued that AD to detect and correct loose or missing parts from the main slat track downstop assemblies from falling into the slat can and causing a puncture, which could result in a fuel leak and consequent fire.
The preamble to AD 2007-18-52 explains that we consider the requirements “interim action” and were considering further rulemaking. Since we issued AD 2007-18-52, Boeing has modified the hardware of the down stop assembly and the bolts of the aft side guide. The new modifications would terminate the actions required in AD 2007-18-52. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.
We have reviewed Boeing Alert Service Bulletin 737-57A1302, dated December 15, 2008. The service bulletin describes procedures for replacing the hardware of the down stop assembly with new hardware, doing a detailed inspection or a borescope inspection of the slat cans on each wing and the lower rail of the slat main tracks for debris, replacing the bolts of the aft side guide with new bolts, and removing any debris found in the slat can.
We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2007-18-52 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in the Relevant Service Information described previously. The proposed AD would also remove certain airplanes having line numbers 2700 and on from the applicability; these airplanes have a design change incorporated during production, which is an equivalent change to the actions described in the Relevant Service Information.
This proposed AD would retain all requirements of AD 2007-18-52. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
There are about 2,699 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing amendment 39-15197 (72 FR 53928, September 21, 2007) and adding the following new AD:
(a) The FAA must receive comments on this AD action by February 25, 2010.
(b) This AD supersedes AD 2007-18-52.
(c) This AD applies to Boeing Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-57A1302, dated December 15, 2008.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) This AD results from reports of parts coming off the main slat track downstop assemblies. The Federal Aviation Administration is issuing this AD to prevent loose or missing parts from the main slat track downstop assemblies from falling into the slat can and causing a puncture, which could result in a fuel leak and consequent fire.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Paragraph (g) of this AD merely restates the requirements of paragraph (f)(1) of emergency AD 2007-18-51 (which was superseded by AD 2007-18-52). As allowed by the phrase, “unless the actions have already been done,” if the applicable initial inspections required by paragraph (f)(1) of emergency AD 2007-18-51 have already been done, this AD does not require that those inspections be repeated until the repetitive interval of 3,000 flight cycles.
(g) Within 10 days after September 26, 2007 (the effective date of AD 2007-18-52): Do a detailed inspection or a borescope inspection of each main slat track downstop assembly to verify proper installation of the slat track hardware (i.e., the bolt, washers, downstops, stop location, and nut shown in Figure 1 of Boeing Service Letter 737-SL-57-084-B, dated July 10, 2007, and in this AD). Proper installation of the sleeve need not be confirmed, and the stop location part may be installed on either the inboard or the outboard side of the slat track. If any part is missing or is installed improperly, before further flight, install a new or serviceable part using a method approved in accordance with the procedures specified in paragraph (j) of this AD; and do a detailed inspection of the inside of the slat can for foreign object debris (FOD) and damage. Before further flight, remove any FOD found and repair any damage found using a method approved in accordance with the procedures specified in paragraph (j) of this AD. Verify proper installation; install a new or serviceable part; and inspect for damage and FOD, and remove FOD and repair damage, in accordance with a method by approved by the Manager, Seattle Aircraft Certification Office, FAA; or in accordance with Boeing Multi Operator Message Number 1-523812011-1, issued August 25, 2007; or 1-527463441-1, issued August 28, 2007. Repeat the actions required by paragraph (g) of this AD thereafter at intervals not to exceed 3,000 flight cycles.
Paragraph (h) of this AD merely restates the requirements of paragraph (f)(2) of emergency AD 2007-18-51. As allowed by the phrase, “unless the actions have already been done,” if the torque application required by paragraph (f)(2) of AD emergency 2007-18-51 has already been done, this AD does not require that the torque application be repeated.
(h) Within 24 days after receipt of emergency AD 2007-18-51: Apply a torque between 50 to 80 inch-pounds to the nut. The bolt head must be held with the torque applied to the nut.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(i) Within 36 months after the effective date of this AD: Replace the hardware of the down stop assembly with new hardware, do a detailed inspection or a borescope inspection of the slat cans on each wing and the lower rail of the slat main tracks for debris, and replace the bolts of the aft side guide with new bolts, in accordance with the Accomplishment Instructions of Boeing Alert
(j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 2007-18-52 are approved as AMOCs for the corresponding provisions of this AD.
Internal Revenue Service (IRS), Treasury.
Notice of public hearing on proposed rulemaking.
This document provides notice of public hearing on a notice of proposed rulemaking relating to the exclusion from gross income for amounts received on account of personal physical injuries or physical sickness.
The public hearing is being held on Tuesday, February 23, 2010, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the hearing by Tuesday, February 2, 2010.
The public hearing is being held in room 2615, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Send submissions to: CC:PA: LPD:PR (REG-127270-06), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-127270-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit electronic outlines of oral comments via the Federal eRulemaking Portal at
Concerning the regulations, Sheldon A. Iskow at (202) 622-4920; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard A. Hurst at
The subject of the public hearing is the notice of proposed rulemaking (REG-127270-06) that was published in the
Persons who wish to present oral comments at the hearing that submitted written comments must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight (8) copies) by February 2, 2010.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11th and Pennsylvania Avenue, NW. entrance, 1111 Constitution Avenue, NW., Washington, DC.
Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
Postal Regulatory Commission.
Proposed rule; notice of availability of rulemaking petition.
The Postal Service has proposed adjustments to the methodology of a key element in the Parcel Select cost model. If adopted, the adjustments could affect the cost differences between certain Parcel Select price categories. The Commission is establishing a docket to consider this proposal and invites public comment.
Comments are due: January 8, 2010.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202-789-6824 or
On December 22, 2009, the Postal Service filed a petition to initiate an informal rulemaking proceeding to consider changes in the analytical methods approved for use in periodic reporting.
The Postal Service explains that during FY 2009, the Inter-BMC and Intra-BMC price categories of Parcel Select were merged into a “Nonpresort” category. It notes that the Commission approved a conforming change to the mail processing and transportation cost models for Parcel Select/PRS whereby billing determinant data that reflects the mail processing and transportation costs of the new Nonpresort price category are recorded and used.
The Postal Service therefore proposes to recast Quarter 4 billing determinants for the Nonpresort price category to be consistent with the disaggregated classification structure and cost models that prevailed during the first three quarters of FY 2009. It would do this by assigning the Quarter 4 Nonpresort volumes for zones 6 through 8 to the Inter-BMC volume distribution table in the billing determinants. The Quarter 4 Nonpresort volumes for zones 1 through 5 would be assigned to the Inter- and Intra-BMC categories in the same proportion that these categories exhibited in Quarters 1 through 3.
The Postal Service explains that imputing the disaggregated volume distribution of Quarters 1 through 3 to Quarter 4 will approximately annualize the results of the classification structure that prevailed during most of FY 2009. It notes that the overall effect of Parcel Select results will be small because the Inter- and Intra-BMC categories account for a very small proportion of total FY 2009 Parcel Select volume.
Proposal Thirty is a technical change to input data used in the Parcel Select cost models. It is designed to accommodate the transition of Parcel Select to a less disaggregated price structure. It is a one-time adjustment that will have no impact on cost estimation for Parcel Select going forward. The volume affected is small and unlikely to materially influence the financial results for Parcel Select for purposes of the FY 2009 Annual Compliance Report.
The Commission sets January 8, 2010 as the due date for public comments. Since Proposal Thirty does not appear to raise substantive issues, Proposal Thirty will be adopted as a final rule for purposes of reporting FY 2009 results if no adverse public comments are received by that date.
1. The Petition of the United States Postal Service Requesting Initiation of a Proceeding to Consider a Proposed Change in Analytic Principles (Proposal Thirty), filed December 22, 2009, is granted.
2. The Commission establishes Docket No. RM2010-7 to consider the matters raised in the Postal Service's Petition.
3. Interested persons may submit comments on Proposal Thirty no later than January 8, 2010.
4. John Klingenberg is designated to serve as the Public Representative representing the interests of the general public.
5. The Secretary shall arrange for publication of this Notice in the
By the Commission.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of proposed rulemaking.
PHMSA, in consultation with the Federal Aviation Administration (FAA), is proposing to amend requirements in the Hazardous Materials Regulations (HMR) on the transportation of lithium cells and batteries, including lithium cells and batteries packed with or contained in equipment. The proposed changes are intended to enhance safety by ensuring that all lithium batteries are designed to withstand normal transportation conditions. This would include provisions to ensure all lithium batteries are packaged to reduce the possibility of damage that could lead to a catastrophic incident, and minimize the consequences of an incident. In addition, lithium batteries would be accompanied by hazard communication that ensures appropriate and careful handling by air carrier personnel, including the flight crew, and informs both transport workers and emergency response personnel of actions to be taken in an emergency. These proposals are largely consistent with changes made to the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations) and the International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and respond to recommendations issued by the National Transportation Safety Board (NTSB).
Comments must be received by March 12, 2010.
We are proposing a mandatory compliance date of 75 days after the date of publication of a final rule in the
You may submit comments by any of the following methods:
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Charles E. Betts or Kevin A. Leary, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366-8553, or Janet McLaughlin, International & Outreach Division, Federal Aviation Administration, telephone 202-385-4897.
Lithium batteries are hazardous in transportation because they present both chemical (
Lithium batteries fall into one of two basic categories, lithium metal, including lithium alloy (also known as primary lithium batteries), and lithium ion, including lithium ion polymer (also known as secondary lithium batteries). As the name indicates, lithium metal batteries contain a small amount of metallic lithium or a lithium alloy. Batteries of this type are mostly non-rechargeable and these cells and batteries are often used in medical devices, computer memory and as replaceable batteries (AA and AAA size) suitable for electronic devices. The lithium content in these cells and batteries ranges from a fraction of a gram to a few grams and typical geometries include coin cells, cylindrical, and rectangular. Conversely, lithium ion cells and batteries contain a lithium compound (
Once used primarily in industrial and military applications, lithium batteries have become commonplace in consumer electronic devices because they have a much higher energy density compared to their predecessors (
As the demand for lithium batteries increases, so do the risks associated with their transportation, especially on board aircraft. The risk of transporting lithium batteries on-board aircraft increases with the increase in the number of batteries transported by air, given the assumption that the proportion of the number of correctly packaged shipments to the total number of shipments remains constant. In other words, an increase in the number of shipments will result in an increase in the number of incidents even if the incident rate remains the same since the number of incidents is a product of the incident rate and the total number of batteries transported. Moreover, increasing the proportion of flights that transport only one lithium battery shipment introduces a risk where previously there was none. The risk of
The increasing manifestation of these risks, inside and outside of transportation, drives the need for stricter safety standards. Since 1991, PHMSA and the FAA have identified over 40 air transport-related incidents and numerous additional non-transport incidents involving lithium batteries and devices powered by lithium batteries. These incidents occurred, variously, aboard passenger aircraft and cargo aircraft, prior to loading batteries aboard an aircraft, and after batteries were transported by air. Twenty-one of these 44 incidents involved a passenger aircraft. These incidents occurred in the cabin of the airplane, in a passenger's checked baggage, in the cargo area of the airplane or in the airport prior to boarding an aircraft. The incident data suggest overheating or damage to the device occurred immediately prior to the first indications of an incident. The remaining incidents involved lithium batteries transported aboard cargo aircraft. Many of these incidents were attributed to external short circuiting and several packages involved in the incidents were not subject to regulatory requirements for display of hazard communication markings or labels. It is important to note that while each single incident may appear relatively benign and while the overall incident numbers may appear small when compared to the total number of lithium batteries transported by aircraft each year, the incidents illustrate the short circuit and fire risks posed by lithium batteries and the potential for a serious incident that could result if the risks as not addressed through transportation safety controls. The following table shows a breakdown of these incidents:
A list of aviation incidents involving batteries reported to the FAA since 1991 is available through the following URL:
Besides these incidents involving air transportation of lithium batteries, there have been several recalls of lithium batteries used in notebook computers and other consumer commodities. The Consumer Product Safety Commission (CPSC) found that these batteries could spontaneously overheat and cause a fire, because of a manufacturing defect or when the battery is struck forcefully on the corner (
In addition to incidents definitely attributed to lithium batteries, the NTSB investigated a February 7, 2006 incident at the Philadelphia International Airport in which a fire—suspected to have been caused by lithium batteries—destroyed a United Parcel Service cargo aircraft and most of its cargo. While the captain, first officer, and a flight engineer evacuated the airplane after landing, sustaining only minor injuries, the NTSB concluded that flight crews on cargo-only aircraft remain at risk from in-flight fires involving both primary (non-rechargeable) and secondary (rechargeable) lithium batteries. Following the incident investigation, NTSB issued the following recommendations to PHMSA:
Most of the recent lithium battery incidents have been determined to originate from packages in non-compliant shipments of lithium batteries. As a result, many feel that additional regulations will not help lower the number of incidents. PHMSA and FAA believe non-compliance most often arises from confusion concerning the regulatory requirements. This confusion typically results from a lack of proper training. Currently, shippers of small-size lithium batteries are excepted from the training requirements in Subpart H of Part 172 of the HMR. The proposals in this NPRM would require these shippers to train employees who prepare lithium battery shipments for transportation to ensure
The proposals in this NPRM would also subject packages of small-size lithium batteries to well-recognized hazardous materials marking and labeling requirements. These hazard communication provisions will ensure that packages of lithium batteries are placed into a well-established and high-functioning cargo transportation system that provides for more careful handling, more precise record keeping, and more detailed tracking and reporting than is typically provided for non-hazardous cargo.
In addition to markings and labels, the proposals in this NPRM would also require transport documentation to accompany a shipment of small-size lithium batteries. This includes notation of the presence and location of lithium batteries aboard the aircraft on the notice to the pilot in command (NOPIC). This will allow pilots and crew to make appropriate decisions in the event of an emergency. For example, if the flight crew identifies fire or smoke in a location where a lithium battery shipment is stowed, the crew can make an informed decision about the possible severity of the fire, whether the presence of lithium batteries could worsen the fire, and the time available to land the aircraft or take other emergency actions. The NOPIC also allows ground crew, firefighters and first responders to know how they should respond in case of an emergency because they will know not only that there are packages of lithium batteries aboard the aircraft, but also where on the aircraft these packages are located.
The hazardous materials regulatory system has for decades proven its effectiveness in mitigating hazardous materials transportation risk. Shippers and operators understand this system and have included steps in their processes to ensure compliance. However, lithium batteries have largely operated outside of this structure through the use of exceptions. This current exception-based system has created a set of regulations that is not easily understood or enforced. This, coupled with the lack of required training, adds to the difficulty of ensuring compliance. PHMSA and FAA believe the system created specifically for the transportation of hazardous materials is sound and can be used to effectively mitigate the risk posed by lithium batteries in air transportation.
Currently, the HMR address lithium battery transportation safety through design type testing, short circuit protection, limits on battery size, and limits on net and gross weight. The HMR provide exceptions for small cells and batteries often found in consumer electronic devices.
Lithium batteries are regulated as a Class 9 material. Class 9 materials present a hazard during transportation but do not meet the definition of any other hazard class. The HMR prohibit the transport of primary lithium batteries as cargo on passenger aircraft unless packed with or contained in equipment. Packaging and design type testing requirements and exceptions for lithium batteries are found in § 173.185. For transportation by all modes, lithium batteries of all types and sizes must pass applicable tests in the UN Manual of Tests and Criteria. These tests are designed to ensure that the battery can withstand conditions normally encountered in transportation. In addition, the battery must be designed in a manner that precludes a violent rupture and must be equipped with an effective means of preventing external short circuits and a means to prevent reverse current flow if it contains cells that are connected in parallel.
Batteries transported as a Class 9 material must be packaged in combination packagings that conform to the performance standards specified in Part 178 of the HMR at the Packing Group II performance level. In addition, the batteries must be packaged so as to prevent short circuits, including movement that could lead to short circuits. A package containing lithium batteries must be labeled with a Class 9 label and must be accompanied by a shipping paper that describes the lithium batteries being transported and emergency response information. The location and quantity of shipments must also be provided to the pilot in command.
The HMR provide exceptions for lithium batteries based on the battery size and packing method. Generally, shipments of small lithium batteries are excepted from the specification packaging and hazard communication requirements outlined above provided each package containing more than 24 lithium cells or 12 lithium batteries is: (1) Marked to indicate that it contains lithium batteries and that special procedures must be followed if the package is known to be damaged; (2) accompanied by a document indicating that the package contains lithium batteries and that special procedures must be followed if the package is known to be damaged; (3) no more than 30 kilograms gross weight; and (4) capable of withstanding a 1.2 meter drop test in any orientation without shifting of the contents that would allow short-circuiting and without release of package contents. Further, each such package that contains a primary lithium battery or cell forbidden for transport aboard passenger carrying aircraft must be marked “PRIMARY LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT” or “LITHIUM METAL BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT.” The marking, documentation and 1.2 meter drop test requirements described above do not apply when these small cells or batteries are contained in a piece of equipment.
For medium-size lithium batteries and cells transported by motor carrier or rail, the HMR provide exceptions similar to those for small lithium batteries. Under these exceptions, a package containing medium size lithium batteries and cells of all types must: (1) Be marked to indicate it contains lithium batteries and special procedures must be followed if the package is known to be damaged; (2) be accompanied by a document indicating the package contains lithium batteries and special procedures must be followed if the package is known to be damaged; (3) weigh no more than 30 kilograms; and (4) be capable of withstanding a 1.2 meter drop test. For those packages that are not prepared for air shipment, (
The exceptions for small and medium size lithium batteries described above are found in § 172.102 Special Provisions 188 and 189 respectively. Additional exceptions for special cases such as small production runs of batteries and specific aircraft quantity limitations are found in § 172.102, Special Provisions 29, A54, A55, A100, A101, A103, and A104.
The current requirements in the HMR pertaining to the transport of lithium batteries reflect a number of actions taken by PHMSA and FAA in response
• Safety advisories issued by PHMSA to the public (64 FR 36743 [July 7, 1999]; 72 FR 14167 [Mar. 26, 2007]) and by the FAA to the airline industry on July 2, 1999, May 23, 2002 and August 3, 2007 to remind persons that batteries and electrical devices that contain batteries are prohibited for transport unless properly packaged to prevent the likelihood of creating sparks or generating dangerous heat.
• Changes to UN Recommendations in 2000 and the 2003-04 ICAO Technical Instructions based on proposals by the United States which (1) revised battery testing requirements and required testing of small lithium batteries, (2) adopted hazard communication and packaging requirements for small batteries, (3) eliminated an exception for medium-sized batteries, and (4) adopted limited exceptions for passengers and crew to carry lithium batteries and battery-powered equipment aboard an aircraft.
• A series of tests performed by FAA in 2004 concluded that the presence of a shipment of primary lithium batteries can significantly increase the severity of an in-flight cargo compartment fire and the fire suppression systems currently in use aboard passenger aircraft are ineffective.
• PHMSA's December 15, 2004 interim final rule (69 FR 75208, correction, 71 FR 56894 [Sept. 28, 2006]), based on the results of the FAA tests, adopted a limited prohibition on the transportation on passenger-carrying aircraft of primary lithium batteries.
• Further testing by FAA in 2006 concluded that flames produced by secondary lithium batteries and cells are hot enough to cause adjacent cells to vent and ignite, but currently approved fire suppression systems are effective on the electrolyte fire and prevent any additional fire from subsequent cell venting.
• PHMSA's August 9, 2007 final rule (72 FR 44930) finalized the December 15, 2004 interim final rule and (1) adopted design type testing of all lithium batteries in accordance with international standards, and (2) revised the exception for consumer electronic devices and spare lithium batteries carried by passengers and crew. The preamble to this final rule also discussed in more detail some of the prior incidents during transportation of lithium batteries, the FAA testing programs, the recalls of notebook computer batteries, and the rulemaking changes up to that time.
• PHMSA's January 14, 2009 final rule (74 FR 2199) addressed NTSB safety recommendations A-07-106 and A-07-107 by requiring an air carrier, in the event of a serious incident, to make immediately available to an authorized official of a federal, state, or local government agency (including an emergency responder), the shipping papers and notice to pilot in command or the information contained in those documents. This requirement represents a proactive approach to information dissemination similar to that in the ICAO Technical Instructions. This final rule also added a requirement to report all incidents that result in a fire, violent rupture, explosion or dangerous evolution of heat (
• PHMSA and FAA have also conducted a campaign to educate the public about ways to reduce lithium battery transportation risks. On February 22, 2007; April 26, 2007; May 24-25 2007; and April 11, 2008, PHMSA hosted meetings with public and private sector stakeholders who share our concern for the safe transportation of batteries and battery powered devices. The meetings provided an opportunity for representatives of the NTSB, CPSC, manufacturers of batteries and battery powered devices, airlines, airline employee organizations (
The amendments to the HMR adopted since 2004 have produced positive results, but they addressed only very specific issues and specific transport contexts. The proposals outlined in this NPRM are intended to comprehensively address the hazards posed by lithium batteries in all modes of transportation and further reduce the likelihood and the consequences of a battery related fire in transportation. In this NPRM, PHMSA plans to address safety recommendations A-07-104, A-07-105, A-07-108 and A-07-109.
In addition to the safety measures identified in this NPRM, PHMSA and FAA are considering additional safety standards. Many of these additional measures affect multiple transport modes, including aviation. As we develop these concepts we will continue to work with the appropriate international transportation standards-setting bodies, such as the United Nations Subcommittee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) and the International Civil Aviation Organization (ICAO) Dangerous Goods Panel, to encourage their world-wide acceptance. These additional measures may include:
• Establishing a new system for the classification of articles, such as lithium batteries that have the potential to produce heat and fire.
• Determining the feasibility of developing performance standards for fire resistant containers that can be used for the transport of lithium cells and batteries of all types and all other flammable materials on board aircraft.
• Examining the role of packaging in preventing damage and short circuits to lithium cells and batteries.
As previously mentioned, PHMSA and FAA have identified 44 air transport related incidents and numerous additional non-transport incidents involving lithium batteries and lithium battery powered devices. The January 14, 2009 final rule required air carriers to report all incidents that result in a fire, violent rupture, explosion or dangerous evolution of heat that occur as a result of a battery or a battery powered device. In addition to requiring an incident report NTSB, A-07-107 recommends PHMSA require air carriers retain the failed items for evaluation purposes. We have concerns with requiring a person involved in an incident reported under §§ 171.15 or 171.16 to maintain in a secure manner items or packages especially if the item is an airline passenger's property. Such a requirement would impose additional responsibility on the air carrier to maintain possession of the item or package in a secure manner. Currently, when an incident occurs, DOT works with the person in physical possession of the item such as a battery or device
The proposals in this NPRM are intended to address the root causes of lithium battery incidents. The available incident data suggest the most likely causes of lithium battery incidents are:
1.
2.
3.
4.
As noted in the previous section, FAA's Technical Center initiated a series of tests to evaluate the risk posed by lithium batteries involved in an unrelated fire. FAA completed a study in 2004 to assess the flammability characteristics of bulk packed primary lithium batteries and a second study in 2006 examining the flammability characteristics of bulk packed secondary lithium batteries. In both studies the tests were designed to simulate the behavior of the batteries in an environment that is similar to actual conditions possible in an aircraft cargo compartment fire. Both the 2004 and 2006 test reports are available at the following url:
In the case of primary lithium batteries, the FAA tests showed that the packaging materials delayed the ignition of the batteries, but eventually added to the fire and contributed to battery ignition, even after the original (alcohol) fire had been exhausted. In addition, the packaging material held the batteries together, allowing the plastic outer coating to fuse the batteries together. This enhanced the probability of a burning battery igniting adjacent batteries, increasing the propagation rate. The technical report concluded that the presence of a shipment of primary lithium batteries can significantly increase the severity of an in-flight cargo compartment fire. In addition, the report concluded that primary lithium batteries pose a unique threat in the cargo compartment of an aircraft because primary lithium battery fires cannot be suppressed by means of Halon, the only FAA-certified fire suppression system permitted for use in cargo compartments of a passenger-carrying aircraft operating in the United States.
The second study completed in 2006 used a similar methodology to determine the flammability of secondary lithium batteries and cells. The testing demonstrated that flames produced by the batteries are hot enough to cause adjacent cells to vent and ignite. The testing also demonstrated that Halon is effective in suppressing the electrolyte fire and preventing any additional fire from subsequent cell venting. The lithium ion cells will continue to vent due to high temperatures but will not ignite in the presence of Halon.
We are aware of additional testing conducted in 2004 and 2005 independent of the FAA or PHMSA to assess the effect of a battery's state of charge on its overall risk. The 2004 preliminary report titled “Effect of Cell State of Charge on Outcome of Internal Cell Faults” concluded the severity of the result of an internal short circuit is strongly affected by the state of charge. The Draft 2005 report titled “US FAA Style Flammability Assessment of Lithium Ion Cells and Battery Packs in Aircraft Cargo Holds” concluded: (1) Direct flame impingement on small unpackaged quantities of lithium ion cells and battery packs can lead to thermal runaway; (2) Halon 1301 is effective at controlling burning lithium ion cells; (3) the fires had a minimal effect on bulk packaged lithium ion cells with less than 50% state of charge; and (4) the aircraft liner typically used on commercial aircraft is capable of withstanding burning gases discharged from venting lithium ion cells and batteries. A copy of this analysis is available for review in the docket of this rulemaking.
The FAA results with lithium ion batteries at 100% state of charge exposed to a fire showed similar, but more forceful results (
The United Kingdom Civil Aviation Authority completed a report in 2003 titled: “Dealing with In-Flight Lithium Battery Fires in Portable Electronic Devices.” The test results verified the effectiveness of existing fire extinguishing agents in responding to an in-flight fire involving a lithium battery powered portable electronic device. The report also concluded that the safety systems inherent to lithium batteries and battery powered devices decrease the likelihood of a fire, but since there is a potential for a fire, these devices must be considered a potential risk in flight and during ground based operations. If a fire does occur in the aircraft cabin, the force of the explosion is not sufficient to cause structural damage to the aircraft, but there is a risk the fire could spread to adjacent flammable material such as clothing and seats and flames and fumes from burning batteries pose a hazard to passengers in the immediate vicinity.
The UK CAA testing, combined with additional research from the FAA has formed the basis for improved response procedures and cabin crew fire fighting training. Since 2007, the International Federation of Airline Pilots Associations has issued several safety bulletins with updated recommendations for flight crew actions. In March of 2009, the FAA released a training video recreating in-flight scenarios which includes actual lithium battery fires and appropriate response measures. All of these test reports are available for review in the public docket for this rulemaking.
In this NPRM, we propose a number of provisions to enhance the safe transportation of lithium batteries. The proposals are intended to reform the current regulatory framework specific to lithium batteries and strengthen the regulations by eliminating certain exceptions. These revisions will
• Revise current shipping descriptions for lithium batteries (UN3090), lithium batteries packed with equipment (UN3091), and lithium batteries contained in equipment (UN3091) to specify lithium metal batteries
• Adopt shipping descriptions for lithium ion batteries
• Adopt watt-hours in place of equivalent lithium content to measure the relative hazard of lithium ion cells and batteries.
• Incorporate by reference the latest revisions to the United Nations Manual of Tests and Criteria applicable to the design type testing of lithium cells and batteries.
• Adopt and revise various definitions including “Aggregate lithium content” “Lithium content”, “Lithium ion cell or battery”, “Lithium metal cell or battery”, “Short circuit”, and “Watt-hour” based on definitions found in the UN Manual of Tests and Criteria.
• Require manufacturers to retain results of satisfactory completion of UN design type tests for each lithium cell and battery type and place a mark on the battery and/or cell to indicate testing has been completed successfully. PHMSA and the FAA will coordinate with the appropriate international organizations to ensure consistency.
• For air transportation, eliminate regulatory exceptions for lithium cells and batteries, other than certain exceptions for extremely small lithium cells and batteries that are shipped in very limited quantities such as button cells and other small batteries that are packed with or contained in equipment and those required for operational use in accordance with applicable airworthiness requirements and operating regulations.
• For all transport modes, require lithium cells and batteries to be packed to protect the cell or battery from short circuits.
• Unless transported in a container approved by the FAA Administrator, when transported aboard aircraft, limit stowage of lithium cells and batteries to crew accessible cargo locations or locations equipped with an FAA approved fire suppression system.
• Consolidate and simplify current and revised lithium battery requirements into one section of the HMR.
• Apply appropriate safety measures for the transport of lithium cells or batteries identified as being defective for safety reasons, or those that have been damaged or are otherwise being returned to the manufacturer.
In this NPRM, in § 171.21, we propose to require a shipper, carrier, package owner or person reporting an incident under the provisions of §§ 171.15 or 171.16 to provide upon request, by an authorized representative of the Federal, State or local government agency reasonable assistance in investigating the damaged package or article, if available.
Currently, under the HMR, lithium metal batteries and lithium ion batteries share the same UN number. However, differences in chemistry, functionality, and behavior when exposed to a fire are well documented. Based in part on the previously mentioned FAA fire tests, PHMSA imposed additional requirements on lithium metal (primary) batteries including prohibiting them from transportation aboard passenger aircraft, unless packed with or contained in equipment. The fact that both lithium metal and lithium ion batteries share the same UN number yet are regulated differently has the potential to cause problems in acceptance procedures for carriers and may unnecessarily hinder or delay the transportation of these products.
In 2006, the UN Recommendations adopted separate shipping names and ID numbers for lithium metal and lithium ion batteries. The ICAO and the International Maritime Organization subsequently adopted these entries into their respective dangerous goods lists effective January 1, 2009. While the HMR permit the use of the ICAO Technical Instructions and the International Maritime Dangerous Goods (IMDG) Code for international and for domestic transportation when a portion of the transportation is by aircraft or vessel, subsequent domestic reshipping of packages containing lithium batteries remains difficult.
In this NPRM, PHMSA proposes to provide two separate entries in the hazardous materials table for primary lithium batteries, now referred to as “lithium metal batteries” and secondary lithium batteries, now referred to as “lithium ion batteries”. Separate entries for lithium metal and lithium ion batteries will facilitate the transportation of these materials through various modes, both domestically and internationally, and enable the application of different emergency response actions. We will replace all references to “primary lithium batteries” with “lithium metal batteries” and all references to “secondary lithium batteries” with “lithium ion batteries”.
When requirements for lithium ion batteries were first adopted into the HMR, it was necessary to provide an indication of the lithium content in each cell and battery. Since lithium ion batteries do not contain metallic lithium, an expression of lithium content analogous to lithium metal batteries was devised. This term became known as equivalent lithium content (ELC), also known as lithium equivalent content. The ELC of a lithium ion cell measured in grams is calculated to be 0.3 times the rated capacity in ampere hours. The ELC of a lithium ion battery equals the sum of the grams of ELC contained in the component cells of the battery. Although the term equivalent lithium content is used in the HMR, this term is not widely used or understood and can lead to confusion when calculating the ELC of a battery. For
PHMSA proposes to adopt a methodology for determining the relative strengths of lithium ion batteries using measurements of watt-hours rather than ELC. The term watt-hour, expressed as (Wh) is commonly used in electrical applications. The watt-hour value of a lithium ion cell or battery is determined by multiplying a cell or battery's rated capacity in ampere-hours, by its nominal voltage. Therefore, watt-hour (Wh) = ampere-hour (Ah) × Volts (V). This product is easy to calculate for both cells and batteries and the watt-hour measurement is independent of how the component cells within a lithium ion battery are connected.
PHMSA further proposes to replace the term equivalent lithium content, or lithium equivalent content and aggregate equivalent content each place it appears with watt-hour and replace the equivalent lithium content values with their equivalent watt-hour values. These proposals are consistent with proposals already adopted in the UN Recommendations, ICAO Technical Instructions, and IMDG Code.
Each lithium cell or battery is required to be of a type proven to meet the requirements of each test in the UN Manual of Tests and Criteria.
An informal lithium battery working group of the United Nations Subcommittee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) met in November 2008 and again in April 2009 to discuss the test methods relevant to lithium cells and batteries as contained in the UN Manual of Tests and Criteria. The group concluded that while the design type tests outlined in the UN Manual of Tests and Criteria adequately address safety concerns involving lithium cells and batteries, they can be improved based on an evolving understanding and use of lithium battery technology.
Recently, interest in adding an internal short circuit test into the UN Manual of Tests and Criteria has grown. Several different tests have been developed; however, each method has strengths and weaknesses including repeatability and the ability to control the mechanism of the internal short circuit. While no consensus has been reached on this subject, research and discussion continues. Once a reliable internal short circuit test method is developed and incorporated into the UN Manual of Tests and Criteria, we will consider adopting this additional test into the HMR. We invite commenters to address issues related to the development of an internal short circuit test, including recommendations on an appropriate and effective test methodology, real-world experience in applying such a test, and the costs that would be associated with an additional test requirement.
In December 2008, the UN Committee of Experts adopted several amendments to section 38.3 of the UN Manual of Tests and Criteria (fourth revised edition), which we propose to incorporate by reference in § 171.7.
• Modifications to the terms “module” and “battery assembly”, new definitions for the terms “large battery” and “small battery” and modifications to the testing protocol for large batteries and battery assemblies.
• Revised criteria for a different design type by adding additional criteria for rechargeable lithium cells and batteries that would trigger a new round of design-type testing.
Currently, the UN Manual of Tests and Criteria specifies that a change from a tested design type of 0.1 grams or 20% by mass to the anode, the cathode, or electrolyte material constitutes a change in the design of the battery requiring design-type testing. A change that would materially affect the test results is also considered a new design type requiring retesting. While we continue to believe in the importance of harmonization with international standards, we believe a change of 20% by mass to the anode, cathode, or electrolyte material by mass is too high. Additionally, the language referencing a “change that would materially affect the test results” remains too broad and leaves a great deal to interpretation from the individual cell or battery manufacturer or assembler. In this NPRM we propose to require a change of 0.1 grams or 5% by mass to the anode cathode or electrolyte material from a tested design type to constitute a new design and require retesting. Depending on the lithium content, such a change would affect the test results. In addition, we propose to include the examples of changes that could materially affect the test results developed by the informal UN working group. These examples include:
• A change in the material of the anode, the cathode, the separator, or the electrolyte;
• A change of protective devices, including hardware and software;
• A change of safety design in cells or batteries, such as a venting valve;
• A change in the number of component cells;
• A change in connecting mode of component cells.
In recent years, lithium battery technology has been developed for use in electric vehicles, hybrid electric vehicles and plug-in hybrid electric vehicles. The batteries now being utilized in hybrid electric vehicles are assemblies that include systems of electronic controllers, sensors, air flow ducts, cabling, cell mounting fixtures, cells, trays, covers, and attachment brackets and are much larger than lithium batteries found in consumer electronic devices (vehicle battery sizes generally have a gross mass between 14 kg and 80 kg). While the current UN Test standards and the HMR are broad enough in scope to accommodate extremely large batteries and assemblies, some believe the forces required by some of the UN tests are excessive and certain HMR requirements hamper the commercial development of this technology.
The cell and battery design type tests outlined in the UN Manual of Tests and Criteria are generally completed prior to the initial shipment of a battery from the manufacturer. While we believe most cell and battery manufacturers ensure the appropriate tests are conducted and the batteries and devices are safe for use, we remain uncertain that all manufacturers or battery assemblers take such steps or are even aware of the need to test each battery design type. We also remind battery manufacturers and assemblers that each lithium battery design-type is subject to the tests in the UN Manual of Tests and Criteria, even if the cells that make up the battery have been tested.
In this NPRM, we propose to require cell and battery manufacturers to retain evidence of satisfactory completion of each of the lithium cell and battery design type tests outlined in the UN Manual of Tests and Criteria. This evidence must be maintained in a readily accessible location at the principal place of business for as long as the lithium batteries are offered for transportation in commerce and for one year thereafter. Each person required to maintain this evidence must make this information available for inspection by a representative of a federal, state or local government agency. Since cell and battery design type tests already must be completed prior to transport we do not believe this should be a particularly burdensome requirement.
Additionally, we are considering a requirement for a visible quality mark to appear on the outside case of each cell or battery. This mark would signify successful completion of the required lithium battery design type tests in a readily recognizable manner. Visible quality marks on electronic devices are very common. Familiar examples include the UL symbol meaning a particular product has been evaluated and representative samples have been tested by Underwriters Laboratories and those products meet particular requirements for safety and quality. The CE marking certifies compliance with certain European Union Directives. For the purposes of lithium design type testing, we are considering requiring a UN symbol, identical to the symbol currently required on UN packagings and UN cylinders to appear on all cells and batteries that have met each of the design type tests prescribed in the UN Manual of Tests and Criteria. Below is an example of the mark we are considering:
This mark is readily recognized throughout the world and is generally associated with hazardous materials transportation. The intended effect of these new provisions is to promote knowledge of the UN Tests throughout the world and enhance compliance with these important safety standards. We intend to develop proposals for a quality mark and associated documentation for inclusion in the UN Model Regulations and the UN Manual of Tests and Criteria. We invite commenters to address these concepts. Based on comments from the public in response to this notice and discussion with the UN SCOE TDG, we may adopt the UN Marking or a similar mark in the final rule.
As noted above, since October 1, 2009, the HMR except small lithium cells and batteries from most HMR requirements provided the cells or batteries meet the test requirements in the UN Manual of Tests and Criteria and the shipment conforms to minimal packaging and hazard communication requirements (see Special Provision 188 in § 172.102(c)). Consistent with NTSB Safety Recommendation A-07-109, in this NPRM we propose to eliminate the regulatory exceptions for lithium cells and batteries when transported aboard aircraft. Thus, small lithium batteries and cells would be required to be offered for transportation as Class 9 materials and would be subject to the requirements for lithium cells and batteries in § 173.185, including the packaging requirements discussed in the next section and the hazard communication requirements (shipping papers, package marking and labeling) that apply to shipments of Class 9 materials.
In cargo transportation, generally packages are treated as either regulated hazardous materials or non-regulated general cargo. Packages that display a hazardous materials label are typically handled in a separate cargo stream to ensure more direct oversight than non-regulated cargo. Those materials that are regulated as hazardous materials are recognized by handlers, who ensure that proper precautions are taken and the package is handled in accordance with all applicable regulatory requirements.
The proposals outlined in this NPRM have the net effect of moving a discrete number of shipments of lithium cells and batteries that are currently handled as general cargo into the hazardous material transport system. When lithium batteries are offered for transportation as a Class 9 material, the package itself provides a clear indication of the presence of hazardous material that is readily recognized by transport workers and ensures these packages are handled in a manner appropriate to their hazard. This also ensures that individuals responsible for ensuring the safety of these packages are appropriately trained in accordance with the HMR. We believe most air carriers who accept lithium batteries for transportation also accept other hazardous materials for transportation and already have the necessary personnel and procedures in place to handle these packages safely. Thus, the requirement to identify and package lithium batteries as Class 9 materials provides significant safety benefits without imposing large additional costs on air carriers.
Air carriers are required during the certification process to declare in their Operating Specifications if a business decision has been made to “carry hazardous materials” or a business decision has been made “to prohibit the carriage of hazardous material”. Each air carrier who elects to carry hazardous material must include handling procedures, incident reporting procedures, and other information in its operations manual for the appropriate personnel to follow, as well as a hazardous material training program that is approved by FAA and provided every 24 months to all appropriate persons. This training would include recognition of all hazard communication information that would be associated with lithium battery shipments as they are trained to recognize all hazard class labels, marking and documentation.
Under the HMR, materials that pose a specific and serious air transportation
We note the ICAO Technical Instructions include provisions for certain lithium cells and batteries, provided outer packages are marked with a lithium battery handling label. This handling label shown below notes the presence of lithium batteries and communicates a fire hazard if damaged. While this handling label is not specifically authorized by the HMR, we believe that it complements the basic intent of identifying the materials adequately for emergency response and we would permit packages containing lithium batteries to display the lithium battery handling label in addition to the markings and labels required by the HMR. The ICAO lithium battery handling label is displayed below:
The Class 9 label would alert transport workers to the presence of a hazardous material and should result in more careful handling and stowage. Shipping papers would provide written notice to the pilot in command of the presence of lithium batteries and the type, location and number of packages of lithium batteries on board the aircraft. The NOPIC serves as a valuable tool to relay information about the hazardous materials on board an aircraft to first response personnel and provide critical safety information when making decisions in emergency situations. The additional information will also assist carriers in the acceptance and handling of shipments. The hazardous material regulatory system has been effective in mitigating risk for decades. Shippers and carriers understand this system and have included steps in their processes to ensure compliance and safety. Operating outside of the regulatory structure has created a safety environment that is haphazard, at best, and a set of requirements that is not easily understood. The lack of required training only adds to the difficulty. PHMSA and FAA believe the current system for the transportation of hazardous materials is sound and can be used to effectively mitigate the risk posed by the batteries in air transportation.
A requirement for small lithium batteries and cells to be transported as Class 9 materials will have significant safety benefits that will more than offset any additional transportation costs that may result. PHMSA invites comments on the impacts associated with elimination of existing regulatory exceptions and the risk reduction benefits associated with eliminating the exceptions.
To reduce compliance costs and facilitate multimodal transportation without sacrificing safety, in § 173.185(d) we propose to specify provisions for the transportation of lithium cells and batteries by highway, rail and vessel consistent with the IMDG Code. In addition, we propose specific requirements for extremely small batteries with very low energy (
On December 15, 2008, we received a petition (P-1533) from the Air Transport Association of America and the Regional Airline Association requesting we amend the HMR to permit airlines to carry a limited number of small lithium batteries in the aircraft cabin in a constant state of readiness with adequate backup power for the duration of the flight. The petition states such necessary equipment includes electronic flight bags, onboard medical monitoring devices, portable oxygen concentrators, personal entertainment devices and credit card readers. We agree a need exists for airlines to use and maintain certain types of equipment that are increasingly powered by lithium batteries. Under Federal Aviation Regulations, these devices must be approved by the FAA to ensure they will not cause interference with the navigation or communication system of the aircraft on which it is to be used and crew members can safely handle these devices and batteries. In this NPRM we propose to modify § 175.8 to allow other items approved by the FAA Administrator to be used on board an aircraft. FAA will provide additional information published in an upcoming INFO to supplement this requirement.
The risks associated with the transport of lithium cells and batteries are largely a function of the amount of stored energy in a single cell or battery and the number of batteries in a shipment or a package. In addition, factors such as battery chemistry, state of charge, transport mode, type and method of packaging, quality of manufacturing, age, and handling all contribute varying amounts to the overall risks in transportation. Understanding and addressing these risks pose unique challenges to U.S. and international regulatory bodies.
The available incident data suggest external short circuiting is a leading cause of lithium battery incidents. Effective insulation of exposed terminals, designing batteries with recessed terminals and other such measures would help to prevent incidents resulting from external short circuits. To reduce the potential of short-circuiting, in this NPRM we are proposing to require lithium cells and batteries to be transported in inner packagings of combination packagings that completely enclose the cell or battery. The intent of the requirement for inner packaging is to ensure that the conductive terminals of batteries remain isolated from each other. This can be achieved in many ways including individually packing each cell or battery or packing batteries in blister packs commonly found in retail outlets where the batteries would be contained between paperboard card and transparent clear plastic. We continue to stress the intent of the packaging is to protect the batteries from short circuits and damage. The above examples are provided only to enhance understanding of the packaging requirement and not to limit the acceptable packaging methods used for compliance.
For air transportation, the HMR impose per-package weight limitations for lithium cells and batteries. However, there are no limits on the number of packages that may be transported in an overpack, unit load device, or cargo compartment. PHMSA and FAA are concerned about the aggregate risks inherent in transportation situations in which a large number of packages each containing small-sized batteries, are transported in close proximity to one another. Indeed, the risks inherent in the transportation of multiple packages of small-sized batteries may be more serious than the risks associated with a small number of packages containing large-sized batteries. Currently, packages containing up to 24 cells or 12 batteries may be transported without marks or labels indicating the presence of lithium batteries. Further, a single battery shipment may consist of many packages, each of which is excepted from the packaging and hazard communication requirements. An individual battery will pose a fire risk that can be exacerbated by poor packaging and careless handling and, the number of batteries in a shipment can substantially affect the severity of an incident. For example, several thousand small lithium batteries consolidated together may present more significant potential risks than a shipment of a single large lithium battery, because one burning lithium battery can produce enough heat and energy to propagate to other lithium batteries in the same overpack, freight container, or cargo hold.
PHMSA and FAA are aware of one incident that involved a shipment of 120,000 lithium metal batteries contained in small packages, each excepted from the HMR. The pallets containing the packages were mishandled by ground crew personnel, which led to their eventual ignition. Initial attempts to extinguish the fire with water and chemical fire extinguishers were ineffective. More recently, PHMSA and FAA observed an incident involving lithium metal batteries contained in personal disposable vaporizers. The shipment consisted of 40 cartons with each package containing 50 devices. Upon landing at their destination, the flight crew was alerted to a fire in the forward compartment. Fire department personnel successfully extinguished the fire with no injury or damage to the aircraft. These two examples illustrate the potential for a serious incident that could result if the risks are not addressed through transportation safety controls. Both the 2004 and 2006 FAA technical reports show that an increase in the number of batteries involved increases the duration of a fire. Currently, fire suppression systems are not required in all cargo compartments of cargo only aircraft. Therefore, even though Halon fire suppression systems are effective at suppressing a fire involving lithium ion batteries, flight crews on cargo only aircraft remain at risk. In this NPRM we are proposing several actions intended to mitigate this risk. Specifically we propose to prohibit the stowage of lithium batteries in an inaccessible manner unless the inaccessible cargo compartment or freight container is equipped with an FAA approved fire suppression system or the lithium batteries are packaged in an FAA approved fire resistant container. We believe the enhanced packaging and hazard communication combined with loading and stowage limitations will reduce the likelihood of a fire and will mitigate the consequences of such a fire should one occur. We are also considering whether imposing a limit on the number of lithium battery packages transported in a single aircraft, single compartment, unit load device, pallet, or similar overpack would further enhance safety. We invite commenters to address such a limitation, including potential safety benefits, possible cost impacts and operational implications or alternative suggestions for reducing risk. We invite commenters to address methods available to quantify lithium battery risks, and potential risk mitigation techniques and alternatives—either in lieu of, or in addition to, the provisions proposed in this NPRM. Based on the merits of these comments we may consider adoption of additional stowage requirements in the final rule.
At present, requirements on transporting lithium cells and batteries are located in several different special provisions in § 172.102 and in § 173.185. We believe that consolidating in a single section the requirements that apply to these articles, in a manner similar to most other hazardous materials, will promote greater understanding and compliance with the regulations and reduce the potential for undeclared or frustrated shipments.
In this NPRM, PHMSA proposes to consolidate the regulations pertaining to the packaging of lithium batteries primarily by relocating relevant provisions currently contained in special provisions to § 173.185. Additionally, aircraft quantity limitations currently located in § 172.102, Special provisions A100, A101 and A103 will be incorporated into the § 172.101 hazardous materials table (HMT). Consequently, Column 9A of the HMT (passenger aircraft/passenger rail quantity limits) for the entry “Lithium metal batteries, UN3090” will be revised to read “Forbidden” and packages containing lithium metal batteries would be required to display the cargo aircraft only label. We would remove the current requirement found in Special provision 188 to mark packages as forbidden aboard passenger aircraft. However, general requirements applicable to all hazardous materials, such as hazard communication, training, and emergency response information would not be repeated in
The United Parcel Service (UPS) filed a petition for rulemaking on May 11, 2009 (P-1541), requesting an amendment to the HMR specific to the marking of packages containing lithium batteries shipped under the exceptions found in § 172.102(c) Special Provision 189. In its petition, UPS states the markings required by Special provisions 188 and 189 are too similar and can be easily confused. The UPS petition asked PHMSA to develop a pictorial marking that would unambiguously communicate the prohibition of loading packages meeting the exceptions of Special provision 189 aboard aircraft and vessel.
We agree the markings required by Special provisions 188 and 189 are similar and can be confused. As previously described, all packages of small lithium metal batteries (UN3090) would be required to display a Class 9 label and the cargo aircraft only label. We believe the addition of the new proper shipping names specific to lithium ion cells and batteries and the elimination of the exception currently found in § 172.102(c), Special provision 188 effectively eliminates the confusion expressed by the petitioner.
We are aware of situations in which damaged or recalled batteries are required to be returned to the manufacturer. Product recalls or returns may occur for a variety of reasons including a consumer product recall in cooperation with the CPSC, a defective product that failed during field tests or a battery or device involved in an incident. In this NPRM we are proposing requirements for transporting such articles based on requirements developed for competent authority approvals and previously developed guidance. We propose to limit transport of damaged or defective batteries to highway and rail transport only. Where rail or highway transport is impracticable, we will work with FAA to develop air shipping protocols under Competent Authority Approvals on a case-by-case basis.
This NPRM represents another step in our continuing efforts to increase the safety controls applicable to the transportation of lithium batteries. This NPRM is part of a larger effort to comprehensively address the risks posed by the transportation of lithium batteries primarily those lithium batteries shipped as cargo. This NPRM does not impact lithium batteries carried by a passenger or crewmember in checked or carry-on baggage. PHMSA has taken steps to address this safety issue through several initiatives, including a battery safety public awareness campaign targeting airline passengers and infrequent battery shippers, focused enforcement with the goal of maximum compliance, and research into appropriate fire detection and suppression and containment methods.
Since 2007, PHMSA has been working with air carriers, battery manufacturers, air travel associations, airline pilot and flight crew associations and other government agencies, including the Transportation Security Administration, to educate the public about potential safety problems and measures that will reduce or eliminate those problems. PHMSA agrees that these efforts must be highly visible and continuous to be effective. One of the most visible programs to promote battery safety is the SafeTravel Web site, which includes guidance and information on how to travel safely with batteries and battery-powered devices. We have also been working with the major airlines, travel and battery industries to provide SafeTravel information for ticketed passengers and frequent flyers, and place printed battery safety materials in seat pockets on passenger planes. We have recorded several million hits on our SafeTravel Web site. PHMSA continues to maintain and update the SafeTravel Web site as new information becomes available and is currently in the process of a major revision to the site. TSA includes SafeTravel information and links on its popular public Web site and FAA has issued Travel Tips and FAQs on Batteries Carried by Airline Passengers with a link to the SafeTravel Web site. This material illustrates appropriate means for airline passengers to safely handle and protect their portable electronic devices and spare batteries. The goal is to educate the flying public to play a part in ensuring air transportation safety. Application of the measures set forth in this guidance would likely have prevented at least some of the incidents involving lithium batteries in a passenger's checked or carry-on baggage.
PHMSA continues to pursue other initiatives targeting infrequent shippers of lithium batteries. In March, 2009, PHMSA published a guidance booklet called “Shipping Batteries by Air: What You Need to Know.” This booklet describes the requirements applicable to the air shipment of all battery types including lithium batteries in easy to understand terms and is intended to assist infrequent shippers. PHMSA and FAA continue to collect battery incident data to enhance our understanding of the causes of lithium battery failures and have conducted several effective investigations of battery shippers. PHMSA seeks comments on the impact of the proposals in this NPRM on infrequent shippers, and seeks data on the number of shipments, types of shipments, costs incurred by these shippers. PHMSA also seeks comments on how communication of the requirements for travelers and infrequent shippers could be improved.
PHMSA and FAA believe that, if adopted, the provisions of this NPRM will significantly enhance the safe transportation of lithium batteries by aircraft. Therefore, we are considering requiring compliance with the provisions of the final rule no later than 75 days after its publication in the
This proposed rule is published under the following statutory authorities:
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.
2. 49 U.S.C. 44701 authorizes the Administrator of the Federal Aviation Administration to promote safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security. Under 49 U.S.C. 40113, the Secretary of Transportation has the same authority to regulate the
This proposed rule is a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was formally reviewed by the Office of Management and Budget. This proposed rule also is a significant rule under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The following sections address the costs and benefits of the measures adopted in this proposed rule.
In developing this NPRM, PHMSA considered several regulatory alternatives including (1) a do nothing approach, (2) imposing Class 9 requirements on all lithium battery shipments, (3) adopting the latest requirements of the ICAO Technical Instructions for all lithium battery shipments and (4) adopting certain provisions of options (2) and (3). In this NPRM we adopted alternative (4). This alternative combines many of the safety elements described in Alternative 2 while harmonizing with international regulatory standards to create a more complete regulatory solution. Under the proposed regulations, we will minimize the regulatory exceptions for lithium batteries transported by aircraft. Specifically, certain extremely small lithium batteries packed with or contained in equipment that do not pose an unreasonable risk in transport would not be subject to the HMR, and we would maintain an exception for specifically packaged lithium batteries transported by highway and rail only. All other lithium cells and batteries must be transported as fully regulated Class 9 material, and will be required to be packaged in combination packages. Each inner packaging must be packed into an outer package meeting the Packing Group II performance standard. This is expected to result in new costs associated with packaging, hazard communication, cargo stowage and training requirements. We expect two primary industry groups will be most directly affected by the proposals in this NPRM: (1) Manufacturers and distributors of all types of lithium batteries (including electronic device manufacturers); and (2) passenger and cargo air carriers. The costs of implementing the new rules come to approximately $9.3 million for the first year; using a constant 7% discount, the 10-year projected costs for the proposed rule come to $70.2 million. PHMSA invites commenters to address the assumptions in the regulatory evaluation, and to provide supporting data related to battery shipments which would be covered by this proposal. Specifically, data on the size distribution, value distribution, end usage, and number of batteries by type of shipment and mode of transportation—as well as any other data that would assist in validating impact estimates for this proposal, including quantification of costs and how these costs would be distributed across the lithium battery supply chain. PHMSA also invites comments on the diversion of shipments from air to other modes of transportation (due to the proposed elimination of regulatory exceptions), including the impacts this diversion will have on cost and length of shipments, and the nature of these shipments that would be impacted. In addition to data related to quantification of costs, PHMSA invites comments and data related to the quantification of risk, and risk-reduction benefits.
The regulatory evaluation does not include costs associated with handling charges that are sometimes imposed by air carriers on hazardous materials shipments. PHMSA believes the net cost of the handling fee is zero; cash is transferred from one affected industry group—shippers—to another industry group—carriers. The shipper incurs the surcharge to compensate the carrier for the enhanced service involved with transporting a hazardous materials package. Moreover, the dynamics of this market make it difficult to conclude that
The principal anticipated benefits associated with this proposed rule are a reduction in the risk of an aircraft cargo compartment fire that involves lithium batteries becoming a catastrophic fire that can threaten the entire aircraft. While the risk of this type of incident is small, PHMSA has determined that, if adopted, the proposals in this NRPM will generate benefits for system users by reducing that risk. Our data shows an average of about three lithium battery incidents aboard aircraft per year. The total costs of an incident can vary greatly, from under $500 for a minor incident to hundreds of millions of dollars should an incident result in the loss of an aircraft and cargo. To calculate benefits we assumed that under the current regulations and battery-market growth trends, we will observe approximately three incidents per year and assume the average loss of $4.4 million per incident. We anticipate benefits to be approximately $13.2 million per year. Starting with 2008, the annual cost of $9.3 million and benefit of $13.2 million have been discounted at a 7% annual rate to project a total cost of $70.2 million and total benefit of $99.2 million, for an overall benefit-cost ratio of 1.41, clearly demonstrating the utility of the proposed regulation. A regulatory evaluation is available for review in the public docket for this rulemaking.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule preempts State, local and Indian tribe requirements but does not impose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local and Indian tribe requirements on the following subjects:
(1) The designation, description, and classification of hazardous material;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and
(5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or
This proposed rule addresses subject items (1), (2), (3), and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard.
This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
Two types of businesses are likely to incur costs associated with compliance with the provisions of this NPRM—manufacturers and distributors of lithium batteries and manufacturers of equipment using lithium batteries. Unless alternative definitions have been established by the agency in consultation with the Small Business Administration (SBA), the definition of “small business” has the same meaning as under the Small Business Act. Since no such special definition has been established, we employ the thresholds published by SBA for industries subject to the HMR. For this analysis, we identified 60 small businesses that manufacture and/or distribute lithium metal or lithium-ion batteries or cells and are potentially affected by the NPRM. Additionally, we identified 2,179 businesses that manufacture or distribute electronics shipped with lithium metal or lithium-ion batteries.
The compliance costs to small businesses subject to the provisions in the NPRM are costs primarily related to packaging for lithium battery shipments. As detailed in the regulatory evaluation, incremental costs are expected to range from $0.02 to $0.09 per cell for those shipments that are currently excepted from specification packaging requirements. We estimate that small businesses will make 69,876 shipments per year for which more robust packaging will be required; each shipment will average about 200 cells. Using the mid-range incremental packaging cost estimate of $0.04 per cell, a small business will incur an incremental cost of about $8 per shipment. The total incremental packaging cost is $559,008 per year or about $250 per small entity per year.
Small entities will also incur increased costs related to training. These costs are estimated to total $98 per small entity per year.
We have prepared and placed in the docket a regulatory impact analysis (RIA) addressing the economic impact of this rule. The RIA includes qualitative discussions and quantitative measurements of costs related to implementation of this rule.
Based on this analysis, I certify that the provisions of this NPRM, if adopted, would not have a significant impact on a substantial number of small entities.
PHMSA currently has an approved information collection under Office of Management and Budget (OMB) Control Number 2137-0034, “Hazardous Materials Shipping Papers and Emergency Response Information” with an expiration date of May 31, 2011. PHMSA believes this proposed rule will result in an increase in the annual burden of this information collection.
Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it is approved by OMB and displays a valid OMB control number. Section 1320.8(d), Title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests.
This notice identifies a revised information collection request that PHMSA will submit to OMB for approval based on the requirements in this proposed rule. PHMSA has developed burden estimates to reflect changes in this proposed rule, and estimates the additional information collection and recordkeeping burden as proposed in this rule to be as follows:
PHMSA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.
Requests for a copy of this information collection should be directed to: Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (PHH-10), Pipeline and Hazardous Materials Safety Administration, Room E24-426, 1200 New Jersey Ave., SE., Washington, DC 20590-0001, telephone (202) 366-8553.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more, adjusted for inflation, to either State, local or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule.
The National Environmental Policy Act (NEPA), §§ 4321-4375, requires Federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations order Federal agencies to conduct an environmental review considering (1) the need for the proposed action, (2) alternatives to the proposed action, (3) probable environmental impacts of the proposed action and alternatives, and (4) the agencies and persons consulted during
Under this alternative, the current regulatory scheme applicable to lithium batteries would continue in place. We rejected this alternative because newly identified safety risks would not be addressed.
Under this alternative, we would eliminate the current regulatory exceptions for small lithium batteries and require their shipment as fully regulated Class 9 materials. The current packaging requirement for these excepted batteries (a package meeting the general packaging requirements of Subpart B of Part 173 and capable of withstanding 1.2 meter drop test in any orientation) would be replaced by a requirement to package the batteries in UN specification packaging conforming to the Packing Group II performance level. The current marking applicable to packages containing these excepted batteries would be replaced with a CLASS 9 label and proper shipping name, UN ID number mark, and the CARGO AIRCRAFT ONLY label, as appropriate.
In addition, each shipment would be accompanied by shipping papers and emergency response information, documentation that is currently not required for excepted battery shipments. In addition, eliminating the regulatory exceptions would require notification to the pilot in command of the presence of lithium batteries, the number of packages, and their stowage location. Under this alternative, the ban on the transport of lithium metal batteries aboard passenger aircraft would continue. The maximum quantities that may be offered for transportation in one package aboard passenger and cargo only aircraft would remain unchanged at 5 kg and 35 kg respectively.
We rejected Alternative 2. While it would address many of the safety issues associated with the transportation of lithium batteries, Alternative 2 does not represent a comprehensive regulatory solution. Moreover, Alternative 2 does not address critical international harmonization issues.
Under this alternative, PHMSA would amend the HMR to harmonize transportation requirements for lithium batteries with requirements in the ICAO Technical Instructions, as follows: (1) The current exception for small lithium batteries would be retained; (2) for excepted shipments, the watt-hour rating for the batteries would be marked on the outside case and the package would be required to have a new lithium battery handling label in place of the current mark; (3) package weight limitations applicable to different lithium battery types would be revised; and (4) for lithium metal batteries, each package would be allowed to contain up to 2.5 kg of net lithium content per package when surrounded by cushioning material and packaged in rigid metal outer packaging.
We rejected Alternative 3. Although it harmonizes the HMR with international requirements applicable to lithium batteries, it does not address safety issues associated with small batteries nor does it limit the weight of batteries that may be carried in inaccessible compartments on cargo aircraft. Our data and research suggest that the severity of a fire involving lithium batteries is proportional to the number of batteries involved in the fire.
Under this alternative, PHMSA would adopt the new and revised regulatory provisions summarized in the discussion of Alternatives 2 and 3 above. In addition, we would adopt requirements for the transport of recalled or defective batteries.
Alternative 4 is the selected alternative. This alternative combines many of the safety elements described in Alternative 2 while harmonizing with international regulatory standards to create a more complete regulatory solution. This alternative will minimize the regulatory exceptions for lithium batteries transported by aircraft. Specifically, with the exception of incident reporting requirements, certain extremely small lithium batteries packed with or contained in equipment that do not pose an unreasonable risk in transport would not be subject to the HMR, and we would maintain an exception for specifically packaged lithium batteries transported by highway and rail only. All other lithium batteries would be fully regulated Class 9 materials. These lithium batteries would be packed in UN specification packaging conforming to the Packing Group II performance level and appropriately marked and labeled consistent with Part 172. Each shipment of lithium batteries would be accompanied by shipping papers, emergency response information, and a notice to the pilot in command. Further, we would limit the manner in which lithium batteries may be stowed on cargo aircraft. Finally, under this alternative, the requirements applicable to lithium batteries would be harmonized with international standards to the extent possible consistent with our overall safety goals, thereby enhancing safety and facilitating transportation of these critical energy devices.
Releases of hazardous materials, whether caused by accident or deliberate sabotage, can result in explosions or fires. Radioactive, toxic, infectious, or corrosive hazardous materials can have short- or long-term exposure effects on humans or the environment. Generally, however, the hazard class definitions are focused on the potential safety hazards associated with a given material or type of material rather than the environmental hazards of such materials.
Lithium is the lightest solid metal. It can be absorbed into the body by inhalation of its aerosol and by ingestion and is corrosive to the eyes, the skin and the respiratory tract. Lithium reacts violently with strong oxidants, acids and many compounds (hydrocarbons, halogens, halons, concrete, sand and asbestos) causing fire and explosion hazard. In addition, it reacts with water, forming highly flammable hydrogen gas and corrosive fumes of lithium hydroxide. Lithium hydroxide represents a potentially significant environmental hazard, particularly to water organisms. Lithium metal batteries contain no toxic metals.
Lithium ion batteries contain an ionic form of lithium but no lithium metal. Lithium ion batteries do not pose an environmental hazard and are safe for disposal in the normal municipal waste stream. While other types of batteries include toxic metals such as cadmium, the metals in lithium ion batteries—cobalt, copper, nickel and iron—are considered safe for landfills or incinerators.
The measures proposed in this NPRM will reduce the risks to people and the environment posed during transportation of lithium metal and lithium ion batteries by ensuring that the batteries will withstand conditions normally encountered in transportation; packaged to reduce the possibility of damage that could lead to an incident and minimize the consequences of an incident; and ensure packages of lithium batteries are accompanied by hazard information that ensures appropriate and careful handling by air carrier personnel and informs transport workers and emergency response personnel of actions to be taken in an emergency.
Lithium batteries are a key part of strategies to develop greener technologies to power many different applications from automobiles to cell phones and computers. The measures proposed in this NPRM will facilitate the safe transportation of lithium metal and lithium ion batteries across national boundaries, thereby supporting more widespread use of these batteries as alternatives to other types of energy sources that have adverse environmental impacts. We have preliminarily concluded that there are no significant environmental impacts associated with proposed amendments in this final rule.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA participates in the establishment of international standards to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not exclude imports that meet this objective. Accordingly, this rulemaking is consistent with PHMSA's obligations under the Trade Agreement Act, as amended.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, we propose to amend 49 CFR Chapter I as follows:
1. The authority citation for part 171 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2641 note); Pub. L. 104-134, section 31001.
2. In § 171.7, in the paragraph (a)(3) table, the entry “UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, Fourth revised edition, (2003), and Addendum 2, (2004)” is revised to read as follows:
(a) * * *
(3)
3. In § 171.8:
1. The definition for “Equivalent lithium content” is removed.
2. The definitions for “Lithium cell or battery”, “Lithium ion cell or battery”, “Lithium metal cell or battery”, “Short circuit” and “Watt-hour” are added in appropriate alphabetical order.
3. The definitions for “Aggregate lithium content” and “Lithium content” are revised.
The additions and revisions, in appropriate alphabetic order, read as follows:
(1) For a lithium metal or lithium alloy cell the mass in grams of lithium or lithium alloy in the anode, and
(2) For a lithium metal or lithium alloy battery, the sum of the grams of lithium content contained in the component cells of the battery.
(3) For a lithium ion cell or battery, see the definition for “Watt-hour”.
4. In § 171.12, paragraphs (a)(6) is revised to read as follows:
(a) * * *
(6)
(i) The provisions of this paragraph (a)(6) do not apply to packages that contain 5 kg (11 pounds) net weight or less lithium metal cells or batteries that are contained in or packed with equipment (UN3091).
(ii) Lithium cells and batteries with a lithium content of not more than 0.3 grams or a watt-hour rating of not more than 3.7 Wh packed with or contained in equipment are not subject to any other requirements of this subchapter except for the requirements in §§ 171.15 and 171.16 applicable to the reporting of incidents.
5. Section 171.21(a) is revised to read as follows:
(a) A person reporting an incident under the provisions of § 171.15 or § 171.16 must:
(1) Give an authorized representative of the Federal, State or local government agency reasonable assistance in the investigation of the incident; (
(2) Give an authorized representative or special agent of the Department of Transportation reasonable assistance in the investigation of the incident; and
(3) Upon request, provide an authorized representative or special agent of the Department of Transportation reasonable access to the damaged package or article, if available.
6. In § 171.24, paragraphs (d)(1)(ii) and (d)(1)(iii) are revised to read as follows:
(d) * * *
(1) * * *
(ii)
(A) Lithium cells and batteries meeting the provisions found in Section II of Packing Instructions 965 through 970 must be offered for transportation and transported in accordance with the provisions of this subchapter;
(B) Lithium metal cells and batteries (UN3090) are forbidden for transport aboard passenger-carrying aircraft.
(
(
(iii)
7. In § 171.25, paragraph (b)(3) is revised to read as follows:
(b) * * *
(3) Lithium cells and batteries—
(i) Transported in accordance with Special Provision 188 of the IMDG Code may be offered for transportation and transported by highway, rail or vessel only. Additionally, each package must be marked “LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT” on a background of contrasting color. The marking must be durable, legible and of such a size relative to the package as to be readily visible.
(ii) Lithium cells and batteries of a design type proven to meet the criteria of Class 9 in Subsection 38.3 of the UN Manual of Tests and Criteria with a lithium content of not more than 0.3 grams or a watt-hour rating of not more than 3.7 Wh packed with or contained in equipment are not subject to any other requirements of the subchapter except for the requirements in §§ 171.15 and 171.16 applicable to the reporting of incidents.
8. The authority citation for part 172 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
9. In § 172.101, the Hazardous Materials Table is amended by removing and adding entries in the appropriate alphabetical sequence, to read as follows:
10. In § 172.102, in paragraph (c)(1), Special Provisions 134 and 157 are revised; Special Provisions 29, 188, 189, and 190 are removed; and in paragraph (c)(2), Special Provisions A54, A55, A100, A101, A103, and A104 are removed.
The revisions read as follows:
(c) * * *
(1) * * *
134 This entry only applies to vehicles, machinery and equipment
157 This entry includes hybrid electric vehicles powered by both an internal combustion engine and wet, sodium or lithium batteries installed. Vehicles containing an internal combustion engine must be consigned under the entry “Vehicle, flammable gas powered” or “Vehicle, flammable liquid powered”, as appropriate.
11. The authority citation for part 173 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
12. Section 173.185 is revised to read as follows:
(a)
(i) Be of a design type proven to meet the criteria of Class 9 in Sub-section 38.3 of the UN Manual of Tests and Criteria (IBR; see § 171.7 of this subchapter).
(A) A lithium cell or battery that differs from a tested design type would be considered a new design type and would be required to be retested:
(
(
Note to paragraph (a)(1)(i)(A): The type of change that might be considered to differ from a tested type, such that it might lead to failure of any of the tests, may include but is not limited to:
(B) Each person who manufactures lithium cells or batteries must maintain a record of satisfactory completion of these tests prior to offering the cell or battery for transport and must make this record available, upon request, to an authorized official of a Federal, State, or local government agency at reasonable times and locations. Each person who manufactures lithium cells or batteries must retain this record for as long as that lithium battery design type is offered for transportation and for one year thereafter.
(ii) Incorporate a safety venting device or otherwise be designed in a manner that will preclude a violent rupture under conditions normally incident to transportation.
(iii) Be equipped with an effective means to prevent dangerous reverse current flow (
(iv) Be equipped with an effective means of preventing external short circuits and the evolution of a dangerous amount of heat (
(2)
(i) Lithium cells or batteries, including lithium cells or batteries packed with or contained in equipment, must be packaged in a manner to prevent short-circuiting, generation of sparks, or a dangerous quantity of heat. Examples of acceptable packaging methods include but are not limited to the following: Packaging each battery or each battery powered device in fully enclosed inner packagings made of non-conductive material; separating batteries and battery powered devices in a manner to prevent contact with other batteries, devices, or conductive materials (
(ii) Lithium cells or batteries must be packaged in combination packagings conforming to the requirements of part 178, subparts L and M, of this subchapter at the Packing Group II performance level. The lithium cell or battery must be packed in inner packagings that completely enclose the cell or battery. The inner packagings must be packed within one of the following outer packagings: Metal boxes (4A or 4B); wooden boxes (4C1, 4C2, 4D, or 4F); fiberboard boxes (4G); solid plastic boxes (4H2); fiber drums (1G); metal drums (1A2 or 1B2); plywood drums (1D); plastic jerricans (3H2); or metal jerricans (3A2 or 3B2).
(3) Except as provided in paragraph (e) of this section, cells and batteries with a liquid cathode containing sulfur dioxide, sulfuryl chloride or thionyl chloride may not be offered for transportation or transported if any cell has been discharged to the extent that the open circuit voltage is less than two volts or is less than
(4) Cells and batteries with lithium content of not more than 0.3 grams or a watt-hour rating of not more than 3.7 Wh that meet the requirements of paragraph (a) that are packed with or contained in equipment in accordance with paragraphs (b) or (c) of this section are not subject to any other requirements of the subchapter except for the incident reporting requirements in §§ 171.15 and 171.16.
(b)
(1) The cells or batteries must be packed to prevent short circuits, including shifting that could lead to short circuits. The equipment and the packages of cells or batteries must be further packed in a strong outer packaging.
(2) The package may contain no more than the number of lithium cells or batteries necessary to power the piece of equipment plus two spare cells or batteries.
(c)
(1) The equipment must be packed in a strong outer packaging that is waterproof or is made waterproof through the use of an inner packaging or a liner unless the equipment is made waterproof by nature of its construction.
(2) The package may contain no more than the number of lithium cells or batteries necessary to power the piece of equipment plus two spare cells or batteries. The additional cells or batteries must be packaged in
(3) If package contains cells or batteries in equipment and other cells or batteries packed with equipment, the package must be marked with the proper shipping name “Lithium metal batteries packed with equipment” or “Lithium ion batteries packed with equipment” as appropriate.
(d)
(1) For a lithium metal cell, the lithium content is not more than 1 g per cell and the aggregate lithium content is not more than 2 g per battery and, for a lithium ion cell or battery, the watt-hour rating is not more than 20 Wh per cell and not more than 100 Wh per battery. These limits may be increased to 5 g per lithium metal cell or 25 grams per lithium metal battery and 60 Wh per lithium ion cell and 300 Wh per battery when transported by highway or rail only;
(2) Cells or batteries are separated or packaged in a manner to prevent short circuits and are packed in a strong outer packaging or are contained in equipment;
(3) Except when contained in equipment, each package containing more than 4 lithium cells or 2 lithium batteries must be capable of withstanding a 1.2 meter drop test in any orientation without damage to cells or batteries contained in the package, without shifting of the contents that would allow short circuiting and without release of package contents;
(4) Each package must be marked “LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD AIRCRAFT” on a background of contrasting color. The marking must be durable, legible and of such a size relative to the package as to be readily visible and include any special procedures that should be followed if the package is damaged;
(5) Each shipment consisting of one or more packages must be accompanied by a document indicating that the package contains lithium batteries and any special procedures that should be followed if the package is damaged; and
(6) The net weight of lithium batteries or cells in the package may not exceed 30 kg (66 pounds).
(e)
(f)
(1) The cells or batteries are individually packed in an inner packaging, surrounded by cushioning material that is non-combustible and non-conductive; and
(2) The cells or batteries are packed in an outer packaging that is a metal, plastic or plywood drum (1A2, 1H2, 1D) or a metal, plastic or wooden box (4A, 4B, 4H1, 4H2, 4C1 or 4C2) that meets the criteria for Packing Group I packagings
(g)
(h)
(i)
13. In § 173.219, paragraph (b)(3) is revised as follows:
(b) * * *
(3)
14. In § 173.220, paragraphs (d) and (e) are revised as follows:
(d)
(2) Equipment (other than vehicles, engines or mechanical equipment) containing lithium batteries, must be described as “Lithium metal batteries contained in equipment” or “Lithium ion batteries contained in equipment”, as appropriate, and transported in accordance with § 173.185.
(e)
(2) Equipment (other than vehicles, engines or mechanical equipment) containing lithium batteries must be described as “Lithium metal batteries contained in equipment” or “Lithium ion batteries contained in equipment”, as appropriate, and transported in accordance with § 173.185.
15. The authority citation for part 175 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
16. In § 175.8, add a new paragraph (a)(4) to read as follows:
(a) * * *
(4) Items containing hazardous materials used by the operator aboard the aircraft when approved by the Administrator of the Federal Aviation Administration.
17. In § 175.10, paragraph (a)(17) is revised to read as follows:
(a) * * *
(17) Except as provided in § 173.21 of this subchapter, portable electronic devices (for example, watches, calculating machines, cameras, cellular phones, laptop and notebook computers, camcorders, etc.) containing dry cells or dry batteries (including lithium cells or batteries) and spare dry cells and batteries for these devices, when carried by passengers or crew members for personal use. Each installed or spare lithium battery must be of a type proven to meet the requirements of each test in the UN Manual of Tests and Criteria, and each spare battery must be individually protected so as to prevent short circuits (by placement in original retail packaging or by otherwise insulating terminals, e.g., by taping over exposed terminals or placing each battery in a separate plastic bag or protective pouch) and carried in carry-on baggage only. In addition, each installed or spare battery must not exceed the following:
(i) For a lithium metal battery, a lithium content of not more than 2 grams per battery; or
(ii) For a lithium-ion battery, a rating of not more than 100 Wh, except that up to two batteries with a watt hour rating of more than 100 Wh but not more than 300 Wh may be carried.
18. In § 175.75, the last sentence of paragraph (c) and paragraph (e)(1) are revised to read as follows:
(c) * * * The requirements of this paragraph do not apply to ORM-D materials or Class 9 materials, except that lithium batteries, including lithium batteries packed with or contained in equipment may be loaded in an inaccessible manner only if they are packaged in an container approved by the FAA Administrator for such use or carried in a Class C cargo compartment.
(e) * * *
(1) Class 3, Packing Group III, materials that do not meet the definition of another hazard class, Division 6.1 materials except those also labeled FLAMMABLE, Division 6.2, Class 7, or ORM-D materials; Class 9 materials, except that lithium batteries, including lithium batteries packed with or contained in equipment may be loaded in an inaccessible manner only if they are packaged in a container approved by the FAA Administrator for such use or carried in a Class C cargo compartment.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement international conservation and management measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT), Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), Northwest Atlantic Fisheries Organization (NAFO), Western and Central Pacific Fisheries Commission (WCPFC), Inter-American Tropical Tuna Commission (IATTC), and the Agreement on the International Dolphin Conservation Program (AIDCP). The measures pertain to vessels that have been identified by these regional fishery management organizations (RFMOs) as having engaged in illegal, unregulated, and unreported (IUU) fishing activities and included on their respective IUU vessel lists. As a party to these RFMOs, the United States is obligated to take certain actions against the listed IUU vessels in a manner consistent with our laws and policies. This proposed rule would clarify the domestic processes by which the United States intends to meet these obligations. Specifically, it would implement obligations to restrict entry into any port or place of the United States and access to port services by vessels on the IUU vessel lists of the aforementioned RFMOs. It would also prohibit the provision by persons and business entities subject to U.S. jurisdiction of certain services to, and commercial transactions with, such vessels. NMFS is seeking public comment on the proposed rule.
Written comments must be received by February 25, 2010.
Written comments on this action, identified by RIN 0648-AW09, may be submitted by any of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at
• Mail: Mi Ae Kim, Trade and Marine Stewardship Division, Office of International Affairs, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
All comments received are a part of the public record and will generally be posted to
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 portable document file (pdf) formats only.
Mi Ae Kim, Trade and Marine Stewardship Division, Office of International Affairs, NMFS (phone 301-713-9090, fax 301-713-9106, or e-mail
The effective management of marine fisheries resources, including highly migratory species, fish stocks that migrate between or occur in both the exclusive economic zone (EEZ) of one or more nations and the high seas, and discrete high seas stocks, depends on compliance with the applicable conservation and management measures of regional fisheries management organizations (RFMOs) and domestic laws. To promote compliance with such conservation and management measures and combat IUU fishing, several RFMOs of which the United States is a member have adopted binding measures that establish both procedures for identifying vessels engaged in IUU fishing activities and actions to be taken against such vessels. See IUU Vessel Listing Procedures section below for explanation of how vessels are listed or delisted from RFMO IUU vessel lists. The International Commission for Conservation of Atlantic Tunas (ICCAT), Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), Northwest Atlantic Fisheries Organization (NAFO), Western and Central Pacific Fisheries Commission (WCPFC), Inter-American Tropical Tuna Commission (IATTC), and the Agreement on the International Dolphin Conservation Program (AIDCP; the AIDCP is not an RFMO per se, but is referred to as such for the purposes of this action) adopted measures that include closure of ports or markets to vessels that the RFMOs identified as having engaged in IUU fishing activities and included on their respective list of IUU vessels. Such measures can act as a strong deterrent to engage in, or provide support to vessels that engage in, IUU fishing by reducing the profitability of such activities.
The United States is obligated as a member of the RFMOs listed above to undertake specific actions to address IUU fishing activity pursuant to the following measures:
• ICCAT Recommendation 06-12 as amended by Recommendation 07-09 - Recommendation by ICCAT amending the Recommendation by ICCAT to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT Convention Area,
• CCAMLR Conservation Measure 10-06 - Scheme to promote compliance by Contracting Party vessels with CCAMLR conservation measures,
• CCAMLR Conservation Measure 10-07 - Scheme to promote compliance by non-Contracting Party vessels with CCAMLR conservation measures,
• NAFO Conservation and Enforcement Measure Chapter VI - Scheme to promote compliance by non-contracting party vessels with recommendations established by NAFO,
• WCPFC Conservation and Management Measure 2007-03 - Conservation and management measure to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the western and central Pacific Ocean,
• IATTC Resolution C-05-07 - Resolution to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the eastern Pacific Ocean, and
• AIDCP Resolution A-04-07 - Resolution to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the Agreement Area.
NMFS is proposing these regulations pursuant to its authority to administer and enforce the statutes that implement the conventions of the RFMOs mentioned above. Statutes that authorize rulemaking to implement RFMO conservation and management measures include the Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971
At the time of this rulemaking, a total of approximately 90 vessels were listed on the IUU vessel lists of the five RFMOs to which the United States is a party. AIDCP has not developed an IUU vessel list at this time. The procedures for listing and delisting vessels are described below. The lists include mostly harvesting and transport vessels. The United States, however, is generally not a destination for foreign fishing vessels because of the Nicholson Act (46 U.S.C. 55114). Under the Nicholson Act, administered by U.S. Customs and Border Protection, foreign vessels are generally prohibited from unloading fish and fish product that were harvested or taken onboard on the “high seas” in any U.S. port, with the exceptions of unloading in ports in the U.S. territories of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands; certain landings in the U.S. Virgin Islands; and landings pursuant to certain conventions to which the United States is a party. Because the United States is, for the most part, not an offloading port for foreign harvesting vessels, the proposed regulations would primarily concern transport vessels included on the relevant IUU vessel lists.
Table 1 summarizes the measures that parties to the RFMOs are required to implement per the previously-referenced RFMO measures. While there are differences in the specific obligations, the RFMOs share the goal of combating IUU fishing.
NMFS is proposing a single set of regulations to clarify domestic implementation of IUU vessel list measures under the relevant RFMOs and to facilitate better enforcement of those measures. The regulations describe the actions that the United States will take, consistent with its international obligations, with respect to foreign, listed IUU vessels. Foreign vessels include vessels not entitled to fly the flag of the United States and vessels operated under the authority of a country other than the United States.
These regulations detail the authorities of the Assistant Administrator for Fisheries (Assistant Administrator) to take actions against a listed IUU vessel in accordance with the
These regulations also specify the prohibitions applicable to listed IUU vessels as well as for those persons or entities subject to the jurisdiction of the United States who may consider business relationships with listed vessels. NMFS, in particular the Office of Law Enforcement, will cooperate with the U.S. Coast Guard, U.S. Customs and Border Protection, and other state and Federal agencies as appropriate in the implementation of the rule.
The following describes each section of this proposed rule and the basis for the proposed regulatory text.
To ensure clarity of the terms used in the proposed rule, definitions are included for landing, processing, and transshipping. The text of the RFMO conventions, the implementing statutes, and regulations related to the RFMOs were considered in developing these regulatory definitions. “Landing” and “transshipping” were defined in some of the documents, but “processing” was not. “Landing” is defined in the CCAMLR regulations (50 CFR 300.101) and in the IATTC regulations (50 CFR 300.21). “Transshipping” is defined in the IATTC regulations (50 CFR 300.21), WCPFC statute and treaty (16 U.S.C. 6901(11) and Part 1, Article 1(h) of the treaty), and CCAMLR regulations (50 CFR 300.101). The definitions for this rule are intentionally broad to capture a broad range of activities that may be covered by the relevant RFMO measures.
“Listed IUU vessel” is also defined to identify the specific vessels to which the rule applies. Listed IUU vessel is defined as a vessel that appears on a final IUU vessel list adopted or approved by an RFMO to which the United States is a party.
This proposed rule would allow the Assistant Administrator to deny a foreign, listed IUU vessel entry into ports or places subject to the jurisdiction of the United States, except in cases of
Currently, as described in more detail below, most foreign-flagged vessels are required to submit a notice of arrival to the Coast Guard when entering a port or place of the United States. The notice of arrival from a listed IUU vessel will trigger an interagency consultation. The Assistant Administrator will take the results of the interagency consultation into consideration when making a determination on whether to deny a listed IUU vessel entry into a U.S. port. For example, a vessel on NAFO's IUU vessel list may be allowed entry into port for inspection if the Assistant Administrator determines, in consultation with other agencies, that inspection of the vessel is necessary to verify its identity. As many IUU vessels conceal their name and/or identification number (such as the call sign or Lloyds/International Maritime Organization number) and information on IUU vessels lists is often incomplete, an inspection may be necessary to verify that the vessel is in fact the one included on the relevant IUU list.
Vessels flying the flag of the United States would not be prohibited from port entry by the proposed rule in the event such a vessel becomes listed on an RFMO IUU vessel list. Rather, the United States will exercise its authority as a flag state to address the IUU fishing activities of U.S. vessels. The conservation and management measures adopted by the RFMOs to which the United States is a party obligate the United States to take action against its vessels and, where applicable, its nationals for activities that violate or contravene such measures. NOAA's authority to take this action comes from the statutes implementing the international fisheries agreements to which the United States is party. The United States satisfies its obligation by promulgating, and subsequently enforcing, the regulations implementing those statutes. For example, for ICCAT fisheries, regulations are generally promulgated under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801
The range of enforcement actions that the United States is authorized to take against its nationals is established by the language of the statutes themselves. In general, U.S. fisheries law allows for imposition of civil monetary penalties and permit sanctions (including suspension and revocation of permits), forfeiture of vessels and catch, and criminal penalties for certain violations. NMFS has determined that exercising its flag state authority is a more effective means of addressing IUU activity by U.S. flagged vessels than denial of port privileges.
For any foreign vessel on an IUU vessel list that enters the United States, the proposed rule would allow the Assistant Administrator to (1) conduct inspections of the vessel, (2) deny the vessel port services, including, but not limited to, refueling, resupplying, and disembarking or embarking crew, and (3) prohibit the vessel from conducting commercial transactions, including, but not limited to, transshipping and landing product. As with denial of port entry, the proposed rule provides the Assistant Administrator with discretion to consider, on a case-by-case basis, which of the above actions to take against the listed IUU vessel. Such a decision would take into account the provisions in the relevant RFMO conservation and management measure, consultations with other agencies as appropriate, and any other relevant factors.
NMFS believes that the flexible approach in the proposed rule is appropriate given the differences in the various RFMO measures (see Table 1). Vessel inspections are required by the conservation measures of CCAMLR and WCPFC. The NAFO measure states that a port State member can allow a vessel entry into its ports for the purpose of conducting an investigation. The ICCAT, IATTC and AIDCP measures do not explicitly require inspections. However, as a sovereign State, the United States has broad authority independent of RFMO measures to inspect a vessel that is in a U.S. port or place, including vessels listed by ICCAT, NAFO, IATTC, and AIDCP. Especially where applicable law allows for the sharing of information gathered during inspections with RFMOs and foreign governments, port and at-sea inspections serve as a critical tool in the effort to combat IUU fishing.
As for denial of port services, ICCAT and WCPFC conservation measures state that refueling and resupply are not to be authorized. CCAMLR measures also require all non-emergency support to be prohibited. Similarly, NAFO calls for prohibitions on the supply of provisions, fuel and other services to, and change of crew on, listed IUU vessels except in cases of force majeure. IATTC and AIDCP measures do not include such prohibitions. The proposed rule could result in the denial of port services (e.g., refueling, resupplying, disembarking and embarking crew) to all foreign vessels on the ICCAT, WCPFC, CCAMLR, and NAFO IUU vessel lists, with certain exceptions essential to the safety, health, and welfare of the crew or in cases of
The proposed rule would also allow the Assistant Administrator to prohibit listed IUU vessels from engaging in commercial transactions, such as transshipping and landing, in accordance with applicable provisions of RFMO conservation and management measures. According to the measures of IATTC, AIDCP, ICCAT, and WCPFC, listed IUU vessels are to be prohibited from transshipping or landing product. The measures of CCAMLR and NAFO do not specify these prohibitions. However, in the CCAMLR measure, listed IUU vessels that are granted port access are to be inspected and, where possible, their catch confiscated. In the NAFO measure, listed IUU vessels are to be denied entry into ports and landings of fish from listed IUU vessels are to be prohibited. Although the NAFO measure does not explicitly require a prohibition on transshipments by listed vessels, it does prohibit members' vessels from participating in any transshipment with listed IUU vessels. NMFS believes that the proposed rule is consistent with the intent of the CCAMLR and NAFO measures. Under the proposed rule, the prohibition on commercial transactions would apply broadly to vessels on the CCAMLR and NAFO IUU vessel lists, as well as those on the IUU vessel lists of IATTC, AIDCP, ICCAT, and WCPFC. Providing the Assistant Administrator with broad authority to prohibit all listed IUU vessels from transshipping or landing product in any U.S. port or place would facilitate enforcement and therefore is necessary and appropriate to carry out the purpose of the relevant RFMO conservation measures.
The proposed rule prohibits a foreign, listed IUU vessel from entering any port or place subject to the jurisdiction of the United States if it was denied entry by the Assistant Administrator. It also prohibits such vessels from obtaining port services or engaging in commercial transactions if such activities have been denied.
The proposed rule would make it unlawful for any person subject to the jurisdiction of the United States to engage in commercial transactions with a listed IUU vessel, unless authorized to do so by the Assistant Administrator. Such transactions include, but are not limited to:
• Transshipment,
• Processing fish harvested or landed by a listed vessel or processing fish using a listed vessel,
• Joint fishing operations,
• Providing supplies, fuel, crew, or otherwise supporting a listed vessel, or
• Chartering or entering into a chartering arrangement.
Except for the measures of IATTC and AIDCP, the RFMO conservation measures require that their members ensure that fishing vessels, support vessels, mother ships and cargo vessels flying their flags do not support, resupply, or participate in any transshipment or joint fishing operations with vessels on the IUU lists. NAFO further requires members to ensure that such vessels do not engage in fish processing operations with a vessel on their IUU vessel list. All six RFMO measures require that chartering of listed vessels be prohibited (see Table 1). Except for CCAMLR and NAFO, the RFMO measures also require prohibiting commercial transactions involving species covered by the RFMO with listed IUU vessels. While there are differences between the RFMO measures, NMFS is proposing a broad approach: the proposed rule would prohibit all of the above activities, irrespective of which IUU vessel list a vessel is on, subject to the exception spelled out below. NMFS believes that this approach would facilitate compliance by U.S. persons by simplifying what actions must not occur with any vessels on the IUU vessel lists of these RFMOs. In addition, this approach would serve to prevent U.S. persons from being implicated with listed IUU vessels and, thereby, possibly prevent U.S.-flagged vessels from being considered for inclusion on IUU vessel lists.
Recognizing that there are differences between RFMO measures, an exception has been added so that the prohibitions listed in § 300.304(c) would not apply to persons that provide port services to, or engage in other prohibited transactions with, a listed IUU vessel that enters a port or place subject to the jurisdiction of the United States following a decision by the Assistant Administrator to allow the vessel to access port services or engage in commercial transactions. As the Assistant Administrator may allow certain port services for certain listed IUU vessels, in accordance with the relevant RFMO conservation measures, the prohibitions would not apply to those persons who engage in commercial transactions with a listed IUU vessel if the Assistant Administrator has authorized such activities, including in cases of force majeure and where the Assistant Administrator has determined that such services are essential to the safety, health, and welfare of the crew.
The proposed rule would apply the prohibitions on commercial transactions with listed IUU vessels to all persons subject to the jurisdiction of the United States rather than to U.S.-flagged vessels. RFMO measures of ICCAT, CCAMLR, NAFO, and WCPFC specify prohibitions of specific commercial activities (e.g., transshipment, joint fishing operations, support, and re-supply) for several vessel types, but IATTC, AIDCP, ICCAT, and WCPFC also include prohibitions on commercial transactions that are not specific to vessels. The proposed rule applies generally to persons, which will simplify and thus facilitate enforcement and ensure more effective implementation of the various RFMO measures.
As shown on Table 1, the RFMOs also obligate the United States to take the following measures as a flag state:
• Deny the U.S. flag to listed IUU vessels (required by all RFMOs),
• Prohibit issuing a license to listed IUU vessels to fish in waters under U.S. jurisdiction (required by CCAMLR and NAFO),
• Prohibit imports of species managed by the RFMO from listed IUU vessels (required by all RFMOs),
• Encourage dealers, importers, transporters and others involved to refrain from transactions in, and transshipment of, covered species from listed IUU vessels (required by all RFMOs), and
• Collect and exchange information with the aim of searching for, controlling and preventing false import/export certificates for species managed by the RFMO from listed IUU vessels (required by all RFMOs).
These measures either have been or, if appropriate, will be implemented by the United States in separate regulatory and non-regulatory actions. With respect to the first bullet, U.S. flags are granted by the U.S. Coast Guard. NMFS will coordinate with the appropriate Coast Guard office to ensure that listed vessels are not granted the U.S. flag. With respect to the second bullet, foreign vessels would not be granted a license to fish unless the United States, through the Department of State, entered into a governing international fishery agreement and at this time the only such agreement is with Russia. This governing international fishery agreement includes cooperation between the United States and Russia to address illegal or unregulated fishing activities on the high seas in the North Pacific Ocean and Bering Sea. With respect to the third bullet, the RFMO measures require prohibitions on conducting commercial transactions, imports, landings, and transshipment of species managed by RFMOs from listed vessels. As described earlier, this proposed rule would prohibit persons subject to U.S. jurisdiction from engaging in commercial transactions, which can include landings from, and transshipment with, listed IUU vessels. The prohibition on imports from IUU vessels has already been implemented for ICCAT-managed species (50 CFR 635 Subparts D and E). Similar prohibitions for species managed by other RFMOs may be incorporated into the respective implementing regulations, as necessary. The last two bullet items (m and n in Table 1) are not regulatory in nature. NMFS conducts outreach and encourages U.S. fishing and support industries to consult RFMO IUU vessel lists before making commercial arrangements with listed vessels and, specifically, to avoid providing to IUU vessels any support or services that are prohibited by the relevant RFMO (item m in Table 1). As for collecting and exchanging information with the aim of searching for, controlling, and preventing false import/export certificates for covered species from listed vessels (item n in Table 1), the United States is a founding and active member of the International Monitoring, Control, and Surveillance Network, which works multilaterally to exchange fisheries and enforcement information.
ICCAT, CCAMLR, NAFO, WCPFC, IATTC, and AIDCP use similar criteria and procedures for listing and delisting vessels (see the respective conservation and management measures available on the RFMO websites). The process for listing and delisting vessels can span several months, involving notifications to RFMO members and non-contracting parties, gathering of information, and consideration of the information at RFMO meetings. These RFMOs may list vessels that engaged in activities that undermine the effectiveness of conservation and management measures, such as:
• Fishing in an RFMO's management (or convention) areas without authorization,
• Failing to record or declare their catches, or making false reports,
• Using prohibited fishing gear in contravention of conservation measures, or
• Transshipping with, or participating in joint operations with, re-supplying, or re-fueling vessels included in IUU vessel lists.
Each RFMO seeks information from member countries and other entities about vessels that violate any relevant conservation and management measures. In the case of ICCAT, CCAMLR, NAFO, and WCPFC, a flag state that has a vessel that allegedly engaged in IUU activity is provided notice about the submittal of information to the RFMO for consideration of its inclusion on the IUU vessel list. The Executive Secretary, Director, or other RFMO official uses all submitted information to compile a draft list of IUU vessels by a pre-determined time specific to their RFMO (except NAFO, which compiles a provisional list but not a draft list). The draft list and supporting information are then provided to all members of the RFMO and to the nation of the vessel presumed to have carried out the IUU activity. Using information sent in response to the draft list, a provisional list of IUU vessels is compiled and distributed to members along with supporting information prior to an RFMO's annual meeting. Decisions to adopt the provisional IUU list are determined during the annual meetings. Decisions on removal of vessels from the list adopted the prior year are also made at the annual meeting. However, in the case of ICCAT and WCPFC, vessels can also be removed outside of the annual meetings. Additionally, ICCAT and NAFO may add vessels outside of the annual meetings on the grounds that they have been listed by another RFMO. Adoption of IUU vessel lists is governed by procedural rules of each RFMO.
Generally, an RFMO will remove vessels from its provisional or final IUU vessels lists if the vessels are determined not to have taken part in IUU fishing or if effective action has been taken in response to the IUU fishing in question, such as prosecution and imposition of sanctions of adequate severity. Other factors that could also lead to removal of a vessel from an RFMO's IUU vessel list include a change in vessel ownership where the new owner can establish that the previous owner no longer has any legal, financial, or real interests in the vessel or exercises control over it and the new owner has not participated in IUU fishing.
Given that the RFMO annual meetings occur at different times of the year (generally IATTC and AIDCP in June, NAFO in September, CCAMLR at the end of October and early November, ICCAT in November, and WPCFC in December) the composition of the lists changes throughout the year. The websites of each RFMO should be
NMFS is coordinating with the U.S. Coast Guard (USCG) to ensure these regulations are compatible with Coast Guard operations. Coast Guard regulations require foreign vessels to give notice prior to entering a U.S. port or place of destination (defined in 33 CFR 160.204 as any port or place in which a vessel is bound to anchor or moor). Generally, all foreign vessels greater than 300 gross tons must provide notice of their arrival at least 96 hours in advance, in accordance with 33 CFR 160.212(a)(3). The vessels are required to report electronically the vessel name, voyage, cargo, crewmembers, and other information to the Coast Guard's National Vessel Movement Center (NVMC) at least 96 hours before entering the port or place of destination. The Coast Guard is in the process of modifying the regulation to eliminate the exception for foreign vessels less than 300 gross tons (73 FR 76295, December 16, 2008).
When the NVMC receives a notice of arrival, NVMC staff examines the information and then transmits the relevant information to Customs and Border Protection and to the Coast Guard Captain of the Port. NMFS will provide the IUU vessel lists and any changes made thereto, along with other relevant information, to the Coast Guard for inclusion in their maritime domain monitoring system. For any vessels on RFMO IUU vessel lists, the Coast Guard would notify NMFS and the Department of State of the impending arrival. Such notification would trigger interagency consultations, among, at a minimum, the Department of State, Coast Guard, and NMFS to determine the most appropriate course of action in light of RFMO requirements.
Due to interjurisdictional issues related to the proposed rule, NMFS is also coordinating with the Department of State, Customs and Border Protection, the Office of the U.S. Trade Representative and other relevant agencies and offices on this rulemaking.
NMFS maintains an internet website where internet links to relevant conservation measures and IUU vessel lists can be found
This proposed rule is published under the authority of the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities of the United States. The following elements should be included in an IRFA: a description of the action, why it is being considered, the legal basis for the action, description and where feasible an estimate of the number of small entities to which the action applies, description of the projected reporting, record-keeping and other compliance requirements, and an identification of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule. The action, why it is being considered, and its legal basis are described in detail earlier in the preamble. There are no new reporting or recordkeeping requirements contained in this action. This proposed rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules. The remaining IRFA elements are described below.
The proposed rule allows the NMFS Assistant Administrator to deny a listed IUU vessel entry into a port or place of the United States, in accordance with applicable provisions of RFMO conservation and management measures. The proposed rule also allows the Assistant Administrator, in accordance with applicable provisions of RFMO conservation and management measures, to prohibit certain transactions, such as transshipping with, processing fish using, or supplying provisions or fuel to IUU vessels. The following is the analysis of the economic impacts on small entities.
The proposed rule would apply to U.S. entities that engage in or could engage in commercial transactions with vessels that are on the final IUU vessel lists adopted or approved by ICCAT, CCAMLR, NAFO, WCPFC, IATTC, and AIDCP. Such transactions include: (1) engaging in transshipment with a listed IUU vessel, (2) processing fish harvested or landed by a listed IUU vessel or processing fish using a listed IUU vessel, (3) participating in joint fishing operations with a listed IUU vessel, (4) providing supplies, fuel, crew, or otherwise support a listed IUU vessel, or (5) chartering or entering into a chartering arrangement with a listed IUU vessel.
If this proposed rule goes into effect, U.S. entities (i.e., persons, businesses) would not be able to legally conduct business with vessels that are on the IUU vessel lists of RFMOs to which the U.S. is a party, subject to certain exceptions. The potential for transactions between these entities and
In the aggregate, approximately 90 vessels are listed as IUU vessels by IATTC, ICCAT, CCAMLR, NAFO, and WCPFC. To date, none of these vessels are flagged to the United States. According to information recently compiled by Pew Environment Group, about 87 percent of all the vessels listed by the six RFMOs to which the United States is a party are harvesting vessels (
Coast Guard data show that only two listed IUU vessels have ever come into U.S. ports. The lack of port visits by listed IUU vessels, or foreign fishing vessels generally, indicates an extremely low likelihood of transactions between U.S. entities and listed IUU vessels. Coast Guard holds records of notices of arrivals and departures from commercial vessels. The records are for vessels measuring 300 gross tons or greater, except for the foreign vessels that entered any port or place in the Seventh Coast Guard District (includes South Carolina, most of Georgia and Florida, Puerto Rico, and U.S. Virgin Islands) where all vessels, irrespective of their capacity, must provide such notices. The requirements for notices of arrival are under 33 CFR part 160 subpart C. The non-harvesting vessels that are on the IUU vessel lists are over 300 gross tons, in which case, most arrivals by these vessels would be contained in the Coast Guard database. That database shows that two listed IUU vessels arrived in U.S. ports in 2007. This was a negligible portion of the total 135,499 arrival notices submitted to the Coast Guard by 12,148 commercial vessels that same year.
With regard to the possible economic effects of this action, NMFS anticipates that U.S. entities would not be significantly affected by this action because they should be able to offset lost business opportunities by conducting business with non-listed vessels. Thus, small entities would not be significantly affected by the prohibitions in the proposed rule.
A no-action alternative, where NMFS would not promulgate the proposed rule, was analyzed. This alternative to the proposed rule may demonstrate the least burden or economic impact to small entities. However, the financial risks associated with business transactions with listed IUU vessels likely have already caused U.S. entities to avoid such business transactions. The RFMOs adopted their IUU vessel list measures several years a go, and NMFS has advised U.S. entities of the potential ramifications of conducting business with a listed IUU vessel as the United States and other countries are obligated to carry out RFMO IUU vessel measures, such as port entry restrictions. Even under the no-action alternative, listed IUU vessels that transport fish product from the United States may not be able to deliver that product to any country that has implemented the relevant RFMO conservation and management measures.
NMFS does not expect a substantial number of small entities to be affected by the proposed rule because arrival attempts by listed IUU vessels into the ports or places of the United States are so few in number. Thus, only a handful of potential transactions would likely be affected as a result of this proposed rulemaking. For any entities that could be affected, NMFS expects that the proposed rule would not have a significant economic impact because the number of legal vessels entering the United States would far exceed the number of listed IUU vessels that could attempt to enter the United States.
Fisheries, Fishing, Fishing vessels, Illegal, unreported or unregulated fishing, Foreign relations, Treaties.
For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:
1. Subpart P is added to part 300 to read as follows:
16 U.S.C. 971
(a) This subpart implements internationally-agreed measures pertaining to foreign vessels determined to have engaged in illegal, unregulated, and unreported (IUU) fishing and placed on IUU vessel lists of the:
(1) International Commission for the Conservation of Atlantic Tunas (ICCAT),
(2) Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)
(3) Northwest Atlantic Fisheries Organization (NAFO),
(4) Western and Central Pacific Fisheries Commission (WCPFC),
(5) Inter-American Tropical Tuna Commission (IATTC), and
(6) Parties to the Agreement on the International Dolphin Conservation Program (AIDCP).
(b) For purposes of this subpart, the above organizations are referred to as regional fishery management organizations (RFMOs). Each of these RFMOs adopts or approves an IUU vessel list in accordance with their respective rules and procedures. The lists are publicly available at each RFMO's website. The regulations in this subpart apply to all persons subject to the jurisdiction of the United States wherever they are.
In addition to the terms defined in § 300.2, the terms used in this subpart have the following meanings.
The Assistant Administrator may, in accordance with applicable provisions of RFMO conservation and management measures, deny a foreign, listed IUU vessel entry to any port or place subject to the jurisdiction of the United States, except in cases of
If a foreign, listed IUU vessel is allowed to enter a port or place subject to the jurisdiction of the United States, the Assistant Administrator may, in accordance with applicable provisions of RFMO conservation and management measures, take one or more of the following actions:
(a) Inspect the vessel;
(b) Deny the vessel access to port services, including but not limited to refueling, resupplying, or disembarking or embarking of crew; or
(c) Prohibit the vessel from engaging in commercial transactions including, but not limited to, transshipping or landing product.
(a) It is unlawful for a foreign, listed IUU vessel denied entry under § 300.302 to enter any port or place subject to the jurisdiction of the United States.
(b) It is unlawful for any foreign, listed IUU vessel to obtain port services or engage in commercial transactions, or attempt to obtain such services or engage in such transactions, if such activities have been denied or prohibited under § 300.303(b) and/or § 300.303(c) or if the vessel has been denied entry under § 300.302.
(c) It is unlawful for any person, without prior authorization from the Assistant Administrator, to engage in commercial transactions with listed IUU vessels. Such transactions include, but are not limited to:
(1) Transshipment;
(2) Processing fish harvested or landed by a listed IUU vessel or processing fish using a listed IUU vessel;
(3) Joint fishing operations;
(4) Providing supplies, fuel, crew, or otherwise supporting a listed IUU vessel; or
(5) Chartering or entering in a chartering arrangement with a listed IUU vessel.
(d) The prohibitions listed in § 300.304(c) shall not apply when the Assistant Administrator has authorized a listed IUU vessel to access such port services or engage in such commercial transactions, in accordance with applicable provisions of RFMO conservation and management measures, including in cases of force majeure and where the Assistant Administrator has determined that such services are essential to the safety, health, and welfare of the crew.
Forest Service, USDA.
Notice of new fee site and solicitation of comments.
The Grand Mesa, Uncompahgre and Gunnison (GMUG) National Forests proposes to begin charging fees for the overnight rental of three cabins including the Matterhorn Guard Station, the Lone Cone Guard Station and the Alpine Guard Station. Rental of cabins on the GMUG National Forests and other National Forests of Colorado is very popular and shows that the public appreciates and enjoys the use and availability of historic rental cabins. Funds from the rentals will be used for the continued operation and maintenance of the rental cabins. The Matterhorn Guard Station is located in T41N, R9W, Section 5, NMPM, and the Lone Cone Station is located in T42N, R12W, Section 23, NMPM; both are in the Norwood Ranger District. The Alpine Guard Station is located in T46N, R5W, Section 24, NMPM, on the Gunnison Ranger District.
The sites are expected to become available for rent July 2010. Comments, concerns or questions about this new fee must be submitted by June 30, 2010.
Submit written comments, concerns or questions about the new fee for cabin rentals to Grand Mesa, Uncompahgre and Gunnison National Forests, Attn: Cabin Rental Program, 2250 Highway 50, Delta, Colorado 81416.
Kathy Peckham, Norwood Recreation Staff Officer, 970-327-4261 for the Matterhorn and Lone Cone Stations; or Leigh Ann Hunt, Forest Archaeologist, 970-874-6691 for the Alpine Guard Station.
The Federal Lands Recreation Enhancement Act (Title VIII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six-month advance notice in the
This is an addition to the GMUG National Forest's existing cabin rental program. Other cabin rentals on the GMUG and other National Forests in Colorado are often fully booked throughout the rental season. The GMUG National Forest proposes to rent the cabins for $100 to $350 a night, but will conduct a market analysis to determine if the fees are both reasonable and acceptable for this unique recreation experience. People wanting to rent the cabins will need to make advance reservations through the National Recreation Reservation Service at
Import Administration, International Trade Administration, Department of Commerce.
Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-4697.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspension of investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with section 351.213 of the Department of Commerce (“the Department”) Regulations, that the Department conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, except for the review of the antidumping duty order on Wooden Bedroom Furniture from the People's Republic of China (A-570-890), the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review (“POR”).
If the Department limits the number of respondents selected for individual examination in the administrative review of the antidumping duty order on wooden bedroom furniture from the People's Republic of China (A-570-
Not later than the last day of January 2010,
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters.
Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to
As explained in
Six copies of the request should be submitted to the Assistant Secretary for Import Administration, International Trade Administration, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. The Department also asks parties to serve a copy of their requests to the Office of Antidumping/Countervailing Operations, Attention: Sheila Forbes, in room 3065 of the main Commerce Building. Further, in accordance with section 351.303(f)(l)(i), a copy of each request must be served on every party on the Department's service list.
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
This notice is not required by statute but is published as a service to the international trading community.
Notice of issuance (#88-11A16) of an amended Export Trade Certificate of Review to Wood Machinery Manufacturers of America.
The U.S. Department of Commerce issued an amended Export Trade Certificate of Review to Wood Machinery Manufacturers of America (“WMMA”) on December 24, 2009. The Certificate has been amended ten times. The previous amendment was issued to WMMA on July 9, 2008, and published in the
Joseph E. Flynn, Director, Office of Competition and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or by e-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR Part 325 (2008).
The Office of Competition and Economic Analysis is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of the certification in the
WMMA's Export Trade Certificate of Review has been amended to:
1. Add the following company as a new Member of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.(1)):
Saw Trax Mfg., Inc., Kennesaw, GA, and
2. Delete the following company as a Member of the Certificate:
James L. Taylor Manufacturing Company, Poughkeepsie, NY.
The effective date of the amended certificate is September 25, 2009, the date on which WMMA's application to amend was deemed submitted. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4001, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Import Administration, International Trade Administration, Department of Commerce.
Steve Bezirganian or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1131 or (202) 482-0649, respectively.
On June 1, 2009, the Department of Commerce (the Department) received a timely request from interested party Wheatland Tube Company (petitioner) to conduct an administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Taiwan.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary results to a maximum of 365 days after the last day of the anniversary month of an order for which a review is requested.
The Department finds it is not practicable to complete the preliminary results of this review within the original time frame because we require additional time to obtain information from the respondent and to analyze various complicated issues involving, for example, respondent's reporting of product characteristics and its cost allocation methodologies. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than May 31, 2010, which is 365 days from the last day of the anniversary month. As this date falls on a federal holiday, the preliminary results are due June 1, 2010.
This extension is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On July 7, 2009, the Department of Commerce (“Department”) published in the
We gave interested parties an opportunity to comment on the
Emeka Chukwudebe (Ningbo Dafa), or Alexis Polovina (Santai) AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0219 and (202) 482-3927, respectively.
As noted above, on July 7, 2009, the Department published the
The merchandise subject to this proceeding is synthetic staple fibers, not carded, combed or otherwise processed for spinning, of polyesters measuring 3.3 decitex (3 denier, inclusive) or more in diameter. This merchandise is cut to lengths varying from one inch (25 mm) to five inches (127 mm). The subject merchandise may be coated, usually with silicon or other finish, or not coated. PSF is generally used as stuffing in sleeping bags, mattresses, ski jackets, comforters, cushions, pillows, and furniture.
The following products are excluded from the scope: (1) PSF of less than 3.3 decitex (less than 3 denier) currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 5503.20.0025 and known to the industry as PSF for spinning and generally used in woven and knit applications to produce textile and apparel products; (2) PSF of 10 to 18 denier that are cut to lengths of 6 to 8 inches and that are generally used in the manufacture of carpeting; and (3) low-melt PSF defined as a bi-component fiber with an outer, non-polyester sheath that melts at a significantly lower temperature than its inner polyester core (classified at HTSUS 5503.20.0015).
Certain PSF is classifiable under the HTSUS subheadings 5503.20.0045 and
Pursuant to section 351.307(b)(iv) of the Department's regulations, we conducted verifications of respondents' questionnaire responses.
All issues raised in the case and rebuttal briefs by parties to these reviews are addressed in the “First Antidumping Administrative Review of Certain Polyester Staple Fiber from the People's Republic of China: Issues and Decision Memorandum for the Final Results,” (“Decision Memo”), which is hereby adopted by this notice. A list of the issues which parties raised and to which we respond in the Decision Memo is attached to this notice as an Appendix. The Decision Memo is a public document and is on file in the Central Records Unit (“CRU”), Main Commerce Building, Room 1117, and is accessible on the Department's Web site at
In the
In the
Based on a review of the record as well as comments received from parties regarding our
The weighted-average dumping margins for the POR are as follows:
Upon issuance of these final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by these reviews. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. Furthermore, we will instruct CBP to liquidate entries for all companies at the company-specific rate required at the time of entry. In accordance with 751(a)(2)(A) of the Tariff Act of 1930 (“Act”) and 19 CFR 351.212(b)(1), we calculated importer (or customer)-specific assessment rates for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculated importer (or customer)-specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to each importer (or customer) and dividing this amount by the total entered value of the sales to each importer (or customer).
For the companies receiving a separate rate that were not selected for individual review, the assessment rate will be based on the rate from the investigation pursuant to section 735(c)(5)(B) of the Act.
The following cash deposit requirements will be effective upon publication of these final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be established in the final results of this review (except, if the rate is zero or
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of Public Meeting.
This notice announces a public meeting of the Online Safety and Technology Working Group (OSTWG).
The meeting will be held on February 4, 2010, from 8:40 a.m. to 5:00 p.m., Eastern Standard Time.
The meeting will be held at the United States Department of Commerce, 1401 Constitution Avenue, NW, Room 4830, Washington, DC 20230.
Joe Gattuso at (202) 482-0977 or jgattuso@ntia.doc.gov; and/or visit NTIA's web site at www.ntia.doc.gov.
According to the Act, the OSTWG is tasked with evaluating industry efforts to promote a safe online environment for children. The Act requires the OSTWG to report its findings and recommendations to the Assistant Secretary for Communications and Information and to Congress within one (1) year after its first meeting.
The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on January 26, 2010, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
1. Welcome and Introductions.
2. Remarks from the Bureau of Industry and Security Management.
3. Industry Presentations.
4. New Business.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on September 29, 2009 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 10(d)), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information contact Yvette Springer on (202) 482-2813.
The Information Systems Technical Advisory Committee (ISTAC) will meet on January 27 and 28, 2010, 9 a.m., at the Space and Naval Warfare Systems Center (SPAWAR), Building 33, Cloud Room, 53560 Hull Street, San Diego, California 92152. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology.
1. Welcome and Introduction.
2. Working Groups Reports.
3. Industry Presentations.
4. New Business.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on December 23, 2009, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 (10)(d)), that the portion of the meeting concerning trade secrets and commercial or financial information deemed privileged or confidential as described in 5 U.S.C. 552b(c)(4) and the portion of the meeting concerning matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is currently conducting an administrative review of the antidumping duty order on hand trucks and certain parts thereof (hand trucks) from the People's Republic of China (PRC) covering the period December 1, 2007, through November 30, 2008. We preliminarily determine that sales made by Since Hardware (Guangzhou) Co., Ltd. (Since Hardware) were made below normal value (NV). We invite interested parties to comment on these preliminary results. In addition, we are also rescinding this administrative review with respect to New-Tec Integration (Xiamen) Co., Ltd. (New-Tec).
Parties who submit comments are requested to submit with each argument a statement of the issue and a summary of the argument.
Fred Baker or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-2924 or (202) 482-0649, respectively.
On December 2, 2004, the Department published in the
On March 4, 2009, New-Tec provided certification that it had not shipped to the United States any subject merchandise during the period of review (POR), and requested the Department rescind the review with respect to New-Tec. On April 21, 2009, Customs and Border Protection (CBP) posted the Department's no shipments inquiry with respect to New-Tec.
On May 1, 2009, Petitioners withdrew their requests for review of Huatian and True Potential. Because Petitioners were the only party that requested a review of Huatian and True Potential, the Department rescinded the review with respect to these companies on June 19, 2009.
We issued the standard antidumping duty questionnaire to Since Hardware on May 5, 2009, and received timely responses in June 2009. We issued supplemental questionnaires covering sections A, C, and D of the original questionnaire on July 7, 2009, September 18, 2009, November 6, 2009, and December 16, 2009, and received timely responses to those questionnaires.
The POR covers December 1, 2007, through November 30, 2008.
The merchandise subject to this antidumping duty order consists of hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof.
A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.
That the vertical frame can be converted from a vertical setting to a horizontal setting, then operated in that horizontal setting as a platform, is not a basis for exclusion of the hand truck from the scope of this petition. That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the petition. That other wheels may be connected to the vertical frame, handling area, projecting edges, or other parts of the hand truck, in addition to the two or more wheels located at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition. Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition.
Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley. They are typically imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the United States (HTSUS), although they may also be imported under heading 8716.80.50.90. Specific parts of a hand truck, namely the vertical frame, the handling area and the projecting edges or toe plate, or any combination thereof, are typically imported under heading 8716.90.50.60 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope is dispositive.
Excluded from the scope are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular materials measuring less than 5/8 inch in diameter; hand trucks that use motorized operations either to move the hand truck from one location to the next
In every case conducted by the Department involving the PRC, we have treated the PRC as a non-market economy (NME) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. None of the parties to this proceeding have contested such treatment. Accordingly, we calculated NV in accordance with section 773(c) of the Act, which applies to NME countries.
A designation of a country as an NME remains in effect until it is revoked by the Department.
Evidence supporting, though not requiring, a finding of
The absence of
In its June 5, 2009, submission, Since Hardware submitted evidence demonstrating an absence of
Therefore, in the absence of both
When the Department investigates imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's factors of production (FOPs), valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise. The sources of the surrogate values we have used in this administrative review are discussed under the “Normal Value” section, below. On February 24, 2009, the Department determined that India, the Philippines, Indonesia, Colombia, Thailand and Peru are countries comparable to the PRC in terms of economic development, and requested comments from interested parties on selecting the appropriate surrogate country for this review.
The Department has examined the export levels
Therefore, because India: (1) is a significant producer of comparable merchandise; (2) is at a similar level of economic development as the PRC; (3) has publicly available and reliable data, which the Department has previously relied upon for numerous segments of this proceeding, the Department has selected India as the primary surrogate country, pursuant to section 773(c)(4) of the Act.
However, for the input “rubber wheels” the Department has been unable to locate a suitable surrogate value from India. The WTA data which we relied upon for the other direct inputs reported the quantity of rubber wheels on a per-piece basis, rather than a weight basis. Thus, because the size of the units involved as reported by WTA data could vary greatly, covering wheels with rims up to two feet in diameter, we do not consider a per-piece measurement a reliable source for valuation in this review. Therefore, we have selected the Philippines as the secondary surrogate country because it reported Philippine imports of rubber wheels on a weight basis. All of the other countries on the Department's list of potential surrogate countries either had no imports of rubber wheels or, like India, reported them on a per-piece basis.
As described above, on June 19, 2009, the Department published a notice of intent to rescind the administrative review of New-Tec because it had no shipments. We gave interested parties an opportunity to comment on this preliminary intent.
To determine whether Since Hardware's sales of subject merchandise to the United States were made at a price below NV, we compared its U.S. price to NV, as described in the “U.S. Price” and “Normal Value” sections of this notice, below.
We used invoice date as the date of sale because record evidence indicated the terms of Since Hardware's U.S. sales changed following the contract date.
In accordance with section 772(a) of the Act, we based U.S. price on the export price (EP) of the sale to the United States by Since Hardware because the first sale to an unaffiliated party was made before the date of importation, and the use of constructed export price was not otherwise warranted. We calculated EP based on the free-on-board (FOB) price to the first unaffiliated purchaser in the United States. For this EP sale, we deducted foreign inland freight and foreign brokerage and handling from the starting price (or gross unit price), in accordance with section 772(c) of the Act. For Since Hardware's U.S. sale, each of these services was provided by an NME vendor. Thus, we based the deduction of these movement charges on surrogate values.
We valued truck freight expenses using a per-unit average rate calculated from data on the following website:
We valued brokerage and handling using a simple average of the brokerage and handling costs reported in public submissions filed in three antidumping duty cases. Specifically, we averaged the public brokerage and handling expenses reported by Navneet Publications (India) Ltd. in the 2007-2008 administrative review of certain lined paper products from India, Essar Steel Limited in the 2006-2007 antidumping duty administrative review of hot-rolled carbon steel flat products from India, and Himalaya International Ltd. in the 2005-2006 administrative review of certain preserved mushrooms from India. The Department adjusted the average brokerage and handling rate for inflation.
Our surrogate values for truck freight and for brokerage and handling were in Indian rupees. Therefore, in accordance with section 773A(a) of the Act and 19 CFR 351.415, we converted them to U.S. dollars using the official exchange rate for India recorded on the date of sale of subject merchandise in this case.
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
We calculated NV by adding the value of the FOPs, general expenses, profit, and packing costs. The FOPs for subject merchandise include: (1) quantities of raw materials employed; (2) hours of labor required; (3) amounts of energy and other utilities consumed; (4) representative capital and selling costs; and (5) packing materials. We used the FOPs that Since Hardware reported for materials, energy, labor, and packing, and valued those FOPs by multiplying the amount of the factor consumed in
In addition, we added freight costs to the surrogate costs that we calculated for material inputs. We calculated freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. Where there were multiple domestic suppliers of a material input, we calculated a weighted-average distance after limiting each supplier's distance to no more than the distance from the nearest seaport to Since Hardware. This adjustment is in accordance with the decision by the Court of Appeals for the Federal Circuit in
We also increased the calculated costs of the FOPs for surrogate general expenses and profit.
In selecting surrogate values, we followed, to the extent practicable, the Department's practice of choosing public values which are non-export averages, representative of a range of prices in effect during the POR, or over a period as close as possible in time to the POR, product-specific, and tax-exclusive.
In calculating surrogate values from import statistics, in accordance with the Department's practice, we disregarded statistics for imports from NME countries and countries deemed to maintain broadly available, non-industry-specific subsidies which may benefit all exporters to all export markets (
Except as noted in the section entitled “Surrogate Country,” above, we valued all direct materials (zinc-galvanized cold-rolled steel plate, zinc-galvanized hot-rolled steel tube, aluminum tube, aluminum parts, PP plastic parts, PVC plastic parts, zinc-galvanized iron clip, lock washer, spring, tapping screw, bolt, nut, rivet, and welding rod) using weighted-average Indian import values derived from the World Trade Atlas online (WTA), for the period December 2007 through November 2008.
Energy inputs consisted of argon gas and electricity. We valued argon gas using weighted-average Indian import values derived from the WTA for the period December 2007 through November 2008.
We valued truck freight expenses for inputs using the same surrogate data source we used for valuing domestic inland freight for Since Hardware's U.S. sale (
The electricity and truck freight expenses were denominated in Indian rupees. Therefore, in accordance with section 773A(a) of the Act and 19 CFR 351.415, we converted them to U.S. dollars using the official exchange rate for India recorded on the date of sale of subject merchandise in this case. See
The Department's regulations require the use of a regression-based wage rate.
To value the surrogate financial ratios for factory overhead (OH), selling, general & administrative (SG&A) expenses, and profit, the Department prefers to use contemporaneous, publicly available and subsidy-free financial statements of companies producing comparable merchandise from the surrogate country. For these preliminary results, Department used the 2005-2006 financial statement of Godrej & Boyce Manufacturing Company Limited (Godrej & Boyce), an Indian producer of comparable
We made currency conversions into U.S. dollars, in accordance with section 773A(a) and 19 CFR 351.415 of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. These exchange rates can be accessed at the IA website at:
We preliminarily determine that the following dumping margin exists during the period December 1, 2007, through November 30, 2008:
In accordance with 19 CFR 351.224(b), the Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of publication of these preliminary results. Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within five days after the time limit for filing case briefs.
Any interested party may request a hearing within 30 days of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 90 days of publication of these preliminary results.
Upon issuing the final results of the review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific
The following cash deposit requirements, when imposed, will apply to all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for Since Hardware will be the rate established in the final results of this administrative review; (2) for any previously reviewed or investigated PRC or non-PRC exporter, not covered in this administrative review, with a separate rate, the cash deposit rate will be the company-specific rate established in the most recent segment of this proceeding; (3) for all other PRC exporters, the cash deposit rate will continue to be the PRC-wide rate (
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(i).
Economic Development Administration (EDA), Department of Commerce.
Notice and request for applications.
In February of 2009, Congress enacted the Trade and Globalization Adjustment Assistance Act of 2009, which in part was intended to establish a new Community Trade Adjustment Assistance (Community TAA) Program under chapter 4 of title II of the Trade Act of 1974 (19 U.S.C. 2371
To be eligible to apply, a community must have been impacted by trade as evidenced by one or more “Cognizable Certifications” being made with respect to the community under one of the following three Trade Adjustment Assistance (TAA) programs: TAA for Workers, TAA for Firms, or TAA for Farmers. In addition, EDA must make an “Affirmative Determination” that an applicant is an “Impacted Community,” meaning that EDA determines the community is significantly affected by the threat to, or the loss of, jobs associated with one or more Cognizable Certifications. A community may rely on more than one Cognizable Certification to show trade impact, but must use the most recent certification to determine whether the community must submit as a Grandfathered Community or as Group A or B Standard Date Community. Please see below and sections III.B.2. and III.B.3 of the FFO announcement for a complete discussion. Applications for assistance from eligible communities will be competitively evaluated in order to maximize the impact of the program in creating and saving jobs.
Applicants are advised to read carefully all information and instructions contained in the Federal Funding Opportunity (FFO) announcement for this request for applications. To access the FFO announcement, please see the Web sites listed below under “Electronic Access.”
The deadline for the submission of full applications for grant assistance under this notice is April 20, 2010. Please note that this competitive solicitation has two categories of applicants: “Grandfathered Communities” and “Standard Date Communities.” In addition, the “Standard Date Communities” category has been further broken down into Groups A and B because of timing considerations. Although there is one deadline for grant applications under the program, the Trade Act requires that Grandfathered Communities and Group A Standard Date Communities must submit certain information to preserve their eligibility under the program. This information may either be submitted as part of a full application or as a preapplication using the
A Grandfathered Community must submit information for EDA's Affirmative Determination by February 1, 2010 to be eligible for funding under the Community TAA Program. Although the deadline for full applications is April 20, 2010, EDA strongly encourages Grandfathered Communities to submit their full application for grant assistance by the February 1, 2010 deadline for submission of their information for an Affirmative Determination. Submission of the full application by this date will allow EDA to make the Affirmative Determination in connection with the decision on whether EDA will fund the application. However, Grandfathered Communities that are not prepared to submit a full application by the February 1, 2010 deadline for the Affirmative Determination must submit a preapplication, using Form SF-424, by February 1, 2010. Applicants choosing to submit a preapplication still must submit a full application for grant assistance by the April 20, 2010 deadline to be considered for funding under the program.
Group A Standard Date Communities must submit information for EDA's Affirmative Determination within 180 days of the date of the community's most recent Cognizable Certification. EDA strongly encourages Group A Standard Date Communities to submit a full application for grant assistance that incorporates information necessary for EDA to make an Affirmative Determination within the statutory 180-day window. Submission of a full application within the 180-day window will allow EDA to make an Affirmative Determination in connection with the decision on whether EDA will fund the application. However, Group A Standard Date Communities that are not prepared to submit a full application within the 180-day window for an Affirmative Determination may submit a preapplication using Form SF-424, which also must include information for the Affirmative Determination, within 180 days of the date of its most recent Cognizable Certification. Applicants choosing to submit a preapplication still must submit a full application for grant assistance by the April 20, 2010 competition deadline to be considered for funding under the program.
Group B Standard Date Communities must submit a full application that incorporates necessary information for EDA to make an Affirmative Determination by the April 20, 2010 deadline to be considered for funding under the program. Group B Standard Date Communities do not need to submit a preapplication to preserve their eligibility because the April 20, 2010 grant application deadline occurs within their 180-day window for an Affirmative Determination.
Preapplications and full applications must be either: (a) Transmitted and time stamped at
Applicants should access the following link for assistance in navigating
Applicants in Arkansas, Louisiana, New Mexico, Oklahoma and Texas, may submit paper submissions to: Economic Development Administration, Austin Regional Office, 504 Lavaca, Suite 1100, Austin, Texas 78701-2858. Telephone: (512) 381-8144, Fax: (512) 381-8177.
Applicants in Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin and Muscatine and Scott counties, Iowa, may submit paper submissions to: Economic Development Administration, Chicago Regional Office, 111 North Canal Street, Suite 855, Chicago, Illinois 60606. Telephone: (312) 353-7706, Fax: (312) 353-8575.
Applicants in Colorado, Iowa (excluding Muscatine and Scott counties), Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah and Wyoming, may submit paper submissions to: Economic Development Administration, Denver Regional Office, 410 17th Street, Suite 250, Denver, Colorado 80202. Telephone: (303) 844-4714, Fax: (303) 844-3968.
Applicants in Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, U.S. Virgin Islands, Virginia and West Virginia, may submit paper submissions to: Economic Development Administration, Philadelphia Regional Office, Curtis Center, 601 Walnut Street, Suite 140 South, Philadelphia, Pennsylvania 19106. Telephone: (215) 597-4603, Fax: (215) 597-1063.
Applicants in Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Marshall Islands, Micronesia, Nevada, Northern Mariana Islands, Oregon, Republic of Palau and Washington, may submit paper submissions to: Economic Development Administration, Seattle Regional Office, Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, Washington 98174. Telephone: (206) 220-7660, Fax: (206) 220-7669.
For additional information or for a paper copy of the FFO announcement, contact the appropriate EDA regional office listed above. EDA's Internet Web site at
The Community TAA Program is one of several economic development programs that EDA administers and is designed to provide communities with comprehensive and flexible solutions to a wide variety of trade impacts. There currently are a number of TAA programs authorized under the Trade Act that target assistance to specific groups within and members of a community; for example workers and
EDA publishes this notice to announce the competitive solicitation for the Community TAA Program. EDA will evaluate and select applications according to the investment policy guidelines and funding priorities set forth below under “Funding Priorities” and in section V.A. of the FFO announcement. Unless otherwise provided in this notice or in the FFO announcement, applicant eligibility, program objectives and priorities, application procedures, evaluation criteria, selection procedures, and other requirements for the Community TAA are set forth in EDA's regulations (codified at 13 CFR part 313) and applicants must address these requirements. EDA's regulations and the Trade Act are available at
EDA has analyzed TAA certification data and created two lists to assist communities in identifying their eligibility for the Community TAA Program: The TAA for Workers Significantly Impacted County List and the TAA for Firms Certifications List. A community that is not on either list still may request an Affirmative Determination by submitting a preapplication or full application that includes the information necessary to establish the requisite trade impact in accordance with section III.B.4. of the FFO announcement. Please note that different deadlines apply to both Grandfathered and Standard Date Communities, which are noted under “Dates for Submission of Information for Affirmative Determinations” below and section III.B.2. of the FFO announcement. If a preapplication or full application is submitted after the relevant deadlines, it will not be considered.
To assist communities in demonstrating trade impact significance, EDA has analyzed job-loss data in connection with the TAA for Workers Program. In order to assess the relative impact associated with the loss of jobs due to the trade impact leading to TAA for Workers Program Cognizable Certifications, EDA ranked counties with TAA for Workers certifications since January 1, 2007 based on the number of workers receiving assistance under the TAA for Workers Program.
Please note that EDA's TAA for Workers Significantly Impacted County List only addresses trade impact significance at the county level. For a sub-county community (for example a city or township) that is not on this list, but is located within a county on the list, EDA still must make an Affirmative Determination that the sub-county community itself is an Impacted Community that has been significantly affected by the threat to, or the loss of, jobs associated with one ore more Cognizable Certifications. Even though sub-county communities are not included on the TAA for Workers Significantly Impacted County List, the list may help a city or township, for example, identify potential eligibility for grant assistance under the Community TAA Program. For example, assume City A is located in County B, which county is located on the TAA for Workers Significantly Impacted County List. Even though City A is not
A sub-county community located in a county on EDA's TAA for Workers Significantly Impacted County List also should note that the list includes all TAA for Workers certifications made since January 1, 2007 until the date noted on the list, which means that the list does not reflect timing concerns for Affirmative Determination purposes. When a community that wishes to apply searches the Department of Labor's “TAA Petition Determination” Web site at
Please note that the TAA for Workers Significantly Impacted County List is
EDA will post updates to the TAA for Workers Significantly Impacted County List on approximately the 20th day of each month through April 2010. As noted above, counties not on the list or other communities that are located outside counties on the list may seek an Affirmative Determination of trade impact by submitting the information necessary to establish that impact as described in section III.B.4. of the FFO announcement. Also as noted above, EDA's TAA for Workers Significantly Impacted County List includes all TAA for Workers certifications since January 1, 2007. Therefore, the list does not reflect timing concerns, and a community must search the Department of Labor's “TAA Petition Determination” Web site at
EDA also has posted a list organized by city and State of TAA for Firms certifications since January 1, 2007 at
As of the date of publication of this notice, there had been no certifications under the TAA for Farmers Program for the relevant time period from January 1, 2007 through the publication date of this notice. As certifications are made under the TAA for Farmers Program, the Department of Agriculture will publish notice of them in the
As noted above, a community that is not on EDA's TAA for Workers Significantly Impacted County List must seek an Affirmative Determination to be deemed Impacted Community. The below information details the deadlines that apply to the two categories of applicants under this competitive solicitation: Grandfathered Communities and Standard Date Communities. Also, please note that because of timing considerations EDA has divided the Standard Date Communities category into two groups: Group A and Group B.
A community may rely on more than one Cognizable Certification to show trade impact, but must use the most recent certification to determine whether the community must submit as a Grandfathered Community or as Group A or B Standard Date Community.
A Grandfathered Community is a community that had one or more Cognizable Certifications made with respect to it on or after January 1, 2007 and before August 1, 2009.
If a Grandfathered Community is not prepared to submit a full application by February 1, 2010, the Grandfathered Community may preserve its eligibility by submitting a preapplication by February 1, 2010 to request an Affirmative Determination using Form SF-424 and checking “Preapplication” in item 1 of the form. The preapplication must describe the threat to, or the loss of, jobs associated with the applicable grandfathered Cognizable Certification(s) and include the information set out in section III.B.4. of the FFO announcement to allow EDA to make an Affirmative Determination. If a Grandfathered Community does not have complete information about the trade impact at the time it submits a preapplication by February 1, 2010, it may supplement the information provided with its preapplication with additional data when it submits its complete application. However, the Grandfathered Community should be aware that it must submit all information necessary for EDA's Affirmative Determination and a full grant application by the competition deadline of April 20, 2010 to be considered for grant funding under the program.
A Standard Date Community is a community with its most recent Cognizable Certification made on or after August 1, 2009. Because EDA is holding a single competition for the Community TAA Program with a deadline date of April 20, 2010 and section 273 of the Trade Act requires EDA to make an Affirmative Determination of the significance of trade impact based on information submitted not later than 180 days of a community's most recent Cognizable Certification, EDA has divided Standard Date Communities into two groups: Group A and Group B. Group A consists of Standard Date Communities that have their most recent Cognizable Certification made on or after August 1, 2009 through October 21, 2009 and Group B consists of Standard Date Communities that have their most recent Cognizable Certification made on or after October 22, 2009.
Both Group A and Group B communities must submit information for EDA's Affirmative Determination within 180 days of the date of their most recent Cognizable Certification. A Group A community, however, must check the date of its most recent Cognizable Certification, and submit information for an Affirmative Determination within 180 days of that certification or else it will not be eligible for grant assistance. A Group B Standard Date Community simply must submit its full application by April 20, 2010 because its most recent Cognizable Certification was made on or after October 22, 2009, and the application filing deadline is within the 180-day window for submission of information for an Affirmative Determination. Accordingly, the full application must contain all information for EDA's Affirmative Determination by the competition deadline of April 20, 2010. Please see the paragraphs below for more detailed information.
If a Standard Date Community in Group A has its most recent Cognizable Certification made on or after August 1, 2009 through October 21, 2009, it must submit information for EDA's Affirmative Determination within 180 days of the date of that certification. A Group A community that does not submit the information in a timely manner is not eligible for grant assistance under the Community TAA Program. Because of limited program resources, EDA encourages such a community to submit the information for EDA's Affirmative Determination along with its full application for grant assistance in a full application (Form SF-424, checking the box for “Application” in item 1 of the form). In this case, the attachment to item 15 of the Form SF-424 in the application must contain all information for EDA to make an Affirmative Determination in accordance with 13 CFR 313.4. See section III.B.4. of the FFO announcement for more information on the required attachment(s) and section III.C. for more information on full application packages.
If a Group A community is not prepared to submit a full application within 180 days of the applicable Cognizable Certification, the community may preserve its eligibility by submitting a preapplication requesting an Affirmative Determination using Form SF-424 and checking the box for “Preapplication” in item 1 of the form. The preapplication must describe the threat to, or the loss of, jobs associated with the community's applicable Cognizable Certification(s) and include the information set out in section III.B.4. of the FFO announcement to allow EDA to make an Affirmative Determination. If a Group A community does not have complete information about the trade impact at the time it submits a preapplication within 180 days of the relevant Cognizable Certification, it may supplement the information provided with its preapplication with additional data when it submits its full application. However, the Group A Standard Date Community should be aware that it must submit all information necessary for EDA's Affirmative Determination and a full grant application by the competition deadline of April 20, 2010 to be considered for grant funding under the program.
Note that a Standard Date Community in Group A must attend carefully to the date of its most recent Cognizable Certification because the statute requires a community to submit its information for an Affirmative Determination within 180 days of that date. Because the April 20, 2010 deadline for this competitive solicitation exceeds the 180-day time period for those communities, a Group A Standard Date Community must protect its ability to be considered under the competition by submitting a preapplication or full application before the expiration of the 180-day window. A Group B Standard Date Community with a certification made on or after October 22, 2009 does not face this complication as the April 20, 2010 deadline for the competitive solicitation is in advance of the closing of the 180-day window applicable to its most recent Cognizable Certification.
If a Standard Date Community in Group B has its most recent Cognizable Certification made after October 22, 2009, it must submit a full application by April 20, 2010. Because the compressed timeframe during which funds are available requires expeditious delivery of program resources and reduced applicant burden, EDA will make its decision regarding an Affirmative Determination based on the full application for Community TAA grant assistance for Standard Date Communities in Group B. Accordingly, the full application must contain all information for EDA to make an Affirmative Determination in accordance with 13 CFR 313.4. A community must submit a Form SF-424 and check the box for “Application” in item 1 of the form and proceed to complete and submit an appropriate application for the community's proposed project in accordance with section IV. of the FFO announcement by April 20, 2010. A community that does not timely submit its application will not be considered for funding.
Note that in light of the limited funding available, EDA is not likely to find job losses associated with the applicable Cognizable Certifications to be “significant” unless the community demonstrates that at least 8.25 workers per 1,000 workers in the community's most recently reported Civilian Labor Force (CLF) have been impacted by TAA Cognizable Certifications or provides other evidence of equally severe economic distress such as the imminent threat of significant job loss associated with trade. For example, if the applicant's total CLF is 50,000, EDA would deem the trade impact to be “significant” if there was a job loss of at least 413 workers in the community's CLF (413/50,000 = 0.00825 × 1,000 = 8.25) associated with the community's Cognizable Certification(s).
EDA will use Form SF-424 for both preapplications and full applications. Communities are strongly encouraged to incorporate information for EDA's Affirmative Determination into their Form SF-424 as part of a full application package. If, however, Grandfathered or Group A Standard Date Communities are not prepared to submit a full application by their Affirmative Determination deadline, then may submit a preapplication for an Affirmative Determination using Form SF-424 by the applicable Affirmative Determination deadline. If a Grandfathered or Group A Standard Date Community elects to submit a preapplication for EDA's Affirmative Determination, the applicant community must check the box for “Preapplication” in item 1 of the form and complete all numbered items on Form SF-424 except for items 17, 18, and 19. If, however, the applicant is submitting Form SF-424 as part of a full application for grant assistance, the applicant community must complete all numbered items on Form SF-424. Note that for a Grandfathered or Group A Standard Date Community that elects to submit a preapplication using Form SF-424, the community must submit a second Form SF-424 as part of its full grant application, and all items on the Form SF-424 must be completed.
For both preapplications and full applications, a community must submit the necessary information using Form SF-424 to allow EDA to determine that the applicant community is “significantly affected” by the threat to, or loss of, jobs associated with one or more Cognizable Certification(s). Item 15 of Form SF-424 allows for attachments. If a Grandfathered or Group A Standard Date Community elects to submit a preapplication, the community should provide all of the following information and attach it at Item 15 (provided however, that if complete information is not available at the time of submission of the preapplication, the community must include the information at the time of filing its full application). If the community is submitting a complete application, the community must submit all of the following and the applicant's Project Narrative and other information for a complete full application package. Please see section IV. of the FFO announcement for details on a full application.
• Identify the applicable Cognizable Certification(s) upon which the community bases its Impacted Community status for timing purposes. Please note that the community must use its most recent Cognizable Certification to determine whether it must submit as a Grandfathered Community or Group A or Group B Standard Date Community and must clearly identify that certification. For example, if City A has two TAA for Workers certifications and one TAA for Firms certification and is applying as a Group B Standard Date Community, it must use the most recent Cognizable Certification, regardless of the program, to be classified as a Group B Standard Date Community, and identify the certification and the certification's date. Note that the community must identify and discuss all Cognizable Certifications upon which it relies for eligibility as a trade-impacted community in its narrative, as described below.
○ For TAA for Workers Cognizable Certifications, the applicant community must provide the TAA petition number associated with the Department of Labor's certification decision. TAA for Workers petition determinations may be accessed and searched electronically at
○ For TAA for Firms Certifications, the applicant community must provide the name of the firm certified under the program in the official notification letter provided by the Department of Commerce to the certified firm. A list of firms certified since January 1, 2007 has been posted on EDA's Web site at
○ For TAA for Farmers certifications, the applicant community must provide the name and region (region, State, or multi-State area) of the certified agricultural commodity and the record identifier provided by the Department of Agriculture. Note that as of the date of publication of this notice, no certifications had been made under the TAA for Farmers Program. Visit the TAA for Farmers Web site at
• Percentage of the CLF affected by TAA for Workers, TAA for Firms, and/or TAA for Farmers certifications. To perform this calculation, a community needs to know two things: (1) How many workers were affected by a TAA Cognizable Certification; and (2) the community's most recently reported CLF. Please see section III.B.4. of the FFO announcement for detailed instructions on how to access the information for and perform this calculation.
• The source of the CLF data the community used to complete the significance calculation.
• A narrative describing the threat to, or the loss of, jobs associated with the applicable Cognizable Certification(s). If a community is applying based on the threat to jobs associated with a Cognizable Certification, it must include solid evidence of that threat, such as a notice issued under the Worker Adjustment and Retraining Notification (WARN) Act (19 U.S.C. 2101
The information attached at item 15 of Form SF-424 and required for EDA's Affirmative Determination may not exceed five pages in length, double-spaced text, with approximately 200 to 300 words per page. The five-page limit is an upper limit only; and applicants should be concise as possible.
Once EDA has made an Affirmative Determination, EDA will consider the community to be an Impacted Community significantly impacted by trade. Because of the compressed time
For applicants that are submitting a full application, please see section IV.C. of the FFO announcement for information on the Project Narrative, which must include information for EDA's Affirmative Determination.
Grants to develop a Strategic Plan are designed to help the Impacted Community achieve economic adjustment to trade impacts.
EDA strongly encourages applicants to link and leverage existing planning efforts. A Strategic Plan should update and incorporate relevant provisions of existing plans that affect an Impacted Community's economic development efforts, such as an applicable Comprehensive Economic Development Strategy (CEDS) developed under EDA's regulations at 13 CFR 303.7 and strategies developed in concert with the U.S. Department of Transportation, U.S. Department of Energy, the Environmental Protection Agency, and other Federal, State, and local agencies.
In order to award an application to implement a Strategic Plan, EDA must determine that the plan meets the requirements of section 276 of the Trade Act and EDA's implementing regulation at 13 CFR 313.6. EDA will review information submitted with the application to ensure that the proposed funding will support activities that respond to the economic dislocation attributable to the job losses that led to the Cognizable Certification(s) and to ensure that the activities are otherwise consistent with an acceptable Strategic Plan. The Impacted Community must submit its Strategic Plan for EDA's review and approval as part of its application. Note that if the community is relying on a CEDS as its Strategic Plan, it need not be re-submitted if EDA already has the current version.
Implementation grants may be provided for construction or non-construction projects. Such assistance may include: (1) Infrastructure improvements, such as site acquisition, site preparation, construction, rehabilitation, and equipping of facilities; (2) market or industry research and analysis; (3) technical assistance, including organizational development such as business networking, restructuring or improving the delivery of business services, or feasibility studies; (4) public services; (5) training; and (6) other activities justified by the Strategic Plan that satisfy applicable statutory and regulatory requirements.
In accordance with section 273 of the Trade Act (19 U.S.C. 2371b), to receive assistance under the Community TAA Program, a community must have one or more of the Cognizable Certifications described below made with respect to it:
1.
2.
3.
In order for a community to be eligible to apply for grant assistance under this funding opportunity, EDA must make an Affirmative Determination that the community is “significantly affected by the threat to, or the loss of, jobs associated with any such certification.” Please note that communities may rely on more than one Cognizable Certification to show trade impact for EDA's Affirmative Determination as set out in section III.B.4. of the FFO announcement, but must use the most recent certification to determine whether the community must submit as a Grandfathered Community or as Group A or B Standard Date Community.
Once EDA has made such a determination, the community will be referred to as an Impacted Community.
For-profit, private-sector entities are not eligible to apply for investment assistance under this notice.
While cash contributions are preferred, in-kind contributions, consisting of contributions of space, equipment, or services, may provide the required non-Federal share of the total project cost.
• Form ED-900 (
• Form SF-424 (
• Form SF-424A (
• Form SF-424B (
• Form CD-511 (
The applicant also may be required to provide certain lobbying information using Form SF-LLL (
• Form ED-900 (
• Form SF-424 (
• Form SF-424C (
• Form SF-424D (
• Form CD-511 (
To apply for assistance for an implementation grant
• Form ED-900 (
• Form SF-424 (
• Form SF-424A (
• Form SF-424B (
• Form CD-511 (
Applicants for both construction and non-construction implementation grants may be required to provide certain lobbying information using Form SF-LLL (
•
•
•
•
•
If the applicant already has submitted a preapplication for EDA's Affirmative Determination, the Project Narrative may not exceed eight pages in length, double-spaced text, with approximately 200 to 300 words per page, including any attachments, but not including the cover page. The eight-page limit is an upper limit only; therefore, applicants should be as concise as possible.
Note that if an applicant is submitting a full application for a grant application that also contains all information for EDA's Affirmative Determination, the applicant must also include the information required under section III.B.4. of the FFO announcement. The information required for EDA's Affirmative Determination may not exceed an additional five pages in length, double-spaced text, with approximately 200 to 300 words per page. The five-page limit for this information is an upper limit only; and applicants should be concise as possible. Such an applicant still has the full eight pages for its full application Project Narrative as noted above.
Staff in EDA's regional offices will undertake a technical review of each application to ensure that all required forms, signatures, and documentation are present and that the application is in compliance with the technical requirements set out in the FFO announcement, including requirements related to Cognizable Certifications and eligibility as a community. The technical review also will help determine if the proposed project is responsive to the objectives set out in the FFO. Applications that do not meet the technical requirements set out in the FFO will not be referred to the review panel.
Each regional office will convene a panel to review the merits of each application based on the criteria set forth in the FFO. The review panel will consist of Federal employees and may consist of others recommended by the Regional Director of the applicable regional office. At least three members of the review panel will be EDA staff members. The review panel will evaluate independently and rate and rank competitively all technically sufficient applications based on the evaluation criteria listed in section V.A. of the FFO announcement.
The review panel's rating and ranking of the applications will be presented to the regional office's Investment Review Committee (IRC). After reviewing the panel's process and recommendations, the IRC may either: (i) Forward the panel's ranked list, unaltered and in its entirety, to the Selecting Official (defined below); or (ii) identify any deficiencies in the review process and direct the review panel to begin the process anew. If the IRC directs the panel to re-evaluate the applications, the review panel will undertake the process again and submit a revised rating and ranking of the applications to the IRC.
Under this notice, the Regional Director in each regional office is the Selecting Official. EDA expects to fund the highest ranking applications. The Selecting Official will normally follow the recommendations of the review panel; however, the Selecting Official may decide not to make a selection, or may select an application out of rank order for several reasons, including:
a. A determination that the application better meets the overall objectives of sections 271 through 277 of the Trade Act (19 U.S.C. 2371—2371f);
b. Relative economic distress and financial capability of a community;
c. Availability of program funding;
d. Geographic balance in distribution of program funds;
e. Balanced funding for a diverse group of institutions, to include smaller and rural institutions, which may form part of a broader consortium to serve diverse populations and areas within the regional office's territory; or
f. The applicant's performance under previous Federal financial assistance awards.
If the Selecting Official makes a selection out of rank order, the Selecting Official will document the rationale for the decision in writing. As part of the selection process, EDA reserves the right to seek clarifications in writing from applicants for those applications deemed to have highest merit in order to facilitate the selection process.
1.
2.
• Significantly Impacted: More than 8.25 workers impacted in connection with TAA Cognizable Certifications per 1,000 workers in the CLF; or
• Severely Impacted: More than 28 workers impacted in connection with TAA Cognizable Certifications per 1,000 workers in the CLF.
3.
• Leads to the creation/retention of good jobs for the community. This is defined as greater than or equal to the average wage in the county. The Bureau of Labor Statistic's Web site at
• Leverages public-private partnerships, for example, as evident by private sector involvement and/or private sector funding in the project.
• Evidences best-practices in project management, for example, by demonstrating a feasible, cost-effective budget and a specific, deadline driven project timeline.
4.
• Builds upon or extends existing planning documents, such as a CEDS, or other Federal, State, regional, or local development plans.
• Links clearly to a leading or emerging regional cluster. This may be measured by the extent the investment supports an industry that has a location quotient greater than one. Applicants may find more information on location quotients at the Bureau of Labor Statistic's site at
○ A geographic concentration of an industry compared to the State or nation;
○ Increasing regional employment in that industry; or
○ Increasing numbers of firms in the relevant cluster.
• Fosters commercialization in technology. This could be shown by increasing technology transfer at an institution of higher education or spinning off new technology,
5.
• Supports existing “high growth/high potential companies” or those that have the ability to create “high growth/high potential companies,” which are defined as companies with fewer than 500 employees whose sales doubled in four years or less; or
• Supports businesses or clusters with significant export potential.
6.
• Promote renewable energy, energy efficiency, and/or reuse, recycling, or restoration that result in a green end-product (for example, a renewable energy commercialization center);
• Green an existing process or function (for example, implementing sustainable manufacturing practices); or
• Result in a green building (for example, a structure certified under the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) system).
Applications will be evaluated to the extent they produce identified green project benefits; for example renewable energy capacity per year, carbon emission offsets, overall energy savings, or third-party verified green building certifications.
Therefore, a regulatory flexibility analysis has not been prepared.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed addition to and deletions from Procurement List.
The Committee is proposing to add to the Procurement List a product to be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities, and to delete services previously furnished by such agencies.
February 8, 2010.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Patricia Briscoe,
This notice is published pursuant to 41 U.S.C 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice for each product will be required to procure the product listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the product to the Government.
2. If approved, the action will result in authorizing small entities provide the product to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following product is proposed for addition to the Procurement List for production by the nonprofit agency listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for deletion from the Procurement List.
The following services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from Procurement List.
This action adds to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List products and services previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Patricia Briscoe, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On 11/6/2009 (74 FR 57453-57454), 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 services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. The action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Accordingly, the following services are added to the Procurement List:
On 10/23/2009 (74 FR 54783-54784) and 11/6/2009 (74 FR 57453-57454), 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 services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Consumer Product Safety Commission
Notice
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by January 26, 2010.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 10-C0002, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 502, Bethesda, Maryland 20814-4408.
M. Reza Malihi, Trial Attorney, Division of Compliance, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7733.
The text of the Agreement and Order appears below.
1. In accordance with 16 CFR 1118.20, RC2 Corporation and the staff (“Staff”) of the United States Consumer Product Safety Commission (“CPSC” or the “Commission”) enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order (“Order”) settle the Staff's allegations set forth below.
2. The Commission is an independent federal regulatory agency established pursuant to, and responsible for the enforcement of, the Consumer Product Safety Act, 15 U.S.C. 2051—2089 (“CPSA”).
3. RC2 Corporation is a corporation organized and existing under the laws of the state of Delaware, with principal offices located in Oak Brook, Illinois. At all times relevant hereto, RC2 Corporation designed, imported and sold toys and children's products. “RC2” as used in this Agreement means RC2 Corporation and its wholly owned subsidiary Learning Curve Brands, Inc. and their officers, directors, shareholders and employees.
4. Between January 2005 and April 2007, RC2 commissioned one of its dedicated contract manufacturers, Overseas Winner Limited (“OW”), to manufacture in China approximately 1,506,900 units of various Thomas & Friends
5. Between March 2003 and April 2007, RC2 commissioned OW and another of its dedicated contract manufacturers, 3i Corporation, Ltd., to manufacture in China certain of 5 other component styles from Thomas & Friends
6. The TWR Toys and Additional TWR Toys (collectively, “Subject Products”) are “consumer product(s),” and, at all times relevant hereto, RC2 was a “manufacturer” and a “retailer” of those consumer products, which were “distributed in commerce,” as those terms are defined in CPSA sections 3(a)(3), (5), (8), (11) and (13), 15 U.S.C. § 2052(a)(3), (5), (8), (11) and (13).
7. The Subject Products are articles intended to be entrusted to or for use by children, and, therefore, are subject to the requirements of the Commission's Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint, 16 CFR Part 1303 (the “Lead Paint Ban”). Under the Lead Paint Ban, toys and other children's articles must not bear “lead-containing paint,” defined as paint or other surface coating materials whose lead content is more than 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film. 16 CFR 1303.2(b)(1)
8. On March 29, 2007, RC2 was notified by one of its U.S. retail customers that a TWR Toy supplied by RC2, specifically the Thomas & Friends Oval Set (Product # LC99561), had failed testing that demonstrated its paint or other surface coatings contained levels of lead in excess of the permissible 0.06 percent limit set forth in the Lead Paint Ban. The Oval Set (Product # LC99561) was produced at OW, which was at the time one of two contract manufacturers of the Thomas & Friends
9. The internal investigation yielded multiple failing test results demonstrating that dozens of TWR Toy samples bore or contained paint or other surface coatings with lead levels in excess of the permissible 0.06 percent (600 ppm) limit set forth in the Lead Paint Ban. Based upon information that primarily emerged during this investigation period, RC2 determined that five PMS (Pantone Matching System®) surface paint colors applied to certain finished product components had failed at least one test for the presence of lead in excess of the permissible 0.06 percent limit set forth in the Lead Paint Ban; a sixth color, yellow, had failed testing prior to the investigation period and then passed a subsequent test, but ultimately was included among the non-compliant paint colors as a precautionary measure. RC2 also determined that all the affected units composing the TWR Toys had been manufactured by OW rather than by RC2's other Chinese contract manufacturer. RC2 cross-referenced each of the failing colors with the colors of paint used on each toy component, thereby identifying 26 distinct component styles which used at least one of these six colors, and thus ascertained the scope of affected models and product units comprising the TWR Toys for recall purposes.
10. After RC2 reported this information to CPSC, on June 13, 2007, the Commission and RC2 announced a recall of about 1,500,000 units of the TWR Toys because “Surface paints on the recalled products contain lead. Lead is toxic if ingested by young children and can cause adverse health effects.”
11. Throughout the summer of 2007, RC2 and other entities with which it does business continued with additional testing of items from the Thomas & Friends
12. On September 26, 2007, the Commission and RC2 announced that the original TWR Toys recall was being expanded in order to include about 200,000 units of the Additional TWR Toys because “Surface paints on the toys can contain excessive levels of lead, violating the federal lead paint standard.”
13. RC2 reportedly severed its business relationship with OW completely in June 2007, soon after the original TWR Toys recall announcement. RC2 reportedly already had ceased manufacturing any of the Thomas & Friends
14. Although at the time of each of the aforementioned recalls RC2 reported no incidents or injuries associated with the presence of excessive lead in the paint or other surface coatings of the Subject Products, it subsequently learned of a number of allegations of such incidents and injuries, some of which became the subject of claims and lawsuits against it. RC2 failed to take adequate action to ensure that the Subject Products complied with the Lead Paint Ban. This failure created a risk of lead poisoning and adverse health effects to children. Lead is toxic if ingested by young children and can cause adverse health effects.
15. The Subject Products constitute “banned hazardous products” under CPSA section 8 and the Lead Paint Ban, 15 U.S.C. 2057 and 16 CFR 1303.1(a)(1), 1303.4(b), in that they bear or contain paint or other surface coating materials whose lead content exceeds the permissible limit of 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film.
16. Between March 2003 and September 2007, RC2 sold, manufactured for sale, offered for sale, distributed in commerce, or imported into the United States, or caused one or more of such acts, with respect to the Subject Products, in violation of section 19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). RC2 committed these prohibited acts “knowingly,” as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
17. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, RC2 is subject to civil penalties for the aforementioned violations.
18. RC2 denies that it violated section 19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1), and further denies that it did so “knowingly” (as defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d)).
19. Under the CPSA, the Commission has jurisdiction over this matter and over RC2.
20. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by RC2, or a determination by the Commission, that RC2 knowingly violated the CPSA.
21. In settlement of the Staff's allegations, RC2 Corporation shall pay a civil penalty in the total amount of One Million Two Hundred Fifty Thousand ($1,250,000.00) dollars within twenty (20) calendar days of service of the Commission's final Order accepting the Agreement. This payment shall be made by check payable to the order of the United States Treasury.
22. The Commission will not seek or initiate any enforcement action against RC2 for civil penalties, based upon information known to CPSC through the date of final acceptance of this Agreement, for possible violations of (i) section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), regarding CPSC File No. RP070347, associated with Releases #07-212 and #07-308; (ii) sections 19(a)(1) and 19(a)(4) of the CPSA, 15 U.S.C. § 2068(a)(1) and (a)(4), regarding CPSC File No. RP070524, associated with Release #07-310, and CPSC File No. RP070572, associated with Release #08-119; and (iii) section 19(a)(4) of the CPSA, 15 U.S.C. 068(a)(4), regarding CPSC File No. RP080126, associated with Release #08-120. The Commission's agreement not to seek penalties, as stated herein, will not relieve RC2 from the continuing duty to report to CPSC any new, additional or different information as required by CPSA section 15(b), 15 U.S.C. 2064(b) and the regulations at 16 CFR Part 1115, regarding these matters.
23. Upon the Commission's provisional acceptance of the Agreement, the Agreement shall be placed on the public record and published in the
24. Upon the Commission's final acceptance of the Agreement and issuance of the final Order, RC2 knowingly, voluntarily, and completely waives any rights it may have in this matter to the following: (1) An administrative or judicial hearing; (2) judicial review or other challenge or contest of the validity of the Commission's Order or actions; (3) a determination by the Commission of whether RC2 failed to comply with the CPSA and its underlying regulations; (4) a statement of findings of fact and conclusions of law; and (5) any claims under the Equal Access to Justice Act.
25. The Commission may publicize the terms of the Agreement and Order.
26. The Agreement and Order shall apply to, and be binding upon, RC2 and each of its successors and assigns.
27. The Commission issues the Order under the provisions of the CPSA, and violation of the Order may subject those referenced in paragraph 26 to appropriate legal action.
28. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and Order may not be used to vary or contradict its terms. The Agreement shall not be waived, amended, modified, or otherwise altered, except in a writing that is executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced.
29. If any provision of the Agreement and Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and Order, such provision shall be fully severable. The balance of the Agreement and Order shall remain in full force and effect, unless the Commission and RC2 agree that severing the provision materially affects the purpose of the Agreement and Order.
Upon consideration of the Settlement Agreement entered into between RC2 Corporation (“RC2”), and the U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over RC2, and it appearing that the Settlement Agreement and Order are in the public interest, it is
By order of the commission.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled the Longitudinal Evaluation of AmeriCorps Members: Respondent Tracking to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Lillian Dote at (215) 597-2861. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 606-3472 between 8:30 a.m. and 5 p.m. eastern time, Monday through Friday.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in this
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
A 60-day public comment Notice was published in the
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of comment period.
The comment period for the Final Environmental Impact Statement for the proposed construction of the Western Wake Regional Wastewater Management Facilities, in Wake and Chatham Counties, NC published in the
Henry Wicker, Telephone (910) 251-4930.
Department of Education.
The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before February 10, 2010.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or send e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before February 10, 2010.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or send e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Energy.
Notice of open meeting.
This notice announces a combined meeting of the Environmental Monitoring, Surveillance and Remediation Committee and Waste Management Committee of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico (known locally as the Northern New Mexico Citizens' Advisory Board (NNMCAB). The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, January 13, 2010, 1 p.m.-2:30 p.m.
Bradbury Museum, 15th and Central, Los Alamos, New Mexico 85744.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 1660 Old Pecos Trail, Suite B, Santa Fe, NM 87505. Phone (505) 995-0393; Fax (505) 989-1752 or E-mail:
Tentative Agenda:
Take notice that on December 29, 2009, Medical Area Total Energy Plant, Inc. and New MATEP Inc., 474 Brookline Avenue, Boston, MA 02215, filed with the Federal Energy Regulatory Commission an application for recertification of a facility as a qualifying cogeneration facility pursuant to 18 CFR 292.207(b) of the Commission's regulations. No determination has been made that the submittal constitutes a complete filing.
The facility is a central district energy plant located in the Longwood Medical and Academic Area of Boston, MA that operates in both cogeneration and combined cycle modes, currently comprised of combustion turbine, diesel and steam turbine generators, heat recovery steam generators, conventional boilers, and large industrial chillers. Annual consumption by MATEP's commercial and institutional customers totals over 1.7 billion pounds of steam, 91 ton-hours of refrigeration and 316 million kilowatt-hours of electricity. Its primary energy sources are natural gas and oil based fuels.
The facility is interconnected with NSTAR Electric Company, and sells excess electric power output that is not consumed by the facility's institutional and commercial customers to ISO New England Inc. The facility purchases supplementary, standby, back-up and maintenance power from either NSTAR Electric Company or Constellation New Energy, Inc.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on December 31, 2009, WM Renewable Energy, L.L.C. filed a petition for a declaratory order, pursuant to Rule 207(a)(2) of the Rules of Practice and Procedure of the Commission, requesting a limited waiver from the filing requirement of section 292.203(a)(3), of the Commission's regulations, 18 CFR 292.203(a)(3), for a qualifying small power production facility for the period from September 24, 2007 to June 30, 2008.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on December 22, 2009, City of Anaheim, California and the California Independent System Operator Corporation filed is seventh annual revision to its Transmission Revenue Balancing Account Adjustment, to become effective January 1, 2010.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on December 22, 2009, City of Riverside, California and the California Independent System Operator Corporation filed its seventh annual revision to its Transmission Revenue Balancing Account Adjustment, to become effective January 1, 2010.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Dynegy Services Plum Point 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 January 25, 2010.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Southwestern Power Administration, DOE.
Notice of Rate Order.
Pursuant to Delegation Order Nos. 00-037.00, effective December 6, 2001, and 00-001.00C, effective January 31, 2007, the Deputy Secretary has approved and placed into effect on an
Rate Schedule P-06A, Wholesale Rates for Hydro Peaking Power (superseded by P-09)
The effective period for the rate schedules specified in Rate Order No. SWPA-62 is January 1, 2010, through September 30, 2013.
Mr. James K. McDonald, Assistant Administrator, Office of Corporate Operations, Southwestern Power Administration, Department of Energy, Williams Center Tower I, One West Third Street, Tulsa, Oklahoma 74103, (918) 595-6690,
Southwestern Power Administration's (Southwestern) Administrator has determined based on the 2009 Integrated System Current Power Repayment Study, that existing rates will not satisfy cost recovery criteria specified in Department of Energy Order No. RA 6120.2 and Section 5 of the Flood Control Act of 1944. The finalized 2009 Integrated System Power Repayment Studies (PRSs) indicate that an increase in annual revenue of $17,330,858, or 10.8 percent, beginning January 1, 2010, will satisfy cost recovery criteria for the Integrated System projects. The proposed Integrated System rate schedules would increase annual revenues from $160,255,300 to $177,586,158, to recover increased investments and replacements in the hydroelectric generating and transmission facilities and increased operations and maintenance costs for both Southwestern and the U.S. Army's Corps of Engineers (Corps). Additionally, the PRS analyzes the Purchased Power Deferral Account which indicated no change was needed for the Purchased Power Adder which is used to recover average year purchased energy costs. This proposal also continues the size and frequency of the Administrator's Discretionary Purchased Power Adder Adjustment (Adjustment). This Adjustment allows the Administrator to adjust the Purchased Power Adder twice annually, limited to ±$0.0067 per kilowatthour per year as necessary, at his/her discretion, under a formula-type rate, with notification to the Federal Energy Regulatory Commission, to maintain the balance at a level that will recover average year purchased power costs.
The Administrator has followed Title 10, Part 903 Subpart A, of the Code of Federal Regulations, “Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions” in connection with the proposed rate schedule. On September 23, 2009, Southwestern published notice in the
Information regarding this rate proposal, including studies and other supporting material, is available for public review and comment in the offices of Southwestern Power Administration, Williams Center Tower I, One West Third Street, Tulsa, Oklahoma 74103. Following review of Southwestern's proposal within the Department of Energy, I approved, Rate Order No. SWPA-62, on an interim basis, which increases the existing Integrated System annual revenue requirement to $177,586,158 per year for the period January 1, 2010 through September 30, 2013.
In the matter of: Southwestern Power Administration) Integrated System Rates: Rate Order No. SWPA-62.
Pursuant to Sections 302(a) and 301(b) of the Department of Energy Organization Act, Public Law 95-91, the functions of the Secretary of the Interior and the Federal Power Commission under Section 5 of the Flood Control Act of 1944, 16 U.S.C. 825s, relating to the Southwestern Power Administration (Southwestern) were transferred to and vested in the Secretary of Energy. By Delegation Order No. 00-037.00, the Secretary of Energy delegated to the Administrator of Southwestern the authority to develop power and transmission rates, delegated to the Deputy Secretary of the Department of Energy the authority to confirm, approve, and place in effect such rates on an interim basis and delegated to the Federal Energy Regulatory Commission (FERC) the authority to confirm and approve on a final basis or to disapprove rates developed by the Administrator under the delegation. The Deputy Secretary issued this interim rate order pursuant to that delegation.
FERC confirmation and approval of the following Integrated System (System) rate schedules was provided in FERC Docket No. EF09-4011-000 issued on June 24, 2009, (127 FERC ¶ 62,232) effective for the period January 1, 2009, through September 30, 2010:
FERC confirmation and approval of the following System rate schedule was provided in FERC Docket No. EF07-4011-000 issued February 27, 2007, (118 FERC ¶ 62,162) for the period October 1, 2006, through September 30, 2010:
Southwestern prepared a 2009 Current Power Repayment Study (PRS) which indicated that the existing rates would not satisfy present financial criteria regarding repayment of investment within a 50-year period due to increased investments, replacements and operations and maintenance expenses in the U.S. Army Corps of Engineers (Corps) hydroelectric generating facilities and Southwestern's transmission facilities. The initial Revised PRS indicated the need for an 11.9 percent revenue increase.
An informal meeting was held in June 2009 with Southwestern's customer representatives to review the repayment and rate design processes and present the basis for the proposed revenue increase. At this informal meeting, suggestions from Southwestern's customers relating to investment service lives were discussed. As a result of the discussion, Southwestern made the determination to revise the proposed PRS. Upon completion of those changes in June 2009, Southwestern prepared a final 2009 Revised PRS for the System
The final 2009 Revised PRS indicates that an increase in annual revenues of $17,330,858 (10.8 percent) is necessary beginning January 1, 2010, to accomplish repayment in the required number of years. Accordingly, Southwestern has prepared proposed rate schedules based on the additional revenue requirement and the 2009 Rate Design Study which allocates the revenue requirement to the various System rate schedules to ensure repayment.
Title 10, Part 903, Subpart A of the Code of Federal Regulations, “Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions,” has been followed in connection with the proposed rate adjustments. More specifically, opportunities for public review and comment on proposed System power rates during a 60-day period were announced by notice published in the
No comments were received during the public participation process. Following the conclusion of the comment period on November 23, 2009, the 2009 Power Repayment and Rate Design Studies were finalized. The Administrator made the decision to submit the rate proposal for interim approval and implementation.
The existing rate schedules as developed in the 2006 Integrated System PRS were the basis for the revenue determination in the System Current PRS. The Current PRS indicates that existing rates are insufficient to produce the annual revenues necessary to accomplish repayment of the capital investment as required by Section 5 of the Flood Control Act of 1944 and Department of Energy (DOE) Order No. RA 6120.2.
The Revised PRS indicates it is necessary to increase annual revenues by $17,330,858 or 10.8 percent, which satisfies the cost recovery criteria outlined in DOE Order No. RA 6120.2 and Section 5 of the Flood Control Act of 1944.
In Southwestern's 2009 Rate Design proposal, rates were designed to recover the additional revenue requirements. The monthly demand charge for the sale of Federal hydroelectric power has increased. The base energy and supplemental energy charges also reflect an increase over the current rate. In addition, transmission charges for non-Federal, firm service have increased. Those customers taking transformation service will be affected by an increase in that rate component. The increases to the transmission charges are due to including projected additions and replacements to Southwestern's aging transmission facilities since the last rate change.
Consistent with FERC's Order No. 888, Southwestern will continue charging for the six ancillary services under Rate Schedule P-09 and Rate Schedule NTFS-09, and offering network transmission service under Rate Schedule NFTS-09. Southwestern's rate design has separated the six ancillary services for all transmission service. Two ancillary services, Scheduling, System Control and Dispatch Service together with Reactive and Voltage Support Service, are required for every transmission transaction. These charges are also a part of the capacity rate for Federal power. This is consistent with Southwestern's long-standing practice of charging for the sale and delivery of Federal power in its Federal demand charge. The four remaining ancillary services will be made available to any transmission user within Southwestern's balancing area, including Federal power customers. The rate schedules for Peaking Power and Non-Federal Transmission Service reflect these charges. Network transmission service is provided to those who request the service, within Southwestern's balancing area, but only for non-Federal deliveries. The rate for and application of this service are identified in the Non-Federal Transmission/Interconnection Facilities Service Rate Schedule, NFTS-09.
With respect to the Purchased Power Adder (Adder), Southwestern is proposing, as in all previous proposals beginning with the 1983 implementation of the purchased power rate component, that the Adder is set equal to the current average long-term purchased power revenue requirement. As shown in the Rate Design Study, the amount is determined by dividing the estimated total average direct purchased power costs by Southwestern's total annual contractual 1200-hour peaking energy commitments to the customers (exclusive of contract support arrangements). In this rate proposal, the resulting Adder does not change from the current $0.0067 per kWh of peaking energy. The total revenue created through application of this Adder should enable Southwestern to cover its average annual purchased power costs.
Southwestern received no comments or questions during the public participation period.
Information regarding this rate proposal, including studies, comments and other supporting material, is available for public review and comment in the offices of Southwestern Power Administration, One West Third Street, Tulsa, OK 74103.
The June 2009 Revised PRS indicates that the increased power rates will repay all costs of the Integrated System including amortization of the power investment consistent with the provisions of Department of Energy Order No. RA 6120.2. In accordance with Delegation Order No. 00-037.00, December 6, 2001, and Section 5 of the Flood Control Act of 1944, the Administrator has determined that the proposed System rates are consistent with applicable law and the lowest possible rates consistent with sound business principles.
The environmental impact of the proposed System rates was evaluated in consideration of DOE's guidelines for implementing the procedural provisions of the National Environmental Policy Act and was determined to fall within the class of actions that are categorically excluded from the requirements of preparing either an Environmental Impact Statement or an Environmental Assessment.
In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm, approve and place in effect on an interim basis, effective January 1, 2010, the following Southwestern Integrated System Rate Schedules which shall remain in effect on an interim basis through September 30, 2013, or until the FERC confirms and approves the rates on a final basis.
Dated: December 30, 2009.
“Customer” is the entity which is utilizing and/or purchasing hydroelectric power and
The “Demand Period” used to determine maximum integrated rates of delivery for the purpose of power accounting is the 60-minute period which begins with the change of hour. The term “peak demand” means the highest rate of delivery, in kilowatts, for any Demand Period during a particular month, at any particular point of delivery.
For the purposes of this Rate Schedule, the term “point of delivery” is used to mean either a single physical point at which electric power and energy are delivered from the System of Southwestern (defined below), or a specified set of delivery points which together form a single, electrically integrated load. “Peak demand” for such set of delivery points is computed as the coincidental highest rate of delivery among the specified points rather than as the sum of peak demands for each individual physical point of delivery.
The term “Peaking Contract Demand” means the maximum rate in kilowatts at which Southwestern is, by contract, obligated to deliver Peaking Energy during any Demand Period. Unless otherwise provided by contract, the “Peaking Billing Demand” for any month shall be equal to the “Peaking Contract Demand.”
The term “Uncontrollable Force,” as used herein, shall mean any force which is not within the control of the party affected, including, but not limited to failure of water supply, failure of facilities, flood, earthquake, storm, lightning, fire, epidemic, war, riot, civil disturbance, labor disturbance, sabotage, or restraint by court of general jurisdiction, which by exercise of due diligence and foresight such party could not reasonably have been expected to avoid.
The term “System of Southwestern” means the high-voltage transmission lines and related facilities Southwestern owns and operates, and/or has contractual rights to such transmission facilities owned by others.
“Ancillary Services” are those services necessary to support the transmission of capacity and energy from resources to loads while maintaining reliable operation of the System of Southwestern in accordance with good utility practice. Definitions of the Ancillary Services are as follows:
“Scheduling, System Control, and Dispatch Service” is provided by Southwestern as Balancing Authority Area operator and is in regard to interchange and load-match scheduling and related system control and dispatch functions.
“Reactive Supply and Voltage Control from Generation Sources Service” is provided at transmission facilities in the System of Southwestern to produce or absorb reactive power and to maintain transmission voltages within specific limits.
“Regulation and Frequency Response Service” is the continuous balancing of generation and interchange resources accomplished by raising or lowering the output of on-line generation as necessary to follow the moment-by-moment changes in load and to maintain frequency within a Balancing Authority Area.
“Spinning Operating Reserve Service” maintains generating units on-line, but loaded at less than maximum output, which may be used to service load immediately when disturbance conditions are experienced due to a sudden loss of generation or load.
“Supplemental Operating Reserve Service” provides an additional amount of operating reserve sufficient to reduce Area Control Error to zero within 10 minutes following loss of generating capacity which would result from the most severe single contingency.
“Energy Imbalance Service” corrects for differences over a period of time between schedules and actual hourly deliveries of energy to a load. Energy delivered or received within the authorized bandwidth (defined below) for this service is accounted for as an inadvertent flow and is returned to the providing party by the receiving party in accordance with standard utility practice.
The capacity charge for Hydro Peaking Power includes such transmission services as are necessary to integrate Southwestern's resources in order to reliably deliver Hydro Peaking Power and associated energy to Customers. This capacity charge also includes two ancillary services charges, Scheduling, System Control and Dispatch Service and Reactive Supply and Voltage Control from Generation Sources Service.
Customers may utilize the capacity associated with Peaking Contract Demand for the transmission of non-Federal energy, on a non-firm, as-available basis, at no additional charge for such transmission service or associated Ancillary Services, under the following terms and conditions:
(1) The sum of the capacity, for any hour, which is used for Peaking Energy, Supplemental Peaking Energy, and Secondary Transmission Service, may not exceed the Peaking Contract Demand;
(2) The non-Federal energy transmitted under such secondary service is delivered to the Customer's point of delivery for Hydro Peaking Power;
(3) The Customer commits to provide Real Power Losses associated with such deliveries of non-Federal energy; and
(4) Southwestern determines that sufficient transfer capability exists between the point of receipt into the System of Southwestern of such non-Federal energy and the Customer's point of delivery for Hydro Peaking Power for the time period that such secondary transmission service is requested.
(a)
(b) A purchased power adder of $0.0067 per kilowatthour of Peaking Energy delivered, as adjusted by the Administrator, Southwestern, in accordance with the procedure within this rate schedule. This adder does not apply to:
For any particular month, charges for transformation service will be assessed on the greater of (1) that month's actual peak demand, or (2) the highest peak demand recorded during the previous 11 months, at any point of delivery. For the purpose of this Rate Schedule, the peak demand will be based on all deliveries, of both Federal and non-Federal energy, from the System of Southwestern, at such point during such month.
(a) Regulation and Frequency Response Service: Monthly rate of $0.09 per kilowatt of Peaking Billing Demand.
(b) Spinning Operating Reserve Service:
(c) Supplemental Operating Reserve Service:
(d) Energy Imbalance Service: $0.0 per kilowatt for all reservation periods.
Regulation and Frequency Response Service and Energy Imbalance Service are available only for deliveries of power and energy to load within Southwestern's Balancing Authority Area. Spinning and Supplement Operating Reserve Services are
For any month, the charges for Ancillary Services listed above for deliveries of Hydro Peaking Power shall be based on the Peaking Billing Demand.
The daily charge for Spinning and Supplemental Operating Reserve Services for non-Federal generation inside Southwestern's Balancing Authority Area shall be applied to the greater of Southwestern's previous day's estimate of the peak, or the actual peak, in kilowatts, of the internal non-Federal generation.
Customers for which Ancillary Services are made available as specified above, must inform Southwestern by written notice of the Ancillary Services which they do
Subject to Southwestern's approval of the ability of such resources or third parties to meet Southwestern's technical and operational requirements for provision of such Ancillary Services, the Customer may change the Ancillary Services which it takes from Southwestern and/or from other sources at the beginning of any month upon the greater of 60 days notice or upon completion of any necessary equipment modifications necessary to accommodate such change;
Provided; that if the Customer chooses not to take Regulation and Frequency Response Service, which includes the associated Regulation Purchased Adder, the Customer must pursue these services from a different host Balancing Authority; thereby moving all metered loads and resources from Southwestern's Balancing Authority Area to the Balancing Authority Area of the new host Balancing Authority. Until such time as that meter reconfiguration is accomplished, the Customer will be charged for the Regulation and Frequency Response Service and Regulation Purchased Adder then in effect. The Customer must notify Southwestern by July 1 of this choice, to be effective January 1 of the subsequent calendar year. Provided; that such Customers shall be assessed for all costs incurred by Southwestern for the Regulation Purchased Adder for the calendar year in which they give notice. Such assessment will be paid in twelve equal monthly payments during the subsequent calendar year.
From time to time, at Southwestern's sole discretion, Southwestern will make a determination that additional regulation purchases are necessary in order to meet its Balancing Authority Area requirements. With the exception of the initial year of implementation, this Regulation Purchased Adder will be estimated annually before May 1, and Southwestern will provide written notice to Customers of the estimated Regulation Purchased Adder charge to be recovered in the next calendar year. Provided; that should Southwestern incur additional costs beyond the estimate, such cost will be included in the Regulation Purchased Adder for that same calendar year.
The monthly charge will be placed into effect from January 1 through December 31. The cost for such Regulation Purchased Adder shall be recovered by Customers located within Southwestern's Balancing Authority Area on a non-coincident peak load-ratio share (LRS) basis, divided into twelve equal monthly payments. If the Regulation Purchased Adder is determined and applied under rate schedule NFTS-09, then it shall not be applied here.
The Regulation Purchased Adder is based on the following formula rate, calculated to include the costs incurred by Southwestern for regulation purchases for the previous calendar year.
With factors defined as follows:
Energy Imbalance Service primarily applies to deliveries of power and energy which are required to satisfy a Customer's load. As Hydro Peaking Power and associated energy are limited by contract, the Energy Imbalance Service bandwidth specified for Non-Federal Transmission Service does not apply to deliveries of Hydro Peaking Power, and therefore Energy Imbalance Service is not charged on such deliveries. Customers who consume a capacity of Hydro Peaking Power greater than their Peaking Contract Demand may be subject to a Capacity Overrun Penalty.
Customers which have loads within Southwestern's Balancing Authority Area are obligated by contract to provide resources, over and above the Hydro Peaking Power and associated energy purchased from Southwestern, sufficient to meet their loads. A Capacity Overrun Penalty shall be applied only when the formulas provided in Customers' contracts indicate an overrun on Hydro Peaking Power,
By contract, the Customer is subject to limitations on the maximum amounts of Peaking Energy which may be scheduled during any month or during any four consecutive months. When the Customer schedules an amount in excess of such maximum amounts for any month, or schedules more than 1,200 hours of Peaking Energy per kilowatt of Peaking Contract Demand in any contract year, such Customer is subject to the Energy Overrun Penalty.
Customers are required to self-provide all Real Power Losses for non-Federal energy transmitted by Southwestern on behalf of such Customers under the provisions detailed below.
Real Power Losses are computed as four (4) percent of the total amount of non-Federal energy transmitted by Southwestern. The Customer's Monthly Real Power Losses are computed each month on a megawatthour basis as follows:
The Customer must schedule or cause to be scheduled to Southwestern, Real Power Losses for which it is responsible subject to the following conditions:
(1) The Customer shall schedule and deliver real power losses back to Southwestern during the second month after they were incurred by Southwestern in the transmission of the Customer's non-Federal power and energy over the System of Southwestern.
(2) On or before the twentieth day of each month, Southwestern shall determine the amount of non-Federal loss energy it
(3) Real Power Losses not delivered to Southwestern by the Customer, according to the schedule provided, during the month in which such losses are due shall be billed by Southwestern to the Customer to adjust the end-of-month loss energy balance to 0 megawatthours and the Customer shall be obliged to purchase such energy at the following rates:
(4) Real Power Losses delivered to Southwestern by the Customer in excess of the losses due during the month shall be purchased by Southwestern from the Customer at a rate per megawatthour equal to Southwestern's rate per megawatthour for Supplemental Peaking Energy, as set forth in Southwestern's then-effective Rate Schedule for hydro peaking power to adjust such hourly end-of-month loss energy balance to 0 megawatthours.
If C is negative, then C = zero (0).
The Power Factor Penalty is applicable to radial interconnections with the System of Southwestern. The total Power Factor Penalty for any month shall be the sum of all charges “C” for all Demand Periods of such month. No penalty is assessed for leading power factor. Southwestern, in its sole judgment and at its sole option, may determine whether power factor calculations should be applied to a single physical point of delivery or to multiple physical points of delivery where a Customer has a single, electrically integrated load served through multiple points or interconnections. The general criteria for such decision shall be that, given the configuration of the Customer's and Southwestern's systems, Southwestern will determine, in its sole judgment and at its sole option, whether the power factor calculation more accurately assesses the detrimental impact on Southwestern's system when the above formula is calculated for a single physical point of delivery or for a combination of physical points or for an interconnection as specified by an Interconnection Agreement.
Southwestern, at its sole option, may reduce or waive power factor penalties when, in Southwestern's sole judgment, low power factor conditions were not detrimental to the System of Southwestern due to particular loading and voltage conditions at the time the power factor dropped below 95 percent lagging.
If, during any month, the quantity of Peaking Contract Demand of Southwestern's 1200 hour peaking power sales customers that is scheduled by the customer for delivery is reduced by Southwestern for a period or periods of not less than two consecutive hours by reason of an outage caused by either an Uncontrollable Force or by the installation, maintenance, replacement or malfunction of generation, transmission and/or related facilities on the System of Southwestern, or insufficient pool levels, the Customer's capacity charges for such month will be reduced for each such reduction in service by an amount computed under the formula:
Such reduction in charges shall fulfill Southwestern's obligation to deliver Peaking Power and Peaking Energy.
Not more than twice annually, the Purchased Power Adder of $.0067 (6.7 mills) per kilowatthour of Peaking Energy, as noted in this Rate Schedule, may be adjusted by the Administrator, Southwestern, by an amount up to a total of ± $.0067 (6.7 mills) per kilowatthour per year, as calculated by the following formula:
A Customer is the entity which is utilizing and/or purchasing services from Southwestern pursuant to this rate schedule.
A “Service Agreement” is a contract executed between a Customer and Southwestern for the transmission of non-Federal power and energy over the System of Southwestern or for interconnections. Service Agreements include:
“Firm Transmission Service Agreements” that provide for reserved transmission capacity on a firm basis, for a particular point-to-point delivery path.
“Non-Firm Transmission Service Agreements” that provide for the Customer to request transmission service on a non-firm basis.
“Network Transmission Service Agreements” that provide for the Customer to request firm transmission service for the delivery of capacity and energy from the Customer's network resources to the Customer's network load, for a period of one year or more.
“Interconnection Agreements” that provide for the use of the System of Southwestern and recognize the exchange of mutual benefits for such use or provide for application of a charge for Interconnection Facilities Service.
A “Service Request” is made under a Transmission Service Agreement through the Southwest Power Pool, Inc. (SPP) Open Access Same-Time Information System (OASIS) for reservation of transmission capacity over a particular point-to-point delivery path for a particular period. When a Service Request is approved by SPP, it becomes a “Transmission Service Transaction.” The Customer must submit hourly schedules for actual service in addition to the Service Request.
“Firm Point-to-Point Transmission Service” is transmission service reserved on a firm basis between specific points of receipt and delivery pursuant to either a Firm Transmission Agreement or to a Transmission Service Transaction. “Non-Firm Point-to-Point Transmission Service” is transmission service reserved on a non-firm basis for specific points of receipt and delivery pursuant to a Transmission Service Transaction. “Network Integration Transmission Service” is transmission service provided under Part III of Southwestern's Open Access Transmission Service Tariff which provides the Customer with firm transmission service for the delivery of capacity and energy from the Customer's resources to the Customer's load.
“Secondary Transmission Service” is associated with Firm Point-to-Point Transmission Service and Network Integration Transmission Service. For Firm Point-to-Point Transmission Service, it consists of transmission service provided on an as-available, non-firm basis, scheduled within the limits of a particular capacity reservation for transmission service, and scheduled from points of receipt, or to points of delivery, other than those designated in a Long-Term Firm Transmission Agreement or a Transmission Service Transaction for Firm Point-to-Point Transmission Service. For Network Integration Transmission Service, Secondary Transmission Service consists of transmission service provided on an as-available, non-firm basis, from resources other than the Network Resources designated in a Network Transmission Service Agreement, to meet the Customer's Network Load. The charges for Secondary Transmission Service, other than Ancillary Services, are included in the applicable capacity charges for Firm Point-to-Point Transmission Service and Network Integration Transmission Service.
The “Demand Period” used to determine a maximum integrated rate of delivery for the purposes of power accounting is the 60-minute period which begins with the change of hour. The term “Peak Demand” means the highest rate of delivery, in kilowatts, for any Demand Period during a particular month, at any particular point of delivery or interconnection.
For the purposes of this rate schedule, the term “Point of Delivery” is used to mean either a single physical point to which electric power and energy are delivered from the System of Southwestern, or a specified set of delivery points which together form a single, electrically integrated load. Peak Demand for such set of points is computed as the coincidental highest rate of delivery among the specified points rather than as the sum of peak demands for each individual physical point.
“Ancillary Services” are those services necessary to support the transmission of capacity and energy from resources to loads while maintaining reliable operation of the System of Southwestern in accordance with good utility practice. Ancillary Services include:
“Scheduling, System Control, and Dispatch Service” (“Scheduling”) is provided by Southwestern as Balancing Authority Area operator and is in regard to interchange and load-match scheduling and related system control and dispatch functions.
“Reactive Supply and Voltage Control from Generation Sources Service” (“Reactive Supply”) is provided at transmission facilities in the System of Southwestern to produce or absorb reactive power and to maintain transmission voltages within specific limits.
“Regulation and Frequency Response Service” is the continuous balancing of generation and interchange resources accomplished by raising or lowering the output of on-line generation as necessary to follow the moment-by-moment changes in load and to maintain frequency within a Balancing Authority Area.
“Spinning Operating Reserve Service” maintains generating units on-line, but loaded at less than maximum output, which may be used to service load immediately when disturbance conditions are experienced due to a sudden loss of generation or load.
“Supplemental Operating Reserve Service” provides an additional amount of operating reserve sufficient to reduce Area Control Error to zero within 10 minutes following loss of generating capacity which would result from the most severe single contingency.
“Energy Imbalance Service” corrects for differences over a period of time between schedules and actual hourly deliveries of energy to a load.
“Interconnection Facilities Service” provides for the use of the System of Southwestern to deliver energy and/or provide system support at an interconnection.
Customers, unless otherwise specified by contract, will be charged on the greatest of (1) the Peak Demand at any particular point of delivery during a particular month, rounded up to the nearest whole megawatt, or (2) the highest Peak Demand recorded at such point of delivery during any of the previous 11 months, rounded up to the nearest whole megawatt, or (3) the capacity reserved by contract; which amount shall be considered such Customer's reserved capacity. Secondary Transmission Service for such Customers shall be limited during any month to the most recent Peak Demand on which a particular Customer is billed or to the capacity reserved by contract, whichever is greater.
Network Integration Transmission Service is available only for deliveries of non-Federal power and energy, and is applied to the Customer utilizing such service exclusive of any deliveries of Federal power and energy. The capacity on which charges for any particular Customer utilizing this service is determined on the greatest of (1) the Peak Demand at any particular point of delivery during a particular month, rounded up to the nearest whole megawatt, or (2) the highest Peak Demand recorded at such point of delivery during any of the previous 11 months, rounded up to the nearest whole megawatt.
For those Customers taking Network Integration Transmission Service who are also taking delivery of Federal Power and Energy, the Peak Demand shall be determined by subtracting the energy scheduled for delivery of Federal Power and Energy for any hour from the metered demand for such hour.
Secondary transmission Service for such Customers shall be limited during any month to the most recent Peak Demand on which a particular Customer is billed. Charges for Ancillary Services shall also be assessed.
Customers are required to self-provide all Real Power Losses for non-Federal energy transmitted by Southwestern on behalf of such Customers under the provisions detailed below.
Real Power Losses are computed as four (4) percent of the total amount of non-Federal energy transmitted by Southwestern. The Customer's Monthly Real Power Losses are computed each month on a megawatthour basis as follows:
The Customer must schedule or cause to be scheduled to Southwestern, Real Power Losses for which it is responsible subject to the following conditions:
(1) The Customer shall schedule and deliver real power losses back to Southwestern during the second month after they were incurred by Southwestern in the transmission of the Customer's non-Federal power and energy over the System of Southwestern.
(2) On or before the twentieth day of each month, Southwestern shall determine the amount of non-Federal loss energy it provided on behalf of the Customer during the previous month and provide a written schedule to the Customer setting forth hour-by-hour the quantities of non-Federal energy to be delivered to Southwestern as losses during the next month.
(3) Real Power Losses not delivered to Southwestern by the Customer, according to the schedule provided, during the month in which such losses are due shall be billed by Southwestern to the Customer to adjust the end-of-month loss energy balance to 0 megawatthours and the Customer shall be obliged to purchase such energy at the following rates:
(4) Real Power Losses delivered to Southwestern by the Customer in excess of the losses due during the month shall be purchased by Southwestern from the Customer at a rate per megawatthour equal to Southwestern's rate per megawatthour for Supplemental Peaking Energy, as set forth in Southwestern's then-effective Rate Schedule for hydro peaking power to adjust such hourly end-of-month loss energy balance to 0 megawatthours.
(a) Scheduling, System Control, and Dispatch Service:
(b) Reactive Supply and Voltage Control from Generation Sources Service:
(c) Regulation and Frequency Response Service:
(d) Spinning Operating Reserve Service:
(e) Supplemental Operating Reserve Service:
(f) Energy Imbalance Service: $0.0 per kilowatt for all periods of reservation.
Charges for all Ancillary Services are applied to the reserved or network transmission service taken by the Customer in accordance with the rates listed above when such services are provided by Southwestern.
The charges for Ancillary Services are considered to include Ancillary Services for any Secondary Transmission Service, except in cases where Ancillary Services (c) through (f) are applicable to a Secondary Transmission Service transaction, but are not applicable to the firm capacity reservation under which Secondary Transmission Service is provided. When charges for Ancillary Services are applicable to Secondary Transmission Service, the charge for the Ancillary Service shall be the hourly rate applied to all energy transmitted utilizing the Secondary Transmission Service.
Customers for which Ancillary Services (c) through (f) are made available as specified above must inform Southwestern by written notice of the Ancillary Services which they do
Subject to Southwestern's approval of the ability of such resources or third parties to meet Southwestern's technical and operational requirements for provision of such Ancillary Services, the customer may change the Ancillary Services which it takes from Southwestern and/or from other sources at the beginning of any month upon the greater of 60 days written notice or upon the completion of any necessary equipment modifications necessary to accommodate such change;
Provided; that if the Customer chooses not to take Regulation and Frequency Response Service, which includes the associated Regulation Purchased Adder, the Customer must pursue these services from a different host Balancing Authority; thereby moving all metered loads and resources from Southwestern's Balancing Authority Area to the Balancing Authority Area of the new host Balancing Authority. Until such time as that meter reconfiguration is accomplished, the Customer will be charged for the Regulation and Frequency Response Service and Adder then in effect. The Customer must notify Southwestern by July 1 of this choice, to be effective January 1 of the subsequent calendar year. Provided; that such Customers shall be assessed for all costs incurred by Southwestern for the Regulation Purchased Adder for the calendar year in which they give notice. Such assessment will be paid in twelve equal monthly payments during the subsequent calendar year.
From time to time, at Southwestern's sole discretion, Southwestern will make a determination that additional regulation purchases are necessary in order to meet its Balancing Authority Area requirements. With the exception of the initial year of implementation, this Regulation Purchased Adder will be estimated annually before May 1, and Southwestern will provide written notice to Customers of the estimated Regulation Purchased Adder charge to be recovered in the next calendar year. Provided; that should Southwestern incur additional costs beyond the estimate, such cost will be included in the Regulation Purchased Adder for that same calendar year.
The monthly charge will be placed into effect from January 1 through December 31. The cost for such Regulation Purchased Adder shall be recovered by Customers located within Southwestern's Balancing Authority Area on a non-coincident peak load-ratio share (LRS) basis, divided into twelve equal monthly payments. If the Regulation Purchased Adder is determined and applied under rate schedule P-09, then it shall not be applied here.
The Regulation Purchased Adder is based on the following formula rate, calculated to include the costs incurred by Southwestern for regulation purchases for the previous calendar year.
With factors defined as follows:
Energy Imbalance Service is authorized for use only within a bandwidth of ± 1.5 percent of the actual requirements of the load at a particular point of delivery, for any hour, compared to the resources scheduled to meet such load during such hour. Deviations which are greater than ± 1.5 percent, but which are less than ± 2,000 kilowatts, are considered to be within the authorized bandwidth. Deviations outside the authorized bandwidth are subject to a Capacity Overrun Penalty.
Energy delivered or received within the authorized bandwidth for this service is accounted for as an inadvertent flow and will be netted against flows in the future. The inadvertent flow in any given hour will only be offset with the flows in the corresponding hour of a day in the same category. The two categories of days are weekdays and weekend days/North American Electric Reliability Council holidays. This process will result in a separate inadvertent accumulation for each hour of the two categories of days. The hourly accumulations in the current month will be added to the hourly inadvertent balances from the previous month, resulting in a month-end balance for each hour.
The Customer is required to adjust the scheduling of resources in such a way as to reduce the accumulation towards zero. It is recognized that the inadvertent hourly flows can be both negative and positive, and that offsetting flows should deter a significant accumulation of inadvertent. In the event any hourly month-end balance exceeds 12 MWHs, the excess will be subject to the
The Power Factor Penalty is applicable to radial interconnections with the System of Southwestern. The total Power Factor Penalty for any month shall be the sum of all charges “C” for all Demand Periods of such month. No penalty is assessed for leading power factor. Southwestern, in its sole judgment and at its sole option, may determine whether power factor calculations should be applied to a single physical point of delivery or to multiple physical points of delivery where a Customer has a single, electrically integrated load served through multiple points or interconnections. The general criteria for such decision shall be that, given the configuration of the Customer's and Southwestern's systems, Southwestern will determine, in its sole judgment and at its sole option, whether the power factor calculation more accurately assesses the detrimental impact on Southwestern's system when the above formula is calculated for a single physical point of delivery or for a combination of physical points or for an interconnection as specified by an Interconnection Agreement.
Southwestern, at its sole option, may reduce or waive power factor penalties when, in Southwestern's sole judgment, low power factor conditions were not detrimental to the System of Southwestern due to particular loading and voltage conditions at the time the power factor dropped below 95 percent lagging.
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
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 by docket numbers 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
Environmental Protection Agency (EPA).
Notice of Availability of 2010 BEACH Act Grants.
Section 406(b) of the Clean Water Act (CWA) as amended by the Beaches Environmental Assessment and Coastal Health (BEACH) Act authorizes EPA to award program development and implementation grants to eligible States, territories, Tribes, and local governments to support microbiological monitoring and public notification of the potential for exposure to disease-causing microorganisms in coastal recreation waters, including the Great Lakes. EPA encourages coastal and Great Lakes States and Tribes that have received BEACH Act grants in the past to apply for 2010 BEACH Act grants to implement effective and comprehensive coastal recreation water monitoring and public notification programs (“implementation grants”). EPA also encourages eligible coastal and Great Lakes Tribes to apply for 2010 BEACH Act grants to develop effective and comprehensive coastal recreation water monitoring and public notification programs (“development grants”).
States, Erie County, Pennsylvania, and Tribes that previously received BEACH Act grants must submit applications on or before March 12, 2010. Other eligible Tribes should notify the relevant EPA Regional BEACH Act grant coordinator of their interest in applying for a grant on or before February 25, 2010. Upon receipt of a Tribe's notice of interest, EPA will establish an appropriate application deadline.
You must send your application to the appropriate EPA Regional grant coordinator listed in this notice under Section VI, Grant Coordinators.
Lars Wilcut, 1200 Pennsylvania Ave., NW., (4305T), Washington, DC 20460.
The Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000 amends the Clean Water Act to better protect public health at our nation's beaches through improved water quality standards and beach monitoring and notification programs. The BEACH Act authorizes EPA to award grants to develop and implement monitoring and public notification programs for coastal recreation waters, consistent with EPA's required performance criteria. EPA
The general statutory authority for BEACH Act grants is section 406(b) of the Clean Water Act, as amended by the BEACH Act, Public Law 106-284, 114 Stat. 970 (2000). It provides that, “(T)he Administrator may make grants to States and local governments to develop and implement programs for monitoring and notification for coastal recreation waters adjacent to beaches or similar points of access that are used by the public.” CWA section 406(b)(2)(A), however, limits EPA's ability to award implementation grants only to those States and Tribes that meet certain requirements (see Section II, Funding and Eligibility, below for information on specific requirements).
In fiscal year 2010, EPA intends to award grants authorized under CWA section 406(b) to eligible States and Tribes to support the implementation of coastal recreation water monitoring and public notification programs that are consistent with EPA's required performance criteria for implementation grants. Also in fiscal year 2010, EPA intends to award development grants to eligible Tribes to support the development of coastal recreation water monitoring and public notification programs that are consistent with EPA's performance criteria for grants. EPA published the required performance criteria for grants in its
Coastal and Great Lake States that meet the requirements of CWA section 406(b)(2)(A) are eligible for grants in fiscal year 2010 to implement monitoring and notification programs. The definition of the term “State” in CWA section 502 includes the District of Columbia, and current U.S. territories: the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Tribes may also be eligible for BEACH Act grants. In order to be eligible, a Tribe must have coastal recreation waters adjacent to beaches or similar points of access that are used by the public, and the Tribe must demonstrate that it meets the “treatment in the same manner as a State” criteria in CWA section 518(e) for the purposes of receiving a section 406 BEACH Act grant.
CWA section 406(b)(2)(B) authorizes EPA to make a grant to a local government for implementation of a monitoring and notification program only if, after July 19, 2003, EPA determines that the State within which the local government has jurisdiction is not implementing a program that meets the requirements of CWA section 406(b), which includes a requirement that the program is consistent with the performance criteria in
Section 518(e) of the CWA authorizes EPA to treat eligible Indian Tribes in the same manner as States for the purpose of receiving CWA section 406 grant funding. For fiscal year 2010, EPA will make $100,000 available to eligible Tribes. In order to be eligible for a CWA section 406 development grant, a Tribe must have coastal recreation waters adjacent to beaches or similar points of access that are used by the public. The phrase “coastal recreation waters” is defined in CWA section 502(21) to mean the Great Lakes and marine coastal waters (including coastal estuaries) that are designated under CWA section 303(c) for use for swimming, bathing, surfing, or similar water contact activities. The statute explicitly excludes from the definition inland waters and waters upstream of the mouth of a river or stream having an unimpaired natural connection with the open sea. In addition, a Tribe must demonstrate that it meets the “treatment in the same manner as a State” (TAS) criteria contained in CWA section 518(e) for purposes of receiving a CWA section 406 grant. To demonstrate TAS, the Tribe must show that it: (1) Is Federally recognized; (2) has a governing body carrying out substantial governmental duties and powers; (3) will be exercising functions pertaining to waters within the reservation; and (4) is reasonably expected to be capable of carrying out the functions consistent with the CWA and all applicable regulations. EPA encourages those Tribes with coastal recreation waters to contact their EPA Regional BEACH Act grant coordinator for further information regarding the application process as soon as possible.
Yes, there are additional eligibility requirements and grant conditions. First, CWA section 406(b)(2)(A) provides that EPA may only award a grant to implement a monitoring and notification program if:
(i) The program is consistent with the performance criteria published by the Administrator under CWA section 406(a);
(ii) The State or local government prioritizes the use of grant funds for particular coastal recreation waters based on the use of the water and the risk to human health presented by pathogens or pathogen indicators;
(iii) The State or local government makes available to the Administrator the factors used to prioritize the use of funds under clause (ii);
(iv) The State or local government provides a list of discrete areas of coastal recreation waters that are subject to the program for monitoring and notification for which the grant is provided that specifies any coastal recreation waters for which fiscal constraints will prevent consistency with the performance criteria under CWA section 406(a); and
(v) The public is provided an opportunity to review the program through a process that provides for
Second, CWA section 406(c) requires that as a condition of receipt of a CWA section 406 grant, a State or local government program for monitoring and notification must identify:
(1) Lists of coastal recreation waters in the State, including coastal recreation waters adjacent to beaches or similar points of access that are used by the public;
(2) In the case of a State program for monitoring and notification, the process by which the State may delegate to local governments responsibility for implementing the monitoring and notification program;
(3) The frequency and location of monitoring and assessment of coastal recreation waters based on—
(A) The periods of recreational use of the waters;
(B) The nature and extent of use during certain periods;
(C) The proximity of the waters to known point sources and nonpoint sources of pollution; and
(D) Any effect of storm events on the waters;
(4)(A) The methods to be used for detecting levels of pathogens and pathogen indicators that are harmful to human health; and
(B) The assessment procedures for identifying short-term increases in pathogens and pathogen indicators that are harmful to human health in coastal recreation waters (including increases in relation to storm events);
(5) Measures for prompt communication of the occurrence, nature, location, pollutants involved, and extent of any exceeding of, or likelihood of exceeding, applicable water quality standards for pathogens and pathogen indicators to—
(A) The Administrator, in such form as the Administrator determines to be appropriate; and
(B) A designated official of a local government having jurisdiction over land adjoining the coastal recreation waters for which the failure to meet applicable standards is identified;
(6) Measures for the posting of signs at beaches or similar points of access, or functionally equivalent communication measures that are sufficient to give notice to the public that the coastal recreation waters are not meeting or are not expected to meet applicable water quality standards for pathogens and pathogen indicators; and
(7) Measures that inform the public of the potential risks associated with water contact activities in the coastal recreation waters that do not meet applicable water quality standards.
Third, as required by CWA section 406(b)(3)(A) and the
(1) Data collected as part of the program for monitoring and notification as described in section 406(c), and
(2) Actions taken to notify the public when water quality standards are exceeded. Grant recipients must submit to EPA both the monitoring and notification reports for any beach season by January 31 of the year following the beach season. For the 2010 beach season, the deadline for States to submit complete and correct reports is January 31, 2011. EPA first established this report submission deadline in the
Fourth, grant recipients must report to EPA, latitude, longitude and mileage data on:
(1) The extent of beaches and similar points of public access adjacent to coastal recreation waters, and
(2) The extent of those beaches that are monitored.
EPA first established this requirement in the
For fiscal year 2010, the total available for BEACH Act grants is expected to be $9,900,000. EPA expects to award all but $100,000 to eligible States for implementation grants. EPA intends to award the remaining $100,000 to eligible Tribes. If EPA does not award any grants to eligible Tribes, EPA will redistribute the money to eligible States using the base allocation formula described below.
For fiscal year 2010, EPA expects to award grants to all eligible States who apply for funding based on a new grant allocation formula that combines the formula that the Agency originally developed in 2002 (“base allocation formula”) with a new allocation formula (the “supplemental allocation formula”). In an August 13, 2008,
The base allocation formula sums three parts. The first part varies with the length of the beach season. This amount is scaled in $50,000 increments from $150,000 for States with the shortest beach seasons to $300,000 for those with the longest beach seasons. States and territories with long seasons are allotted two times the base amount of grant funds as those with short beach seasons (Table 1). The second part of the formula allocates half of the total remaining funds (
In 2009 and earlier years EPA used shoreline miles and coastal county population as surrogates for beach miles and beach use, respectively, in the BEACH Act grant allocation formula. Based on discussions with States through the allocation formula workgroup, beginning with the award of fiscal 2010 grants, the Agency is using shoreline miles and coastal county population as factors in the base allocation formula and not surrogates for beach mileage and beach use. Both factors provide a stable foundation for States in determining the resources available through BEACH Act grant funding for their beach monitoring and public notification programs. EPA is making beach miles and beach use factors in the supplemental allocation formula.
EPA selected beach season length as a factor because it represents the amount of time in a year when a government would conduct its monitoring and notification program. The longer the beach season, the more resources a government would need to conduct monitoring and notification. The Agency obtained the information on the length of a beach season from information collected through the
Shoreline miles data represent a reasonable estimate of the geographic extent over which a government would be expected to conduct monitoring. EPA used the National Oceanic and Atmospheric Administration (NOAA) publication,
EPA presently uses the coastal population of counties (from the 2000 Census data) to quantify the coastal population that is wholly or partially within the State's or territory's legally-defined coastal zone. EPA intends to use data from the 2010 census when it becomes available.
The supplemental allocation formula is a formula for allocating funds beyond those allocated using the base allocation formula. The supplemental allocation formula will be used only for two purposes: (1) To allocate BEACH Act grant funds (beyond the first $10 million) when the amount of funds appropriated for BEACH Act grants for a given fiscal year exceeds $10 million; and (2) to reallocate BEACH Act grant funds older than three years left unspent by States and territories. To determine the total amount of funds available for reallocation, EPA explained in the August 13, 2008, notice that it would evaluate State and territorial spending and reduce a State's or territory's 2010 grant award by an amount equal to the amount of unexpended funds more than three years old. With today's notice, EPA is implementing the approach the Agency outlined in the August 13, 2008, notice for 2010 and future years.
The supplemental allocation formula sums two parts: beach length and beach use. Each part is weighted equally. The first part of the formula allocates half of the available funds on the basis of the ratio of beach miles in a State or territory to the total length of beach miles across the entire United States. The second part of the formula allocates the other half of the available funds on the basis of the ratio of beach use in a State or territory to the total beach use across the entire United States. For 2010, EPA expects the amount available for the supplemental allocation formula to be $63,674. Table 3 summarizes the supplemental allocation formula:
Over the last three years, EPA reviewed the original BEACH Act grant allocation formula and recognized issues and some imbalance in the allocation of grant funds among States and territories. EPA sought input from the States by having them participate in a workgroup formed to review the allocation formula. EPA and the State workgroup subsequently identified and reviewed a range of options for improving the formula. The Agency outlined this process in the
EPA reviewed the data on the allocation and expenditure of grant funds and available options and concluded that some modest changes to how EPA allocates funds are appropriate. Based on its review, EPA has decided to make changes to the grant allocation formula using an incremental process, starting with modest changes to address outstanding needs. The first step in adjusting the grant formula uses two approaches: (1) Re-allocating older unused grant funds and (2) making changes to the formula elements that would be factored in for any appropriated funds for BEACH Act grants that exceed $10 million per fiscal year.
EPA selected miles of beach as a factor because it determines the geographical extent over which a government would conduct monitoring if it monitored all its beaches. The more miles of beaches, the more resources a government would need to conduct monitoring. EPA has completed quality assurance testing of its beach mileage data on all but six of the 37 BEACH Act States and Tribes. For those States and Tribes for which EPA does not have data assessed for quality, the Agency estimated the length of beach miles based on data submitted by the affected jurisdictions.
EPA selected beach use as a factor because it reflects the magnitude of potential human exposure to pathogens at recreational beaches. Greater use of beaches makes it more likely that a government would need to increase monitoring frequency due to the larger number of people potentially exposed to pathogens. EPA used the 2001 NOAA publication,
For 2010, the total available for BEACH Act grants is expected to be $9,900,000. Two Tribes, the Grand Portage Band of Chippewa (Minnesota) and the Makah Indian Nation, are expected to receive grants of $50,000 each, leaving $9,800,000 for grants to States and territories, $63,674 of which will be allocated using the supplemental allocation formula. Assuming all 35 States with coastal recreation waters apply and meet the statutory eligibility requirements for implementation grants (and have met the statutory grant conditions applicable to previously awarded section 406 grants), the distribution of the funds for year 2010 is expected to be:
EPA expects that all 35 States and territories will apply for a grant. If fewer than 35 States apply for the allocated amount, or if any applicant fails to meet the statutory eligibility requirements (or the statutory conditions applicable to previously awarded section 406 grants), then EPA will distribute available grant funds to eligible States in the following order:
(1) States that meet the eligibility requirements for implementation grants and that have met the statutory conditions applicable to previously awarded section 406 grants will be awarded the full amount of funds allocated to the State under the formula described above.
(2) EPA may award program implementation grants to local governments in States that the Agency determines have not met the requirements for implementation grants.
(3) Consistent with CWA section 406(h), EPA will use grant funds to conduct a beach monitoring and notification program in the case of a State that has no program for monitoring and notification that is consistent with EPA's grant performance criteria.
If a State or Tribe cannot use all of its allocation, the Regional Administrator may award the unused funds to any eligible coastal or Great Lake grant recipient in the Region for the continued development or implementation of its coastal recreation water monitoring and notification program. If, after re-allocation, there are still unused funds within the Region, EPA Headquarters will redistribute these funds to any eligible coastal or Great Lake BEACH Act grant recipient according to the supplemental formula described above.
EPA expects to apportion the funds set aside for Tribal grants evenly among all eligible Tribes that apply for funding.
The expected funding and project periods for implementation grants awarded in fiscal year 2010 is one year.
Recipients do not have to provide matching funds for BEACH Act grants. EPA may establish a match requirement in the future based on a review of State program activity and funding levels.
Recipients of implementation grants may use funds for activities to support implementing a beach monitoring and notification program that is consistent with the required performance criteria for grants specified in the document,
EPA Regional Offices will award CWA section 406 grants through a non-competitive process. EPA expects to award grants to all eligible State, Tribal, and territorial applicants that meet the applicable requirements described in this notice.
The Administrator has delegated the authority to award BEACH Act grants to the Regional Administrators.
The number assigned to the BEACH Act grants is 66.472, Program Code CU.
For fiscal year 2010, BEACH Act grants cannot be included in a Performance Partnership Grant.
Your application package should contain completed:
• EPA SF-424 Application for Federal Assistance, and
• Program Summary.
In order for EPA to determine that a State or local government is eligible for an implementation grant, the applicant must submit documentation with its application to demonstrate that its program is consistent with the performance criteria. The Program Summary must contain sufficient technical detail for EPA to confirm that a program meets the statutory eligibility requirements and statutory grant conditions for previously awarded CWA section 406 grants listed in Section II (Funding and Eligibility) of this notice. The Program Summary must also describe how the State or local government used BEACH Act grant funds to develop and implement the beach monitoring and notification program, and how the program is consistent with the nine performance criteria in
States, Erie County, and Tribes that have previously been awarded BEACH Act grants must submit application packages to the appropriate EPA Regional Office by March 12, 2010. EPA will make an award after the Agency reviews the documentation and confirms that the program meets the applicable requirements. The Office of Management and Budget has authorized EPA to collect this information (BEACH Act Grant Information Collection Request, OMB control number 2040-0244). Please contact the appropriate EPA Regional Office for a complete application package. See Section VI for a list of EPA Regional Grant Coordinators or visit the EPA Beaches Web site at
The Notice of Interest should include the Tribe's name and the name and telephone number of a contact person.
Yes. Three specific QA/QC requirements must be met to comply with EPA's performance criteria for grants:
(1) Applicants must submit documentation that describes the quality system implemented by the State, territory, Tribe, or local government. Documentation may be in the form of a Quality Management Plan or equivalent documentation.
(2) Applicants must submit a quality assurance project plan (QAPP) or equivalent documentation.
(3) Applicants are responsible for submitting documentation of the quality system and QAPP for review and approval by the EPA Quality Assurance Officer or his designee before they take primary or secondary environmental measurements. More information about the required QA/QC procedures is available in Chapter Four and Appendix H of
Recipients must submit annual performance reports and financial reports as required in 40 CFR 31.40 and 31.41. The annual performance report explains changes to the beach monitoring and notification program during the grant year. It also describes how the grant funds were used to implement the program to meet the performance criteria listed in
The regulations at 40 CFR Part 31 govern the award and administration of grants to States, Tribes, local governments, and territories under CWA section 406(b). Allowable costs will be determined according to the cost principles outlined in 2 CFR Part 225.
Environmental Protection Agency.
Notice of meeting.
The Environmental Protection Agency (EPA) established the Clean Air Act Advisory Committee (CAAAC) on November 19, 1990, to provide independent advice and counsel to EPA on policy issues associated with
Open meeting notice; Pursuant to 5 U.S.C. App. 2 Section 10(a)(2), notice is hereby given that the Clean Air Act Advisory Committee will hold their next open meeting on Wednesday February 3, 2010 from 8 a.m. to 4 p.m. at the Double Tree at National Airport, located at 300 Army Navy Drive, Arlington, Virginia. Seating will be available on a first come, first served basis. The Economic Incentives and Regulatory Innovations subcommittee will meet on Tuesday February 2, 2010 from 9:30 a.m. to 12 p.m. The Permits, New Source Reviews and Toxics subcommittee will meet on Tuesday February 2, 2010 from approximately 12:45 p.m. to 5 p.m. The meetings will also be held at the Double Tree at National Airport, located at 300 Army Navy Drive, Arlington, Virginia. The Mobile Sources Technical Review Subcommittee (MSTRS) will not be meeting in February. The agenda for the CAAAC full committee meeting on February 3, 2010 will be posted on the Clean Air Act Advisory Committee Web site at
Inspection of Committee Documents: The Committee agenda and any documents prepared for the meeting will be publicly available at the meeting. Thereafter, these documents, together with CAAAC meeting minutes, will be available by contacting the Office of Air and Radiation Docket and requesting information under docket OAR-2004-0075. The Docket office can be reached by e-mail at:
Concerning the CAAAC, please contact Pat Childers, Office of Air and Radiation, U.S. EPA (202) 564-1082, FAX (202) 564-1352 or by mail at U.S. EPA, Office of Air and Radiation (Mail code 6102 A), 1200 Pennsylvania Avenue, NW., Washington, DC 20004. For information on the Subcommittees, please contact the following individuals: (1) Permits/NSR/Toxics—Liz Naess, (919) 541-1892; (2) Economic Incentives and Regulatory Innovations—Carey Fitzmaurice, (202) 564-1667 and; (3) Mobile Source Technical Review—John Guy, (202) 343-9276. Additional Information on these meetings, CAAAC, and its Subcommittees can be found on the CAAAC Web site:
For information on access or services for individuals with disabilities, please contact Mr. Pat Childers at (202) 564-1082 or
Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA or Agency) is announcing the second in-person meeting of the Climate Ready Water Utilities (CRWU) Working Group of the National Drinking Water Advisory Council (NDWAC). The purpose of this meeting is for the Working Group to discuss the attributes and enabling environment of climate ready water utilities and to identify climate-related tools, training, and products.
The second in-person CRWU Working Group meeting will take place on February 3, 2010, from 8:30 a.m. to 5:30 p.m., Pacific Standard Time (PST) and on February 4, 2010, from 9 a.m. to 3 p.m., PST.
The meeting will take place at the Springs Preserve, which is located at 333 S. Valley View Blvd. between U.S. 95 and Alta Drive in Las Vegas, Nevada.
Interested participants from the public should contact Lauren Wisniewski, Designated Federal Officer, U.S. Environmental Protection Agency, Office of Ground Water and Drinking Water, Water Security Division (Mail Code 4608T), 1200 Pennsylvania Avenue, NW., Washington, DC, 20460. Please contact Lauren Wisniewski at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public teleconference of the Clean Air Scientific Advisory Committee (CASAC) Ozone Review Panel for the Reconsideration of the 2008 National Ambient Air Quality Standards (NAAQS) to conduct a review of EPA's proposed rule that reconsiders the National Ambient Air Quality Standards (NAAQS) for Ozone set in March 2008.
The public teleconference will be held on Monday, January 25, 2010 from 10 a.m. to 1 p.m. (Eastern Time).
The public teleconference will be conducted by telephone only.
Any member of the public who wants further information concerning the teleconference may contact Dr. Holly Stallworth, Designated Federal Officer (DFO), EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via telephone/voice mail (202) 343-9867; fax (202) 233-0643; or e-mail at
Section 109(d)(1) of the CAA requires that the Agency periodically review and revise, as appropriate, the air quality criteria and the National Ambient Air Quality Standards (NAAQS) for the six “criteria” air pollutants, including ozone.
From 2005 to 2008, the CASAC Ozone Review Panel conducted scientific reviews of EPA's scientific assessments of the health and welfare effects of Ozone and other Photochemical Oxidants. This panel last met on March 28, 2008 to provide comments on EPA's Final Rule for the National Ambient Air Quality Standards (NAAQS) for ozone (73 FR 16436). CASAC advisory reports on this subject are available on the CASAC Web site at
On September 16, 2009, EPA Administrator Lisa Jackson announced her decision to reconsider the March 12, 2008 primary and secondary Ozone NAAQS to ensure they are scientifically sound and protective of public health and the environment. Pursuant to this decision, EPA has proposed on January 6, 2009 to set different primary and secondary standards than those set in 2008 to provide requisite protection of public health and welfare, respectively (
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology and (e) ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number.
Persons wishing to comment on this information collection should submit comments by March 12, 2010. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395-5167, or via the Internet at Nicholas_A._Fraser@omb.eop.gov and to Cathy Williams, Federal Communications Commission (FCC), 445 12th Street, SW, Washington, DC 20554. To submit your comments by e-mail send then to: PRA@fcc.gov and to Cathy.Williams@fcc.gov.
For additional information about the information collection send an e-mail to PRA@fcc.gov or contact Cathy Williams on (202) 418-2918.
OMB Control Number: 3060-0849.
Title: Commercial Availability of Navigation Devices, CS Docket 97-80.
Form Number: Not applicable.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for-profit entities.
Number of Respondents and Responses: 958 respondents; 529,510 responses.
Estimated Time per Response: 0.00278 hours - 40 hours per response.
Frequency of Response: Recordkeeping and third party disclosure requirements; On occasion, quarterly, and semi-annual reporting requirements.
Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Sections 4(i), 303(r) and 629 of the Communications Act of 1934, as amended.
Total Annual Burden: 44,173 hours.
Total Annual Cost: $137,550.
Privacy Act Impact Assessment: No impact(s).
Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.
Needs and Uses: On March 17, 2005 the FCC released a Second Report, In the Matter of Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation Devices, CS Docket No. 97-80, FCC 05-76. In the Second Report and Order and Further Notice of Proposed Rulemaking, the Commission extended by twelve months the existing 2006 deadline in Section 76.1204(a)(1) prohibiting the deployment of integrated navigation devices by multichannel video programming distributors in order to promote the retail sale of non-integrated navigation devices. This extension was intended to afford cable operators additional time to investigate and develop a downloadable security solution that will allow common reliance by cable operators and consumer electronics manufacturers on an identical security function without the additional costs of physical separation inherent in the point-of-deployment module, or CableCARD, solution. The rules adopted in this proceeding added information collection requirements to this collection and also were intended to implement Section 629 of the Communications Act of 1934, as amended, 47 U.S.C. § 549.
Federal Communications Commission.
Notice.
In this document, comment is sought on a December 17, 2009 petition for reconsideration or clarification (Petition) filed by the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the American Planning Association (Petitioner). The Petitioner asks the Federal Communications Commission (Commission) to reconsider or clarify its interpretation of provisions in Section 332(c)(7) of the Communications Act, as amended.
Interested parties may file oppositions on or before January 22, 2010, and replies on or before February 8, 2010.
You may submit comments, identified by WT Docket No. 08-165, by any of the following methods: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. For detailed
Michael Rowan, Spectrum & Competition Policy Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
This is a summary of the Commission's public notice in WT Docket No. 08-165 released December 23, 2009. The complete text of the public notice is available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The public notice may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160, facsimile (301) 816-0169, e-mail
On December 17, 2009, the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the American Planning Association filed a petition
All filings should reference the docket number of this proceeding, WT Docket No. 08-165.
This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
Comments may be filed using (1) the Commission's ECFS, (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Effective December 28, 2009, all hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
Comments filed in response to this public notice will be available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and via the Commission's ECFS by entering the docket number, WT Docket No. 08-165. The comments may also be purchased from Best Copy and Printing, Inc., telephone (800) 378-3160, facsimile (301) 816-0169, e-mail
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 5, 2010.
Board of Governors of the Federal Reserve System, January 6, 2010.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 26, 2010.
Board of Governors of the Federal Reserve System, January 6, 2010.
The Indian Health Service (IHS) is committed to encouraging American Indians and Alaska Natives to enter the health professions and to assuring the availability of Indian health professionals to service Indians. The IHS is committed to the recruitment of students for the following programs:
•
•
•
Awards under this initiative will be administered using the grant mechanism of the IHS.
Estimated Funds Available: An estimated $14.0 million will be available for FY 2010 awards. The IHS program anticipates, but cannot guarantee, due to possible funding changes, student scholarship selections from any or all of the following disciplines in the 103, 103P and 104 Programs for the Scholarship Period 2010-2011. Anticipated Number of Awards: Approximately 70 awards will
This announcement is a limited competition for awards made to American Indians (Federally recognized Tribal members, state recognized Tribal members, and first and second degree descendants of Federal or state recognized Tribal members), or Alaska Natives only.
• Have successfully completed high school education or high school equivalency;
• Have been accepted for enrollment in a compensatory, pre-professional general education course or curriculum; and
• Have successfully completed high school education or high school equivalency; and
• Have been accepted for enrollment or are enrolled in an accredited pregraduate program leading to a baccalaureate degree in pre-medicine, pre-dentistry, pre-podiatry or pre-optometry.
The Scholarship Program does not require matching funds or cost sharing to participate in the competitive grant process.
All other sources of outside scholarship/grant funding would be applied to the student's accounts at the college or university and universities before the Indian Health Service Scholarship Program would pay any of the remaining balance.
New applicants are responsible for contacting and requesting an application packet from their IHS Area Scholarship Coordinator. They are listed on the IHS Web site at
Each applicant will be responsible for submitting a completed application (Forms IHS-856-1 through 856-8) and one copy to their IHS Area Scholarship Coordinator. Electronic applications are being accepted for this cycle. Go to
• Completed and signed application Checklist.
• Original signed complete application form IHS-856 (for continuation students-Data Sheet in place of IHS-856).
• Current Letter of Acceptance from College/Proof of application to Health Professions Program.
• Official transcripts for all colleges (or high school transcripts for applicants who have not taken college courses).
• Cumulative GPA: Applicant's calculations.
• Applicant's Documents for Indian Eligibility.
A. If you are a member of a Federally recognized Tribe or Alaska Native (recognized by the Secretary of the Interior), provide evidence of membership such as:
(1) Certification of Tribal enrollment by the Secretary of the Interior, acting through the Bureau of Indian Affairs (BIA Certification: Form 4432-Category A or D, whichever is applicable); or
(2) In the absence of BIA certification, documentation that you meet requirements of Tribal membership as prescribed by the charter, articles of incorporation or other legal instrument of the Tribe and have been officially designated as a Tribal member as evidenced by an accompanying document signed by an authorized Tribal official, or
(3) Other evidence of Tribal membership satisfactory to the Secretary of the Interior.
B. If you are a member of a Tribe terminated since 1940 or a State recognized Tribe and first or second degree descendant, provide official documentation that you meet the requirements of Tribal membership as prescribed by the charter, articles of incorporation or other legal instrument of the Tribe and have been officially designated as a Tribal member as evidenced by an accompanying document signed by an authorized Tribal official; or other evidence, satisfactory to the Secretary of the Interior, that you are a member of the Tribe. In addition, if the terminated or state recognized Tribe of which you are a member is not on a list of such Tribes published by the Secretary of the Interior in the
C. If you are not a Tribal member but are a natural child or grandchild of a Tribal member you must submit: (1) Evidence of that fact, e.g., your birth certificate and/or your parent's birth certificate showing the name of the Tribal member; and (2) evidence of your parent's or grandparent's Tribal membership in accordance with paragraphs A and B. The relationship to the Tribal member must be clearly documented. Failure to submit the required documentation will result in the application not being accepted for review.
If you meet the criteria of B or C you are eligible only for the Preparatory or Pregraduate Scholarships.
• Two Faculty/Employee Evaluations with original signature.
• Reasons for Requesting the Scholarship.
• Delinquent Debt Form.
• 2010 W-4 Form with original signature.
• Course Curriculum Verification with original signature.
• Acknowledgement Card.
• Curriculum for Major.
Health Professions Applicants Only:
• Health Related Experience (MPH only)—Optional Form.
Application Receipt Date: The application deadline for
Applications (original and one copy) shall be considered as meeting the deadline if they are received by the appropriate IHS Area Scholarship Coordinator on the deadline date or postmarked on or before the deadline date. Applicants should request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks will not be acceptable as proof of timely mailing and will not be considered for funding. Once the application is received, the applicant will receive an “Acknowledgement of Receipt of Application” (IHS-815) card that is included in the application packet. Applications received after the announced closing date will be returned to the applicant and will not be considered for funding.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
No more than 5% of available funds will be used for part-time scholarships this fiscal year. Students are considered part-time if they are enrolled for a
New applicants are responsible for using the online application or contacting and requesting an application packet from their IHS Area Scholarship Coordinator. Continuation students are also encouraged to use the online application process; however, the Division of Grant Operations will also mail continuation students an application packet. If you do not receive this information please contact your IHS Area Scholarship Coordinator to request a continuation application.
Continuing students must submit a complete application (original plus one copy) and meet the deadline of Sunday, February 28, 2010;
Applications will be reviewed and scored with the following criteria:
• Needs of the IHS (health personnel needs in Indian Country) (30 points):
Applicants are considered for scholarship awards based on their desired career goals and how these goals relate to current Indian health personnel needs. Applications for each health career category are reviewed and ranked separately.
• Academic Performance (40 points):
Applicants are rated according to their academic performance as evidenced by transcripts and faculty evaluations. In cases where a particular applicant's school has a policy not to rank students academically, faculty members are asked to provide a personal judgment of the applicant's achievement. Health Professions applicants with a cumulative GPA below 2.0 are not eligible for award.
• Faculty/Employer Recommendations (30 points):
Applicants are rated according to evaluations by faculty members, current and/or former employers and Tribal officials regarding the applicant's potential in the chosen health related professions.
• Stated Reasons for Asking for the Scholarship and Stated Career Goals (30 points):
Applicants must provide a brief written explanation of reasons for asking for the scholarship and of their career goals. The applicant's narrative will be judged on how well it is written and its content.
• Applicants who are closest to graduation or completion of training are awarded first. For example, senior and junior applicants under the Health Professions Pregraduate Scholarship receives funding before freshmen and sophomores.
• Priority Categories
The following is a list of health professions that will be considered for funding in each scholarship program in FY 2010.
• Indian Health Professions Preparatory Scholarships:
A. Pre-Clinical Psychology (Jr. and Sr. undergraduate years).
B. Pre-Dietetics (Jr. and Sr. undergraduate years).
C. Pre-Medical Technology (Jr. and Sr. undergraduate years).
D. Pre-Nursing.
E. Pre-Occupational Therapy.
F. Pre-Pharmacy.
G. Pre-Physical Therapy (Jr. and Sr. undergraduate years).
H. Pre-Social Work (Jr. and Sr. undergraduate years).
• Indian Health Professions Pregraduate Scholarships:
A. Pre-Dentistry.
B. Pre-Medicine.
C. Pre-Podiatry.
D. Pre-Optometry.
• Indian Health Professions Scholarship:
A. Chemical Dependency Counseling: Baccalaureate and Master's Level.
B. Clinical Psychology: PhD Program.
C. Dental Hygiene: B.S.
D. Dentistry: D.D.S. and D.M.D.
E. Diagnostic Radiology Technology: Certificate, Associates and B.S.
F. Dietitian: B.S.
G. Environmental Health & Engineering: B.S.
H. Health Records: R.H.I.T. and R.H.I.A.
I. Medical Technology: B.S.
J. Medicine: Allopathic and Osteopathic.
K. Nurse: Associate and Bachelor Degrees and advanced degrees in Psychiatry, Geriatric, Women's Health, Pediatric Nursing, Nurse Anesthetist, and Nurse Practitioner.
(Priority consideration will be given to Registered Nurses employed by the IHS; in a program conducted under a contract or compact entered into under the Indian Self-Determination Act and Education Assistance Act (Pub. L. 93-638) and its amendments; or in a program assisted under Title V of the IHCIA.)
L. Occupational Therapy: B.S. or Masters.
M. Optometry: O.D.
N. Pharmacy: Pharm.D.
O. Physician Assistant: PA-C.
P. Physical Therapy: M.S. and D.P.T.
Q. Podiatry: D.P.M.
R. Respiratory Therapy: BS Degree.
S. Social Work: Masters Level only (Direct Practice and Clinical concentrations).
T. Ultrasonography (Prerequisite: Diagnostic Radiology Technology).
The applications will be reviewed and scored by the IHS Scholarship Program's Application Review Committee appointed by the IHS. Each reviewer will not be allowed to review an application from his/her area or his/her own Tribe. Each application will be reviewed by three reviewers. The average score of the three reviews provides the final Ranking Score for each applicant. To determine the ranking of each applicant, these scores are sorted from the highest to the lowest within each scholarship, health discipline, date of graduation, and score. If several students have the same date of graduation and score within the same discipline, computer ranking list will randomly sort and will not be sorted by alphabetical name. Selections for recommendations to the Director, IHS, are then made from the top of each ranking list to the extent that funds allocated by the IHS among the three scholarships are available for obligation.
It is anticipated that continuing applicants will be notified in writing during the first week of June and new applicants will be notified in writing during the first week of July 2010. An Award Letter will be issued to successful applicants. Unsuccessful applicants will be notified in writing, which will include a brief explanation of the reasons the application was not successful and provide the name of the IHS official to contact if more information is desired.
Regulations at 42 CFR Part 136.304 provide that the IHS shall, from time to time, publish a list of health professions eligible for consideration for the award of Indian Health Professions Preparatory
Awards for the Indian Health Professions Scholarships will be made in accordance with 42 CFR 136.330.
Recipients shall incur a service obligation prescribed under section 338A of the Public Health Service Act (42 U.S.C. 2541) which shall be met by service:
(1) In the IHS;
(2) in a program conducted under a contract or compact entered into under the Indian Self-Determination Act and Education Assistance Act (Pub. L. 93-638) and its amendments;
(3) in a program assisted under Title V of the Indian Health Care Improvement Act (Pub. L. 94-437) and its amendments; or
(4) in a private practice option of his or her profession, if the practice (a) is situated in a health professional shortage area, designated in regulations promulgated by the Secretary of Health and Human Services (Secretary) and (b) addresses the health care needs of a substantial number (51%) of Indians as determined by the Secretary in accordance with guidelines of the Service.
Pursuant to the Indian Health Amendments of 1992, (Pub. L. 102-573), a recipient of an Indian Health Professions Scholarship may, at the election of the recipient, meet his/her active duty service obligation prescribed under section 338A of the Public Health Service Act (42 U.S.C. 2541) by a program specified in options (1)-(4) above that:
(i) Is located on the reservation of the Tribe in which the recipient is enrolled; or
(ii) Serves the Tribe in which the recipient is enrolled.
In summary, all recipients of the Indian Health Professions Scholarship are reminded that recipients of this scholarship incur a service obligation. Moreover, this obligation shall be served at a facility determined by the Director, IHS, consistent with IHCIA, Public Law 94-437, as amended by Public L. 100-713, and Pub. L. 102-573.
It is the policy of the IHS that a scholarship recipient awarded under the Health Professions Scholarship Program of the Indian Health Care Improvement Act maintain a 2.0 cumulative grade point average (GPA) each semester/quarter and maintain full-time student status (minimum of 12 credit hours considered by your school as full-time). A recipient of a scholarship under the Health Professions Pre-Graduate and Health Professions Preparatory Scholarship authority must maintain good academic standing each semester/quarter and be a full time student (minimum of 12 credit hours or the number of credit hours considered by your school as full-time). In addition to the two requirements stated above, a Health Professions Scholarship program grantee must be enrolled in an approved/accredited school for a health professions degree. Part-time students for the three scholarship programs must also maintain a 2.0 cumulative GPA and must take at least six credit hours each semester/quarter but less than the number of hours considered full-time by your school. Scholarship grantees must be approved for part-time status at the time of scholarship award. Scholarship grantees may not change from part-time status to full-time status or vice versa in the same academic year.
The following reports must be sent to the IHS Scholarship Program at the identified time frame. Each scholarship grantee will be provided with an IHS Scholarship Handbook where the needed reports are located. If a scholarship grantee fails to submit these reports as required, they will be ineligible for continuation of scholarship support and scholarship award payments will be discontinued.
Within thirty (30) days from the beginning of each semester or quarter, scholarship grantees must submit a Recipient's Enrollment and Initial Progress Report (Form IHS-856-10, page 63 of the student handbook).
Within thirty (30) days from the end of each academic period,
If at any time during the semester/quarter, scholarship grantees are advised to reduce the number of credit hours for which they are enrolled below the minimum of the 12 (or the number of hours considered by their school as full-time) for a full-time student or at least six hours for part-time students; or if they experience academic problems, they must submit this report (Form IHS-856-11, page 65 of the student handbook).
• Change of Academic Status
Scholarship Grantees must immediately notify the IHS Area Scholarship Coordinator and their Scholarship Program Analyst if they are placed on academic probation, dismissed from school, or voluntarily withdraw for any reason (personal or medical).
• Change of Health Discipline
Scholarship Grantees may not change from the approved IHS Scholarship Program health discipline during the school year. If an unapproved change is made, scholarship payments will be discontinued.
• Change in Graduation Date
Any time that a change occurs in a scholarship grantee's expected graduation date, they must notify their IHS Area Scholarship Coordinator immediately in writing. Justification must be attached from the school advisor.
Please address application inquiries to the appropriate IHS Area Scholarship Coordinator. Other programmatic inquiries may be addressed to Dr. Dawn Kelly, Chief, Scholarship Program, 801 Thompson Avenue, Suite 120, Rockville, Maryland 20852; Telephone (301) 443-6622. (This is not a toll-free number). For grants information, contact the Grants Scholarship Coordinator, Division of Grants Operations, Indian Health Service, 801 Thompson Avenue, Suite 120, Rockville, Maryland 20852; Telephone (301) 443-0243. (This is not a toll-free number.)
The Public Health Service (PHS) is committed to achieving the health promotion and disease prevention objectives of
Interested individuals are reminded that the list of eligible health and allied professions is effective for applicants for
The Indian Health Service (IHS) is accepting grant applications for the FY 2010 Special Diabetes Program for Indians (SDPI) Community-Directed grant program. This competitive grant announcement is open to all existing SDPI grantees that have an active grant in place and are in compliance with the previous terms and conditions of the grant. This program is authorized under H.R. 6331 “Medicare Improvement for Patients and Providers Act of 2008” (Section 303 of Pub. L. 110-275) and the Snyder Act, 25 U.S.C. 13. The program is described in the Catalog of Federal Domestic Assistance (CDFA) under 93.237.
The SDPI seeks to support diabetes treatment and prevention activities for American Indian/Alaska Native (AI/AN) communities. Grantees will implement programs based on identified diabetes-related community needs. Activities will be targeted to reduce the risk of diabetes in at-risk individuals, provide services that target those with new onset diabetes, provide high quality care to those with diagnosed diabetes, and/or reduce the complications of diabetes.
The purpose of the FY 2010 SDPI Community-Directed grant program is to support diabetes treatment and prevention programs that have a program plan which integrates at least one IHS Diabetes Best Practice and that have a program evaluation plan in place which includes tracking outcome measures.
This is not an application for continued funding as was previously available for Community-Directed grant programs.
During the past 50 years, type 2 diabetes has become a major public health issue in many AI/AN communities, and it is increasingly recognized that AI/AN populations have a disproportionate burden of diabetes (Ghodes, 1995). In 2006, 16.1% of AI/ANs aged 20 years or older had diagnosed diabetes (unpublished IHS Diabetes Program Statistics, 2006) compared to 7.8% for the non-Hispanic white population (CDC, 2007). In addition, AI/AN people have higher rates of diabetes-related morbidity and mortality than in the general U.S. population (Carter, 1996; Harris, 1995; Gilliland, 1997). Strategies to address the prevention and treatment of diabetes in AI/AN communities are urgently needed.
Under the Balanced Budget Act of 1997, Congress authorized the IHS to administer the SDPI grant program. SDPI grants are programmatically directed by the IHS Division of Diabetes Treatment and Prevention (DDTP).
The SDPI is a $150 million per year grant program. Over 330 programs have received SDPI Community-Directed grants annually since 1998. In addition, 66 demonstration projects have been funded annually since 2004 to address prevention of type 2 diabetes or cardiovascular disease risk reduction. A Congressional re-authorization in 2008 extended the SDPI through FY 2011.
Grants.
The total amount of funding identified for FY 2010 SDPI Community-Directed grant program is $104.8 million. Funds available to each IHS Area and to urban Indian health programs have been determined through Tribal consultation. Within each area, local Tribal consultation guided IHS decision-making on how much funding is available per eligible applicant. FY 2010 SDPI funding remains unchanged from FY 2009, per Tribal consultation. All awards issued under this announcement are subject to the availability of funds. In the absence of funding, the agency is under no obligation to make awards funded under this announcement.
Approximately 50 awards will be issued for Budget Cycle III. Applications will be accepted from grantees whose current SDPI FY 2009 grants end on March 31, 2009. Additionally, Budget Cycle II grantees that were deemed ineligible due to incomplete applications or that possessed delinquent OMB A-133 financial audits can resubmit applications under the timelines for Budget Cycle III.
The project period for grants made under this announcement is 24 months, subject to the availability of funds.
Eligible applicants include the following:
•
•
•
•
Current SDPI grantees are eligible to apply for competing continuation funding under this announcement and must demonstrate that they have complied with previous terms and conditions of the SDPI grant in order to receive funding under this announcement.
Non-profit Tribal organizations and national or regional health boards are not eligible, consistent with past Tribal consultation. Applicants that do not meet these eligibility requirements will have their applications returned without further consideration.
Under this announcement, only one SDPI Community-Directed diabetes grant will be awarded per entity. If a Tribe submits an application, their local IHS facility cannot apply; if the Tribe does not submit an application, the IHS facility can apply. Tribes that are awarded grant funds may sub-contract with local IHS facilities to provide specific clinical services. In this case, the Tribe would be the primary SDPI grantee and the Federal entity would have a sub-contract within the Tribe's SDPI grant.
Tribes are encouraged to collaborate with any appropriate local entities including IHS facilities. If a Tribe seeks to provide specific clinical or support services, it may implement a sub-contract with these entities in order to transfer funds. The amount of SDPI funding that the Tribe receives remains the same. The Tribe, as the primary grantee, arranges with the entity to provide specified services that support the program's plan. The entity may request direct costs only.
When a Tribe sub-contracts with the local IHS facility, application requirements for collaborative arrangements include:
• A signed Memorandum of Agreement (MOA) must be submitted with the SDPI application. The MOA must include the scope of work assigned to the sub-contracting IHS facility.
• The IHS Area Director and the Tribal Chairperson must give signed approval of the MOA.
• The Tribe's application must include additional SF-424 and SF-424A forms that are completed by the IHS facility which includes a budget narrative and a face page that is signed by the Chief Executive Officer (CEO).
Programs that submit one application on behalf of multiple organizations (sub-grantees) must submit copies of selected application forms and documents for each of their sub-grantees. (See Section IV, Subsection 2 for specifics.) All sub-grantees must meet the eligibility requirements noted in Subsection 1 above.
The FY 2010 Special Diabetes Program for Indians (SDPI) Community-Directed grant program does not require matching funds or cost sharing.
Provide information about the SDPI Program Coordinator on the “Key Contacts Form” which is included in the application package. The Program Coordinator must meet the following requirements:
• Have relevant health care education and/or experience.
• Have experience with program management and grants program management, including skills in program coordination, budgeting, reporting and supervision of staff.
• Have a working knowledge of diabetes.
Existing SDPI grantees must submit a current, signed and dated Tribal resolution or Tribal letter of support from all Indian Tribe(s) served by the project. Applications from each Tribal organization must include specific resolutions or letters of support from all Tribes affected by the proposed project activities.
If the Tribal resolution or Tribal letter of support is not submitted with the application, it must be received in the Division of Grants Operations (DGO) prior to the objective review date, March 17, 2010.
Urban Indian health programs must submit a letter of support from the organization's board of directors. Urban Indian health programs are non-profit organizations and must also submit a copy of the 501(c)(3) Certificate. All letters of support must be included in the application or submitted to the DGO prior to the objective review date, March 17, 2010.
IHS Hospitals or Clinics
IHS facilities must submit a letter of support from the CEO.
The documentation must be received in the DGO prior to the objective review date, March 17, 2010.
The application package and instructions may be found at
Mandatory documents for all applicants include:
• Application forms:
○ SF-424.
○ SF-424A.
○ SF-424B.
○ Key Contacts Form.
• Budget Narrative.
• Project Narrative.
• Tribal Resolution or Tribal Letter of Support (Tribal Organizations only).
• Letter of Support from Organization's Board of Directors (Title V Urban Indian Health Programs only).
• 501(c)(3) Certificate (Title V Urban Indian Health Programs only).
• CEO Letters of Support (IHS facilities only).
• 2008 and 2009 IHS Diabetes Care and Outcomes Audit Report.
• Biographical sketches for all Key Personnel.
• Disclosure of Lobbying Activities (SF-LLL) (if applicable).
• Documentation of OMB A-133 required Financial Audit for FY 2007 and FY 2008. Acceptable forms of documentation include:
○ E-mail confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
○ Face sheets from audit reports. These can be found on the FAC Web site:
The primary grantee for applications that propose sub-grantees must submit all of the mandatory documents listed above. In addition, they must submit the following documents for each sub-grantee:
• SF-424, SF-424A, SF-424B and Key Contacts Form.
• Project Narrative.
• Budget Narrative.
• 2008 and 2009 IHS Diabetes Care and Outcomes Audit Reports.
A separate budget is required for each sub-grantee, but the primary grantee's application must reflect the total budget for the entire cost of the project.
Programs that propose sub-contracts with IHS facilities to provide clinical
• MOA that is signed by the primary grantee, the sub-contractor, the IHS Area Director and the Tribal Chairperson.
• SF-424 and SF-424A forms completed by the IHS facility (in addition to the primary applicant's SF-424 forms).
A separate budget is required for the sub-contract, but the primary grantee's application must reflect the total budget for the entire cost of the project.
A.
Part A: Program Information (no more than 4 pages)
Section 1: Community Needs Assessment
A1.1 Describe the burden of diabetes in your community. Include estimates of the number of people diagnosed with diabetes and the total number of people. Describe how you calculated these estimates.
A1.2 Briefly describe the top diabetes-related health issues in your community.
A1.3 Briefly describe the unique challenges your program experiences related to prevention and treatment of diabetes.
Section 2: Leadership Support
A2.1 Question: Has at least one organization administrator or Tribal leader agreed to be actively involved in your program's work? (Yes or No).
A2.2 Provide the name and role or position that this leader holds.
A2.3 Describe how this leader will be involved with your program.
Section 3: Personnel
Using the table format that is in the application instructions, provide the following information for each person who will be paid with SDPI funds:
A3.1 Name.
A3.2 Title.
A3.3 Brief description of tasks/activities.
A3.4 Is this person already on staff with your SDPI or diabetes program?
A3.5 What percent FTE of this person's salary will be paid using SDPI funds?
Section 4: Diabetes Audit Review
Obtain copies of your local IHS Diabetes Care and Outcomes Audit Reports for 2008 and 2009. Review and compare the results for these two years. Work with your local audit coordinator or Area Diabetes Consultant (ADC) if you need help.
A4.1 Provide a list of results for three to five items/elements (e.g., A1c, eye exam, education,
A4.2 Provide a list of three to five items/elements that need to be improved.
A4.3 Describe how your program will address these three to five items/elements that need to be improved or describe how your program will work with your local health care facility to address these areas.
Section 5: Collaboration
A5.1 Describe existing partnerships and collaborations that your program has in place.
A5.2 Describe new partnerships and collaboration that your program is planning to implement.
Part B: Program Planning and Evaluation (no more than 3 pages, with 2 pages for each additional Best Practice)
Section 1: Overview
Each 2009 IHS Diabetes Best Practice includes two specific measures that are called “key measures.” Programs may track additional measures based on local priorities. A list of all Best Practices is located in the application instructions. This list provides a short description of the contents and key measures for each Best Practice.
B1.1 List which IHS Diabetes Best Practice(s) your program will implement in order to address the needs that were identified in your community assessment.
Section 2: Program Planning
Provide the information requested below separately for each Best Practice that will be implemented:
B2.1 Target Population: What population will you target?
B2.2 Goal: Describe the goal that your program wants to achieve as a result of implementing the selected Best Practice.
B2.3 Objectives/Measures: List the objective(s) your program will work to accomplish, with at least one measure identified for each objective. Be sure to include the two key measures for your selected Best Practice and use the SMART format (see application instructions for additional information). Also, indicate how frequently your program will review data for each measure. (Choose from the following options: weekly, twice a month, monthly, every other month, or quarterly).
B2.4 Activities: List the activities that your program will do to meet the selected Best Practice objectives. These could be events you will organize, services you will offer, materials you will develop and implement, or other activities.
Section 3: Evaluation
B3.1 Describe how your program will track activities for the selected Best Practice(s).
B3.2 Describe how your program will collect and track data on all measures (listed in Section 2 above) for the selected Best Practice(s).
B3.3 Describe how your program will collect stories about individual participants, community events, program staff, and other aspects of your program.
Part C: Program Report (no more than 4 pages)
Section 1: Major Accomplishments and Activities
C1.1 Describe three major accomplishments that your SDPI program achieved in the past 12 months.
C1.2 Describe three to five major accomplishments that your SDPI program has achieved since it began.
C1.3 Describe one story that exemplifies a major program accomplishment from the past year.
C1.4 Describe your SDPI program's primary activities during the past 12 months.
C1.5 Describe your SDPI program's primary activities since it began.
Section 2: Challenges
C2.1 Describe the two or three biggest challenges that your SDPI program encountered in the past 12 months.
C2.2 Describe how your SDPI program addressed these challenges.
C2.3 Indicate if you successfully addressed these challenges. (If so, why; if not, why not.)
Section 3: Dissemination
C3.1 Describe three to five major lessons that your SDPI program has learned since it began.
C3.2 Describe how your SDPI program has shared the lessons that you have learned with other diabetes programs.
C3.3 Describe materials or products your SDPI program has developed.
Section 4: Other Information
C4.1 Provide any additional information about your SDPI program.
B. Budget Narrative (no more than 4 pages)
The budget narrative should explain why each budget item on the SF-424A is necessary and relevant to the proposed project.
Applications are to be submitted electronically through Grants.gov by February 19, 2010 at 12 midnight Eastern Standard Time (EST). Any application received after the application deadline will not be accepted for processing, and it will be returned to the applicant(s) without further consideration for funding.
If technical challenges arise and the applicants need help with the electronic application process, contact Grants.gov Customer Support via e-mail to
If an applicant needs to submit a paper application instead of submitting electronically via Grants.gov, prior approval must be requested and obtained (see page 16 for additional information). The waiver must be documented in writing (e-mails are acceptable),
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
A. Pre-award costs are allowable pending prior approval from the awarding agency. However, in accordance with 45 CFR Part 74 and 92, pre-award costs are incurred at the applicant's risk. The awarding office is under no obligation to reimburse such costs if for any reason the applicant does not receive an award or if the award is less than anticipated.
B. The available funds are inclusive of direct and appropriate indirect costs (
C. Only one grant will be awarded per applicant.
Use the
Applicants that receive a waiver to submit paper application documents must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the application deadline.
Applicants that do not adhere to the timelines for Central Contractor Registry (CCR) and/or Grants.gov registration and/or request timely assistance with technical issues will not be considered for a waiver to submit a paper application.
Please be aware of the following:
• Paper applications are not the preferred method for submitting applications.
• If you have problems electronically submitting your application on-line, contact Grants.gov Customer Support via e-mail to
• Upon contacting Grants.gov, obtain a tracking number as proof of contact. The tracking number is helpful if there are technical issues that cannot be resolved and a waiver to submit a paper application must be obtained.
• If it is determined that a waiver is needed, the applicant must submit a request in writing (e-mails are acceptable) to
• Upon entering the Grants.gov site, there is information that outlines the requirements to the applicant regarding electronic submission of an application through Grants.gov, as well as the hours of operation.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through Grants.gov as the registration process for CCR and Grants.gov could take up to fifteen working days.
• In order to use Grants.gov, the applicant must have a Dun and Bradstreet (DUNS) Number and register in the Central Contractor Registration (CCR). A minimum of ten working days should be allowed to complete CCR registration. See Subsection 8 below for more information.
• All documents must be submitted electronically, including all information typically included on the SF-424 and all necessary assurances and certifications.
• Please use the optional attachment feature in Grants.gov to attach additional documentation that may be requested by IHS.
• The application must comply with any page limitation requirements described in the Funding Announcement.
• After you electronically submit your application, you will receive an automatic acknowledgment from Grants.gov that contains a Grants.gov tracking number. The DGO will download your application from Grants.gov and provide necessary copies to the DDTP. Neither the DGO nor the DDTP will notify applicants that the application has been received.
• You may access the electronic application package and instructions for this Funding Opportunity Announcement on
• You may search for the application package on Grants.gov either with the CFDA number or the Funding Opportunity Number. Both numbers are identified in the heading of this announcement.
• The applicant must provide the Funding Opportunity Number: HHS-2010-IHS-SDPI-0002.
Applicants are required to have a DUNS number to apply for a grant or cooperative agreement from the Federal Government. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Many organizations may already have a DUNS number. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number or to find out if your organization already has a DUNS number, access
Applicants must also be registered with the CCR. A DUNS number is required before an applicant can complete their CCR registration. Registration with the CCR is free of charge. Applicants may register online at
Criteria that will be used to evaluate the application are divided into three categories. They include:
• Project Narrative.
The project narrative is divided into three parts: Part A—Program Information; Part B—Program Planning/Evaluation; and Part C—Project Report. Required information includes topics such as: community needs assessment, leadership support, use of Diabetes Audit results, selected Best Practice(s), overall evaluation plan and project accomplishments. For each Best Practice that will be implemented, address: target population, goal, objectives/measures, review of key measures, and activities (
• Budget Narrative.
The budget narrative provides additional explanation to support the information provided on the SF-424A form. Budget categories to address include: personnel, fringe benefits, travel, equipment and supplies, contractual/consultant and constructions/alterations/renovations. In addition to a line item budget, provide a brief justification of each budget item and how they support project objectives.
• Key Contacts Form.
This form seeks to obtain contact information about only one person: the project's SDPI Program Coordinator.
Points will be assigned in each category adding up to a total of 100. A minimum score of 60 points is required for funding. Points will be assigned as follows:
•
•
Each application will be prescreened by DGO staff for eligibility and completeness as outlined in this Funding Opportunity Announcement. Applications from entities that do not meet eligibility criteria or that are incomplete will not be reviewed. Applicants will be notified by the DGO that their application did not meet minimum requirements.
After being prescreened by the DGO, applications will be reviewed by an Objective Review Committee (ORC) and assigned a score. The ORC is an objective review group that will be convened by the DDTP in consultation with the DGP as required by Department of Health and Human Services (HHS) Grants Policy.
To obtain a minimum score for funding, applicants must address all program requirements and provide all required documentation. Applicants that receive less than a minimum score will be informed via e-mail of their application's deficiencies. (see Section 6 below for application revision guidance). A summary statement outlining the weaknesses of the application will be provided to these applicants. The summary statement will be sent to the Authorized Organizational Representative (AOR) that is identified on the face page of the application.
When an application is submitted on behalf of multiple organizations (sub-grantees), the review score will be a combined score that is based on information provided by all of these organizations.
Funded applicants (grantees) must meet the following programmatic requirements:
A. Implement an IHS Diabetes Best Practice
Grantees must implement recommended services and activities from at least one 2009 IHS Diabetes Best Practice. They should implement recommendations based on program need, strengths, and resources. Program activities, services and key measures from the selected Best Practice(s) must be documented in the project narrative (see Section IV, Part B, Section 2).
B. Implement Program and Evaluation Plans
Grantees must follow the plans submitted with their application when implementing each selected Best Practice and their evaluation processes. A minimum evaluation requirement is to monitor the key measures over time. Programs may track additional measures based on local priorities.
C. Participate in Training and Peer-to-Peer Learning Sessions
Grantees must participate in SDPI training sessions and peer-to-peer learning activities. Training sessions will be primarily conference calls or combined WebEx/conference calls. Grantees will be expected to:
• Participate in interactive discussion during conference calls.
• Share activities, tools and results.
• Share problems encountered and how barriers are broken down.
• Share materials presented at conferences and meetings.
• Participate and share in other relevant activities.
If an application does not receive a minimum score for funding from the ORC, the applicant will be informed via a summary statement that will be sent to the AOR via e-mail. The applicant then has two opportunities to submit revisions to their application. Before application revisions can be submitted, the AOR must have received a summary statement from the previous review that outlines the weaknesses of the initial application.
A. Revision to Initial Application
Applicants will have five business days from the date that the summary statement is sent via e-mail to submit hard copies of their application revisions. Along with the revised application documents, applicants must
The Introduction and revised application documents must be mailed directly to the DGO to the attention of Denise Clark, Lead Grants Management Specialist (
Technical assistance will be available to applicants as they prepare resubmission documentation.
An Ad Hoc Review Committee will be convened specifically to review the initial application revisions. If the revised application receives the minimum score for funding or above, the applicant will be informed via a Notice of Award (NoA). If the Review Committee determines that the application with revisions still does not receive a fundable score, the applicant will be informed of their application's deficiencies via a second summary statement that will be e-mailed to the AOR.
B. Second Application Revision
Applicants will have five business days from the date that the second summary statement is sent via e-mail to submit hard copies of their application revisions. Along with the revised application documents, applicants must prepare and submit an Introduction of not more than three pages that summarizes the substantial additions, deletions, and changes. The Introduction must also include responses to the criticism and issues raised in the summary statement.
The Introduction and revised application documents must, again, be mailed directly to the DGO to the attention of Denise Clark, Lead Grants Management Specialist (
A second Ad Hoc Review Committee will be convened to review the second application revisions. If the application with revisions receives the minimum score for funding or above, the applicant will be informed via a Notice of Award (NoA).
If the Review Committee determines that the application with revisions still does not receive a fundable score, applicants will be informed in writing of their application's deficiencies. No further resubmissions will be allowed.
Grantees that receive a fundable score will be notified of their approval for funding via the NoA. (See application instructions for key dates for other budget cycles.)
The NoA will be prepared by DGO and sent via postal mail to each applicant that is approved for funding under this announcement. This document will be sent to the person who is listed on the SF-424 as the AOR. The NoA will be signed by the Grants Management Officer. The NoA is the authorizing document for which funds are dispersed to the approved entities. The NoA serves as the official notification of the grant award and reflects the amount of Federal funds awarded, the purpose of the grant, the terms and conditions of the award, the effective date of the award, and the budget/project period. The NoA is the legally binding document. Applicants who are disapproved based on the ORC score will receive a copy of the summary statement which identifies the weaknesses and strengths of the application submitted. The AOR serves as the business point of contact for all business aspects of the award.
The anticipated NoA date for all applicants that score well in the ORC review for Cycle III is April 1, 2010.
Grants are administered in accordance with the following regulations, policies, and Office of Management and Budget (OMB) cost principles:
A. The criteria as outlined in this Funding Opportunity Announcement.
B. Administrative Regulations for Grants:
• 45 CFR Part 92—Uniform Administrative Requirements for Grants and Cooperative Agreements to State, Local and Tribal Governments.
• 45 CFR Part 74—Uniform Administrative Requirements for Awards and Subawards to Institutions of Higher Education, Hospitals, Other Non-Profit Organizations, and Commercial Organizations.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/2007.
D. Cost Principles:
• OMB Circular A-87—State, Local, and Indian Tribal Governments (Title 2 Part 225).
• OMB Circular A-122—Non-Profit Organizations (Title 2 Part 230).
E. Audit Requirements
• OMB Circular A-133—Audits of States, Local Governments, and Non-Profit Organizations.
This section applies to all grant recipients that request reimbursement of indirect costs in their grant application. In accordance with HHS Grants Policy Statement, Part II-27, IHS requires applicants to obtain a current indirect cost rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGO at the time of award, the indirect cost portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGO.
Generally, indirect costs rates for IHS grantees are negotiated with the HHS Division of Cost Allocation
The DDTP and the DGO have requirements for progress reports and financial reports based on the terms and conditions of this grant as noted below.
Program progress reports are required semi-annually. These reports must include at a minimum: reporting of Best Practice measures; and a brief comparison of actual accomplishments to the goals established for the budget period or provide sound justification for the lack of progress.
Annual financial status reports are required until the end of the project period. Reports must be submitted annually no later than 30 days after the end of each specified reporting period. The final financial status report is due within 90 days after the end of the 24 month project period. Standard Form 269 (long form for those reporting program income; short form for all others) will be used for financial reporting.
Grantees are responsible and accountable for accurate reporting of the Progress Reports and Financial Status Reports (FSR). According to SF-269 instructions, the final SF-269 must be
Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports.
Applicants who have an active SDPI grant are required to be up-to-date in the submission of required audit reports. These are the annual financial audit reports required by OMB A-133, audits of State, local governments, and non-profit organizations that are submitted. Documentation of (or proof of submission) of current FY 2007 and FY 2008 Financial Audit Reports is mandatory. Acceptable forms of documentation include: e-mail confirmation from FAC that audits were submitted; or face sheets from audit reports. Face sheets can be found on the FAC Web site:
Telecommunication for the hearing impaired is available at: TTY (301) 443-6394.
• For Grants Budget Management, contact:
• Denise Clark, Lead Grants Management Specialist, DGO (
• For Grants.gov electronic application process, contact:
• Tammy Bagley, Grants Policy, DGP (
• For programmatic questions, contact:
• Merle Mike, Program Assistant, DDTP (
• Lorraine Valdez, Deputy Director, DDTP (
• Area Diabetes Consultants Web site:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of a meeting of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee. This meeting was announced in the
Margaret McCabe-Janicki, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., White Oak 66, rm. 1535, Silver Spring, MD 20993, 301-796-7029, or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area), code 3014512519. Please call the Information Line for up-to-date information on this meeting.
In FR Doc. E9-27491, appearing on page 59194, in the
1. On page 59194, in the second column, under
2. On page 59194, in the third column, a
3. On pages 59194 and 59195, beginning on page 59194 in the third column, under
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
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 Elaine Ferguson 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).
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 AnnMarie Williams at 301-796-5966 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:
In addition, the Council will be holding a public hearing at which migrant farmworkers, community leaders, and providers will have the opportunity to testify before the Council regarding matters that affect the health of migrant farmworkers. The hearing is scheduled for Thursday, February 11 from 9 a.m. to 12 p.m., at the Red Lion Hotel on Fifth Avenue.
The Council meeting is being held in conjunction with the Western Migrant Stream Forum sponsored by the Northwest Regional Primary Care Association, which is being held in Seattle, Washington, February 12-14, 2010.
Agenda items are subject to change as priorities indicate.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that an individual exception to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, a waiver was granted to the Wilkes-Barre Housing Authority for the purchase and installation of tank-less water heaters in the Mineral Springs Village and Boulevard Town Homes.
Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4210, Washington, DC 20410-4000, telephone number 202-402-8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Subsection 1605(a) of the Recovery Act imposes a “Buy American” requirement on Recovery Act funds that, unless all of the iron, steel, and manufactured goods used in the project are produced in the United States, the funds may not be used for a project for the construction, alteration, maintenance, or repair of a public building or public work. Subsection 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Subsection 1605(c) provides that if the head of a Federal department or agency makes a determination that it is necessary to waive subsection 1605(a) pursuant to subsection 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with subsection 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on December 21, 2009, upon request of the Wilkes-Barre Housing Authority, HUD granted an exception under subsection 1605(b) with respect to work using CFRFC grant funds, based on the fact that the relevant manufactured goods (tank-less water heaters) are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
The Department of Housing and Urban Development (HUD) gives notice to the public, agencies, and Indian tribes that the Community Redevelopment Agency of the City of Los Angeles and City of Los Angeles, Community Development Department intend to prepare an Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the Baldwin Hills Crenshaw Plaza Redevelopment Project located in the City of Los Angeles, Los Angeles County, CA. The City of Los Angeles, Community Development Department, and the Community Redevelopment Agency of the City of Los Angeles acting jointly as the lead agencies will prepare the EIR/EIS acting under the authority of the City of Los Angeles as the responsible entity for compliance with the National Environmental Policy Act (NEPA) in accordance with 42 U.S.C. 5304(g) and 42 U.S.C. 12838 and HUD regulations at 24 CFR 58.4, and under their authority as lead agency in accordance with the California Environmental Quality Act (CEQA). The EIR/EIS will be a joint NEPA and CEQA document. The EIR will satisfy requirements of CEQA (Public Resources Code 21000
Comments relating to the scope of the EIS are requested and will be accepted by the contact persons listed below until February 10, 2010. Any person or agency interested in receiving a notice and wishing to make comment on the draft EIS should contact the persons listed below.
Dr. Robert Manford, Community Redevelopment Agency of the City of Los Angeles, (p) 213-977-1912, (f) 213-687-9546,
The Community Redevelopment Agency of the City of Los Angeles and City of Los Angeles, Community Development Department will consider a proposal to redevelop the Baldwin Hills Crenshaw Plaza to include a mixed-use retail/commercial/office/hotel and residential project totaling up to approximately 3,435,726 square feet of development. The project site is 42.42-acres in size and is located on the Hollywood 7.5-minute U.S.G.S topographic quadrangle map, at 3650 West Martin Luther King Boulevard in Los Angeles, California. The site is relatively flat and currently developed with an existing retail center. The site is bordered on the north by West 39th Street, on the east by Crenshaw Boulevard, on the southeast by Stocker Street, on the southwest by Santa Rosalita Drive, and on the west by Marlton Avenue. The site is bisected by Martin Luther King Jr. Boulevard.
The project site is surrounded by a mix of urban land uses. Existing commercial uses are located to the north of 39th Street. Land uses along Crenshaw Boulevard between 39th Street and Martin Luther King Jr. Boulevard include two-story multi-family residential units, single-story commercial buildings, and surface parking. Uses along Crenshaw Boulevard between Martin Luther King Jr. Boulevard and Stocker Street include single-story commercial uses and associated surface parking. Land uses along Stocker Street include commercial and multi-family uses. Uses to the west along Marlton Avenue between Santa Rosalita and Martin Luther King Jr. Boulevard include a senior housing complex and the location of the proposed Santa Barbara Plaza (also known as “Marlton Square”) Redevelopment Site, while land uses along Marlton Avenue between Martin Luther King Jr. Boulevard and 39th Street consists of four-story multi-family buildings above parking garages.
The project would require the following discretionary approvals:
• Tentative Map to subdivide the Project Site and approve any condominiums.
• Conditional Use Permit (CUP) to approve a hotel within 500 feet of an R-zone.
• CUP to approve floor area averaging for a unified development.
• CUP for new alcoholic beverage uses.
• Zone Variances to address density, floor area, building height, setback, open space, parking, and other design issues.
• Site Plan Review.
• Sign District Permissible Display Area to exceed the normal sign area limits for the Project Site.
This is to be a combined document—EIR (Environmental Impact Report) under the State of California California Environmental Quality Act (Public Resources Code 21000
The project proposes the demolition of approximately 257,000 square feet of the existing mall structures. Portions of the enclosed mall would be retained and rehabilitated. New buildings would also be constructed to increase the amount of retail and commercial services at the site and to provide new uses to the area such as an office building, a hotel with meeting rooms, and residential units available for purchase and rent. The pedestrian bridge over Martin Luther King Jr. Boulevard would be retained to allow continued operation as a single connected facility. The project would develop four anchor retail stores including an automotive center (totaling approximately 535,000 square feet), two grocery stores (totaling approximately 85,000 square feet), restaurants (both in mall and as stand-alone restaurants totaling approximately 156,000 square feet), a movie theater (3,100 seats), bowling alley and bars (totaling approximately 40,000 square feet), dance studio and fitness uses (totaling 70,000 square feet), office uses (150,000 square feet), a 400-room hotel with meeting rooms and two restaurants, and 551 condominium units, and 410 apartment units.
There are four alternatives to the proposed action to be analyzed in the EIR/EIS: Reduced Density Alternative 1, Reduced Density Alternative 2, Reduced Density Alternative 3, and the No Project Alternative. Except for the No Project Alternative, all the alternatives are reduced density variations of the proposed project.
The Reduced Density Alternative 1 would develop the same type and range of land uses as proposed for the project including anchor retail, grocery stores, restaurants, entertainment and fitness uses, hotel, and residential uses. However, the Reduced Density Alternative 1 proposes the development of up to 3,071,325 square feet at the project site. The Reduced Density Alternative 1 would provide a net increase of approximately 2,073,717 square feet of development compared to the existing uses. Reduced Density Alternative 1 would develop four anchor retail stores including an automotive center (totaling approximately 387,000 square feet), two grocery stores (totaling approximately 85,000 square feet), restaurants (both in mall and as standalone restaurants totaling approximately 126,000 square feet), a movie theater (2,600 seats), bowling alley and bars (totaling approximately 35,000 square feet), dance studio and fitness uses (totaling 70,000 square feet), office uses (148,000
The Reduced Density Alternative 2 would develop the same type and range of land uses as proposed for the project including anchor retail, grocery stores, restaurants, entertainment and fitness uses, hotel, and residential uses. However, the Reduced Density Alternative 2 would involve the development of up to 2,980,726 square feet at the project site. The Reduced Density Alternative 2 would provide a net increase of approximately 1,983,117 square feet of development compared to the existing uses. Reduced Density Alternative 2 would develop four anchor retail stores including an automotive center (totaling approximately 387,000 square feet), two grocery stores (totaling approximately 85,000 square feet), restaurants (both in mall and as standalone restaurants totaling approximately 90,000 square feet), a movie theater (2,600 seats), bowling alley and bars (totaling approximately 35,000 square feet), dance studio and fitness uses (totaling 70,000 square feet), office uses (108,000 square feet), a 400-room hotel with meeting rooms and two restaurants, and 551 condominium units, and 410 apartment units.
The Reduced Density Alternative 3 would develop the same type and range of land uses as proposed for the project including anchor retail, grocery stores, restaurants, entertainment and fitness uses, hotel, and residential uses. However, the Reduced Density Alternative 3 would involve the development of up to 2,897,726 square feet at the project site. The Reduced Density Alternative 3 would provide a net increase of approximately 1,900,117 square feet of development compared to the existing uses. Reduced Density Alternative 3 would develop four anchor retail stores including an automotive center (totaling approximately 387,000 square feet), two grocery stores (totaling approximately 85,000 square feet), restaurants (both in mall and as standalone restaurants totaling approximately 80,000 square feet), a movie theater (2,600 seats), bowling alley and bars (totaling approximately 25,000 square feet), dance studio and fitness uses (totaling 55,000 square feet), office uses (75,000 square feet), a 400-room hotel with meeting rooms and two restaurants, and 551 condominium units, and 410 apartment units.
The No Project Alternative would analyze the “no action” alternative, which would be the continuation of uses on the site; therefore, existing buildings and tenants would remain at the project site and no new buildings or uses would be constructed.
The following subject areas will be analyzed in the combined EIR/EIS for probable environmental effects: Aesthetics (views/light and glare, and shade/shadow), Air Quality (Construction and Operational), Cultural/Historic Resources, Geology/Soils, Hydrology/Water Quality, Land Use and Planning, Noise (Construction and Operational), Population and Housing, Public Services (Fire, Police, Schools, Parks, Libraries), Transportation and Circulation, Parking, and Public Utilities (Wastewater, Water, Solid Waste, and Energy Conservation).
As a lead agency, the City of Los Angeles, through its Community Development Department, is the responsible entity (RE) for this project in accordance with 24 CFR part 58, “Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities.” As a RE, the City of Los Angeles assumes the responsibility for environmental review, decision-making, and action that would otherwise apply to HUD under NEPA. Section 104 (g) of Title I of the Housing and Community Development Act (42 U.S.C. 5304(g)) and Section 288 of the HOME Investment Partnerships Act (42 U.S.C. 12838) allow authorized recipients of HUD assistance to assume NEPA responsibilities in projects involving CDBG and HOME funds.
In addition, the Community Redevelopment Agency of the City of Los Angeles is the California Environmental Quality Act (CEQA) lead agency responsible for preparing an Environmental Impact Report (EIR).
Questions may be directed to the individuals named in this notice under the heading
Bureau of Land Management, Interior.
60-day notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is announcing its intention to request reinstatement of an approval to collect information that documents the payment of road use fees for the use of privately owned roads to haul timber sold in accordance with BLM sale contracts. This information collection activity was previously approved by the Office of Management and Budget (OMB), and assigned the control number 1004-0102.
Comments on the proposed information collection must be received by March 12, 2010, to be assured of consideration.
Comments may be mailed to U.S. Department of the Interior, Bureau of Land Management, Mail Stop 401-LS, 1849 C St., NW., Washington, DC 20240. Comments may also be submitted electronically to
To receive a copy of the information collection request, contact Richard Watson, 303-236-0158. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8339, 24 hours a day, seven days a week, to contact Mr. Watson.
OMB regulations at 5 CFR 1320 (which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-352) require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (
Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information is provided for the information collection:
National Park Service, Interior.
Notice of renewal.
The Secretary of the Interior is giving notice of the renewal of the Denali National Park and Preserve Aircraft Overflights Advisory Council to offer recommendations, alternatives and possible solutions to management of off-road vehicles at Big Cypress National Preserve.
Miriam Valentine, Denali Park and Preserve, 240 W. 5th Avenue, Anchorage, Alaska 99501, 907-644-3611.
The Denali National Park and Preserve Aircraft Overflights Advisory Council has been established in accordance with the Denali National Park and Preserve's
U.S. Fish and Wildlife Service, Interior.
Notice of availability: record of decision.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the record of decision (ROD) for the final environmental impact statement (EIS) for Kenai National Wildlife Refuge (NWR, Refuge). The Refuge is located within the Kenai Peninsula Borough, Alaska. We completed a thorough analysis of the environmental, social, and economic considerations and presented it in our final EIS, which we released to the public on September 18, 2009.
The Regional Director of the Alaska Region, U.S. Fish and Wildlife Service, signed the ROD on January 4, 2010.
You may view or obtain copies of the ROD/final EIS on paper or CD-ROM by any of the following methods:
Refuge Manager at the address or phone number above.
With this notice, we finalize the CCP process for Kenai NWR. We released the
In accordance with National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements, this notice announces the availability of the ROD for the final EIS and CCP for Kenai NWR. We completed a thorough analysis of the environmental, social, and economic considerations, which we included in the final CCP/EIS. The ROD documents our selection of Alternative E, the Preferred Alternative, in the CCP, with modifications. The CCP will guide us in managing and administering Kenai Refuge for the next 15 years. Alternative E, as we described in the final EIS/ROD, is the foundation for the CCP, with modifications.
The Kenai Refuge Comprehensive Conservation Plan provides management guidance that conserves Refuge resources and facilitates compatible fish and wildlife-dependent public use activities during the next 15 years. The following is a summary of the ROD for the Refuge's Final CCP/EIS.
We have selected Alternative E, the Preferred Alterative, with modifications, as the Comprehensive Conservation Plan for Kenai Refuge. Alternative E addresses key issues and concerns identified during the planning process and will best achieve the purposes of the Refuge as well as the mission of the National Wildlife Refuge System. This decision adopts the management goals and objectives (Chapter 2) and the stipulations and mitigation measures identified in Alternative E. Implementation of Alternative E, as modified, will occur over the next 15 years, depending on future staffing levels and funding.
With consideration to comments from the State of Alaska, the management direction provided by Alternative E will be modified as follows:
• We will alter the opening date of seasonally closed lakes from September 30 to September 10, to coincide with that of the Alaska Board of Game's Kenai Controlled Use Area in Game Management Unit 15A, when Refuge regulations are updated. These lakes will then remain open for public use until May 1 (approximately when the ice melts) each spring.
• Under current regulations, the operation of aircraft between May 1 and September 30 on any lake where nesting trumpeter swans and/or their broods are present is prohibited. Over the next several years, we will examine swan brood survey data and other information to determine if swan abundance has increased to the point this restriction has created a de facto closure of so many lakes as to significantly impact access to the refuge back-country. We will evaluate our current closure regulations in light of these findings.
We based our decision on a thorough analysis of the environmental, social, and economic considerations we presented in the Final CCP/EIS. We reviewed and considered the impacts identified in Chapter 4 of the Draft and Final CCP/EIS; relevant issues, concerns, and opportunities; input we received throughout the planning process, including the results of various studies and surveys, advice from technical experts, and public comments on the Draft and Final CCP/EIS; and other factors, including refuge purposes and relevant laws, regulations, and policies. The Final EIS/CCP addresses a variety of needs, including protection of fish and wildlife populations and their habitats and providing opportunities for fish and wildlife-dependent recreation, subsistence, and other public uses. The combination of these components in Alternative E contributes significantly to achieving refuge purposes and goals. Alternative E also strengthens the monitoring of fish, wildlife, habitat, and public uses on the Refuge to provide means to better respond to changing conditions in the surrounding landscape.
The adoption of Alternative E, as modified, is effective immediately.
National Park Service, Interior.
Notice of availability of the Record of Decision for the General Management Plan/Environmental Impact Statement for the Jefferson National Expansion Memorial, Missouri.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service (NPS) announces the availability of a Record of Decision (ROD) for the General Management Plan/Environmental Impact Statement (GMP/EIS) for the Jefferson National Expansion Memorial (Memorial), Missouri. On November 23, the NPS Midwest Region regional director approved the ROD for the final GMP/EIS. As soon as practicable, the NPS will begin to implement the preferred alternative.
The NPS will implement the preferred alternative as described in the final GMP/EIS issued on October 23, 2009, with one alteration to the proposed boundary in East St. Louis, Illinois. Alternative 3 (Program Expansion), the preferred alternative, will revitalize the Memorial by expanded programming, facilities, and partnerships. The NPS will capitalize on multiple opportunities to expand visitor experience throughout the Memorial.
In order to gain the widest breadth of ideas for expanding interpretation, education opportunities, and visitor amenities at the Memorial, a design competition, akin to the 1947 competition, will be initiated by the NPS in close coordination with partners. Project funding will not come all at once but rather will most likely be provided by partners, donations, and other non-Federal and Federal sources. Private funding will be required in order to fully implement the winning entry of the design competition.
The NPS will use the design competition to seek opportunities to enhance existing entrances to the Memorial on the north and south, as well as to capitalize on the primary axis between the Old Courthouse and the Gateway Arch with new entrances on the west and east and by establishing a new east portal linking East St. Louis to the Gateway Arch grounds by water taxi. A new external and internal visitor transportation system will be designed as part of the competition. The ultimate configuration and use of the south end of the Memorial will be determined by the results of the design competition. Similarly, the design competition will vet ideas for the configuration and use of that portion of the Memorial in East St. Louis. While the entrants will be asked to respect the recent developments at Malcolm Martin Memorial Park, the NPS and the Metro East Park and Recreation District will entertain designs that integrate the established functions into a cohesive vision for the Memorial.
While the design solutions might include the development of above-ground structures within a portion of the designated Design Competition Overlay, the NPS will not allow the implementation of a project that would
In addition to considering the “winning” ideas from the competition, the NPS will continue the educational and interpretive programs currently offered at the Memorial and expand opportunities for visitors to participate in more interactive experiences across the Memorial grounds. The grounds surrounding the Gateway Arch will be managed in such a way as to accommodate and promote more visitor activities and special events than are currently provided.
The NPS will actively coordinate with the city and State to enhance the pedestrian environment around the Memorial by developing a unifying streetscape along the Gateway Mall and the other streets adjacent to the Memorial, including Leonor K. Sullivan Boulevard and the riverfront levee.
The ROD includes a statement of the decision made, synopses of other alternatives considered, the basis for the decision, a description of the environmentally preferable alternative, a finding on impairment of park resources and values, a listing of measures to minimize environmental harm, and an overview of public involvement in the decision-making process.
Copies of the ROD can be obtained by contacting Superintendent Thomas Bradley, Jefferson National Expansion Memorial, 11 North 4th Street, St. Louis, Missouri 63102. You may also view the document via the Internet through the NPS Planning, Environment, and Public Comment Web site (
Department of the Interior, National Park Service.
Notice of Availability.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(c), the National Park Service announces the availability of a Draft Environmental Impact Statement for the National Mall Plan, within the National Mall and Memorial Parks in Washington, DC. The National Mall Plan is a long-range management plan that focuses on the use and preservation of the National Mall. The study area is approximately 650 acres in size and contains some of the earliest designated public land in our nation, dating from 1790. The study area contains a significant concentration of our Nation's memorials, cultural resources, and museums and includes the great public open spaces of the Nation's Capital.
The NPS will undertake a 90-day public review of the Draft Environmental Impact Statement for the National Mall Plan following publication by the Environmental Protection Agency of the Notice of Availability of the Draft Environmental Impact Statement.
The NPS plans to reach out to a nationwide audience and to schedule public meetings after the publication of the Draft Environmental Impact Statement so that the public has adequate time to read the draft document. Dates, times and locations of meetings and other outreach opportunities will be announced in press releases, e-mail announcements and on the National Mall Plan Web site,
Copies of the Draft Environmental Impact Statement and National Mall Plan will be available for public review and comment at
If you wish to comment, you may submit your comments online by visiting
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. The NPS will respond to substantive comments and make appropriate changes to the National Mall Plan, after which a Final Environmental Impact Statement will be published. An official Record of Decision will be announced in the
Susan Spain, Project Executive, National Mall Plan at (202) 245-4692.
Bureau of Land Management, Interior.
Notice of filing of plats of surveys.
The Bureau of Land Management (BLM) has officially filed the plats of survey of the lands described below in the BLM Idaho State Office, Boise, Idaho, effective 9 a.m., on the dates specified.
Bureau of Land Management, 1387 South Vinnell Way, Boise, Idaho 83709-1657.
These surveys were executed at the request of the Bureau of Land Management to meet their administrative needs. The lands surveyed are:
The plat constituting the entire survey record of the dependent resurvey of a portion of the subdivisional lines, Township 8 South, Range 14 East, of the Boise Meridian, Idaho, Group Number 1269, was accepted October 14, 2009.
The plat representing the dependent resurvey of portions of the subdivisional lines and Mineral Survey Number 3149, Township 11 North, Range 17 East, of the Boise Meridian, Idaho, Group Number 1273, was accepted November 4, 2009.
The plat representing the dependent resurvey of portions of the south boundary, west boundary, and subdivisional lines, and the subdivision
The plat representing the dependent resurvey of portions of the west boundary and subdivisional lines, and the subdivision of sections 29, 30, and 31, Township 7 South, Range 36 East, of the Boise Meridian, Idaho, Group Number 1148, was accepted November 19, 2009.
The supplemental plat prepared to show new lottings in section 23, T. 4 S., R. 4 E., Boise Meridian, Idaho, was accepted December 17, 2009.
The plat representing the dependent resurvey of a portion of the subdivisional lines, Township 3 South, Range 1 East, of the Boise Meridian, Idaho, Group Number 1243, was accepted December 17, 2009.
Bureau of Indian Affairs.
Notice of an additional tribal consultation meeting.
Notice is hereby given that the Bureau of Indian Affairs (BIA) will conduct another consultation meeting with Indian tribes reorganized under the Indian Reorganization Act (IRA) and the Oklahoma Indian Welfare Act, and other interested tribal leaders, to obtain oral and written comments concerning the potential revision of regulations at 25 CFR part 81, Tribal Reorganization under a Federal Statute, and 25 CFR part 82, Petitioning Procedures for Tribes Reorganized Under Federal Statute and Other Organized Tribes. In addition to the locations listed in the
February 4, 2010 in Albuquerque, New Mexico. See the
Elizabeth Colliflower, Tribal Relations Specialist, Division of Tribal Government Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC; Telephone (202) 513-7641; Fax (202) 501-0679.
Notice was published in the
In 1992, the BIA drafted revisions to 25 CFR part 81 and 25 CFR part 82 and held four consultation sessions. The BIA received comments and recommendations that are now in the current draft version. The current draft version also:
• Incorporates the amendments made to section 16 of the IRA, 25 U.S.C. 476 (48 Stat. 984), as amended by the Act of November 1, 1988 (Pub. L. 100-581, 102 Stat. 2938), which established time frames within which the Secretary of the Interior must call and conduct Secretarial elections;
• Reflects the amendments made to section 17 of the IRA by the Act of May 24, 1990 (Pub. L. 101-301, 104 Stat. 207) under which additional tribes may petition for charter of incorporation and removes the requirement of a Secretarial election to ratify new charters;
• Reflects the addition of two new subsections to section 16 of the IRA by the Technical Corrections Act of 1994 (Pub. L. 103-363, 108 Stat. 707), which eliminates distinctions between Indians reorganized as historical tribes and those reorganized as communities of adult Indians;
• Includes language clarifying that an IRA tribe may amend its constitution to remove Secretarial approval of future amendments as indicated by the new subsection to Section 16 of the IRA with the enactment of the Native American Technical Corrections Act of 2004 (Pub. L. 106-179, 118 Stat. 453);
• Provides guidelines for the approval or disapproval of charters by the Secretary; and
• Corrects demonstrated weaknesses and clarifies confusing language in the existing regulations.
A consultation booklet containing the current draft version of the rule will be available for the meetings and will be distributed to federally recognized Indian tribes and BIA regional and agency offices.
The additional final Tribal consultation meeting will be held on February 4, 2010 at the Bureau of Indian Affairs national Indian Programs Training Center, 1011 Indian School Rd., NW., Room 271, Albuquerque, New Mexico, from 9 a.m.-4:00 p.m. (local time).
Bureau of Indian Affairs, Interior.
Notice of tribal consultation meetings; correction.
The Bureau of Indian Affairs published a document in the
Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC 20240; Telephone (202) 513-7641; Fax (202) 208-5113.
The Bureau of Indian Affairs published a document in the
Bureau of Reclamation, Interior.
Notice of Proposed Pick-Sloan Missouri Basin Program, Eastern and Western Divisions, Project Use Power Rate Adjustment.
The Bureau of Reclamation (Reclamation) is proposing a rate adjustment (proposed rate) for Project Use Power for the Pick-Sloan Missouri Basin Program (P-SMBP), Eastern and Western Divisions. The proposed rate for Project Use Power is to recover all annual operating, maintenance, and replacement expenses. The analysis of the proposed Project Use Power Rate is included in a booklet available upon request. The proposed rate for Project Use Power will become effective February 19, 2010.
This notice provides the opportunity for public comment. After review of comments received, Reclamation will consider them, revise the rates if necessary, and recommend a proposed rate for approval to the Secretary of the Interior's Office.
The comment period will begin with publication of this notice in the
Please send written comments to Mike Ferguson, GP-2020, Power O&M Administrator, Bureau of Reclamation, P.O. Box 36900, Billings, MT 59107-6900.
All booklets, studies, comments, letters, memoranda, and other documents made or kept by Reclamation for the purpose of developing the proposed rate for Project Use Power will be made available for inspection and copying at the Great Plains Regional Office, located at 316 North 26th Street, Billings, MT 59101.
Mike Ferguson, Bureau of Reclamation, Great Plains Regional Office at (406) 247-7705 or by e-mail at
Power rates for the P-SMBP are established pursuant to the Reclamation Act of 1902 (43 U.S.C. 371
Beginning February 19, 2010, Reclamation proposes to:
(a) Increase the energy charge from 12.55 mills/kWh to 16.17 mills/kWh.
(b) the monthly demand charge will remain at zero.
The Project Use Power Rate will be reviewed each time Western Area Power Administration (Western) adjusts the P-SMBP Firm Power Rate. Western will conduct the necessary studies and use the methodology identified in this rate proposal to determine a new rate.
The existing rate schedule MRB-P12 placed into effect on January 21, 2006, will be replaced by rate schedule MRB-P13. The new rate schedule will include clarifying language for entities exceeding the contract rate of delivery (CROD). Coincident electrical demand in excess of the CROD will result in a penalty where a share of that month's energy proportional to the excess will be charged at ten (10) times the current project use rate as reflected in rate schedule MRB-13. The penalty will be calculated as follows:
P = (((BD/CROD)—1) * BE) * (10 * CR)
Where: P = Penalty ($)
BD = Billed Demand (kW)
CROD = Contract Rate of Delivery (kW)
BE = Billed Energy (kWh)
CR = Current Project Use Power Rate (mills/kWh)
The customer will also be billed for any increased capacity and transmission charges incurred by the Government as a result of exceeding the CROD.
In compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.S. 4321
Before including your name, address, phone number, e-mail address, or other personal identifying information in any correspondence, you should be aware that your entire correspondence, including your personal identifying information, may be made publicly available at any time. While you can request in your correspondence that Reclamation withhold your personal identifying information from public review, we cannot guarantee Reclamation is able to do so. Reclamation will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for the Lincoln County Land Act Groundwater Development and Utility Right-of-Way (ROW) Project (the project). The BLM Ely District Manager signed the ROD on January 8, 2010, which constitutes the final decision of the BLM and makes the decision effective immediately.
Copies of the ROD are available upon request from the Field Manager, BLM Ely District Office, Bureau of Land Management, or at the following Web site:
• BLM Nevada State Office, 1340 Financial Boulevard, Reno, Nevada
• BLM Ely District Office, 702 North Industrial Way, Ely, Nevada
• BLM Caliente Field Office, US Highway 93, Building #1, Caliente, Nevada
Penny Woods, BLM Project Manager, P.O. Box 12000, Reno, Nevada 89520,
After extensive environmental analysis, consideration of public comments, and application of pertinent Federal laws and policies, it is the decision of the BLM to offer to Lincoln County Water District (LCWD) a ROW grant for the construction, operation, maintenance and termination of the mainline water pipeline, main power lines, pump stations, regulating tanks and other ancillary facilities of the project. Pursuant to the Lincoln County Conservation, Recreation and Development Act of 2004, Public Law 108-424, the ROW grant will authorize the use of public lands in perpetuity. The BLM's decision authorizes issuance of a ROW grant to LCWD for the proposed action as analyzed in the Final Environmental Impact Statement (EIS), issued in May 2009. The Environmental Protection Agency published a Notice of Availability of the Final EIS in the
The decision by BLM to offer the ROW grant to LCWD is appealable subject to 43 CFR 4, subpart E—Special Rules Applicable to Public Land Hearings and Appeals, and 43 CFR 2801.10. Any party adversely affected by this decision may appeal within the 30-day timeframe by filing an appeal with the BLM Ely District Manager at the address listed above. To file a petition for a stay of the effectiveness of this decision during the time that an appeal is being reviewed by the Interior Board of Land Appeals, the petition for a stay must accompany the Notice of Appeal (43 CFR 4.21 or 43 CFR 2801.10). The appeal and petition for a stay (if requested) must be filed with the Ely District Manager, Bureau of Land Management, 702 North Industrial Way, HC33, Box 33500, Ely Nevada 89301, or Fax: (775) 289-1910.
Copies of the appeal should also be filed with:
• Project Manager, Nevada Groundwater Projects Office, Bureau of Land Management, P.O. Box 12000, Reno, Nevada 89520, or
• Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Suite 300, Arlington, Virginia 22203-1710, or
• Office of the Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Suite E-1712, Sacramento, California 95825, or
Persons interested in filing an appeal are encouraged to consult the cited Federal regulations for additional appeal requirements.
30-Day Notice of Information Collection Under Review: Office of Legal Education Nomination/Confirmation Form.
The Department of Justice (DOJ), Office of Justice Programs (OJP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until February 10, 2010. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day Notice of Information Collection Under Review: Extension of a Currently Approved Collection; Annual Survey of Jails.
The Department of Justice (DOJ), Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until March 12, 2010. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Todd D. Minton, Bureau of Justice Statistics, 810 Seventh Street, NW., Washington, DC 20531 (
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(a) At midyear (last weekday in the month of June), the number of inmates confined in jail facilities including; male and female adult and juvenile inmates; persons under age 18 held as adults; convicted and unconvicted males and females; race categories; held for Federal authorities, State prison authorities and other local jail jurisdictions;
(b) At midyear, the number of persons under jail supervision who were not U.S. citizens;
(c) Whether the jail facilities has a weekend incarceration program prior to midyear and the number of inmates participating;
(d) The number of new admissions into and final discharges from jail facilities during the last week in June;
(e) The date and count for the greatest number of confined inmates during the 30-day period in June;
(f) The average daily population of jail facilities from July 1 of the previous year to June 30 of the current collection year;
(g) At midyear, the total rated capacity of jail facilities;
(h) At midyear, the number of persons under jail supervision but not confined (e.g., electronic monitoring, day reporting, etc.).
(a) At midyear (last weekday in the month of June), the number of inmates confined in jail facilities including; male and female adult and juvenile inmates; persons under age 18 held as adults; convicted and unconvicted males and females; persons held for a felony, misdemeanor; their most serious offense (e.g., domestic violence offense, aggravated or simple assault, driving while intoxicated, etc.).
(b) The average daily population during the 30-day period in June;
(c) The date and count for the greatest number of confined inmates during the 30-day period in June;
(d) The number of new admissions into and final discharges during the month of June;
(e) From July 1 of the previous year to June 30 of the current collection year: the number of inmate deaths while confined and the number of deaths attributed to suicide and the number of confined inmates that attempted suicide;
(f) At midyear, the total rated capacity of jail facilities;
(g) At midyear, the inmate housing characteristics and the number held (e.g., single occupied cells or rooms, multiple occupied units originally designed for single occupancy; multiple occupied units designed for multiple occupancy, temporary holding areas, etc.);
(h) At midyear, whether or not the jail facility was under a Tribal, State, or Federal court order or consent decree to limit the number of persons it can house (and the count), and/or for conditions of confinement;
(i) At midyear, the number of male and female correctional staff employed by the facility and their occupation (e.g., administration, jail operations, educational staff, etc.);
(j) At midyear, how many jail operations employees had received the basic detention officer certification and how many had received 40 hours of in-service training;
(k) From July 1 of the previous year to June 30 of the current collection year: how many jail operation employees did the facility hire for employment; how many jail operation employees were separated from employment in the facility;
(l) At midyear, how many specific jail operation employee positions were vacant.
The ASJ long form (CJ-5 and CJ-5A), the SLJ (CJ-5C), and the SJIC survey addendum (CJ-5B Addendum) provides BJS a vehicle to gather expanded, yet critical information from jails on:
• Flows of inmates going through jails and describing the jail inmate population that reflect jail workload;
• Length of stay in jail and the contribution of length of stay to jail populations;
• Medical, mental health, and substance abuse treatment services issues in jails;
• Suicide prevention, domestic violence counseling, sex offender treatment, educational programs, and inmate work assignments, and other inmate programs;
• Staff characteristics and assaults on staff resulting in death.
(a) Expanded information on: The number of convicted inmates that are unsentenced or sentenced and the number of unconvicted inmates awaiting trial/arraignment, or transfers/holds for other authorities; persons discharged from jails to include the timed served by convicted and unconvicted inmates;
(b) Expanded information on the number of confined inmates held for reasons including detoxification holds only, persons held for protective custody, for contempt, or for the courts as witnesses;
(c) At midyear, the number of correctional officers and other staff employed by jail facilities;
(d) From July 1 of the previous year to June 30 of the current collection year: the number of inmate-inflicted physical assaults (and counts) on correctional officers and other staff and the number of staff deaths as a result.
(a) How does the facility provide medical health services to inmates (e.g., on-site staff physicians, IHS, off-site medical services, etc.);
(b) At midyear, whether the jail facilities detoxify confined persons (and count) from drugs or alcohol;
(c) Policy for testing inmates for Tuberculosis, Hepatitis B and C, and the Human Immunodeficiency Virus (HIV) that causes aids (e.g., at admission, at regular intervals, random sample, indication of need, etc.);
(d) How does the facility provide mental health services to inmates (e.g., screen inmates at intake, 24-hour mental health care; counseling by a trained mental health professional, monitor the use of psychotropic medications, assist released inmates to obtain community mental health services, etc.);
(e) Types of specific suicide prevention procedures (e.g., assessment of risk at intake, special inmate counseling or psychiatric services, monitoring of high risk inmates; suicide, etc.);
(f) From July 1 of the previous year to June 30 of the current collection year, whether facility has inmate work assignments and the types of assignments;
(g) From July 1 of the previous year to June 30 of the current collection year, counseling or special programs available to confined persons either on or off facility grounds (e.g., drug/alcohol counseling/awareness, domestic violence counseling, etc.);
(h) From July 1 of the previous year to June 30 of the current collection year, educational programs available to confined persons either on or off facility grounds.
Mental health treatment and services
(a) During the 31-day period in (month), the number of new admissions to the jail facility that are male and female, adult and juvenile inmates;
(b) Whether the jail facility conducts mental health screening at intake, the type(s) of screening instruments, and when does the screening process occur (e.g., within 24 hours of booking, in an emergency or crisis situation, etc.);
(c) Who conducts the mental health screener (e.g., correctional staff, mental health professional, etc.);
(d) During the 31-day period in (month), the number of persons with new admissions to the jail facility that were screened at intake for mental health disorders or emotional problems and the number determined to have a major depressive symptoms, major manic symptoms, major psychotic symptoms;
(e) What services to inmates are provided when the intake screening reveals a mental health disorder (e.g., referral for further testing/assessment, contacted a mental health professional, moved to a special housing facility and under special observation, etc.);
(f) During the 31-day period in (month), the number of inmates who received mental health treatment and the type(s) of treatment;
(g) Designated area with a beds allocated under the authority of a physician with mental health services and 24 hour nursing coverage? How many beds are for inmates and the number of beds occupied;
(h) Jail facility discharge plan for inmates who needed mental health care? Who provides this service linkage? What agencies administer this service? What agency pays for this service.
Substance abuse treatment and services and other programs
(i) Whether the jail facility conducts medical detoxification on confined persons and the number of persons who were being detoxified;
(j) During the 31-day period in (month), the number of persons with new admissions to the jail facility that:
(1) Were tested for the use of drugs at intake and how many tested positive;
(2) Participated in counseling or special programs (e.g., drug/alcohol counseling/awareness, domestic violence counseling, etc.);
(3) Participated in an education program (e.g., basic adult education (ABE), GED program, and college level classes, etc.).
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: Six hundred and forty-six respondents each taking an average 75 minutes to respond for collection forms CJ-5 and CJ-5A (regular ASJ form), and CJ-5B (SJIC form). Three hundred and seventy-three respondents each taking 120 minutes to respond for collection forms CJ-5 and CJ-5A (ASJ long form). Eighty-five respondents each taking an average of 30 minutes to respond for collection form CJ-5B Addendum
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 2,436 total burden hours associated with this collection.
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
Notice is hereby given that on December 23, 2009, a proposed Consent Decree was filed with the United States District Court for the District of Idaho in
The Department of Justice will receive comments relating to the proposed Consent Decree for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Agreement may be examined at the Office of the United States Attorney for the District of Idaho, Washington Group Plaza, 800 Park Boulevard, Suite 600, Boise, ID 83712-9903, and at the Environmental Protection Agency, Region 9, 1200 Sixth Avenue, Seattle, Washington 98101. During the public comment period, the proposed Agreement may also be examined on the following Department of Justice Web site,
Notice is hereby given that on January 4, 2010, a proposed Consent Decree in
In this action the United States sought reimbursement of response costs incurred in connection with property known as the Allied/Recticon Superfund Site (the “Site”), located in Parker Ford, East Coventry Township, Chester County, Pennsylvania. The Consent Decree obligates the Settling Defendant to reimburse $300,000 of the United States' response costs paid in connection with the Site through the date of entry of the Consent Decree.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, Eastern District of Pennsylvania, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, and at U.S. EPA Region 3. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site
Under 28 CFR 50.7, notice is hereby given that on January 4, 2010, a proposed Consent Decree in
The proposed Consent Decree resolves claims of the United States, on behalf of the Environmental Protection Agency (“EPA”), under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601
The proposed Consent Decree requires Anderson & Sons, Inc. to pay $53,290 for the SRS Site and $19,710 for the OSL Site.
The Consent Decree provides that the settlor is entitled to contribution protection as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. 9613(f)(2), for matters addressed by the settlement.
The Department of Justice will receive for a period of 30 days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General of the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and either e-mailed to
The proposed Consent Decree may be examined at the Office of the United States Attorney, District of Connecticut, 157 Church Street, New Haven, CT 06510. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on January 5, 2010, a proposed Consent Decree in
The proposed Consent Decree is between the United States on behalf of the United States Environmental Protection Agency (“EPA”) and Louis Vinagro, Jr. (“Defendant”) The proposed Consent Decree resolves claims against the Defendant under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9607 related to the Green Hill Road Superfund Site in Johnston, Rhode Island. Under the proposed Consent Decree, the Defendant agrees to sell property he owns and pay to the United States from the proceeds $1,975,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Consent Decree may be examined at the Office of the United States Attorney, District of Rhode Island, 50 Kennedy Plaza, 8th Floor, Providence, RI 02903 and at the United States Environmental Protection Agency, Region I, 5 Post Office Square, Suite 100, Boston, MA 02109-3912. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on December 18, 2009, two proposed Consent Decrees in the case of
The United States filed a complaint in September 2008 alleging that the defendants are liable pursuant to Section 107(a) of CERCLA for response costs incurred and to be incurred by the United States in connection with Operable Unit Three of the Bunker Hill Mining and Metallurgical Complex Superfund Site in northern Idaho. The proposed Consent Decrees grant each settling defendant a covenant not to sue for response costs, as well as natural resource damages, in connection with the Site. The Coeur d'Alene Tribe is a co-trustee of injured natural resources at the Site and a party to the proposed Consent Decrees. The settlements are based on an analysis of each settling defendant's limited ability to pay and require payments totaling $90,000. The settlements also require assignment of interest in insurance policies to a trust, for the benefit of EPA and the natural resource trustees, and payment of two percent of net smelter returns generated from any future mining activities.
For thirty (30) days after the date of this publication, the Department of
During the comment period, the Consent Decrees may be examined on the following Department of Justice Web site:
The Department of Labor has submitted the following information collection request (ICR), utilizing emergency review procedures, to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35) and 5 CFR 1320.13. OMB approval has been requested by January 19, 2010. A copy of this ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarify of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
ERISA section 701(f)(3)(B)(i)(II) requires the Department of Labor to provide employers with model language for the Employer CHIP Notices to enable them to timely comply with this requirement. The Model Employer CHIP Notice is required to include information on how an employee may contact the State in which the employee resides for additional information regarding potential opportunities for premium assistance, including how to apply for such assistance.
Section 311(b)(1)(D) of CHIPRA provides that the Departments of Labor and Health and Human Services shall develop the initial Model Employer CHIP Notice under ERISA section 701(f)(3)(B)(i)(II), and the Department of Labor shall provide such notices to employers, by February 4, 2010. Moreover, each employer is required to provide the initial annual notices to such employer's employees beginning with the first plan year that begins after the date on which the initial model notices are first issued. The ICR relates to the Model Employer Chip Notice.
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—Bureau of Labor Statistics (BLS), Office of Management and Budget, Room 10235, Washington, DC 20503,
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs,
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Nuclear Regulatory Commission.
Notice.
Kenneth Miller, Electrical Engineer, Electrical Engineering Branch, Division of Engineering, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
This notice is to advise the public of the issuance of a Final Memorandum of Understanding (MOU) between the U.S. Nuclear Regulatory Commission (NRC) and the North American Electric Reliability Corporation (NERC). The purpose of this MOU is to set forth and coordinate the roles and responsibilities of each organization as they relate to the application of their respective cyber security requirements for the protection of digital assets at commercial nuclear power plants operating in the USA.
This MOU is effective December 30, 2009.
Documents related to this action are available electronically at the NRC's Electronic Reading Room at
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
For the Nuclear Regulatory Commission.
1. This Memorandum of Understanding (MOU) is entered into by the U.S. Nuclear Regulatory Commission (NRC) and the North American Electric Reliability Corporation (NERC) (hereafter “Party” or “Parties”).
2. Consistent with their statutory authority and regulations, the NRC and NERC each have responsibility for establishing and enforcing cyber security requirements at commercial nuclear power plants operating in the United States of America (USA). The NRC's primary focus is on the prevention of radiological sabotage (
3. The purpose of this MOU is to set forth and coordinate the roles and responsibilities of each organization as they relate to the application of their respective cyber security requirements for the protection of digital assets at commercial nuclear power plants operating in the USA. This cooperation will ensure that the common responsibilities of each organization are achieved in the most efficient and effective manner without diminishing or interfering with their respective responsibilities and authorities. The goal of this cooperation is to maintain the safety and security of commercial nuclear power plants operating in the USA while optimizing the reliability of the BPS to the maximum extent possible.
4. This memorandum supplements an existing Memorandum of Agreement (MOA) between the NRC and NERC dated July 10, 2007.
1.
a. The NRC has statutory responsibility for licensing and regulating commercial nuclear facilities operating in the USA as well as the civilian use of byproduct, source, and special nuclear materials in order to protect public health and safety, promote the common defense and security, and protect the environment. Public Law 93-438, 88 Stat. 1233 (42 U.S.C. 5801
b. The NRC carries out its statutory responsibilities by promulgating regulations and issuing licenses, certificates and orders for commercial nuclear power plants and other nuclear facilities and materials in the USA.
c. The NRC has issued orders and promulgated regulations imposing cyber security requirements on commercial nuclear power plants under its jurisdiction. Portions of these facilities also fall under the concurrent jurisdiction of NERC's CIP reliability standards.
d. The NRC's cyber security regulations set forth at 10 CFR 73.54 govern digital systems and networks that can affect commercial nuclear power reactor safety, security, and emergency preparedness functions. Those regulations do not govern systems within nuclear facilities, such as those related to continuity of power that could not have an adverse impact on safety, security, or emergency preparedness functions.
2.
a. NERC has statutory responsibility for improving the reliability and security of the BPS in the United States. NERC conducts equivalent activities in Canada. NERC's authority and jurisdiction in the USA is set forth in the Federal Power Act pursuant to Title XII of the Energy Policy Act of 2005, FERC's implementing regulations at 18 CFR Part 39, and applicable FERC Orders, including but not limited to, the Electric Reliability Organization (ERO) Certification Order, Order Nos. 672, 693, 706 and 706-B. NERC is a not-for-profit, self-regulatory corporation.
b. NERC develops and enforces reliability standards; monitors the BPS; analyzes BPS events; assesses the adequacy of the BPS annually via a 10-year forecast and winter and summer forecasts; audits owners, operators, and users of the BPS; and educates and trains industry personnel.
1. On January 18, 2008, FERC issued Order No. 706 imposing eight NERC-developed cyber security CIP reliability standards on BPS owners, operators, and users. This Order exempted facilities regulated by the NRC from compliance with NERC's CIP standards.
2. On March 19, 2009, FERC issued Order No. 706-B, significantly narrowing the nuclear facilities exemptions from NERC's CIP standards in order to ensure comprehensive cyber security protection of appropriate digital assets at nuclear power plants. Order No. 706-B allows nuclear facilities to seek exceptions from NERC's CIP standards on a case-by-case basis for those digital assets subject to the NRC's cyber security requirements.
3. The NRC and NERC agree to cooperate regarding NERC's disposition of exception requests received from nuclear facilities subject to NERC's CIP standards. NERC
1. The NRC has regulatory responsibility for inspecting those digital assets, including digital control and data acquisition systems and networks, which can affect safety, security, and emergency preparedness functions of a nuclear power plant. The NRC will inspect such systems to ensure compliance with the NRC's cyber security requirements.
2. The NRC does not have regulatory responsibility to inspect those digital assets unrelated to the safety, security or emergency preparedness functions of a nuclear power plant, such as those digital control and data acquisition systems related to continuity of power, unless those systems can have an adverse impact on safety, security, or emergency preparedness functions.
3. NERC has regulatory responsibility for inspecting digital assets related to continuity of power for compliance with NERC's CIP standards.
4. The NRC and NERC agree to share any information discovered during the course of their respective inspections that they believe may be relevant to or have an adverse impact on any digital asset governed by the other Party's cyber security requirements.
5. The NRC and NERC agree to consult and coordinate to the maximum extent practicable on the process for conducting inspections to carry out activities contemplated under this MOU.
1. The NRC and NERC recognize that the sharing of relevant information between the Parties may be necessary to implement the provisions of this MOU. Consistent with applicable laws and regulations, the NRC and NERC support the sharing of all information necessary to carry out the intent of this MOU. Accordingly, all relevant information will be shared with the other Party in a timely manner so that each Party can take appropriate action.
2. The NRC and NERC recognize that this MOU may require the sharing of sensitive information up to and including Safeguards Information (SGI) as defined in 10 CFR 73.2. The NRC and NERC agree to protect sensitive information received from the other party in accordance with all applicable laws and requirements, including all requirements governing access to and protection of SGI. NERC further agrees that it will not transmit any SGI received from the NRC to any third party, except for its Regional Entities pursuant to V.4 below, without the written consent of the NRC.
3. NERC agrees to adhere to procedures governing the sharing, possession and handling of SGI under this MOU in accordance with the Appendix to this MOU, entitled, “Procedures Governing Access to and Possession of Safeguards Information.” NERC further agrees to develop, implement, and maintain an SGI program in accordance with applicable requirements and the Appendix to this MOU.
4. NRC and NERC recognize that NERC has delegated, by contract, certain authority to eight Regional Entities to assist NERC in carrying out NERC's compliance and enforcement program and that it may be necessary for NERC to share certain sensitive information with those Regional Entities in the process of carrying out the compliance and enforcement program. With respect to access to and protection of SGI, those eight Regional Entities will be considered to be contractors of NERC. NERC agrees that it will adhere to the procedures governing the sharing, possession and handling of SGI in accordance with the Appendix to this MOU entitled, “Procedures Governing Access to and Possession of Safeguards Information” for any SGI to which Regional Entities are given access.
1. Nothing in this MOU is intended to limit the authority of the NRC or NERC to take enforcement action consistent with their statutory authority and regulations.
2. The NRC and NERC agree that the NRC will have sole responsibility for taking enforcement action because of a violation involving a digital asset subject to the NRC's cyber security requirements. The NRC shall inform NERC of any enforcement actions that it plans to take as a result of a violation of NRC cyber security requirements.
3. The NRC and NERC agree that NERC will have sole responsibility for taking enforcement action because of a violation involving a digital asset subject to NERC's CIP standards. NERC shall inform the NRC of any enforcement actions that it plans to take as a result of a violation of NERC's CIP standards.
4. In those situations where a cyber security incident at a nuclear power plant results in violations of both the NRC's and NERC's requirements, the NRC and NERC agree to consult and coordinate on any enforcement actions to be taken.
5. If NERC considers imposing remedial action directives or sanctions on a nuclear power plant, NERC agrees to consult in advance with the NRC to ensure that the proposed action will not adversely affect nuclear safety, security or emergency preparedness.
6. The NRC and NERC agree to coordinate on any public announcements of enforcement actions taken as a result of any violation of their respective cyber security requirements.
The following are designated points of contact for carrying out the routine administration of matters arising under this MOU:
1. The resolution of policy issues concerning organizational jurisdiction and operational relations will be coordinated by the NRC's Executive Director for Operations and NERC's Chief Executive Officer. Appropriate points of contact will be established.
2. The NRC's Office of Enforcement (OE) and NERC's Compliance Department shall coordinate the resolution of issues involving enforcement actions taken by one or both parties at an NRC-licensed nuclear power plant. Appropriate OE and Compliance Program points of contact will be established.
1. This MOU shall become effective upon signing by all of the Parties and shall remain in effect for five years from the date of signing unless terminated in accordance with the procedures set forth below.
2. This MOU may be modified or amended by written mutual agreement of the Parties.
3. Any Party may terminate this MOU by providing written notice of its intent to terminate the MOU to the other Party at least 180 days in advance of the effective date of termination.
4. This MOU shall not be construed to be or create a private right of action for or by any person or entity.
5. This MOU does not commit or obligate appropriated funds. All activities undertaken to implement any responsibilities carried out pursuant to this MOU shall be subject to the availability of appropriated funds.
6. If any provision(s) of this MOU, or the application of any provision(s) to any person or entity, is held to be invalid, the remainder of this MOU and the application of any remaining provision(s) to any person or entity shall not be affected.
For the Nuclear Regulatory Commission.
Dated: December 30, 2009.
For the North American Electric Reliability Corporation.
Dated: December 30, 2009
It is possible that both the NRC and NERC may require access to Safeguards Information (SGI) to carry out their respective responsibilities under this Memorandum of Understanding (MOU). The NRC has promulgated detailed regulations in 10 CFR Part 73 governing access to and the handling of SGI. The definition of SGI is set forth at 10 CFR 73.2. This Appendix sets forth general principles and procedures governing access to and the handling of SGI for purposes of carrying out this MOU. To the extent that any of the principles and procedures set forth in this Appendix conflict with the requirements set forth in 10 CFR Part 73, the NRC and NERC agree that the regulatory requirements set forth in Part 73 shall take precedence over this MOU.
SGI is a special category of sensitive unclassified information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act of 1954 (AEA), as amended. Although SGI is sensitive unclassified information, it is handled and protected more like Classified National
All persons who have or have had access to SGI have a continuing obligation to protect SGI in order to prevent its inadvertent release and/or unauthorized disclosure. Violations of SGI handling and protection requirements, including the unauthorized disclosure of SGI, may result in the imposition of applicable civil and criminal penalties.
Any documents provided to NERC by NRC that contain SGI will be designated in accordance with 10 CFR 73.22. Documents developed by NERC that contain SGI must also be designated and protected as SGI in accordance with 10 CFR 73.22. The NRC and NERC agree to comply with the requirements for protecting all information designated as SGI as set forth in 10 CFR 73.22(a).
Generally, no person may have access to SGI unless the person has an established “need to know” for the information and has been determined to be “trustworthy and reliable.” Typically, a determination of trustworthiness and reliability is based upon a background check, including at a minimum, a Federal Bureau of Investigation (FBI) criminal history records check (including verification of identity based on fingerprinting), employment history, education and personal references. The terms “background check,” “need to know” and “trustworthy and reliable” are defined in 10 CFR 73.2. The NRC and NERC agree to comply with the requirements for access to SGI set forth in 10 CFR 73.22(b) and 10 CFR 73.57.
The determination that a NERC employee, consultant or contractor has a need for access to SGI (established “need to know” and is “trustworthy and reliable”) must initially be made by an individual already authorized access to SGI. Accordingly, the NRC and NERC agree to implement the following procedures for granting NERC employees, consultants and contractors access to SGI for the purpose of carrying out this MOU.
NERC shall submit the name and fingerprints of at least one individual to the NRC who NERC has determined to be trustworthy and reliable and has a need to know SGI. NERC's trustworthiness and reliability determination shall be based, at a minimum, on all elements of a background check except for each individual's criminal history record. The NRC will conduct a criminal history record check based on each individual's fingerprints. Based upon the outcome of the criminal history record check, the NRC shall determine if the individual (or individuals if more than one name is submitted and approved) may have access to SGI and can serve as a reviewing official under this MOU. Upon approval by the NRC, this individual (or individuals if more than one name is submitted and approved) may serve as a reviewing official authorized to make SGI access authorization determinations for other NERC employees, consultants and contractors.
Individuals possessing an active Federal security clearance require no additional fingerprinting or background check for access to SGI, as this clearance meets the fingerprinting requirement and other elements of the background check, as prescribed in 10 CFR 73.22(b)(1). Such individuals must still meet the need to know requirement for access to SGI. However, when relying upon an existing active Federal security clearance to meet the SGI access requirements (except for the need to know determination), NERC should obtain and maintain a record of official notification stating that the individual possesses such a clearance.
Only NRC-approved reviewing officials shall be authorized to make SGI access determinations for other individuals who have been identified by NERC as having a need to know SGI. The reviewing official shall be responsible for determining that these individuals have a “need to know” for access to SGI to carry out their official duties under this MOU and for determining that these individuals are trustworthy and reliable. The reviewing official's determination of trustworthiness and reliability shall be based upon an adequate background check, including, at a minimum, an FBI criminal history records checks and fingerprinting. The reviewing official can only make SGI access determinations for other individuals, but cannot approve other individuals to act as reviewing officials.
NERC agrees that the reviewing official shall maintain secure and adequate records of each SGI access authorization determination. Such records shall be available to the NRC for inspection upon request.
SGI must be adequately protected while in use or storage to prevent its unauthorized release or disclosure. The NRC and NERC agree to comply with the requirements for protection of SGI while in use or storage set forth in 10 CFR 73.22(c).
Documents and other matter must be prepared and conspicuously marked as SGI to ensure against unauthorized release or disclosure. The NRC and NERC agree to comply with the requirements for preparation and marking of documents and other material as set forth in 10 CFR 73.22(d).
SGI may be reproduced to the minimum extent necessary consistent with need without permission of the originator. The NRC and NERC agree to comply with the requirements for reproduction of documents and other material containing SGI as set forth in 10 CFR 73.22(e).
Documents or other matter containing SGI when transmitted outside an authorized place of use or storage shall be enclosed in two sealed envelopes or wrappers and must not bear any markings or indication that the document contains SGI. The NRC and NERC agree to comply with the requirements for the external transmission of documents and other material containing SGI as set forth in 10 CFR 73.22(f).
SGI may not be transmitted by unprotected telecommunications circuits except under emergency or extraordinary conditions. SGI must be processed or produced on an electronic system that ensures the integrity of the information and prevents the unauthorized release or disclosure of SGI. The NRC and NERC agree to comply with the requirements for the processing of SGI on electronic systems as set forth in 10 CFR 73.22(g).
Documents containing SGI shall be removed from the SGI category (decontrolled) only after the NRC determines that the information no longer meets the criteria for designation as SGI. Organizations have the authority to make determinations that specific documents which they created no longer contain SGI and may be decontrolled. The NRC and NERC agree to comply with the requirements for removing information from the SGI category as set forth in 10 CFR 73.22(h).
Documents containing SGI should be destroyed when no longer needed. The NRC and NERC agree to comply with the requirements for the destruction of documents and other material containing SGI as set forth in 10 CFR 73.22(i).
Nuclear Regulatory Commission.
Solicitation of public comment.
In response to the Office of Management and Budget's (OMB) December 8, 2009, Open Government Directive, which helps to implement the President's January 21, 2009, Memorandum on Transparency and Open Government, the Nuclear Regulatory Commission (NRC) is requesting public comment to aid the
Submit comments regarding publication of high-value data sets as soon as possible to assure consideration for purposes of the Open Government Directive's January 22, 2010, deadline. However, even comments that are received too late for meaningful consideration with respect to the January 22 deadline are nonetheless welcome, because the NRC may decide to publish additional data sets at later dates. Submit comments on the NRC's Open Government Plan by February 10, 2010. Comments on the Open Government Plan that are received after this date will be considered during the initial development of the Open Government Plan if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
Please include Docket ID NRC-2010-0003 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You may submit comments by any one of the following methods.
You can access publicly available documents related to this notice using the following methods:
James B. Schaeffer, Deputy Director, Office of Information Services, (301) 415-7330,
On December 8, 2009, the Director of the Office of Management and Budget issued an Open Government Directive, which helps to implement the President's January 21, 2009, Memorandum on Transparency and Open Government. According to the President's Memorandum, “independent agencies should comply with the Open Government Directive.” Therefore, consistent with the NRC's longstanding commitment to openness and transparency, the NRC will endeavor to comply with the Open Government Directive and meet its deadlines. The Open Government Directive is available on the Internet at
The Open Government Directive instructs Federal agencies to “identify and publish online in an open format at least three high-value data sets * * * and register those data sets via
The Open Government Directive also instructs agencies to develop and publish Open Government Plans. An agency's Open Government Plan, according to the Open Government Directive, “is the public roadmap that details how [the] agency will incorporate the principles of the President's January 21, 2009, Memorandum on Transparency and
To aid the NRC's efforts to determine what data sets might be appropriate to publish and what transparency, public participation, and collaboration improvements it might include in its Open Government Plan, the NRC is soliciting public comments. Comments regarding publication of data sets are requested as soon as possible in light of the January 22, 2010, target date for publication of data sets. Please note that there is not yet a draft available of the NRC's Open Government Plan, and the NRC is not yet certain when a draft will be available. If a draft is developed sufficiently prior to the April 7, 2010, deadline to allow time for meaningful public comment on the draft, the draft will be posted on the NRC's forthcoming Open Government Web page, which, consistent with the Open Government Directive, the NRC plans to establish by February 6, 2010. The NRC's Open Government Web page will be located at
For the Nuclear Regulatory Commission.
U.S. Small Business Administration.
Notice.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 11996 6 and for economic injury is 11997 0.
The State which received an EIDL Declaration # is Florida.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Alabama dated 12/29/2009.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 11986 6 and for economic injury is 11987 0.
The States which received an EIDL Declaration # are Alabama, Florida.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Texas dated 01/04/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12000 B and for economic injury is 12001 0.
The States which received an EIDL Declaration # are Texas.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of application for an exemptive order under Section 206A of the Investment Advisers Act of 1940 (the “Advisers Act”).
BlackRock, Inc. (“Applicant” or “BlackRock”).
Exemption requested under section 206A of the Advisers Act from subsections (a)(2)(iii)(A)(
Applicant requests that the Commission issue an order under section 206A of the Advisers Act exempting it and its investment advisory subsidiaries from Advisers Act rule 206(4)-3(a)(2)(iii)(A)(
The application was filed on April 27, 2009, and an amended and restated application was filed on October 30, 2009.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on February 10, 2010 and should be accompanied by proof of service on Applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicant, BlackRock, Inc., c/o Howard B. Surloff, 40 East 52nd Street, New York, New York 10022.
Sarah G. ten Siethoff, Senior Counsel, or Daniel S. Kahl, Branch Chief, at (202) 551-6787 (Office of Investment Adviser Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the SEC's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0102 (telephone (202) 551-5850)).
1. Applicant is a publicly traded holding company conducting investment management and ancillary businesses primarily through a variety of directly or indirectly wholly owned registered investment advisory
2. On September 29, 2006, BlackRock acquired substantially all of Merrill Lynch's global investment management business (the “MLIM Business”) from Merrill Lynch in exchange for issuing a substantial equity interest in itself to Merrill Lynch (the “Transaction”). That equity interest, as of January 1, 2009, represented a 48.2% economic interest in BlackRock and a 44.2% voting interest in BlackRock. A substantial portion of BlackRock's current Private Investors and ISA businesses, including the investment advisory clients serviced by these businesses, were acquired in the Transaction and formerly were important parts of the MLIM Business.
3. On December 26, 2008, BlackRock and Merrill Lynch entered into an Exchange Agreement pursuant to which Merrill Lynch and BlackRock agreed to exchange (i) 49,865,000 shares of BlackRock common stock held by Merrill Lynch for a like number of shares of BlackRock's Series B non-voting convertible participating preferred stock, and (ii) 12,604,918 shares of BlackRock's Series A non-voting convertible participating preferred stock held by Merrill Lynch for a like number of shares of Series B Preferred Stock (the “Exchange”), in effect reducing Merrill Lynch's voting interest in BlackRock to 4.6%, while its economic interest remains largely unchanged at 46.3% on a fully diluted basis.
4. Prior to the Transaction, broker-dealer subsidiaries controlled by Merrill Lynch (“ML Broker-Dealers”), through their registered representatives, solicited clients for the investment adviser subsidiaries controlled by Merrill Lynch that conducted the Private Investors and ISA portions of the MLIM Business, in exchange for a cash fee and in reliance on subsection (a)(2)(ii) of rule 206(4)-3 under the Advisers Act (the “Control-Affiliate Solicitor Provision”). The Control-Affiliate Solicitor Provision allows “partner[s], officer[s], director[s] or employee[s] of a person which controls, is controlled by, or is under common control with [an] investment adviser” to solicit clients for the investment adviser in exchange for a cash fee so long as the solicitor discloses the identity of his employer and the nature of the affiliation between his employer and the recommended adviser at the time of the solicitation or referral. The Control-Affiliate Solicitor Provision does not require solicitors and advisers to follow any other particularized requirements in making these required disclosures. The ML Broker-Dealers never used the independent solicitor disclosure procedures contained in subsection (a)(2)(iii) of rule 206(4)-3 under the Advisers Act (the “Independent Solicitor Provision”), which contains several specific requirements that an independent solicitor must follow, when referring clients to the MLIM Business because Merrill Lynch controlled both the MLIM Business and the ML Broker-Dealers.
5. Notwithstanding Merrill Lynch's significant economic stake in BlackRock, due to the particular and unique facts and circumstances of the BlackRock-Merrill Lynch relationship, BlackRock has concluded that Merrill Lynch does not “control” it for purposes of the Advisers Act. In addition to the absence of voting power indicative of control, BlackRock and Merrill Lynch have entered into a stockholder agreement in connection with the Transaction (the “Stockholder Agreement”) that contractually denies Merrill Lynch the right to decide how to vote its BlackRock shares on any matter other than a very limited number of extraordinary proposals (primarily related to issues impacting Merrill Lynch's ownership interest in BlackRock), prohibits Merrill Lynch from otherwise attempting to influence or control BlackRock, and imposes a number of other limitations governing the BlackRock voting securities Merrill Lynch beneficially owns. The Stockholder Agreement's limitations on Merrill Lynch's rights as a holder of BlackRock voting securities, and as an investor in BlackRock generally, deny Merrill Lynch the power and ability to control BlackRock ordinarily associated with the ownership of such a large economic stake in a company.
6. BlackRock represents that the Stockholder Agreement, as well as several other agreements entered into in connection with the Transaction, serve to create a long-standing close affiliation between BlackRock and Merrill Lynch for the purpose of achieving their mutual business and economic objectives, even though they do not result in Merrill Lynch “controlling” BlackRock within the meaning of the Advisers Act. The Stockholder Agreement, as well as these other agreements, are publicly available in BlackRock's filings with the Commission.
7. The nature of the close, ongoing relationship between BlackRock and Merrill Lynch is publicly disclosed, discussed and summarized on BlackRock's internet website, BlackRock's Form ADV Part II, in BlackRock's client documentation, in BlackRock's periodic filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in other generally available public information. BlackRock represents that this comprehensive disclosure serves to ensure that the exact nature and extent of the close affiliation between BlackRock and Merrill Lynch is readily apparent to the public and the market at large.
8. BlackRock represents that BlackRock and the BlackRock Advisory Subsidiaries will abide by the following solicitation procedures:
a. The referral agreement between BlackRock and Merrill Lynch (the “BLK-MER Referral Agreement”) requires that ML Broker-Dealers disclose to potential clients the relationship between Merrill Lynch and BlackRock at the time of a referral to a BlackRock Advisory Subsidiary. ML Broker-Dealers will provide prominent written disclosure to potential clients regarding the relationship between Merrill Lynch and BlackRock at or prior to the time of a referral to a BlackRock Advisory Subsidiary. This prominent written disclosure will also address Merrill Lynch's resulting conflict of interest in recommending BlackRock.
b. When a ML Broker-Dealer solicits any prospective client for a BlackRock Advisory Subsidiary, the prospective client will receive the BlackRock Advisory Subsidiary's written disclosure statement required by Rule 204-3 promulgated under the Advisers Act (the “ADV Part II Disclosure Document”). The BlackRock Advisory Subsidiary's ADV Part II Disclosure Document will be delivered by the BlackRock Advisory Subsidiary (and not by the solicitor) not later than the time that a fully executed investment advisory contract is provided to the client, although not necessarily at the time of the solicitation itself. The BlackRock Advisory Subsidiary's ADV Part II Disclosure Document will contain detailed disclosures about the nature of the affiliation between Merrill Lynch and BlackRock and specifically
c. If a BlackRock Advisory Subsidiary accepts a client referred by a ML Broker-Dealer, the prospective client will enter into a written investment management agreement with the BlackRock Advisory Subsidiary. Clients referred through the Private Investors channel will be provided with and will generally execute a form investment management agreement that will contain further disclosures about the nature of the relationship between Merrill Lynch and BlackRock in addition to those that will be provided in the BlackRock Advisory Subsidiary's ADV Part II Disclosure Document and at the time of the referral. Clients referred through the ISA channel will often be provided with a form investment management agreement with similar disclosures, but many prefer to use their own form investment management agreement and consequently these disclosures may not appear in the investment management agreement. BlackRock Advisory Subsidiaries will not separately charge any client any explicit amount, in addition to the advisory fee, for the cost of obtaining that client's account, and no differential with respect to the amount or level of advisory fees charged by a BlackRock Advisory Subsidiary will be attributable to the solicitation arrangements with ML Broker-Dealers described in the Application.
d. BlackRock Advisory Subsidiaries and ML Broker-Dealers will engage in this solicitation arrangement pursuant to the BLK-MER Referral Agreement. BlackRock represents that the BLK-MER Referral Agreement complies with subsections (A)(
1. Section 206A of the Advisers Act grants the Commission the authority to “conditionally or unconditionally exempt any person or transaction * * * from any provision or provisions of [the Advisers Act] or of any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of [the Advisers Act].”
2. Section 206 of the Advisers Act is a general anti-fraud provision applicable to investment advisers. Rule 206(4)-3 (“the Cash Solicitation Rule”) was adopted under section 206(4) of the Advisers Act because the Commission determined that the nature of the conflict of interest mandated disclosure to clients of cash compensation arrangements between solicitors and recommended investment advisers, which alerts clients to the personal incentive the solicitor has to recommend one particular adviser over another.
3. The Control-Affiliate Solicitor Provision (subsection (a)(2)(ii) of the Cash Solicitation Rule) applies to anyone who is “(A) a partner, officer, director or employee of [the] investment adviser, or (B) a partner, officer, director or employee of a person which controls, is controlled by, or is under common control with [the] investment adviser.” All investment advisers and solicitors must meet certain threshold requirements to rely on the Cash Solicitation Rule regardless of any affiliation between the investment adviser and the solicitor. However, where the Control-Affiliate Solicitor Provision applies, the Cash Solicitation Rule requires only that either (1) the solicitor's status as a partner, officer, director or employee of the adviser be disclosed to the prospective client; or (2) the solicitor's status as a partner, officer, director or employee of a company affiliated with the adviser, along with the nature of the affiliation between the solicitor's employer and the investment adviser, be disclosed to the prospective client at the time of the solicitation or referral.
4. The Independent Solicitor Provision (subsection (a)(2)(iii) of the Cash Solicitation Rule) contains several specific requirements: (A) The written solicitation agreement between the adviser and solicitor must contain specific terms; (B) the solicitor must deliver to the prospective client, at the time of solicitation, the adviser's ADV Part II Disclosure Document and a separate written disclosure document described in subsection (b) of the Cash Solicitation Rule (the “Independent Solicitor Disclosure Document” and the required delivery of both the adviser's ADV Part II Disclosure Document and the Independent Solicitor Disclosure Document being the “Part II and Independent Solicitor Disclosure Document Delivery Requirement”); (C) the adviser must receive a signed and dated acknowledgement of the client's receipt of the ADV Part II Disclosure Document and the Independent Solicitor Disclosure Document prior to, or at the time of, entering into any written or oral investment advisory contract (the “Signed Acknowledgement Requirement”); and (D) the adviser must make a bona fide effort to ascertain whether the solicitor has complied with the terms of the written solicitation agreement and must have a reasonable basis for believing that the solicitor has so complied.
5. The Independent Solicitor Disclosure Document must contain the following information: (i) The names of the solicitor and investment adviser; (ii) the nature of the relationship, including any affiliation, between the solicitor and the investment adviser; (iii) a statement that the solicitor will be compensated for his solicitation services by the investment adviser; (iv) the terms of such compensation arrangement, including a description of the compensation paid or to be paid to the solicitor; and (v) the amount, if any, for the cost of obtaining his account the client will be charged in addition to the advisory fee, and the differential, if any, among clients with respect to the amount or level of advisory fees charged by the investment adviser if such differential is attributable to the existence of any arrangement pursuant to which the investment adviser has agreed to compensate the solicitor for soliciting clients for, or referring clients to, the investment adviser.
6. BlackRock asserts that, as articulated in the adopting release for the Cash Solicitation Rule, the key policy rationale underlying the limited disclosure regime of the Control-Affiliate Solicitor Provision is that “[a]s long as a client is aware that the recommended adviser is the solicitor's employer or a close affiliate of the solicitor's employer, there appears to be little need to require the imposition of additional disclosure and recordkeeping requirements.” BlackRock further asserts that the Control-Affiliate Solicitor Provision reflects the argument advanced by commenters considering the Cash Solicitation Rule that “there is little basis for assuming that potential clients will be any less aware of the inherent bias when an employee recommends an adviser who is a person associated with his employer than when he recommends the advisory services of his own employer.” Thus, BlackRock submits, one rationale for expanding the scope of the Control-Affiliate Solicitor Provision to include persons part of an organization that is closely affiliated with the recommended adviser is that it should be readily apparent to the public that the close affiliation between the solicitor and adviser creates an inherent bias to recommend the affiliated adviser.
7. Pursuant to the Exchange, Merrill Lynch beneficially owns approximately
8. The unique affiliation relationship between BlackRock and Merrill Lynch is consistently discussed, summarized and disclosed on BlackRock's Internet Web site, BlackRock's Form ADV Part II, in BlackRock's client documentation, in BlackRock's filings under the Exchange Act, in registration statements for BlackRock's funds registered under the Investment Company Act of 1940 and in other generally available public information. BlackRock submits that these multiple avenues of disclosure serve to ensure that the exact nature and extent of the close affiliation between BlackRock and Merrill Lynch is readily apparent to the public and market at large. In addition, ML Broker-Dealers would provide prominent written disclosure to potential clients regarding the relationship between Merrill Lynch and BlackRock at or prior to the time of a referral to a BlackRock Advisory Subsidiary. This prominent written disclosure would also address Merrill Lynch's resulting conflict of interest in recommending BlackRock.
9. BlackRock seeks only exemptions from subsections (a)(2)(iii)(A)(
10. BlackRock submits that the purpose of the detailed requirements of the Independent Solicitor Provision is to ensure that the fact of a solicitor's bias in favor of a recommended adviser is presented in a clear and unmistakable manner that ensures that potential clients become aware of this bias. BlackRock argues that the inherent bias on a ML Broker-Dealer's part to recommend a BlackRock Advisory Subsidiary is clearly disclosed and unmistakable as a result of the close affiliation between Merrill Lynch (the solicitor's parent entity) and BlackRock (the recommended adviser's parent entity) such that, within the policy framework of the Cash Solicitation Rule, these additional disclosures need not be expressly made in a separate Independent Solicitor Disclosure Document.
11. BlackRock asserts that the Commission granting the order requested by its application would be appropriate in the public interest because (i) it would preserve for current and future Merrill Lynch brokerage clients the significant investment experience and resources of BlackRock currently available to such clients, while at the same time ensuring that such clients will continue to receive the protections intended by the Cash Solicitation Rule, (ii) requiring strict compliance with the Independent Solicitor Provision would create risks that client investment options might be reduced as a result of ML Broker-Dealers being discouraged from recommending BlackRock Advisory Subsidiaries, (iii) clients might find a change in procedure and documentation confusing and burdensome, and (iv) additional costs associated with such strict compliance might ultimately result in greater expenses for clients.
1. The Applicant will rely on the Order only for so long as the Cash Solicitation Rule in effect as of the date of the Order is operative. If the Commission, subsequent to the date of the Order, adopts a new rule governing the payment of cash fees by registered investment advisers to persons soliciting clients on their behalf (a “New Cash Solicitation Rule”), the Applicant agrees to rely on the Order only until the compliance date for such New Cash Solicitation Rule.
2. The Applicant will rely on the Order only for so long as Merrill Lynch beneficially owns 25% or more of the Applicant's outstanding capital stock. If Merrill Lynch ever ceases to beneficially own at least 25% of the Applicant's outstanding capital stock, the Applicant represents that it will not rely on the relief granted by the Order.
3. The Applicant will require that the BlackRock Advisory Subsidiaries and the ML Broker-Dealers provide clear disclosure of the Applicant's relationship with Merrill Lynch to potential clients referred to BlackRock Advisory Subsidiaries by ML Broker-Dealers in exchange for a cash fee. This disclosure will be provided by ML Broker-Dealers' disclosure to potential clients of the relationship between Merrill Lynch and BlackRock at the time of a referral to a BlackRock Advisory Subsidiary pursuant to the BLK-MER Referral Agreement, and via delivery of (i) a BlackRock Advisory Subsidiary's ADV Part II Disclosure Document; and (ii) a form investment management agreement provided to each client referred to a BlackRock Advisory Subsidiary through the Private Investors channel and often provided to clients referred through the ISA channel. The Applicant will require that all such disclosures be substantially similar to the disclosures described in the Application and be provided pursuant to procedures substantially similar to those described in the Application. Additionally, the ML Broker-Dealers will provide prominent written disclosure to potential clients regarding the relationship between Merrill Lynch and BlackRock at or prior to the time of a referral to a BlackRock Advisory Subsidiary. This prominent written
4. The Applicant will require the BlackRock Advisory Subsidiaries to comply with subsection (a)(2)(iii)(C) of the Cash Solicitation Rule. Further, the Applicant represents that it will require the BlackRock Advisory Subsidiaries to continue to comply with subsection (A)(
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, January 14, 2010 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Paredes, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, January 14, 2010 will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to revise fees for certain DTC services.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. DTC has prepared summaries, set forth in sections (A), (B) and (C) below, of the most significant aspects of such statements.
DTC proposes increasing certain existing service fees and introducing fees associated with new service capabilities. Increased fees are proposed for existing services related to Deposits, Custody and Asset Servicing, Underwriting and Dividends, Book-Entry Delivery, and Money Market Instruments. These changes are intended to realign the fees with DTC's corresponding service costs, scale the fees to reflect processing complexity, and create fee simplification and transparency.
In addition, DTC will increase and implement certain disincentive fees to discourage activities that increase industry inefficiencies. This includes fee increases for reject processing services and for exception processing related to Deposit and Withdrawal activities and Custody. It also includes a new password reset fee.
New fees are proposed for recently-developed services related to Underwriting, Deposits, and Reorganization. The new fees include an Underwriting fee for Incomplete Eligibility Information and Older Issue Eligibility, a Reorganization fee structure for Survivor Options, and a new Long Position fee for issues with a large number of shares but low market value.
These proposed fee revisions are consistent with DTC's overall pricing philosophy of aligning service fees with underlying costs, discouraging manual and exception processing, and encouraging immobilization and dematerialization of securities. The effective date for these fee adjustments is January 4, 2010. The changes to DTC's Fee Schedule can be found in Exhibit 5 to proposed rule change SR-DTC-2009-19 at
DTC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
DTC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Electronic comments may be submitted by using the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19b(7) of the Securities Exchange Act of 1934 (“Act”),
On December 4, 2009, the NFA requested that the CFTC make a determination that review of the proposed rule change of NFA is not necessary. On December 24, 2009, the CFTC notified the NFA that the CFTC has determined not to review the proposed rule change.
The amendments to Compliance Rule 2-29(h) require that certain audio and video advertisements that appear on the Internet—like similar radio and television advertisements—be submitted to NFA in advance for review and approval. The proposed Interpretive Notice reminds Members that on-line communications are subject to the same standards as other types of communications.
The text of the proposed rule change and Interpretive Notice is available on the NFA's Web site
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Section 15A(k) of the Act
In December 2008, NFA's FCM, IB, and CPO/CTA Advisory Committees considered the growing use of social networking groups such as blogs, chat rooms, and forums to communicate with and solicit customers. As a result of those discussions, all three committees felt it would be helpful to issue written guidance reminding Members of their responsibilities in connection with these on-line communications.
As part of the process, NFA staff reviewed guidance from the Financial Industry Regulatory Authority (“FINRA”) on the same issue. FINRA guidance states that blogs and bulletin boards are considered advertisements and are subject to the same requirements as other advertisements, while participating in a chat room is a public appearance subject to FINRA rules. The guidance also states that “[m]ember firms must supervise the operation of any securities-related blog, bulletin board or chat room hosted by [a registered representative] or by the firm itself to ensure compliance with FINRA Conduct Rules and the Federal securities laws.”
FINRA has also produced several podcasts discussing on-line communications. In one podcast, FINRA staff suggest limiting posting access to a firm's blog or bulletin board to the firm's registered representatives. If the firm opens it up to a wider audience, however, FINRA staff advise requiring users to register and agree to the firm's terms of use.
The proposed Interpretive Notice provides guidance that is similar to the FINRA guidance. It reminds Members that on-line communications are subject to the same standards as other types of communications.
NFA has also noticed that profit claims that used to appear on radio and television are moving to the Internet and showing up on sites such as YouTube. Therefore, the proposed amendments to Compliance Rule 2-29(h) require that these videos—like similar radio and television advertisements—be submitted to NFA in advance for review and approval. Amendments to Compliance Rule 2-29 were previously filed in SR-NFA-2001-01.
The rule change is authorized by, and consistent with, Section 15A(k)(2)(B) of the Act.
This proposal is not designed to regulate, by virtue of any authority conferred by the Act, matters not related to the purposes of the Act or the administration of the association. To the extent that this proposal regulates activities and transactions other than security futures, the authority for regulating those activities and transactions comes from the Commodity Exchange Act rather than the federal securities laws.
The proposed rule change will have little or no impact on competition. The proposed Interpretive Notice does not impose new requirements on Members, but rather makes clear that existing requirements regarding communications with the public are the same regardless of the medium used for such communications. Similarly, the proposed amendments to Compliance Rule 2-29(h) require that audio or video advertisements that would have to be submitted to NFA for prior approval if used on the radio or television must also be submitted to NFA if they are distributed through publicly accessible media,
NFA worked with Member Committees in developing the rule change. NFA did not, however, publish the rule change to the membership for comment. NFA did not receive comment letters concerning the rule change.
On December 24, 2009, the CFTC notified the NFA that it had determined not to review the proposed rule change and, therefore, NFA, is permitted to make the amendments effective as of
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NFA-2009-01 and should be submitted on or before February 1, 2010.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to make permanent its pilot program regarding limitations on orders to include the exposure of all-or-none orders. The text of the proposed rule change is as follows, with deletions in [brackets] and additions
.01-.03 No Change.
.04 A non-marketable all-or-none limit order shall be deemed “exposed” for the purposes of paragraphs (d) and (e) one second following a broadcast notifying market participants that such an order to buy or sell a specified number of contracts at a specified price has been received in the options series. [This provision shall be in effect on a pilot basis expiring January 31, 2010.]
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
(a)
Pursuant to ISE Rule 717(d) and (e), Electronic Access Members must expose agency orders on the Exchange for at least one second before entering a contra-side proprietary order or a contra-side order that was solicited from a broker-dealer, or utilize one of the Exchange's execution mechanisms that have one second exposure periods built into the functionality.
The Exchange operates an integrated system that consolidates all market maker quotes and orders, and automatically disseminates the best bid and offer. If a limit order is designated as all-or-none (“AON”), the contingency that the order must be executed in full makes it ineligible for display in the best bid or offer. Nevertheless, such orders are maintained in the system and remain available for execution after all other trading interest at the same price has been exhausted.
On July 9, 2009, the Exchange adopted a proposed rule change on a three-month pilot basis to specify that a non-marketable all-or-none limit order is deemed “exposed” for the purposes of Rule 717(d) and (e) one second following a broadcast notifying members that such an order to buy or sell a specified number of contracts at a specified price has been received in the options series.
(b)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
This proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to amend its rules to implement a broadcast message that will inform market participants when a non-marketable all-or-none limit order is placed on the limit order book. The text of the proposed rule change is as follows, with deletions in [brackets] and additions
.01-.03 No Change.
.04 A non-marketable all-or-none limit order shall be deemed “exposed” for the purposes of paragraphs (d) and (e) one second following a broadcast notifying market participants that such an order to buy or sell a specified number of contracts at a specified price has been received in the options series. This provision shall be in effect on a pilot basis expiring [December 31, 2009]
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
(a)
The Exchange operates an integrated system that consolidates all market maker quotes and orders, and automatically disseminates the best bid and offer. If a limit order is designated as all-or-none (“AON”), the contingency that the order must be executed in full makes it ineligible for display in the best bid or offer. Nevertheless, such orders are maintained in the system and remain available for execution after all other trading interest at the same price has been exhausted.
On July 9, 2009, the Exchange adopted a proposed rule change on a three-month pilot basis to specify that a non-marketable all-or-none limit order is deemed “exposed” for the purposes of Rule 717(d) and (e) one second following a broadcast notifying members that such an order to buy or sell a specified number of contracts at a specified price has been received in the options series.
(b)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”)
The amendments to the Interpretive Notice titled “NFA Compliance Rules 2-7 and 2-24 and Registration Rule 401: Proficiency Requirements for Security Futures Products” extend the relief from having to take a proficiency exam to engage in security futures activities from December 31, 2009 to December 31, 2012.
A copy of this filing is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received
Section 15A(k) of the Act
The Commodity Futures Modernization Act of 2000 amended the Securities Exchange Act of 1934 to require NFA to “have rules that ensure that members and natural persons associated with members meet such standards of training, experience, and competence necessary to effect transactions in security futures products (“SFPs”) and are tested for their knowledge of securities and securities futures products.”
At its November 19, 2009 meeting, the Board approved amendments to the Interpretive Notice regarding proficiency requirements for security futures products. At that meeting, the Board also gave the Executive Committee authority to make any changes requested by the CFTC or the SEC. The CFTC and SEC have asked that the proposal adopted by the Board be modified and the Executive Committee has approved the modified proposal.
NFA and FINRA proposed the two prior extensions, and the CFTC and SEC agreed to them, because of the low trading volume in SFPs and the relatively few registrants engaging in security futures activities. These characteristics continue to make the imposition of a qualifications exam an inefficient option today. Accordingly, the proposal revises the Interpretive Notice to extend the relief from having to take an exam from December 31, 2009 to December 31, 2012.
Amendments to the Interpretive Notice regarding Security Futures Products Proficiency Training were previously filed in SR-NFA-2002-04, SR-NFA-2003-03, SR-NFA-2006-04 and SR-NFA-2007-07.
The rule change is authorized by, and consistent with, Section 15A(k)(2)(D) of the Act.
NFA does not believe that the proposed rule change will have an impact on competition.
Comments on the NFA proposed rule change have not been solicited and none have been received.
The proposed rule change will become effective on December 28, 2009. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refilled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the Commission a proposal to quote all series of options on SPDR S&P 500 Exchange Traded Funds (SPY) and options on iShares Russell 2000 Index Funds (IWM) in penny increments ($0.01) pursuant to the Penny Pilot (“Penny Pilot” or “Pilot”), effective February 1, 2010.
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to enable the Exchange to quote all series of options on SPDR S&P 500 Exchange Traded Funds (“SPY”) and options on iShares Russell 2000 Index Funds (“IWM”) in penny increments pursuant to the Penny Pilot, effective February 1, 2010.
In the Exchange's immediately effective filing to extend and expand the Penny Pilot through December 31, 2010, the Exchange proposed expanding the Pilot four times on a quarterly basis.
The Exchange now proposes to eliminate the $3.00 breakpoint that exists for SPY and IWM and designate all options series of SPY and IWM as eligible to quote in $0.01 increments, regardless of premium value. The Exchange will communicate the proposed change to its membership via an Options Trader Alert (“OTA”) posted on the Exchange's web site.
The Exchange notes that although the Pilot has contributed to some increase in quote message traffic, it has been manageable by the Exchange and the Options Price Reporting Authority (“OPRA”), with no significant disruption in the dissemination of pricing information. The Exchange believes that the benefits to public customers and other market participants who are able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic. Moreover, the Exchange's rule change proposal is sufficiently limited such that it is unlikely to increase quotation message traffic beyond the capacity of the Exchange's or OPRA's systems, or to disrupt the timely dissemination of information.
The Exchange believes that its proposal to eliminate the breakpoint for penny quoting of all SPY and IWM option series should facilitate the continuing narrowing of spreads, thereby lowering costs to the benefit of investors.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not
No written comments were either solicited or received.
The Exchange believes that the foregoing proposed rule change may take effect upon filing with the Commission pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq is filing with the Securities and Exchange Commission (“SEC” or “Commission”) a proposal for the NASDAQ Options Market (“NOM” or “Exchange”) to quote all series of options on SPDR S&P 500 Exchange Traded Funds (SPY) and options on iShares Russell 2000 Index Funds (IWM) in penny increments ($0.01) pursuant to the Penny Pilot (“Penny Pilot” or “Pilot”), effective February 1, 2010.
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available from Nasdaq's Web site at
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified
The purpose of this filing is to enable the Exchange to quote all series of options on SPDR S&P 500 Exchange Traded Funds (“SPY”) and options on iShares Russell 2000 Index Funds (“IWM”) in penny increments pursuant to the Penny Pilot, effective February 1, 2010.
In the Exchange's immediately effective filing to extend and expand the Penny Pilot through December 31, 2010, the Exchange proposed expanding the Pilot four times on a quarterly basis.
The Exchange now proposes to eliminate the $3.00 breakpoint that exists for SPY and IWM and designate all options series of SPY and IWM as eligible to quote in $0.01 increments, regardless of premium value. The Exchange will communicate the proposed change to its membership via an Options Trader Alert (“OTA”) posted on the Exchange's Web site.
The Exchange notes that although the Pilot has contributed to some increase in quote message traffic, it has been manageable by the Exchange and the Options Price Reporting Authority (“OPRA”), with no significant disruption in the dissemination of pricing information. The Exchange believes that the benefits to public customers and other market participants who are able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic. Moreover, the Exchange's rule change proposal is sufficiently limited such that it is unlikely to increase quotation message traffic beyond the capacity of the Exchange's or OPRA's systems, or to disrupt the timely dissemination of information.
The Exchange believes that its proposal to eliminate the breakpoint for penny quoting of all SPY and IWM option series should facilitate the continuing narrowing of spreads, thereby lowering costs to the benefit of investors.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The Exchange believes that the foregoing proposed rule change may take effect upon filing with the Commission pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
BX submits this proposed rule change to facilitate annual membership billing conducted by the Financial Industry Regulatory Authority (“FINRA”) on behalf of BX.
In its filing with the Commission, BX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. BX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
BX is proposing to allow FINRA to deduct an annual $3,000 membership fee from Boston Options Exchange Group, LLC (“BOX”) participants' CRD accounts and promptly refund the charge back to the same participants' accounts. Pursuant to a regulatory services agreement, FINRA is providing BX with certain regulatory services, including the collection of annual membership fees from BX members pursuant to BX Rule 7001(a). BOX participants are not subject to the BX annual membership fee. Due to a limitation with FINRA's systems, FINRA is unable to differentiate between BX members and BOX participants. As a consequence, FINRA must deduct the BX fee from both member and participant accounts. BX is proposing to promptly refund the charge to BOX participants after collection by FINRA. Specifically, after receipt of the lump sum payment from FINRA representing the collection of funds from both member and participant accounts, BX will provide to FINRA the BOX participant funds together with a list of each participant to which FINRA must remit pro-rata payment. BOX has provided its participants with notice of the impending charge and rebate.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A)(iii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 18, 2009, the Chicago Board Options Exchange, Incorporated (“CBOE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Under the CBOE's rules, eligible complex orders, including stock-option orders, may be subject to an automated COA process where the eligible order is exposed for possible price improvement.
The Exchange proposes to revise CBOE Rule 6.53C, Interpretation and Policy .06(d), to modify the operation of the COA with respect to market stock-option orders, including market stock-option orders with more than one option leg, that cannot be executed in whole or in a permissible ratio at the conclusion of a COA. Specifically, the CBOE proposes to allow the Exchange to determine, on a class-by-class basis, to route the remaining balance of the option leg(s) of such an order to CBOE's Hybrid System for processing as a simple market order(s), consistent with CBOE's order execution rules, and to route the remaining balance of the stock leg of such an order to the CBOE Stock Exchange (“CBSX”), CBOE's stock facility, for processing as a market order, consistent with CBSX's order execution rules.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 9, 2009, the New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the Policy is to provide public notice of order imbalances for securities, facilitate price discovery, and minimize short-term price dislocation, by allowing for the entry of offsetting orders or the cancellation of orders on the side of an imbalance.
An order imbalance may occur when the Exchange receives a sudden influx of orders for a particular security on the same side of the market within a short time interval, or when one or more large-size orders for a security are entered, and there is insufficient offsetting interest. When an imbalance exists that the Designated Market Maker (“DMM”) determines would cause a significant price dislocation, the Policy provides that the DMM should widen the spread between the bid and offer—a process known as “gapping the quote.” The use of a gap quote signals the existence of the imbalance to the market in order to attract contra-side liquidity and mitigate volatility.
The proposed Information Memo includes a summary of the options available to a DMM when publishing a gap quote. In this situation, a DMM may: (1) Trade out of the gap quote by executing contra side interest against the imbalance (allowing for any cancellations); (2) update the gap quote, in consultation with a senior-level Floor Official; or (3) request an order imbalance trading halt in the security at issue, in consultation with a senior-level Floor Official.
Under the proposal, the volume requirement for implementing a gap quote would be reduced from at least 10,000 shares to at least 5,000 shares, and the value requirement for implementing a gap quote would be reduced from $200,000 or more to $100,000 or more. If either requirement is met, the DMM may implement a gap quote if it determines the imbalance would cause a significant price dislocation. In addition, the Exchange has proposed to clarify the factors DMMs consider when setting the price of the gap quote. Finally, the Exchange has proposed to clarify certain aspects of the Policy and make other technical or non-substantive changes.
The Exchange has proposed to reduce the minimum size and value requirements for the use of a gap quote under the Policy to at least 5,000 shares or a market value of $100,000 or more. The Exchange believes that these lower thresholds better reflect current market conditions. In addition to reducing the quantitative requirements for implementing a gap quote, the Exchange has proposed to add language clarifying that, notwithstanding meeting the minimum size or value requirement, an imbalance must also be anticipated to cause a significant price dislocation in the stock at issue in order to justify a gap quote. The Exchange believes it is important to emphasize that whether a gap quote is appropriate depends on the characteristics of a security as much as on the Policy's minimum requirements.
The current Information Memo instructs DMMs to set the price of a gap quote “at the price at which the DMM believes the stock would trade if no contra side interest developed or no cancellations occurred[.]” The Exchange has instead proposed that the DMM should publish the gap quote at the price where the DMM “reasonably anticipates” the stock would trade if no contra side interest developed or no cancellations occurred, which the Exchange believes helps clarify the guidance.
The Exchange has also proposed to clarify that the Policy still requires a DMM to take into account, “to the extent known,” executable orders, e-Quotes and verbal interest in the Crowd (on the side of the market opposite the imbalance) at prices better than the price set by the DMM as the side of the gap quote opposite the imbalance when making his or her pricing determination. If the imbalance is known to be limited as to price, the DMM should not set the gap quote higher than that limit price.
The Exchange also has proposed to add a provision reminding the DMMs that, at the time they publish a gap quote, they should set the price of the gap quote such that it is likely to result in a trade of at least the minimum size of 5,000 shares or $100,000 in value, thus clearing all, or a substantial portion of, the imbalance.
The Exchange has also proposed several additional changes. A complete list of these changes is set forth in the Notice.
• The Exchange has proposed to add language to the Information Memo clarifying the DMM's responsibilities when implementing a gap quote. DMMs must balance the need for accurate price discovery with the need to attract contra side interest and trade out of the gap quote as soon as possible. In doing so, the DMM should, in consultation with a senior-level Floor Official, consider updating the gap quote after initial publication if doing so is necessary to attract sufficient contra side interest.
• The Exchange has proposed to add language reminding members and member organizations that the gap quote procedures may not be initiated after
• The Information Memo currently includes an example illustrating implementation of a gap quote following an influx of orders from the Floor. The Exchange has proposed to add an example to the Information Memo which illustrates how the Policy works when the imbalance results in a liquidity replenishment point being reached.
• Finally, because DMMs no longer act as agent for orders on the Display Book under the rules of NYSE's New Market Model,
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange stated in the proposal that it believes the current volume and value requirements are too high in light of current market conditions. Recent trends in market activity have driven down both average trade sizes and average stock prices. As a result, the current volume and value requirements are met less frequently than they once were, and there are fewer occasions on which a DMM may use gap quotes to facilitate price discovery and minimize short-term price dislocation. The Exchange stated in its proposal that, based on its analysis of historical market conditions, the proposal to lower the gap quote volume and value requirements will permit an increased use of gap quotes, which it believed would be appropriate for current market conditions. In addition, the Exchange did not believe that lowering the requirements would cause an increase in the use of gap quotes to such a degree that would negatively impact the quality of the Exchange's market. The revised volume and value requirements should provide greater transparency and efficiency and additional reductions in volatility, consistent with the purpose of the Policy.
The Commission believes that the remaining aspects of the proposed rule change set forth in the Notice are either technical or non-substantive in nature, or are clarifications of the existing gap quote policy, and therefore are consistent with the Act.
The Commission notes that the Exchange represented in the Notice that it has reasonable policies and procedures to surveil DMMs' use of gap quotes and to detect the potential misuse of gap quotes in violation of Exchange rules and Federal securities laws. Such surveillance should provide the Exchange with information that will be helpful in assessing the effects of an increased number of gap quotes on the Exchange's market.
In light of the foregoing, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 9, 2009, the NYSE Amex LLC (“NYSEAmex” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the Policy is to provide public notice of order imbalances for securities, facilitate price discovery, and minimize short-term price dislocation, by allowing for the entry of offsetting orders or the cancellation of orders on the side of an imbalance.
An order imbalance may occur when the Exchange receives a sudden influx of orders for a particular security on the same side of the market within a short time interval, or when one or more large-size orders for a security are entered, and there is insufficient offsetting interest. When an imbalance exists that the Designated Market Maker (“DMM”) determines would cause a significant price dislocation, the Policy provides that the DMM should widen the spread between the bid and offer—a process known as “gapping the quote.” The use of a gap quote signals the existence of the imbalance to the market in order to attract contra-side liquidity and mitigate volatility.
The proposed Information Memo includes a summary of the options available to a DMM when publishing a gap quote. In this situation, a DMM may: (1) Trade out of the gap quote by executing contra side interest against the imbalance (allowing for any cancellations); (2) update the gap quote, in consultation with a senior-level Floor Official; or (3) request an order imbalance trading halt in the security at issue, in consultation with a senior-level Floor Official.
Under the proposal, the volume requirement for implementing a gap quote would be reduced from at least 10,000 shares to at least 5,000 shares, and the value requirement for implementing a gap quote would be reduced from $200,000 or more to $100,000 or more. If either requirement is met, the DMM may implement a gap quote if it determines the imbalance would cause a significant price dislocation. In addition, the Exchange has proposed to clarify the factors DMMs consider when setting the price of the gap quote. Finally, the Exchange has proposed to clarify certain aspects of the Policy and make other technical or non-substantive changes.
The Exchange has proposed to reduce the minimum size and value requirements for the use of a gap quote under the Policy to at least 5,000 shares or a market value of $100,000 or more. The Exchange believes that these lower thresholds better reflect current market conditions. In addition to reducing the quantitative requirements for implementing a gap quote, the Exchange has proposed to add language clarifying that, notwithstanding meeting the minimum size or value requirement, an imbalance must also be anticipated to cause a significant price dislocation in the stock at issue in order to justify a gap quote. The Exchange believes it is important to emphasize that whether a gap quote is appropriate depends on the characteristics of a security as much as on the Policy's minimum requirements.
The current Information Memo instructs DMMs to set the price of a gap quote “at the price at which the DMM believes the stock would trade if no contra side interest developed or no cancellations occurred[.]” The Exchange has instead proposed that the DMM should publish the gap quote at the price where the DMM “reasonably anticipates” the stock would trade if no contra side interest developed or no cancellations occurred, which the Exchange believes helps clarify the guidance.
The Exchange has also proposed to clarify that the Policy still requires a DMM to take into account, “to the extent known,” executable orders, e-Quotes and verbal interest in the Crowd (on the side of the market opposite the imbalance) at prices better than the price set by the DMM as the side of the gap quote opposite the imbalance when making his or her pricing determination. If the imbalance is known to be limited as to price, the DMM should not set the gap quote higher than that limit price.
The Exchange also has proposed to add a provision reminding the DMMs that, at the time they publish a gap quote, they should set the price of the gap quote such that it is likely to result in a trade of at least the minimum size of 5,000 shares or $100,000 in value, thus clearing all, or a substantial portion of, the imbalance.
The Exchange has also proposed several additional changes. A complete list of these changes is set forth in the Notice.
• The Exchange has proposed to add language to the Information Memo clarifying the DMM's responsibilities when implementing a gap quote. DMMs must balance the need for accurate price discovery with the need to attract contra side interest and trade out of the gap quote as soon as possible. In doing so, the DMM should, in consultation with a senior-level Floor Official, consider updating the gap quote after initial publication if doing so is necessary to attract sufficient contra side interest.
• The Exchange has proposed to add language reminding members and member organizations that the gap quote procedures may not be initiated after trading has closed. Instead, where there is a significant imbalance in a security at the close of trading, members and member organizations should use the procedures provided under NYSE Amex Equities Rule 123C(8) when attempting to mitigate the imbalance.
• The Information Memo currently includes an example illustrating implementation of a gap quote following an influx of orders from the Floor. The Exchange has proposed to add an example to the Information Memo which illustrates how the Policy works when the imbalance results in a liquidity replenishment point being reached.
• Finally, because DMMs no longer act as agent for orders on the Display Book under the rules of the Exchange's New Market Model,
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange stated in the proposal that it believes the current volume and value requirements are too high in light of current market conditions. Recent trends in market activity have driven down both average trade sizes and average stock prices. As a result, the current volume and value requirements are met less frequently than they once were, and there are fewer occasions on which a DMM may use gap quotes to facilitate price discovery and minimize short-term price dislocation. The Exchange stated in its proposal that, based on its analysis of historical market conditions, the proposal to lower the gap quote volume and value requirements will permit an increased use of gap quotes, which it believed would be appropriate for current market conditions. In addition, the Exchange did not believe that lowering the requirements would cause an increase in the use of gap quotes to such a degree that would negatively impact the quality of the Exchange's market. The revised volume and value requirements should provide greater transparency and efficiency and additional reductions in volatility, consistent with the purpose of the Policy.
The Commission believes that the remaining aspects of the proposed rule change set forth in the Notice are either technical or non-substantive in nature, or are clarifications of the existing gap quote policy, and therefore are consistent with the Act.
The Commission notes that the Exchange represented in the Notice that it has reasonable policies and procedures to surveil DMMs' use of gap quotes and to detect the potential misuse of gap quotes in violation of Exchange rules and Federal securities laws. Such surveillance should provide the Exchange with information that will be helpful in assessing the effects of an increased number of gap quotes on the Exchange's market.
In light of the foregoing, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to change the modifier for the Brazilian real.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Pursuant to Commission approval, ISE began trading options on foreign currency pairs on April 17, 2007.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the Commission a proposal to amend its Rule 1012 (Series of Options Open for Trading) to expand the Exchange's $1 Strike Price Program (“Program” or “$1 Strike Program”)
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The
This proposed rule change is based on a filing previously submitted by Chicago Board Options Exchange, Incorporated (“CBOE”) that was recently approved by the Commission.
The purpose of the proposal is to expand the $1 Strike Program in a limited fashion to allow Phlx to list new series in $1 strike price intervals up to $5 in LEAPS in up to 200 option classes on individual stocks.
Currently, under the $1 Strike Program, the Exchange may not list LEAPS at $1 strike price intervals for any class selected for the Program. The Exchange also is restricted from listing any series that would result in strike prices being $0.50 apart, unless the series are part of the $.50 Strike Program.
Phlx believes that its proposal to allow limited listing of LEAPS in the Program is appropriate and will allow investors to establish option positions that are better tailored to meet their investment objectives, vis-à-vis credit risk, using deep out-of-the-money, long-term put options. These types of options are viewed as a viable, liquid alternative to over the counter-traded (“OTC”) credit default swaps (“CDS”), because such options do not possess the negative characteristics associated with CDS, namely, lack of transparency, insufficient collateral requirements, and inefficient trade processing.
The Exchange notes that its proposal is limited in scope, as $1 strikes in LEAPS may only be listed up to $5 and in only up to 200 option classes. As is currently the case in the $1 Strike Program, the Exchange would not list series with $1.00 intervals within $0.50 of an existing $2.50 strike price in the same series.
Moreover, as the Commission is aware, the Exchange has adopted various quote mitigation strategies in an effort to lessen the growth rate of quotations. When it expanded the $1 Strike Price Program several months ago the Exchange included a delisting policy that would be applicable with regard to this proposed expansion; the Exchange has likewise established a number of other delisting policies.
The margin requirements set forth in Rules 721 through 723 and the position and exercise requirements set forth in Rules 1001 and 1002, respectively, will continue to apply to these new series, and no changes are being proposed to those requirements by this rule change.
With regard to the impact on system capacity, the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the additional traffic that may be associated with the listing and trading of LEAPS in the $1 Strike Program as proposed by this filing.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; or (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission hereby grants that request.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
CBOE proposes to clarify that the Exchange may concurrently list $2.50 and $1 strikes on Mini-Nasdaq-100 Index (“MNX”) options, and that certain listing parameters only apply to $1 strikes on MNX options. The text of the rule proposal is available on the Exchange's Web site
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at
The purpose of the proposed rule change is to clarify that the Exchange may concurrently list $2.50 and $1 strikes on Mini-Nasdaq-100 Index (“MNX”) options, and that certain listing parameters only apply to $1 strikes on MNX options. The Exchange believes that the availability of $2.50 and $1 strike price intervals in MNX option series will provide investors with greater flexibility by allowing them to establish positions that are better tailored to meet their investment objectives.
Since November 2008, the Exchange has had the ability to list $1 strikes on MNX options.
Similar parameters do not exist with regard to the listing of $2.50 strikes, and the Exchange now seeks to clarify that the parameters adopted with the proposal to permit $1 strikes for MNX options do not apply to the listing of $2.50 strikes for MNX options.
The Exchange believes this rule proposal is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change will take effect upon filing with the Commission pursuant to Section 19(b)(3)(A)(i) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of sixth Panel meeting.
February 3, 2010, 10:30 a.m.-5 p.m. and February 4, 2010, 8:30 a.m.-12 p.m.
3000 M Street, Northwest, Washington, District of Columbia 20007.
During the sixth meeting, the Panel may have experts address items of interest and other relevant topics to the Panel. This additional information will further the Panel's deliberations and the effort of the Panel subcommittees.
Public comments will be heard on Wednesday, February 3, 2010, from 4:30 p.m. until 5 p.m. Persons interested in providing comments in person should contact the Panel staff as outlined below to schedule a time slot. Members of the public must schedule a time slot in order to comment. In the event public comments do not take the entire scheduled time period, the Panel may use that time to deliberate or conduct other Panel business. Each person providing public comment will be acknowledged by the Chair in the order in which they are scheduled to provide comments and is limited to a maximum five-minute, verbal presentation. In addition to or in lieu of public comments provided in person, written comments may be provided to the panel for their review and consideration. Comments in written or oral form are for informational purposes only for the Panel. Public comments will not be specifically addressed or receive a written response by the Panel.
For hearing impaired persons and those in need of sign language services please contact the Panel staff as outlined below at least 10 business days prior to the meeting so that timely arrangements can be made to provide this service.
Mail addressed to SSA, Future Systems Technology Advisory Panel, Room 800, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-0001; Telephone at 410-965-9951; Fax at 410-965-0201; or E-mail to
Social Security Administration.
Notice of a uniform national rate of Federal payment for medical records received through health IT.
We have set $15 as the reasonable reimbursement to non-Federal medical providers for their costs in supplying medical records through health IT in response to a request. We will pay the uniform national rate to a medical provider that satisfies a medical records request through health IT. We are establishing this uniform national rate under our authority in sections 205(a), 223(d)(5)(A) and 1631(e) of the Social Security Act (Act).
We are establishing the reasonable rate for medical records received through health IT in response to our requests on or after the date of publication of this notice. We will periodically review this rate and publish updates in the
Cheryl Elksnis, Office of Disability Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 410-966-0497, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
We are experiencing a significant increase in the number of initial claims for disability insurance benefits and Supplemental Security Income (SSI) payments on the basis of disability, and we expect this trend to continue. The increasing volume of claims, coupled with the backlog of disability cases in the hearings process, underscores our need to process cases more efficiently by using advanced technologies.
Applicants for disability insurance benefits and SSI payments on the basis of disability must provide medical evidence to support their claims for benefits. We assist these applicants in obtaining medical records. We use these medical records to make disability determinations for more than 2.6 million people who apply each year for benefits. We rely on medical providers such as doctors, hospitals, clinics, and others in the healthcare field to respond to our requests for medical records in a timely manner.
We are now in a position to use health IT to transform the disability process. Health IT is an electronic system that provides for a secure exchange of data between health care consumers and providers. We intend to use health IT in developing medical evidence and requesting, receiving, and managing medical information. By using health IT, we will be able to request and receive medical information within minutes, rather than the days or months it may take to receive medical evidence by traditional methods. With the advent of health IT, we will be able to replace a largely paper-based, labor intensive, manual process with system-to-system data exchange transactions.
We have set $15 as the reasonable reimbursement to non-Federal medical providers for their costs in supplying medical records through health IT in response to a request. The $15 rate is based on our average payment for medical records obtained through non-health IT processes. As increasing numbers of medical providers
When we revise the uniform national rate, we will publish another notice in the
By petition filed on July 6, 2007, Alaska Railroad Corporation (ARRC), a Class III rail carrier incorporated in, and owned by, the State of Alaska, seeks an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10901 for authority to construct and operate approximately 80 miles of new main line track, referred to as the Northern Rail Extension (NRE), in the State of Alaska. The proposed NRE would extend southeasterly from Mile 20 on ARRC's existing Eielson Branch near the community of North Pole (located just south of Fairbanks) to the southern side of the community of Delta Junction.
In a decision served on October 4, 2007, the Board instituted a proceeding under 49 U.S.C. 10502(b). The Board's Section of Environmental Analysis (SEA) has conducted an environmental review of the proposed construction and alternatives. A detailed Draft Environmental Impact Statement (EIS) prepared by SEA together with eight cooperating agencies
After considering the entire record, including both the transportation aspects of the petition and the potential environmental issues, we granted the requested construction and operation exemption in a decision served on January 6, 2010, permitting ARRC to build any of the preferred rail alignments set out in the decision, subject to compliance with the environmental mitigation measures listed in Appendix 1 of the decision. Vice Chairman Mulvey dissented with a separate expression. Petitions to reopen must be filed by February 5, 2010.
Board decisions and notices are available on our Web site at
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham. Vice Chairman Mulvey dissented with a separate expression.
Federal Aviation Administration, DOT.
Notice, correction.
The Federal Aviation Administration (FAA) published a notice in the
Camille Garibaldi, Telephone number: (650) 876-2778, extension 613.
In Notice document (
On page 67305 in the second column, in the fourth line of the third paragraph under the heading
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the petition of Hyundai-Kia Motors Corporation (HATCI) in accordance with § 543.9(c)(2) of 49 CFR part 543,
The exemption granted by this notice is effective beginning with model year (MY) 2009.
Ms. Deborah Mazyck, International Policy, Fuel Economy and Consumer Programs, NHTSA, 1200 New Jersey Avenue, SE., Washington, DC 20590. Ms. Mazyck's telephone number is (202) 366-0846. Her fax number is (202) 493-2290.
In a petition dated October 22, 2007, Hyundai-Kia America Technical Center, Inc., on behalf of Kia Motors Corporation (Kia) requested an exemption from the parts-marking requirements of the Theft Prevention Standard (49 CFR part 541) for the Kia Amanti vehicle line beginning with MY 2009. The petition requested an exemption from parts-marking pursuant to 49 CFR part 543,
Under § 543.5(a), a manufacturer may petition NHTSA to grant an exemption for one of its vehicle lines per year. HATCI's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6.
HATCI's petition provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the Amanti vehicle line. Although HATCI has requested confidential treatment of specific details of the system's operation, design, effectiveness and durability, NHTSA is, for the purposes of this petition, disclosing the following general information. HATCI will install its passive antitheft device as standard equipment on its Amanti vehicle line beginning with MY 2009. The antitheft device to be installed on the MY 2009 Kia is a transponder-based immobilizer system. Features of the antitheft device will include a passive immobilizer consisting of an EMS (engine control unit), SMARTRA 3 (immobilizer unit), an antenna coil and transponder. Additionally, the Kia Amanti will have a standard alarm system which will monitor all the doors and the hood of the vehicle. The audible and visual alarms are activated when an unauthorized person attempts to enter or move the vehicle by unauthorized means.
HATCI stated that the device is automatically activated by removing the key from the ignition switch and locking the vehicle door. In order to arm the device, the key must be removed from the ignition switch, all of the doors and hood must be closed and the driver's door must be locked with the ignition key or all doors must be locked with the keyless entry. When the device is armed, the visual (flashing hazard lamps) and audible (horn sound) alarm system will be triggered if unauthorized entry is attempted through the doors, trunk or the hood. The device is disarmed when the driver's door is unlocked with the transponder key or keyless entry.
HATCI stated that the antitheft device has been installed as standard equipment on the Kia Azera which was previously approved for exemption from Part 541. There is currently no available theft rate data for Kia vehicle lines that have been installed with similar devices. However, HATCI submitted data on the effectiveness of various antitheft devices to support its belief that its device will be at least effective as comparable devices installed on other vehicle lines previously granted exemptions by the agency. HATCI further stated that it believes that the General Motors, Ford and Isuzu devices contain components that are functionally and operationally similar to its device. HATCI also stated that the theft data from the National Crime Information Center (NCIC) show a clear reduction in vehicle thefts after the introduction of the GM and Ford devices. Therefore, HATCI believes that its device will be at least as effective as those devices that have been installed on lines previously granted exemptions by the agency. HATCI provided theft rate data for the Chevrolet Camaro and Pontiac Firebird vehicle lines showing a substantial reduction in theft rates comparing the lines between pre- and post-introduction of the Pass-Key device. HATCI also provided “percent reduction” data for theft rates between pre- and post-production years for the Ford Taurus and Mustang, and Oldsmobile Toronado and Riviera vehicle lines normalized to the three-year average of the Camaro and Firebird pre-introduction data. HATCI stated that the data shows a dramatic reduction of theft rates due to the introduction of devices substantially similar to the Kia immobilizer device. Specifically, the Taurus, Mustang, Riviera and Toronado vehicle lines showed a 63, 70, 80 and 58 percent theft rate reduction respectively between pre- and post-introduction of immobilizer devices as standard equipment on these vehicle lines.
In addressing the specific content requirements of 543.6, HATCI provided information on the reliability and durability of its proposed device. In support of the reliability and durability of the device, HATCI stated that the engine control unit of the device carries out a check of the ignition key by special encryption algorithm with the immobilizer unit and the transponder. The engine can only be started if the results of the ignition key check and algorithm are equal. Additionally, Kia conducted tests based on its own specified standards for reliability and durability. HATCI provided a detailed list of the tests conducted, and believes that the device is reliable and durable since the device complied with its specified requirements for each test.
Based on the confidential material submitted by HATCI, the agency believes that the antitheft device for the Amanti vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR part 541). Based on the information HATCI provided about the device, the agency concludes that the device will provide the five types of performance listed in § 543.6(a)(3): promoting activation; attracting attention to the efforts of unauthorized persons to enter or operate a vehicle by means other than a key; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
As required by 49 U.S.C. 33106 and 49 CFR part 543.6(a)(4) and (5), the agency finds that HATCI has provided adequate reasons for its belief that the antitheft device will reduce and deter theft.
For the foregoing reasons, the agency hereby grants in full HATCI's petition for exemption for the Amanti vehicle line from the parts-marking requirements of 49 CFR part 541. The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR part 543.7(f) contains publication requirements incident to the disposition of all Part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If Kia decides not to use the exemption for this line, it must formally notify the agency. If such a decision is made, the line must be fully marked according to the requirements under 49 CFR parts 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Kia wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to
The agency wishes to minimize the administrative burden that Part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
Federal Motor Carrier Safety Administration (FMCSA), DOT
Notice of final disposition.
FMCSA announces its decision to exempt forty-one 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 January 11, 2010. The exemptions expire on January 11, 2012.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On October 29, 2009, FMCSA published a notice of receipt of Federal diabetes exemption applications from forty-one individuals and requested comments from the public (74 FR 55890). The public comment period closed on November 30, 2009, and no comments were received.
FMCSA has evaluated the eligibility of the forty-one applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current standard for diabetes in 1970 because several risk studies indicated that diabetic drivers had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441)
These forty-one applicants have had ITDM over a range of 1 to 41 years. These applicants report no hypoglycemic reaction that resulted in loss of consciousness or seizure, that required the assistance of another person, or resulted in impaired cognitive function without warning symptoms in the past 5 years (with one year of stability following any such episode). In each case, an endocrinologist has verified that the driver has demonstrated willingness to properly monitor and manage his/her diabetes, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision standard at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the October 29, 2009,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes standard in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes standard in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the
FMCSA received no comments in this proceeding.
Based upon its evaluation of the forty-one exemption applications, FMCSA exempts, Richard A. Becker, David M. Bridges, Eric M. Butz, Gerald F. Crowley, Paul J. Dematas, Scott J. Denham, Larry E. Dickerson, Lance W. Essex, Ferral F. Ford, David E. Ginter, William H. Goebel, Joseph L. Gray, III., Ryan R. Harris, Carroll J. Hartsell, James S. Heinen, Rita A. Hopman, Shelton P. Huber, Keith M. Huels, Daniel R. Jackson, Ricky D. Jameson, Michael A. Johnson, Justin D. Jones, Curtis W. Keelin, Jr., Andrew S. Knight, Patrick J. Krueger, Tammy L.F. Manuel, Francisco J. Martinez, Alan J. Maza, Allan C. Moore, Andrew W. Myer, Robert R. Napier, Chad A. Nelson, David W. Olson, Mark Otto, Mark E. Pascoe, Terry L. Riddell, Rodney R. Rupe, Darrell S. Seibold, Roger L. Summerfield, Daren D. White, and Jimmy P. Wright from the ITDM standard in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 6 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 February 9, 2010. Comments must be received on or before February 10, 2010.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2001-10578; FMCSA-2005-22194; FMCSA-2005-22727; FMCSA-2007-29019, using any of the following methods.
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Each submission must include the Agency name and the docket number for this Notice. Note that DOT posts all comments received without change to
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 6 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 6 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
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 6 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (66 FR 53826; 66 FR 66966; 68 FR 69434; 71 FR 6825; 73 FR 6246; 70 FR 57353; 70 FR 72689; 70 FR 71884; 71 FR 4632; 72 FR 58362; 72 FR 67344). Each of these 6 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 10, 2010.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 6 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 13 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 January 27, 2010. Comments must be received on or before February 10, 2010.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2000-7918; FMCSA-2001-10578; FMCSA-2005-21711; FMCSA-2005-22727; FMCSA-2007-27897, using any of the following methods:
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Each submission must include the Agency name and the docket number for this Notice. Note that DOT posts all
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 13 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 13 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
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 13 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 66286; 66 FR 13825; 68 FR 10300; 70 FR 41811; 72 FR 52422; 66 FR 53826; 66 FR 66966; 68 FR 69434; 71 FR 646; 72 FR 71995; 70 FR 74102; 73 FR 5259; 70 FR 48797; 70 FR 61493; 70 FR 71884; 71 FR 4632; 72 FR 39879; 72 FR 52419). Each of these 13 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by February 10, 2010.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 13 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA.
The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 23 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The comment period ended on December 7, 2009 (74 FR 57553).
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 23 renewal applications, FMCSA renews the Federal vision exemptions for Robert W. Bequeaith, William R. Braun, Lloyd K. Brown, Kecia D. Clark-Welch, Tommy R. Crouse, Ben W. Davis, Charles A. DeKnikker, Sr., Earl M. Frederick, Loren H. Geiken, John N. Guilford, John E. Halcomb, Rayford R. Harper, Michael A. Hershberger, Patrick J. Hogan, Todd A. McBrain, Richard K. Mell, Amilton T. Monteiro, David G. Oakley, John S. Olsen, Robert G. Owens, Nathan D. Peterson, Thomas J. Prusik and Glen W. Sterling.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA previously announced its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 23 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The comment period ended on September 25, 2009 (FR 74 43221).
FMCSA received no comments in this proceeding.
The Agency has not received any adverse evidence on any of these drivers that indicates that safety is being compromised. Based upon its evaluation of the 23 renewal applications, FMCSA renews the Federal vision exemptions for Linda L. Billings, John A. Chizmar, Weldon R. Evans, Richard L. Gagnebin, Orasio Garcia, Leslie W. Good, Chester L. Gray, James P. Guth, Britt D. Hazelwood, William W. Hodgins, Gregory K. Lilly, Michael S. Maki, Larry T. Morrison, Kenneth A. Reddick, Leonard Rice, Jr., Juan M. Rosas, Francis L. Savell, James T. Sullivan, Steven C. Thomas, Edward A. Vanderhei, Larry J. Waldner, Karl A. Weinert and Kevin L. Wickard.
In accordance with 49 U.S.C. 31136(e) and 31315, each renewal exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Department of Veterans Affairs.
Notice.
Public Law 104-275 was enacted on October 9, 1996. It allows the Department of Veterans Affairs (VA) to provide a monetary allowance towards the private purchase of an outer burial receptacle for use in a VA national cemetery. Under VA regulation (38 CFR 38.629), the allowance is equal to the average cost of Government-furnished graveliners less any administrative costs to VA. The law provides a veteran's survivors with the option of selecting a Government-furnished graveliner for use in a VA national cemetery where such use is authorized.
The purpose of this Notice is to notify interested parties of the average cost of Government-furnished graveliners, administrative costs that relate to processing and paying the allowance, and the amount of the allowance payable for qualifying interments that occur during calendar year 2010.
Tamula Jones, Budget Operations and Field Support Division (41B1B), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
Under 38 U.S.C. 2306(e)(3) and (4) and Public Law 104-275, Section 213, VA may provide a monetary allowance for the private purchase of an outer burial receptacle for use in a VA national cemetery where its use is authorized. The allowance for qualified interments that occur during calendar year 2010 is the average cost of Government-furnished graveliners in fiscal year 2009, less the administrative costs incurred by VA in processing and paying the allowance in lieu of the Government-furnished graveliner.
The average cost of Government-furnished graveliners is determined by taking VA's total cost during a fiscal year for single-depth graveliners that were procured for placement at the time of interment and dividing it by the total number of such graveliners procured by VA during that fiscal year. The calculation excludes both graveliners procured and pre-placed in gravesites as part of cemetery gravesite development projects and all double-depth graveliners. Using this method of computation, the average cost was determined to be $264.00 for fiscal year 2009.
The administrative costs incurred by VA consist of those costs that relate to processing and paying an allowance in lieu of the Government-furnished graveliner. These costs have been determined to be $9.00 for calendar year 2010.
The allowance payable for qualifying interments occurring during calendar year 2010, therefore, is $255.00.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission is adopting amendments to the custody and recordkeeping rules under the Investment Advisers Act of 1940 and related forms. The amendments are designed to provide additional safeguards under the Advisers Act when a registered adviser has custody of client funds or securities by requiring such an adviser, among other things: To undergo an annual surprise examination by an independent public accountant to verify client assets; to have the qualified custodian maintaining client funds and securities send account statements directly to the advisory clients; and unless client assets are maintained by an independent custodian (
Vivien Liu, Senior Counsel, Melissa A. Roverts, Senior Counsel, Daniel S. Kahl, Branch Chief, or Sarah A. Bessin, Assistant Director, at (202) 551-6787 or
The Securities and Exchange Commission (“Commission”) is adopting amendments to rule 204-2 [17 CFR 275.204-2], rule 206(4)-2 [17 CFR 275.206(4)-2] under the Investment Advisers Act of 1940 [15 U.S.C. 80b] (the “Advisers Act” or “Act”), to Form ADV [17 CFR 279.1], and to Form ADV-E [17 CFR 279.8].
Earlier this year we began a comprehensive review of our rules regarding the safekeeping of investor assets in connection with our bringing several fraud cases involving investment advisers and broker-dealers.
The amendments we proposed earlier this year to rule 206(4)-2 were designed to strengthen the existing custodial controls imposed by the rule. Under rule 206(4)-2, advisers, in most cases, must maintain client funds and securities with a “qualified custodian.”
The proposed amendments were designed to eliminate certain exemptions in the rule, thus expanding the protections afforded advisory clients by requiring all
We received more than 1,300 comment letters on the proposed amendments. Most were from investment advisers, broker-dealers, banks, and their trade associations that would be affected by the amended rule and which objected to significant parts of our rulemaking initiative.
We are today adopting amendments to rule 206(4)-2 to strengthen controls over the custody of client assets by registered investment advisers and to encourage the use of independent custodians. We are also adopting related amendments to rule 204-2, Form ADV, and Form ADV-E that will improve our ability to oversee advisers' custody practices. In response to comments, we made several modifications from the proposal. In addition, we are today publishing a companion release to provide guidance for accountants with respect to the surprise examination and internal control report required under rule 206(4)-2.
We believe these amendments, together with the guidance for accountants, will provide for a more robust set of controls over client assets designed to prevent those assets from being lost, misused, misappropriated or subject to advisers' financial reverses. We acknowledge that no set of regulatory requirements we could adopt will prevent all fraudulent activities by advisers or custodians. We believe, however, that this rule, together with our examination program's increased focus on the safekeeping of client assets, will help deter fraudulent conduct, and increase the likelihood that fraudulent conduct will be detected earlier so that client losses will be minimized.
As discussed above, rule 206(4)-2 currently requires advisers that have custody, with certain limited exceptions, to maintain client funds or securities with a “qualified custodian,” which the adviser must have a reasonable basis for believing sends an account statement, at least quarterly, to each client for which the qualified custodian maintains funds or securities.
We are adopting, as proposed, an amendment to the rule that eliminates an alternative to the requirement under which an adviser can send quarterly account statements to clients if it undergoes a surprise examination by an independent public accountant at least annually. We believe that direct delivery of account statements by qualified custodians will provide greater assurance of the integrity of account statements received by clients.
Most commenters that addressed this aspect of our proposal supported it as reflective of best practices followed by most advisers.
As proposed, the amended rule requires that an adviser's reasonable belief that the qualified custodian sends account statements directly to clients
Rule 206(4)-2 requires investment advisers to notify their clients promptly upon opening a custodial account on their behalf and when there are changes to the information required in that notification.
The Commission is adopting the proposed amendment to rule 206(4)-2 to require registered advisers with custody of client assets to undergo a surprise examination (or an audit, if applicable) of those assets by an independent public accountant, except as discussed below.
We proposed to require that all advisers with custody obtain a surprise examination of client assets by an independent public accountant in order to provide “another set of eyes” on client assets, and thus an additional set of protections against their misappropriation. Because advisers with custody often have authority to access, obtain and, potentially, misuse client funds or securities, we believed the additional review provided by an independent public accountant would help identify problems that clients may not, and thus would provide deterrence against fraudulent conduct by advisers.
Many commenters opposed the surprise examination requirement, arguing that it would provide little additional protection to client assets when assets are held with an independent qualified custodian that sends account statements directly to clients.
The focus of most commenters, however, was not on the utility of the surprise examination, but whether the proposed requirement should apply to certain advisers and advisory accounts, which we address below.
We believe the surprise examination requirement will deter fraudulent conduct by investment advisers, and that it provides important protections to advisory clients, even when their assets are maintained by an independent qualified custodian.
We acknowledge the concerns raised by commenters with respect to the impact of the surprise examination requirement on smaller advisers whose client assets are maintained by an independent qualified custodian. For this reason, we have directed our staff to evaluate the impact of the surprise examination requirement on smaller advisers that have the authority to obtain possession of client funds or securities and whose client assets are maintained by an independent qualified custodian. We have also asked the staff to evaluate the impact of the surprise exam on these advisers' clients. Following the completion of the first round of surprise examinations of these advisers under the requirements of the amended rule, our staff will conduct a review and provide the Commission with the results of this review, along with any recommendations for amendments necessary to improve the effectiveness of the rule as it applies to these advisers, or address unnecessary burdens on them.
Commenters have persuaded us that the surprise examination will not provide materially greater protection to advisory clients when the adviser has custody of client assets
We proposed to require all registered investment advisers with custody of client assets to obtain an annual surprise examination, which included pooled investment vehicles subject to an annual financial statement audit. Several commenters asserted that a surprise examination would be duplicative of the annual financial statement audit and would not materially benefit investors.
During the course of a financial statement audit, the accountant performs procedures comparable to those performed as part of a surprise examination, including verifying the existence of the pooled investment vehicle's funds and securities and obtaining confirmation from investors.
We believe that these and other procedures performed by the accountant during the course of a financial statement audit provide meaningful protections to investors, and that the surprise examination would not significantly add to these protections. Although the annual audit is not required to be performed at a time of the accountant's choosing (as is a surprise examination), we believe other elements of the audit incorporate an element of uncertainty similar to the surprise element of the surprise examination, with corresponding benefits to investors. Specifically, in the course of an annual audit, the auditor will select transactions to test during the period that the adviser will not be able to anticipate.
We have therefore amended the rule to deem an adviser to a pooled investment vehicle that is subject to an annual financial statement audit by an independent public accountant, and that distributes the audited financial statements prepared in accordance with generally accepted accounting principles to the pool's investors,
In addition, at the suggestion of several commenters,
We note that under rule 206(4)-2, an adviser to a pooled investment vehicle that distributes to its investors audited financial statements is not required to have a reasonable belief that a qualified custodian delivers account statements to investors.
We are also adopting a number of rule and form amendments that will result in the Commission and the public receiving greater information about the custody practices of advisers and thus a greater ability to identify potential risks to clients. Under amended rule 206(4)-2, each investment adviser subject to the surprise examination requirement must enter into a written agreement with an independent public accountant to conduct the surprise examination. The agreement must require the accountant, among other things, to notify the Commission within one business day of finding any material discrepancy during the course of the examination, and to submit Form ADV-E to the Commission accompanied by the accountant's certificate within 120 days of the time chosen by the accountant for the surprise examination, stating that the accountant has examined the funds and securities and describing the nature and extent of the examination.
The new requirement that accountants file Form ADV-E within 120 days of the time chosen by the accountant for the surprise examination is designed to require more timely completion of these examinations. Several commenters suggested that we extend the filing deadline to 180 days, asserting that more complex surprise examinations may take more time.
Several commenters suggested we modify the requirement regarding the accountant's filing of a statement upon termination. Some argued that these filings should not be made available to
We are adopting, as proposed, amendments to rule 206(4)-2 to no longer permit the accountant conducting the annual verification of client assets to forego examining certain privately offered securities, as defined in the rule.
Several commenters supported expanding the rule in this respect.
It is our understanding that many accountants today do verify private securities in the course of a surprise examination, and several commenters requested that we provide guidance as to the procedures that an accountant should undertake with respect to the surprise examination of privately offered securities.
In the Proposing Release, we requested that commenters address whether, and if so how, we should revise the guidance for accountants that we issued regarding the surprise examination.
As amended, rule 206(4)-2 imposes additional requirements when advisory client assets are maintained by the adviser itself or by a related person rather than with an independent qualified custodian. As proposed, the amended rule requires, in addition to the surprise examination discussed above,
Related person custody arrangements can present higher risks to advisory clients than maintaining assets with an independent custodian. As we pointed out in the Proposing Release, several of the recent enforcement actions in which we have alleged misappropriation of client assets have involved advisers or related persons that maintained client assets.
Some commenters supported requiring an “independent” qualified custodian,
To address the custodial risks associated with an affiliated custodial relationship, we proposed requiring, in addition to the surprise examination, an adviser to obtain, or receive from its related person, an annual internal control report, which would include an opinion from an independent public accountant with respect to the adviser's or related person's custody controls. We were concerned that the surprise examination alone would not adequately address custodial risks associated with self or related person custody because the independent public accountant seeking to verify client assets would rely, in part, on custodial reports issued by the adviser or the related person.
Several commenters expressed their support for the proposed internal control report requirement.
The internal control report requirement we are adopting today will provide important additional safeguards for client assets maintained with the adviser or a related person. As discussed in more detail below, the adviser must obtain or receive an internal control report that demonstrates that it, or its related person, has established appropriate custodial
We have carefully considered commenters' concerns about regulatory duplication in designing the internal control report requirement. We are adopting this requirement because there is no existing regulatory requirement applicable to investment advisers or other entities, such as broker-dealers and banks, that serve as qualified custodians that we believe is specifically focused on internal control risks that may arise in the affiliated custody context. We have, however, developed our guidance for accountants to permit accountants, when preparing an internal control report, to rely on their own relevant audit work performed for other purposes, including audit work performed to meet existing regulatory requirements, which should increase efficiencies in the audit process and help address commenters' concerns about duplication.
We do not believe that the internal control report requirement will be unduly burdensome. A qualified custodian would only have to obtain an internal control report if it maintains the funds or securities of its own advisory clients or those of advisory clients of related persons. As one securities industry commenter noted, custodians often provide Type II SAS 70 reports to clients who demand a rigorous evaluation of internal control as a condition of obtaining their business.
The elements of the required internal control report are set forth in the companion release we are issuing today, which includes guidance for accountants regarding the overall objectives and scope of the internal control examination.
We have revised the amended rule to state that, for the internal control report to satisfy the rule's requirements, the independent public accountant preparing the report must verify that the client funds and securities are reconciled to a custodian other than the adviser or its related person.
As described in our guidance for accountants, the accountant's verification that client funds and securities are reconciled to an unaffiliated custodian (
We noted several specific control objectives in the Proposing Release that we suggested might be included in the scope of an internal control report prepared under the proposed rule.
We are not requiring that a specific type of internal control report be provided under the rule as long as the objectives noted above are addressed. This flexibility should permit
We are amending rule 206(4)-2, as proposed, to provide that an adviser has custody of any client securities or funds that are directly or indirectly held by a “related person” in connection with advisory services provided by the adviser to its clients.
We are, however, addressing commenters' concerns in a different way by providing a limited exception from the surprise examination requirements in circumstances when the adviser is deemed to have custody solely as a result of a related person having custody.
As discussed above, a key premise of our approach to the custody rule is that client assets may be at greater risk when they are maintained by a related person of the investment adviser. As commenters suggested, however, firms under common ownership that are operationally independent of each other present substantially lower client custodial risks than those that are not because misuse of client assets would tend to require collusion among employees, not significantly different than would be necessary to engage in similar misconduct between unaffiliated organizations.
Under the amended rule, a related person that holds, or has authority to obtain possession of, advisory client assets would be presumed not to be operationally independent of the adviser unless the adviser can meet the rule's conditions, which are similar to the factors that our staff has used to evaluate whether an adviser has custody of client funds and securities indirectly under the rule as a consequence of the custody of a related person,
We emphasize that an adviser that has custody due to reasons in addition to, or other than, a related person having custody cannot rebut the presumption contained in the rule. Thus, for example, an adviser that has custody because it serves as a trustee with respect to client assets held in an account at a broker-dealer that is a related person could not rely on the exception from the surprise examination on the grounds that the broker-dealer was operationally independent and that the factors discussed above were met.
Under the amendments, the surprise examination and internal control report required when the adviser or its related person serves as qualified custodian for client assets may be satisfied only when performed or prepared by an independent public accountant that is registered with, and subject to regular inspection by, the PCAOB.
Many commenters supported this requirement, agreeing with us that PCAOB registration would provide an important quality check on the independent accountants performing these services.
We acknowledge that the PCAOB does not currently inspect auditor engagements required solely as a result of rule 206(4)-2. We nonetheless believe a requirement that excludes accountants that are not registered with and examined by the PCAOB will provide greater confidence in the quality of the independent public accountant and complement the enhanced controls under the rule that apply when client assets are not maintained by an independent qualified custodian and in audits of certain pooled investment vehicles.
We recognize that there may be fewer PCAOB-registered and inspected independent public accountants in certain foreign jurisdictions. Based on discussions with accounting firms, however, we do not expect advisers will have significant difficulty in finding a local auditor that is eligible under the rule. Many PCAOB-registered independent public accountants currently have practices in those jurisdictions in which most offshore advisers and funds are domiciled.
As proposed, the amended rule requires that advisers to pooled investment vehicles that distribute the pool's audited financial statements to investors under the rule's annual audit provision must, in addition to obtaining an annual audit, obtain a final audit of the pool's financial statements upon liquidation of the pool and distribute the financial statements to pool investors promptly after the completion of the audit.
One commenter thought that liquidation audits should not be required as the costs outweigh the benefits.
The custody rule's application to investment advisers to pooled investment vehicles will change in several aspects as a result of the amendments we are adopting today. Because a detailed discussion of each of these changes appears throughout multiple different sections of this Release, we are providing a centralized summary here.
Under amended rule 206(4)-2, advisers to pooled investment vehicles may be deemed to comply with the surprise verification requirements of the rule by obtaining an audit of the pool and delivering the audited financial statements to pool investors within 120 days of the pool's fiscal year-end.
The Commission is adopting a new provision in rule 206(4)-2 that would preclude advisers from using layers of pooled investment vehicles to avoid meaningful application of the protections of the Rule. Specifically, we are adding a new paragraph (c), which provides that sending an account statement (paragraph (a)(5)) or distributing audited financial statements (paragraph (b)(4)) will not meet the requirements of the rule if all of the investors in a pooled investment vehicle to which the statements are sent are themselves pooled investment vehicles that are related persons of the adviser.
Investment advisers to pooled investment vehicles may from time to time use special purpose vehicles (SPVs) to facilitate investments in certain securities by one or more pooled investment vehicles that the advisers manage. These SPVs are typically established or controlled by the investment adviser or its related persons who often serve as general partners of limited partnerships (or managing members of limited liability companies, or persons who hold comparable positions for another type of pooled investment vehicle). Therefore, a literal application of the rule could result in account statements and financial statements designed to permit investors to protect their interests being sent to the adviser itself, rather than to the parties the rule was designed to protect.
To comply with the rule, as amended, the investment adviser could either treat the SPV as a separate client, in which case the adviser will have custody of the SPV's assets, or treat the SPV's assets as assets of the pooled investment vehicles of which it has custody indirectly. If the adviser treats the SPV as a separate client, rule 206(4)-2 requires the adviser to comply separately with the custody rule's audited financial statement distribution or account statement and surprise examination requirements (
Rule 206(4)-7 under the Advisers Act requires registered investment advisers to adopt and implement written policies and procedures reasonably designed to prevent violations of the Advisers Act and its rules.
Compliance with rule 206(4)-7 requires an adviser with custody to adopt controls over access to client assets that are reasonably designed to prevent misappropriation or misuse of client assets, develop systems or procedures to assure prompt detection of any misuse, and take appropriate action if any misuse does occur.
Advisers with custody of client assets should consider the value of instituting the following policies and procedures as part of their compliance programs:
• Conducting background and credit checks on employees of the investment adviser who will have access (or could acquire access) to client assets to determine whether it would be appropriate for those employees to have such access;
• Requiring the authorization of more than one employee before the movement of assets within, and withdrawals or transfers from, a client's account, as well as before changes to account ownership information;
• Limiting the number of employees who are permitted to interact with custodians with respect to client assets and rotating them on a periodic basis; and
• If the adviser also serves as a qualified custodian for client assets, segregating the duties of its advisory personnel from those of custodial personnel to make it difficult for any one person to misuse client assets without being detected.
Advisers should consider including in their policies and procedures a requirement that any problems be brought to the immediate attention of the management of the adviser. Advisers also should consider developing policies regarding the ability of individual employees to acquire custody of client assets, because their custody may be attributable to the firm, which will thereby acquire responsibility for those assets under the rule. Many firms preclude employees from acquiring custody by prohibiting them from, for example, becoming trustees for client assets or obtaining powers of attorney for clients separate and apart from the advisory firm.
The adviser's custody of client assets presents elevated compliance risks for the adviser and its clients. Advisers and their CCOs therefore must accord these risks appropriate attention in the adviser's compliance program. Accordingly, the adviser should consider developing procedures by which the CCO periodically tests the effectiveness of the firm's controls over the safekeeping of client assets. For example, the CCO could periodically test the reconciliation of account statements prepared by advisers with account statements as reported by qualified custodians. In addition, the CCO could compare, on a sample basis, client addresses obtained from the clients' qualified custodians to which the custodian sends client statements, with client addresses maintained by the adviser, to look for inconsistencies or patterns that suggest possible manipulation of address information as a means for concealing misappropriation from these accounts by advisory personnel.
Advisers that have custody as a result of their authority to deduct advisory fees directly from client accounts held at a qualified custodian should have policies and procedures in place that address the risk that the adviser or its personnel could deduct fees to which the adviser is not entitled under the terms of the advisory contract, which would violate the contract and which may constitute fraud under the Advisers Act. The adviser's policies and procedures should take into account how and when clients will be billed; be reasonably designed to ensure that the amount of assets under management on which the fee is billed is accurate and has been reconciled with the assets under management reflected on statements of the client's qualified custodian; and be reasonably designed to ensure that clients are billed accurately in accordance with the terms of their advisory contracts.
• Periodic testing on a sample basis of fee calculations for client accounts to determine their accuracy;
• Testing of the overall reasonableness of the amount of fees deducted from all client accounts for a period of time based on the adviser's aggregate assets under management; and
• Segregating duties between those personnel responsible for processing billing invoices or listings of fees due from clients that are provided to and used by custodians to deduct fees from clients' accounts and those personnel responsible for reviewing the invoices and listings for accuracy, as well as the employees responsible for reconciling those invoices and listings with deposits of advisory fees by the custodians into the adviser's proprietary bank account to confirm that accurate fee amounts were deducted.
Because different controls may be appropriate for different advisers in designing effective compliance programs, we are not suggesting a single set of policies and procedures. As we noted in 2003 when we adopted rule 206(4)-7, we recognize that advisers are too varied in their operations and size for such an approach to work.
We are adopting several amendments to Part 1A and Schedule D of Form ADV. The amendments require registered advisers to report to us more
Several commenters generally supported these amendments to Form ADV, and many requested clarification or modification to parts of the form.
It will be several months before FINRA, which operates the IARD for us, completes reprogramming the IARD to implement this change to Item 9. In the interim, advisers registered with the Commission should provide responses following the amended instruction.
We are adopting, as proposed, three amendments to the instructions to Form ADV-E. First, we have amended the form instructions to require that the form and the accompanying accountant's examination certificate be filed electronically with the Commission through the IARD.
We also are adopting amendments, as proposed, to rule 204-2 to require an adviser to maintain a copy of (i) the internal control report that such adviser is required to obtain or receive from its related person, pursuant to amended rule 206(4)-2(a)(6), and (ii) the memorandum describing the basis upon which the adviser determined that the presumption that any related person is not operationally independent, pursuant to amended rule 206(4)-2(d)(5), has
The effective date of the amendments to rules 206(4)-2, 204-2, and Forms ADV and ADV-E is March 12, 2010.
Advisers registered with us must comply with amended rules 206(4)-2, 204-2, and Forms ADV and ADV-E, as amended, on and after March 12, 2010, the effective date of these amendments, except as described below. Immediately upon the effective date advisers that have custody of client assets must promptly upon opening a custodial account on a client's behalf, and following any changes to the custodial account information, as specified in rule 206(4)-2(a)(2) send a notification to the client, including a legend urging the client to compare the account statements the client receives from the custodian with those the client receives from the adviser. Such legend should also be included in any account statements that advisers send to these clients after they are required to send the notification discussed above. In addition, immediately upon the effective date, each adviser that has custody of client assets must have a reasonable belief (except with respect to pooled investment vehicles the financial statements of which are audited and delivered to investors) that a qualified custodian sends account statements directly to clients at least quarterly, in accordance with rule 206(4)-2(a)(3). We believe 60 days is sufficient for advisers to comply with the amended rule regarding the three requirements described above because they are modifications to the existing rule requirements.
Compliance dates for other provisions of amended rules 206(4)-2, 204-2, and Forms ADV and ADV-E are described below.
An investment adviser required to obtain a surprise examination must enter into a written agreement with an independent public accountant that provides that the first examination will take place by December 31, 2010 or, for advisers that become subject to the rule after the effective date, within six months of becoming subject to the requirement.
An investment adviser also required to obtain or receive an internal control report because it or a related person maintains client assets as a qualified custodian must obtain or receive an internal control report within six months of becoming subject to the requirement. As noted above, an adviser obtaining an internal control report because it (rather than a related person) also serves as a qualified custodian of its clients' assets (
An investment adviser to a pooled investment vehicle may rely on the annual audit provision if the adviser (or a related person) becomes contractually obligated to obtain an audit of the financial statements of the pooled investment vehicle for fiscal years beginning on or after January 1, 2010 by an independent public accountant registered with, and subject to regular inspection by, the PCAOB.
Investment advisers registered with us must provide responses to the revised Form ADV in their first annual amendment after January 1, 2011.
Certain provisions of rule 206(4)-2, Form ADV, and Form ADV-E that we are amending today contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The collections of information under rule 206(4)-2 are necessary to ensure that clients' funds and securities in the custody of advisers are safeguarded, and information contained in the collections is used by staff of the Commission in its enforcement, regulatory, and examination programs. The respondents are investment advisers registered with us that have custody of client funds and securities (“client assets”). The collections of information under Form ADV are necessary for use by staff of the Commission in its examination and oversight program, and some advisory clients also may find them useful. The respondents are investment advisers seeking to register with the Commission or to update their registrations. The collections of information under Form ADV-E are necessary for use by staff of the Commission in its examination and oversight program, and some advisory clients also may find them useful. The respondents are investment advisers registered with us that have custody of client assets and are subject to an annual surprise examination requirement under rule 206(4)-2. All responses required by the rule are mandatory. With the exception of an accountant's notification of any material discrepancies identified in a surprise examination pursuant to rule 206(4)-2(a)(4)(ii), responses provided to the Commission are not kept confidential.
The Commission is adopting amendments to the custody rule under the Advisers Act. The amendments are designed to provide additional safeguards under the Advisers Act when a registered adviser has custody of client funds or securities by requiring such an adviser, among other things: (i) To undergo an annual surprise examination by an independent public accountant to verify client assets; (ii) to have a reasonable basis after due inquiry, for believing that the qualified custodian maintaining client funds and securities sends account statements directly to the advisory clients; and (iii) unless client assets are maintained by an independent custodian (
The amendments to rule 206(4)-2 that we are adopting today differ from our proposed amendments in three respects that affect our Paperwork Reduction Act analysis. First, we are providing an exception to the surprise examination requirement for advisers that have custody because they have authority to deduct advisory fees from client accounts and advisers that have custody solely because a related person holds the adviser's client assets and the related person is operationally independent of the adviser.
We requested comment on the Paperwork Reduction Act analysis contained in the Proposing Release. A number of commenters expressed concerns that the paperwork burdens associated with our proposed amendments to rule 206(4)-2 were understated.
For purposes of estimating the collection of information burden we have divided the estimated 1,859 advisers into 3 subgroups. First, we estimate that 337 advisers have custody because (i) they serve as qualified custodians for their clients and are also broker-dealers, banks or futures commission merchants,
A second group of advisers, estimated at 1,315,
A third group of advisers, estimated at 207,
The amended rule requires that an adviser to a pooled investment vehicle that is relying on the annual audit provision must have the pool audited and distribute the audited financial statements to the investors in the pool promptly after completion of the audit if the fund liquidates at a time other than its fiscal year-end. We estimate that 5 percent of pooled investment vehicles are liquidated annually at a time other than their fiscal year-end, which results in an additional burden of 243 hours per year.
Based on the above estimates, we anticipate that the estimated total information collection burden under amended rule 206(4)-2 would be 67,243 hours.
In the Proposing Release, we estimated that advisers subject to the surprise examination would on average pay an accounting fee of $8,100 annually.
We note that the costs of reporting to the Commission (i) regarding “material discrepancy” pursuant to amended rule 206(4)-2(a)(4)(ii) and (ii) upon termination of engagement pursuant to amended rule 206(4)-2(a)(4)(iii) are included in the estimated accounting fees.
We understand that the cost to prepare an internal control report relating to custody will vary based on the size and services offered by the qualified custodian. We estimated in the Proposing Release that, on average, an internal control report would cost approximately $250,000 per year for each adviser subject to the requirement.
In connection with our proposed amendments to Form ADV, we submitted cost and burden estimates of the collection of information requirements to the Office of Management and Budget (“OMB”). We estimated that these amendments would increase the annual information collection burden in connection with Form ADV from 22.25 hours to 22.50 hour for each adviser.
The currently approved collection of information for Form ADV-E is 9 hours. We estimate that this collection of information will increase to 112 hours based on the amendments.
For the currently approved annual hour burden for Form ADV-E, we estimated that 231 advisers would be subject to the annual surprise examination requirement, including the requirement to complete Form ADV-E, and that each of the advisers would spend approximately 0.05 hour to complete Form ADV-E. We now estimate that 1,859 advisers will be required to undergo an annual surprise examination and complete Form ADV-E, and that the total annual hour burden for Form ADV-E in connection with the surprise examination requirement will therefore increase to 93 hours.
In addition, amended rule 206(4)-2 requires an adviser subject to the surprise examination to enter into a written agreement with the independent public accountant that specifies the accountant's duties, including filing Form ADV-E upon the termination of its engagement. Based on an assumption that advisers change their independent public accountants every five years on average and an estimate that advisers spend approximately 0.05 hours to complete Form ADV-E, advisers will be required each year to complete Form ADV-E with respect to an accountant's termination with an annual burden of 19 hours.
The Commission is sensitive to the costs and benefits resulting from its rules. Rule 206(4)-2, the custody rule, seeks to protect clients' funds and securities in the custody of registered advisers from misuse or misappropriation by requiring advisers to maintain their clients' assets with a qualified custodian, such as a broker-dealer or a bank. The custody rule, as amended, requires all registered advisers that have custody of client assets to have a reasonable belief, formed after due inquiry, that a qualified custodian sends an account statement directly to each advisory client for which the qualified custodian maintains assets.
We are also adopting amendments to the rule to impose additional requirements when advisory client assets are maintained by the adviser itself or by a related person rather than with an independent qualified custodian. The amended rule requires, in addition to the surprise examination discussed above,
Finally, we are adopting several amendments to Form ADV and Form ADV-E. The amendments to Form ADV require registered advisers to report to us more detailed information about their custody practices. The amendments to
In the Proposing Release, we requested comment and empirical data regarding the costs and benefits of the amendments. Most of the 1,300 commenters expressed their support for our goal of strengthening protections provided to advisory clients under the custody rule. One opined that the benefits of the proposed additional safeguards to investors whose assets are held in custodial accounts outweigh the costs to advisers.
As described above, the amended custody rule requires investment advisers registered with us that have custody of client assets, subject to certain exceptions, to obtain a surprise examination of client assets by an independent public accountant. As a result, advisers that have custody because, for example, they or their related person serves as qualified custodian for client assets, or because they serve as trustee of a client trust or have a power of attorney over client affairs, must undergo an annual surprise examination.
As amended, rule 206(4)-2 requires, in addition to the surprise examination discussed above, that when an adviser or its related person serves as a qualified custodian for advisory client assets, the adviser obtain, or receive from its related person, no less frequently than once each calendar year, a written report, which includes an opinion from an independent public accountant with respect to the adviser's or related person's controls relating to custody of client assets (“internal control report”), such as a Type II SAS 70 report.
The internal control report requirement will provide important benefits to advisory clients by imposing additional safeguards when client assets are maintained with the adviser or a related person. First, the internal control report will indicate whether the qualified custodian (the adviser or its related person) has established appropriate custodial controls by including an accountant's opinion regarding whether the custodian's internal controls are suitably designed and are operating effectively to meet control objectives related to custodial services, including the safeguarding of funds and securities.
As noted above, the amended rule provides a limited exception from the surprise examination requirement in certain circumstances when the adviser
When the adviser or its related person serves as qualified custodian for client assets, the surprise examination and internal control report must be performed or prepared by an independent public accountant that is registered with, and subject to regular inspection by, the PCAOB.
The amendments also eliminate the alternative, currently provided in the rule, under which an adviser with custody can send its own account statements to clients if the adviser is subject to an annual surprise examination. Instead, all advisers with custody are required to have a reasonable belief, after due inquiry, that the qualified custodian sends account statements directly to clients. As a result, we expect that clients of approximately 190 advisory firms that currently send their own account statements to clients will, under the amended rule, receive account statements directly from qualified custodians.
The amended rule requires advisers to include a legend in the notice that they are currently required to send to their clients upon opening a custodial account on their clients' behalf if the adviser sends its own account statements to clients and in any subsequent account statements it sends to clients.
Under the amended rule, each adviser that is required to undergo an annual surprise examination must enter into a written agreement with an independent public accountant to perform the surprise examination. The written agreement will require the independent public accountant to, among other things, (i) file Form ADV-E accompanied by a certificate within 120 days of the time chosen by the accountant for the surprise examination stating that it has examined the client assets and describing the nature and extent of the examination, (ii) report to the Commission any material discrepancies discovered in the examination within one business day, and (iii) upon the accountant's termination or dismissal, or removal from consideration for reappointment, file Form ADV-E within 4 business days accompanied by a statement explaining any problems relating to examination scope or procedure that contributed to the resignation, dismissal, removal, or other termination. These filings and reports will provide our staff additional information to assist in establishing advisers' risk profiles for purposes of prioritizing examinations. The rule will result in the electronic filing of Form ADV-E and the accountant statement on the IARD system.
We are adopting the amendments to Item 7 and Section 7.A. of Schedule D that we proposed to require each adviser to report
Finally, under the amended rule, an adviser to pooled investment vehicles that is deemed to comply with the surprise examination requirement and that is excepted from the account statement delivery requirement by having the pooled investment vehicle audited and distributing the audited financial statements to the investors must, in addition to obtaining an annual audit, obtain a final audit of the fund's financial statements upon liquidation of the fund and distribute the financial statements to fund investors promptly after the completion of the audit.
For purposes of the PRA analysis, we estimate that the total annual collection of information burden in connection with the surprise examination, before including the hours spent on conforming written agreements with accountants to the amended rule, will be 19,950 hours.
For purposes of the PRA analysis, we estimate a total annual collection of information burden in connection with the surprise examination of 20,415 hours.
In the Proposing Release, we estimated that there would have been 9,575 advisers subject to the surprise examination and they would each pay, on average, an annual accounting fee of $8,100 for the surprise examination.
Several commenters believed that our cost estimates for surprise examination accounting fees were too low.
While, for reasons discussed above, we believe commenters' estimates of the cost of surprise examination are too high, they have caused us to reexamine our cost estimates and to determine that it would be more appropriate to categorize advisers into subcategories to estimate surprise exam costs. Instead of a single average cost, we have divided the 1,859 advisers that are subject to the surprise examination requirement into three distinct groups.
Although the amended rule does not require use of an independent custodian, we encourage the use of custodians independent of the adviser to maintain client assets as a best practice whenever feasible. As a result of the amendments and our encouragement, there may be effects on competition if additional advisers (and clients) begin using independent custodians, which is a common practice of many advisers today, particularly among those that are not themselves, or affiliated with, large financial service firms.
The total cost estimate above may overestimate actual costs incurred for internal control reports because of the factors discussed below. Accountants preparing an internal control report may incorporate relevant audit work performed for other purposes, including audit work performed to meet existing regulatory requirements, which should increase efficiencies in the audit process. These efficiencies are not represented in the estimated costs as the estimates are based on a custodian entering a new engagement for an internal control report. And any report that meets the objectives of the internal control report would be acceptable under the rule. In addition to the Type II SAS 70 report, other reports a qualified custodian already obtains could satisfy the rule's requirements. For instance, a report issued in connection with an attestation conducted in accordance with AT 601 under the standard of the AICPA would be sufficient, provided that such examination meets the objectives set forth in our guidance for accountants.
Based on the above analysis, we conclude that the aggregate annual accounting fee to comply with the surprise examination requirement and the internal control report requirement under amended rule 206(4)-2 is estimated at $122,965,000. In addition, we estimate that the total hours spent by advisory employees to comply with the amendments
We estimated that advisory employees will spend a total of 41,724 hours to comply with the notice requirement. The estimated 8,345 hours noted above for adding the legend to the required notice represents 20% of the total hour burden relating to the notice, which is 41,724 hours. (41,724 × 0.2) = 8,345.
We recognize that there also might be certain costs to investment advisers, advisory clients and others that are not easily quantifiable. For instance, some advisers may choose to only use independent qualified custodians, and as a result, they may lose advisory clients if those clients insist on maintaining their assets with a particular custodian that happens to be a related person of the adviser. Advisory clients that are unwilling to change custodians also may lose the ability to hire an adviser that is related to the custodian if the adviser will only accept clients that use independent custodians. Advisers that chose to only use independent qualified custodians might also lose efficiencies that resulted from self-custody or related person custody arrangements, which could result in increased costs to advisory clients. Additionally, to the extent that advisers discontinue existing relationships with custodians, accountants or other service providers as a result of, or as required by, the amended rule, these service providers may lose revenues and incur other costs.
Based on the above analysis, we estimate that the aggregate costs for complying with the amendments to rule 206(4)-2, rule 204-2, Form ADV, and Form ADV-E will be $126,278,204.
The Commission has prepared the following Final Regulatory Flexibility Analysis regarding rule 206(4)-2 in accordance with section 3(a) of the Regulatory Flexibility Act.
Rule 206(4)-2, the custody rule, requires registered advisers to maintain their clients' assets with a qualified custodian, such as a broker-dealer or a bank. To enhance the protections afforded to clients' assets, we are adopting amendments to the rule to require all registered advisers that have custody of client assets, among other things: (i) To undergo an annual surprise examination by an independent public accountant to verify client assets; (ii) to have a reasonable basis, after due inquiry, for believing that the qualified custodian maintaining client funds and securities sends account statements directly to the advisory clients; and (iii) unless client assets are maintained by an independent custodian (
We have designed the amendments to enhance the protections afforded to clients when their advisers have custody of client assets. We believe that the surprise examination requirement will deter fraudulent activities by advisers. Moreover, an independent public accountant may identify misuse that clients have not, which would result in the earlier detection of fraudulent activities and reduce resulting client losses.
The amendments adopted today provide that an adviser is deemed to have custody of client assets held by related persons. Related person custody arrangements can present higher risks to advisory clients than those that maintain assets with an independent custodian. We were concerned that the surprise examination alone would not adequately address custodial risks associated with self or related person custody because the independent public accountant seeking to verify client assets would rely on custodial reports issued by the adviser or the related person. To address these risks, we are adopting a requirement that a registered adviser obtain, or receive from its related person, an annual internal control report, which would include an opinion from an independent public accountant with respect to the adviser's or related person's custody controls.
In the Proposing Release, we requested comment on the IRFA. We received a number of comments related to the impact of our proposal on small advisers. They argued that the proposed amendments to the rule, particularly those that would have imposed the surprise examination requirement on advisers that have custody solely because of their authority to deduct advisory fees, would be disproportionately expensive for, and would impose an undue regulatory burden on, smaller firms.
We are sensitive to the burdens our rule amendments will have on small advisers. We believe that the amendments to the custody rule we are adopting today will alleviate many of the commenters' concerns regarding small advisers. In particular, as described above, we have provided an exception from the surprise examination requirement for advisers who have custody because they have authority to deduct advisory fees from client accounts. Moreover, for small advisers still subject to the surprise examination requirement, the revised guidance for accountants modernizes the procedures for surprise examinations, which may reduce the burden on small advisers.
Under Commission rules, for the purposes of the Advisers Act and the Regulatory Flexibility Act, an investment adviser generally is a small
The Commission estimates that as of November 2, 2009 approximately 73 SEC-registered investment advisers that have custody of client assets were small entities that will be subject to the surprise examination requirement under amended rule 206(4)-2(a)(4), and that no more than eight small entity advisers that have custody of client assets will be subject to the requirement of obtaining or receiving an internal control report under amended rule 206(4)-2(a)(6).
The rule amendments impose certain reporting, recordkeeping and compliance requirements on advisers, including small advisers. The rule requires advisers that are subject to the surprise examination to complete Form ADV-E and to maintain internal control reports in certain instances. In addition, under the amendments, each adviser that is required to undergo an annual surprise examination must enter into a written agreement with the independent public accountant that performs the surprise examination that specifies certain duties the accountant must perform as part of the surprise examination engagement. Investment advisers, under the proposed rule amendments, must maintain a copy of an internal control report that an adviser is required to obtain, or receive from its related person, for five years from the end of the fiscal year in which the internal control report is finalized.
We estimate that a total of 1,859 advisers will be subject to the surprise examination requirement, of which 337 advisers will be subject to the surprise examination with respect to 100 percent of their clients and will each spend an average of $125,000 annually,
We also estimate that, on average, an internal control report will cost approximately $250,000 per year, but would vary based on the size and services offered by the qualified custodian. As stated above, we estimate that no more than eight small entity advisers will be subject to the internal control report requirement, half of which will obtain the report and the other half will receive the report from a related person. We believe that the cost of an internal control report for the four small entity advisers that must obtain one will be lower than the estimated $250,000 because of the small scale of their businesses. Alternatively, these advisers may simply advise their clients to select independent qualified custodians so that they will not be subject to the requirement of obtaining an internal control report.
The Regulatory Flexibility Act directs the Commission to consider significant alternatives that would accomplish the stated objective, while minimizing any significant adverse impact on small entities. In connection with the rule amendments, the Commission considered the following alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (iii) the use of performance rather than design standards; and (iv) an exemption from coverage of the rule, or any part thereof, for such small entities.
Regarding the first and fourth alternatives, we do not believe that differing compliance or reporting requirements or an exemption from coverage of the rule amendments, or any part thereof, for small entities, would be appropriate or consistent with investor protection. Because the protections of the Advisers Act are intended to apply equally to clients of both large and small advisory firms, it would be inconsistent with the purposes of the Act to specify different requirements for small entities under the amendments.
Regarding the second alternative, the amendments clarify when an investment adviser, including a small adviser, has custody. In addition, we are providing updated guidance for accountants that modernize the procedures for the surprise examination and should provide clarification to investment advisers, including small entities, and accountants on certain issues regarding the surprise examination. We also have endeavored to consolidate and simplify the rule, by adding new definitions to the rule.
Regarding the third alternative, we do not consider using performance rather than design standards to be consistent with our statutory mandate of investor protection with respect to custody of client assets by investment advisers.
We are adopting amendments to rule 204-2, Part 1A of Form ADV and Form ADV-E, in part, pursuant to our authority under Section 204. Section 204 requires the Commission, when engaging in rulemaking pursuant to that authority, to consider whether the rule is “necessary or appropriate in the public interest or for the protection of investors.”
We believe the amendments we are adopting today to rule 204-2, Part 1A of Form ADV and Form ADV-E in connection with amendments to rule 206(4)-2, which are substantively similar to those we proposed, will promote efficiency and competition, but have little or no effect on capital formation.
The amendments to Part 1A of Form ADV are designed to provide us with additional details concerning the custody practices of advisers registered with the Commission, and to provide additional data to assist in our risk-based examination program. Under the amendments to Form ADV-E, the form and attached accountant's certificate will be filed electronically on the IARD system. In addition, the rule requires the accountant performing an annual surprise examination to, upon the accountant's termination or dismissal, or removal from consideration for reappointment, file Form ADV-E within 4 business days accompanied by a statement explaining any problems relating to examination scope or procedure that contributed to the resignation, dismissal, removal, or other termination. Both Part 1A of Form ADV and Form ADV-E will be available to the public on the Commission's web site.
Public availability of more detailed disclosure of advisers' custodial practices will permit investors to use this information together with other information they obtain from Form ADV in making more informed decisions about whether to hire or retain a particular adviser. A more informed investing public will create a more efficient marketplace and strengthen competition among advisers. Moreover, the electronic filing requirements are expected to expedite and simplify the process of filing Form ADV-E and attached accountant's certificate with the Commission, thus further improving efficiency. We believe, however, that the amendments are unrelated to, and will have little or no effect on, capital formation.
We are amending rule 204-2 to require (i) that, if an independent custodian does not maintain client assets but the adviser or a related person instead serves as a qualified custodian for client funds or securities under the rule in connection with advisory services the adviser provides to clients, the adviser must maintain a copy of any internal control report obtained or received pursuant to amended rule 206(4)-2(a)(6), and (ii) the memorandum describing the basis upon which the adviser determined that the presumption that a related person is not operationally independent was overcome, pursuant to amended rule 206(4)-2(d)(5) for five years from the end of the fiscal year in which, as applicable, the internal control report or memorandum is finalized.
We are adopting amendments to rule 206(4)-2 (17 CFR 275.206(4)-2) pursuant to our authority set forth in sections 206(4) and 211(a) of the Advisers Act (15 U.S.C. 80b-6(4) and 80b-11(a)). We are adopting amendments to rule 204-2 pursuant to the authority set forth in sections 204 and 211 of the Advisers Act (15 U.S.C. 80b-4 and 80b-11). We are adopting amendments to Part 1 of Form ADV (17 CFR 279.1) pursuant to our authority set forth in sections 203(c)(1), 204, and 211(a) of the Advisers Act (15 U.S.C. 80b-3(c)(1), 80b-4 and 80b-11(a)). We are adopting amendment to Form ADV-E (17 CFR 279.8) pursuant to our authority set forth in sections 204, 206(4), and 211(a) of the Advisers Act (15 U.S.C. 80b-4, 80b-6(4), and 80b-11(a)).
Reporting and recordkeeping requirements, Securities.
15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
The addition reads as follows:
(a) * * *
(17) * * *
(iii) A copy of any internal control report obtained or received pursuant to § 275. 206(4)-2(a)(6)(ii).
(b) * * *
(5) A memorandum describing the basis upon which you have determined that the presumption that any related person is not operationally independent
(a)
(1)
(i) In a separate account for each client under that client's name; or
(ii) In accounts that contain only your clients' funds and securities, under your name as agent or trustee for the clients.
(2)
(3)
(4)
(i) File a certificate on Form ADV-E (17 CFR 279.8) with the Commission within 120 days of the time chosen by the accountant in paragraph (a)(4) of this section, stating that it has examined the funds and securities and describing the nature and extent of the examination;
(ii) Upon finding any material discrepancies during the course of the examination, notify the Commission within one business day of the finding, by means of a facsimile transmission or electronic mail, followed by first class mail, directed to the attention of the Director of the Office of Compliance Inspections and Examinations; and
(iii) Upon resignation or dismissal from, or other termination of, the engagement, or upon removing itself or being removed from consideration for being reappointed, file within four business days Form ADV-E accompanied by a statement that includes:
(A) The date of such resignation, dismissal, removal, or other termination, and the name, address, and contact information of the accountant; and
(B) An explanation of any problems relating to examination scope or procedure that contributed to such resignation, dismissal, removal, or other termination.
(5)
(6)
(i) The independent public accountant you retain to perform the independent verification required by paragraph (a)(4) of this section must be registered with, and subject to regular inspection as of the commencement of the professional engagement period, and as of each calendar year-end, by, the Public Company Accounting Oversight Board in accordance with its rules; and
(ii) You must obtain, or receive from your related person, within six months of becoming subject to this paragraph and thereafter no less frequently than once each calendar year a written internal control report prepared by an independent public accountant:
(A) The internal control report must include an opinion of an independent public accountant as to whether controls have been placed in operation as of a specific date, and are suitably designed and are operating effectively to meet control objectives relating to custodial services, including the safeguarding of funds and securities held by either you or a related person on behalf of your advisory clients, during the year;
(B) The independent public accountant must verify that the funds and securities are reconciled to a custodian other than you or your related person; and
(C) The independent public accountant must be registered with, and subject to regular inspection as of the commencement of the professional engagement period, and as of each calendar year-end, by, the Public Company Accounting Oversight Board in accordance with its rules.
(7)
(b)
(2)
(A) Acquired from the issuer in a transaction or chain of transactions not involving any public offering;
(B) Uncertificated, and ownership thereof is recorded only on the books of the issuer or its transfer agent in the name of the client; and
(C) Transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.
(ii) Notwithstanding paragraph (b)(2)(i) of this section, the provisions of this paragraph (b)(2) are available with
(3)
(i) you have custody of the funds and securities solely as a consequence of your authority to make withdrawals from client accounts to pay your advisory fee; and
(ii) if the qualified custodian is a related person, you can rely on paragraph (b)(6) of this section.
(4)
(i) At least annually and distributes its audited financial statements prepared in accordance with generally accepted accounting principles to all limited partners (or members or other beneficial owners) within 120 days of the end of its fiscal year;
(ii) By an independent public accountant that is registered with, and subject to regular inspection as of the commencement of the professional engagement period, and as of each calendar year-end, by, the Public Company Accounting Oversight Board in accordance with its rules; and
(iii) Upon liquidation and distributes its audited financial statements prepared in accordance with generally accepted accounting principles to all limited partners (or members or other beneficial owners) promptly after the completion of such audit.
(5)
(6)
(i) you have custody under this rule solely because a related person holds, directly or indirectly, client funds or securities, or has any authority to obtain possession of them, in connection with advisory services you provide to clients; and
(ii) your related person is operationally independent of you.
(c)
(d)
(1)
(i) Each of your firm's officers, partners, or directors exercising executive responsibility (or persons having similar status or functions) is presumed to control your firm;
(ii) A person is presumed to control a corporation if the person:
(A) Directly or indirectly has the right to vote 25 percent or more of a class of the corporation's voting securities; or
(B) Has the power to sell or direct the sale of 25 percent or more of a class of the corporation's voting securities;
(iii) A person is presumed to control a partnership if the person has the right to receive upon dissolution, or has contributed, 25 percent or more of the capital of the partnership;
(iv) A person is presumed to control a limited liability company if the person:
(A) Directly or indirectly has the right to vote 25 percent or more of a class of the interests of the limited liability company;
(B) Has the right to receive upon dissolution, or has contributed, 25 percent or more of the capital of the limited liability company; or
(C) Is an elected manager of the limited liability company; or
(v) A person is presumed to control a trust if the person is a trustee or managing agent of the trust.
(2)
(i) Possession of client funds or securities (but not of checks drawn by clients and made payable to third parties) unless you receive them inadvertently and you return them to the sender promptly but in any case within three business days of receiving them;
(ii) Any arrangement (including a general power of attorney) under which you are authorized or permitted to withdraw client funds or securities maintained with a custodian upon your instruction to the custodian; and
(iii) Any capacity (such as general partner of a limited partnership, managing member of a limited liability company or a comparable position for another type of pooled investment vehicle, or trustee of a trust) that gives you or your supervised person legal ownership of or access to client funds or securities.
(3)
(4)
(i) Acts as agent for an advisory client, including in the case of a pooled investment vehicle, for limited partners of a limited partnership (or members of a limited liability company, or other beneficial owners of another type of pooled investment vehicle) and by law or contract is obliged to act in the best interest of the advisory client or the limited partners (or members, or other beneficial owners);
(ii) Does not control, is not controlled by, and is not under common control with you; and
(iii) Does not have, and has not had within the past two years, a material business relationship with you.
(5)
(6)
(i) A bank as defined in section 202(a)(2) of the Advisers Act (15 U.S.C. 80b-2(a)(2)) or a savings association as defined in section 3(b)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(1)) that has deposits insured by the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act (12 U.S.C. 1811);
(ii) A broker-dealer registered under section 15(b)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b)(1)), holding the client assets in customer accounts;
(iii) A futures commission merchant registered under section 4f(a) of the Commodity Exchange Act (7 U.S.C. 6f(a)), holding the client assets in customer accounts, but only with respect to clients' funds and security futures, or other securities incidental to transactions in contracts for the purchase or sale of a commodity for future delivery and options thereon; and
(iv) A foreign financial institution that customarily holds financial assets for its customers, provided that the foreign financial institution keeps the advisory clients' assets in customer accounts segregated from its proprietary assets.
(7)
The Investment Advisers Act of 1940, 15 U.S.C. 80b-1,
The revisions read as follows:
The text of Form ADV does not and this amendment will not appear in the Code of Federal Regulations.
The revisions read as follows:
The text of Form ADV-E does not and this amendment will not appear in the Code of Federal Regulations.
This Form must be completed by investment advisers that have custody of client funds or securities and that are subject to an annual surprise examination. This Form may
1. All items must be completed by the investment adviser.
2. Give this Form to the independent public accountant that, in compliance with rule 206(4)-2 under the Investment Advisers Act of 1940 (the “Act”) or applicable state law, examines client funds and securities in the custody of the investment adviser within 120 days of the time chosen by the accountant for the surprise examination and upon such accountant's resignation or dismissal from, or other termination of, the engagement, or if the accountant removes itself or is removed from consideration for being reappointed.
3. The independent public accountant performing the surprise examination must submit (i) this Form and a certificate of accounting required by rule 206(4)-2 under the Act or applicable state law within 120 days of the time chosen by the accountant for the surprise examination, and (ii) this Form and a statement, within four business days of its resignation or dismissal from, or other termination of, the engagement, or removing itself or being removed from consideration for being reappointed, that includes (A) the date of such resignation, dismissal, removal, or other termination, and the name, address, and contact information of the accountant, and (B) an explanation of any problems relating to examination scope or procedure that contributed to such resignation, dismissal, removal, or other termination:
(a) By mail, until the Investment Adviser Registration Depository (“IARD”) accepts electronic filing of the Form, to the Securities and Exchange Commission or appropriate state securities administrators. File the original and one copy with the Securities and Exchange Commission's principal office in Washington, DC at the address on the top of this Form, and one copy with the regional office for the region in which the investment adviser's principal business operations are conducted, or one copy with the appropriate state administrator(s), if applicable; or
(b) By electronic filing of the certificate of accounting and statement regarding resignation, dismissal, other termination, or removal from consideration for reappointment on the IARD, when the IARD accepts electronic filing of the Form.
By the Commission.
Securities and Exchange Commission.
Interpretation.
The Securities and Exchange Commission (the “Commission”) is publishing interpretive guidance for independent public accountants in connection with the adoption of amendments to Rule 206(4)-2 under the Investment Advisers Act of 1940 (the “Custody Rule”). This guidance provides direction with respect to the independent verification and internal control report as required under the amended Custody Rule.
Effective Date March 12, 2010.
General questions about this release should be referred to Bryan J. Morris, Assistant Chief Accountant, Jaime L. Eichen, Assistant Chief Accountant, or Richard F. Sennett, Chief Accountant at (202) 551-6918 or
Rule 206(4)-2(a) under the Investment Advisers Act of 1940 (the “Act”) provides, among other things, that it is a fraudulent, deceptive or manipulative act, practice, or course of business within the meaning of Section 206(4) of the Act for any investment adviser registered (or required to be registered) under Section 203 of the Act (herein “investment adviser”) to have custody of client funds or securities unless:
(1) A qualified custodian maintains those funds and securities in a separate account for each client under that client's name; or in accounts that contain only clients' funds and securities, under the investment adviser's name as agent or trustee for the clients;
(2) Clients are notified promptly in writing of the qualified custodian's name, address, and the manner in which the funds or securities are maintained, when an account is opened by an investment adviser on a client's behalf and following any changes to this information; and
(3) The investment adviser has a reasonable basis, after due inquiry, for believing that the qualified custodian sends an account statement, at least quarterly, to each of its clients for which it maintains funds or securities, identifying the amount of funds and of each security in the account at the end of the period and setting forth all transactions in the account during that period.
Rule 206(4)-2(a) generally requires that client funds and securities of which an investment adviser has custody under the rule be verified by actual examination at least once during each calendar year by an independent public accountant
The objective of the accountant's examination
For a sample of client accounts, the accountant should obtain records of the purchases, sales, contributions, withdrawals and any other debits or credits to each selected client's account occurring since the date of the last examination. The accountant's procedures to meet the objective of the examination should normally include, but are not limited to, the following with respect to each selected client account:
• Confirmation with the qualified custodian(s) of client funds and securities as of the date of the examination and that the client's funds and securities are held in either a separate account under the client's name or in accounts under the name of the investment adviser as agent or trustee for clients;
• Confirmation with the client of funds and securities held in the account as of the date of the examination and contributions and withdrawals of funds and securities to and from the account since the date of the last examination; where confirmation replies are not received, the accountant should perform alternative procedures; and
• Reconciliation of confirmations received and other evidence obtained to the investment adviser's records.
Rule 206(4)-(2)(b)(2) generally exempts privately offered securities from the qualified custodian requirements established under Rule 206(4)-(2)(a)(1).
(1) Acquired from the issuer in a transaction or chain of transactions not involving any public offering;
(2) Uncertificated, and ownership thereof is recorded only on the books of the issuer or its transfer agent in the name of the client; and
(3) Transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.
The accountant's verification procedures with respect to any privately offered security selected for testing should include confirmation with the issuer of or counterparty to the security, or, where replies are not received, alternative procedures.
The accountant's examination report should include an opinion as to whether, with respect to the rules under the Act, the investment adviser was in compliance, in all material respects, with paragraph (a)(1) of Rule 206(4)-2 as of the examination date and had been complying with Rule 204-2(b) during the period since the prior examination date. The accountant should identify the date as of which the examination was made within the report.
Pursuant to the written agreement required under Rule 206(4)-2(a)(4), upon finding any material discrepancy during the course of the examination, the accountant should notify the Commission within one business day of the finding, by means of a facsimile transmission or electronic mail, followed by first class mail, directed to the attention of the Director of the Office of Compliance Inspections and Examinations. For purposes of this examination, a material discrepancy is material non-compliance with the provisions of either Rule 206(4)-2 or Rule 204-2(b) under the Act.
Pursuant to the written agreement required under Rule 206(4)-2(a)(4), the examination should be completed and the resulting examination report should be filed on Form ADV-E by the accountant within 120 days of the time chosen by the accountant. The accountant should also file Form ADV-E with the Commission upon resignation or dismissal from, or other termination of, the engagement, or upon removing itself or being removed from consideration for being reappointed within four business days. Such filing should be accompanied by a statement that includes:
(1) The date of such resignation, dismissal, removal, or other termination, and the name, address, and contact information of the accountant; and
(2) An explanation of any problems relating to examination scope or procedure that contributed to such resignation, dismissal, removal, or other termination.
Rule 206(4)-2(a)(6) establishes additional requirements for an investment adviser that itself, or its related person, maintains client funds or securities as a qualified custodian in connection with advisory services provided to clients. Such an investment adviser must at least once each calendar year obtain or receive from its related person an internal control report related to its or its affiliates' custody services, including the safeguarding of funds and securities, prepared by an independent public accountant that is registered with, and subject to inspection by, the PCAOB.
The objective of the examination supporting the internal control report is to obtain reasonable assurance that the qualified custodian's controls have been placed in operation as of a specific date, and are suitably designed and are operating effectively to meet control objectives related to custody of funds and securities during the period specified. The internal control report should address control objectives and associated controls related to the areas of client account setup and
• Documentation for the opening and modification of client accounts is received, authenticated, and established completely, accurately, and timely on the applicable system.
• Client transactions, including contributions and withdrawals, are authorized and processed in a complete, accurate, and timely manner.
• Trades are properly authorized, settled, and recorded completely, accurately, and timely in the client account.
• New securities and changes to securities are authorized and established in a complete, accurate and timely manner.
• Securities income and corporate action transactions are processed to client accounts in a complete, accurate, and timely manner.
• Physical securities are safeguarded from loss or misappropriation.
• Cash and security positions are reconciled completely, accurately and on a timely basis between the custodian and depositories.
• Account statements reflecting cash and security positions are provided to clients in a complete, accurate and timely manner.
Rule 206(4)-2(a)(6)(ii)(B) states that, as part of the internal control report, the independent public accountant must verify that funds and securities are reconciled to a custodian other than the adviser or its related person (for example, the Depository Trust Corporation). The accountant's tests of the custodian's reconciliation(s) should include either direct confirmation, on a test basis, with unaffiliated custodians or other procedures designed to verify that the data used in reconciliations performed by the qualified custodian is obtained from unaffiliated custodians and is unaltered.
The accountant's internal control report should identify the control objectives included within the scope of the examination and include the accountant's opinion as to whether controls have been placed in operation as of the specific date, and are suitably designed and are operating effectively to meet the identified control objectives during the specified period. The report should also describe the nature, timing, extent and results of the accountant's procedures performed to verify that funds and securities are reconciled to depositories and other unaffiliated custodians.
When performing an independent verification of client funds and securities for an investment adviser that itself, or its related person, maintains custody as a qualified custodian, the accountant should obtain a copy of the most recently issued internal control report and determine whether there are any findings in the internal control report that would affect the nature and extent of his or her procedures. If findings within the internal control report indicate information provided by the qualified custodian may not be reliable, the accountant should consider whether the circumstances warrant the issuance of a qualified or adverse opinion, or a disclaimer of opinion.
If a significant period of time has elapsed since the issuance of the internal control report, the accountant should perform appropriate procedures to determine whether there have been significant changes to the procedures and controls related to custody at the qualified custodian since the date of the report. If significant changes have occurred, the accountant should perform procedures to update his or her understanding of whether the controls at the qualified custodian have been placed in operation, are suitably designed, and are operating effectively to meet the identified control objectives, as appropriate in the circumstances. The accountant can perform these procedures directly or can request that the accountant that prepared the internal control report perform such procedures.
The “Codification of Financial Reporting Policies” announced in Financial Reporting Release No. 1 (April 15, 1982) [47 FR 21028] is updated by replacing Section 404.01.b.
Reporting and recordkeeping requirements, Securities.
By the Commission.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on certain hot-rolled carbon steel flat products from India for the period of review (POR) January 1, 2008, through December 31, 2008. These preliminary results cover one company Tata Steel Limited (Tata). For the information on the net subsidy rate for the reviewed company, see the “Preliminary Results of Review” section.
Gayle Longest, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-3338
On December 1, 2001, the Department published in the
On February 2, 2009, the Department initiated an administrative review of the CVD order on certain hot-rolled carbon steel flat products from India, covering the period January 1, 2008, through December 31, 2008.
On February 6, 2009, the Department issued a questionnaire to the Government of India (GOI), Essar, Ispat, JSW, and Tata. On February 6, 2009, Essar and JSW notified the Department that they had no shipments during the POR. On February 9, 2009, Ispat notified the Department that it had no shipments during the POR. On February 25, 2009, Tata notified the Department that it had no sales of commercial quantities of subject merchandise during the POR. However, Tata did acknowledge that it made certain sales during the POR. On March 11, 2009, counsel for Tata met with Department officials concerning an alleged sale by Tata to the United States that is currently on the record of the antidumping proceeding.
On April 23, 2009, we received a questionnaire response from the GOI. As discussed below, the GOI's submission did not contain responses concerning certain programs administered by the state governments. We issued supplemental questionnaires to the GOI regarding programs addressed in the initial CVD questionnaire, including programs administered by the state governments. On August 10, 2009 and September 24, 2009, the GOI submitted responses to the supplemental questionnaires; however, it failed to respond to certain programs administered by the state governments.
On April 25, 2009, Department officials spoke with counsel for Tata regarding the company's failure to submit a questionnaire response. Tata's counsel informed the Department that the company was no longer participating in the administrative review and would not be responding to the questionnaire.
On May 4, 2009, Petitioner withdrew its request for review with respect to Essar, Ispat, and JSW. As a result, the Department rescinded this review, in part, on June 4, 2009, with respect to Essar, Ispat, and JSW.
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters for which a review was specifically requested. The company subject to this review is Tata. This review covers 93 programs.
The merchandise subject to the order is certain hot-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included in the scope of the order are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF) steels, high-strength low-alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low-carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize
Steel products included in the scope of the order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTS), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is two percent or less, by weight; and (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of the order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of the order.
• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including,
• SAE/AISI grades of series 2300 and higher.
• Ball bearings steels, as defined in the HTS.
• Tool steels, as defined in the HTS.
• Silico-manganese (as defined in the HTS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).
• Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTS.
The merchandise subject to the order is currently classifiable in the HTS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled flat-rolled carbon-quality steel covered by the order, including: vacuum-degassed fully stabilized; high-strength low-alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to the order is dispositive.
As discussed above, on February 6, 2009, the Department issued the initial questionnaire to Tata and the GOI, including state governments. The GOI filed a response to the Department's initial questionnaire on April 23, 2009 (April QR). However, the GOI failed to provide responses with regard to certain programs administered by the state governments of Gujarat, Maharashtra, Andhra Pradesh, Chhattisgarh and Karnataka. On July 30, 2009, the Department issued a supplemental questionnaire to the GOI and again requested responses with regard to the state government programs. The GOI submitted a response on August 10, 2009, but again failed to provide responses with regard to the programs administered by the state governments. On August 21, 2009, the Department issued another supplemental questionnaire to the GOI requesting additional information from the state governments mentioned above, as well as additional and clarifying information from the state government of Jharkhand concerning its responses in the April QR. In its response, the GOI again failed to submit responses with regard to the programs administered by the state governments. On September 10, 2009, the Department issued to the GOI a final supplemental questionnaire in which we requested a second time the same information from the August 21, 2009, supplemental questionnaire on the State programs administered by the government of Jharkhand. In its response, the GOI submitted incomplete information on the programs administered by the state government of Jharkhand. Specifically, in the September 24, 2009, questionnaire response, the government of Jharkhand submitted a brief letter from the Department of Industries restating that Tata had not received any benefits during the POR. No other information or documentation requested by the Department to demonstrate this claim was provided.
Sections 776(a)(1) and (2) of the Tariff Act of 1930, as amended (the Act), provide that the Department shall use the “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent possible, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party has demonstrated that it has acted to the best of its ability in providing the
Because the GOI failed to provide the requested information by the established deadlines, the Department does not have the necessary information on the record to determine whether the subsidies received by Tata under the state-administered programs constitute financial contributions and are specific within the meaning of sections 771(5)(D) and 771(5A) of the Act, respectively. Therefore, the Department must base its determination on the facts otherwise available in accordance with section 776(a)(2)(B) of the Act.
Section 776(b) of the Act provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as AFA information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. In a countervailing duty proceeding, the Department requires information from both the government of the country whose merchandise is under the order and the foreign domestic producers and exporters. When the government fails to provide requested information concerning alleged subsidy programs, the Department, as AFA, typically finds that a financial contribution exists under the alleged program and that the program is specific.
In the instant review, Tata did not provide the Department with any information during the POR, as discussed below under the “Tata” section. Accordingly, in such instances, the Department must base its determination on the facts otherwise available in accordance with section 776(a)(2)(B) of the Act with respect to the programs in the initial questionnaire administered by the GOI and state governments.
With respect to Tata, although the company maintains that it had no sales of commercial quantities during the POR, it provided data concerning sales of subject merchandise during the POR on March 19 and March 23, 2009. After considering the information on the record, the Department decided that Tata did have sales during the POR and requested on March 27, 2009, that Tata submit a questionnaire response.
The Department extended Tata's deadline to respond to the initial questionnaire. Specifically, on March 27, 2009, the Department extended the March 15, 2009, original deadline until April 17, 2009.
Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if,
Because Tata failed to provide the requested information by the established deadlines, the Department does not have the necessary information to determine the net subsidies received by Tata under the GOI administered programs as well as those programs administered by the state governments. Therefore, the Department must base its determination on the facts otherwise available in accordance with section 776(a)(2)(B) of the Act with respect to the GOI and state government programs covered in this review.
Section 776(b) of the Act provides that the Department may use an adverse inference in applying the fact otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Because Tata did not provide the requested information on any of the programs covered by this review, we find that Tata did not act to the best of its ability and, therefore, pursuant to section 776(b) of the Act, we are employing adverse inferences in selecting from among the facts otherwise available. Section 776(b) of the Act also authorizes the Department to use as AFA information derived from the petition, the original determination, a previous administrative review, or other information placed on the record.
As explained above, due to the GOI's failure to submit a timely response, we find that all programs administered by the GOI and the state governments continued to operate during the POR, and that these programs provided financial contributions and were specific within the meanings of sections 771(5)(D) and 771(5A) of the Act, respectively.
Moreover, because Tata failed to provide the requested information with respect to the GOI and state government programs by the established deadlines, despite the extensions of time granted by the Department, we do not have the necessary information to determine the
In assigning net subsidy rates for each of the programs for which specific information was required from Tata, we were guided by the Department's approach in the prior reviews as well as recent CVD investigations involving the People's Republic of China (PRC).
The Department of Banking Operations & Development, Directives Division of Reserve Bank of India (RBI) provides short-term pre-shipment export financing, or “packing credits,” to exporters through commercial banks. Upon presentation of a confirmed export order or letter of credit to a bank, companies receive pre-shipment credit lines upon which they may draw as needed. Credit line limits are established by commercial banks based upon a company's creditworthiness and past export performance, and may be denominated either in Indian rupees or in foreign currency. Commercial banks extending export credit to Indian companies must, by law, charge interest on this credit at rates capped by the RBI. For post-shipment export financing, exporters are eligible to receive post-shipment short-term credit in the form of discounted trade bills or advances by commercial banks at preferential interest rates to finance the transit period between the date of shipment of exported merchandise and payment from export customers.
The Department has previously determined that these export financing programs are countervailable to the extent that the interest rates are capped by the GOI and are lower than the rates exporters would have paid on comparable commercial loans.
In its questionnaire response, the GOI reported that RBI does not maintain company-specific accounting records.
Pursuant to the AFA methodology described above, for this program, we have assigned a net subsidy rate of 1.32 percent
The EPCGS provides for a reduction or exemption of customs duties and an exemption for excise taxes on imports of capital goods. Under this program, producers may import capital equipment at a reduced customs duty, subject to an export obligation equal to eight times the duty saved to be fulfilled over a period of eight years (12 years where the CIF value is Rs. 100 crore
The Department has previously determined that the import duty reductions provided under the EPCGS constitute a countervailable export subsidy.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 16.63 percent
Under the ALP exporters may import, duty free, specified quantities of materials required to manufacture products that are subsequently exported. The exporting companies, however, remain contingently liable for the unpaid duties until they have fulfilled their export requirement. The quantities of imported materials and exported finished products are linked through standard input/output norms (SIONs) established by the GOI.
The Department has previously found this program to be countervailable.
Pursuant to the AFA methodology described above, we are assigning a net subsidy rate of 0.50 percent
India's DEPS was enacted on April 1, 1997, as a successor program to the Passbook Scheme (PBS). As with PBS, the DEPS enables exporting companies to earn import duty exemptions in the form of passbook credits rather than cash. All exporters are eligible to earn DEPS credits on a post-export basis, provided that the GOI has established a SION for the exported product. DEPS credits can be used for any subsequent imports, regardless of whether they are consumed in the production of an export product. DEPS credits are valid for 12 months and are transferable after the foreign exchange is realized from the export sales on which the DEPS credits are earned. With respect to subject merchandise, the GOI has established a SION for the steel industry.
The Department has previously determined that DEPS is a countervailable program, which provides a financial contribution and is specific as an export contingent subsidy within the meaning of sections 771(5)(D)(ii) and 771(5A)(B) of the Act, respectively.
We have previously determined that this program provides a recurring benefit under 19 CFR 351.519(c).
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 13.98 percent
India's Status Certificate Program is detailed under paragraph 3.5 of its Foreign Trade Policy Handbook. This program details the following privileges to exporters, depending on their export performance for the current year, plus the preceding three years:
(i). Authorizations and Customs clearances for both imports and exports on self-declaration basis;
(ii). Fixation of Input-Output norms on priority within 60 days;
(iii). Exemption from compulsory negotiation of documents through banks. The remittance, however, would continue to be received through banking channels;
(iv). 100 percent retention of foreign exchange in EEEC account:
(v). Enhancement in normal repatriation period from 180 days to 360 days;
(vi). (Deleted);
(vii). Exemption from furnishing of Bank Guarantee in Schemes under this Policy.
In the Fourth HRS Review, the Department examined this program in which certain respondents participated during that POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.32 percent
In the underlying investigation, the Department found that the GOI, through the State Bank of India (SBI) provides loan guarantees on a case-by-case basis to particular industrial sectors.
Pursuant to the AFA methodology described above, for this program, we are assigning, a net subsidy rate of 1.32 percent
The Steel Development Fund (SDF) was established in 1978, to which India's integrated steel producers, including Tata, contributed the proceeds from GOI-mandated price increases (
In the underlying investigation, the Department determined that the GOI exercises control over the way in which funding is disbursed under this program.
Therefore, the Department determined that loans under the SDF constitute a financial contribution within the meaning of section 771(5)(D)(i) of the Act. We also determined that loans under the SDF are specific within the meaning of section 771(5A)(D)(i) of the Act because eligibility for loans from the SDF is limited to steel companies. We further found that loans under the SDF program confer a benefit under section 771(5)(E)(ii) of the Act to the extent that the interest paid under the program during the POR was less than what would have been charged on a comparable commercial loan.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 0.99 percent
Under the Mines and Minerals Development and Regulation Act of 1957, as amended, (MMDR) and the Mineral Concession Rules of 1960, as amended, the GOI grants captive mining rights for minerals, including iron ore, to eligible applicants. The MMDR includes a schedule that lists minerals for which mining rights are controlled
In
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
In 1973, the GOI nationalized coal mining under the Coal Mines Nationalization Act. The legislation initially reserved coal mining for public companies. However, pursuant to the Coal Mines Nationalization Amendment Act of 1976, the law was revised to allow iron and steel companies to mine for coal for captive use (
In
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
Under this program EOUs are entitled to import capital goods and raw materials duty-free. In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 13.98 percent
In the
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
Under section 80HHC of the Income Tax Act, the GOI allows exporters to deduct profits derived from the export of merchandise from taxable income. In prior CVD proceedings, the Department has found this program to be an export subsidy within the meaning of section 771(5A)(B) of the Act, and thus countervailable,.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
The Department has previously determined that the GOI provides high-grade iron ore to steel producers for LTAR through the government-owned National Mineral Development Corporation (NMDC).
In the
In its questionnaire responses, the GOI provided a list of companies that purchased high-grade iron ore from NMDC during the POR and Tata does not appear on this list.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 16.14 percent
In
The Department found that the MDA grants were countervailable.
In its April QR, the GOI stated that Tata had not “availed any benefits under
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
“The Market Access Initiative (MAI) scheme is intended to provide financial assistance for medium term export promotion efforts with a sharp focus on a country/product, and is administered by the Department of Commerce (DoC). Financial assistance is available for Export Promotion Councils, Industry and Trade Associations, Agencies of State Governments, Indian Commercial Missions abroad and other eligible entities as may be notified. A whole range of activities can be funded under the MAI scheme. These include, amongst others, (i) market studies, * * * (iii) sales promotion campaigns, * * * (v) publicity campaigns * * *”
In past proceedings, the Department has investigated this program to the extent that it provides financial assistance from the GOI to approved organizations which promote exports by offsetting the expense of foreign market analysis and promotional publications.
The GOI stated in its April QR that the respondent company had not “availed any benefits under this program,” and in its September 4 QR submitted a certificate from the administering authority attesting to the same.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fifth HRS Review, we found that, under this program, companies with SEZ units may import from overseas or procure domestically duty-free goods and services.
The GOI stated in its April QR that Tata was not covered by this program.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.66 percent
In the Fifth HRS Review, we found that, under this program, companies with SEZ units may be eligible for exemption from excise duties on goods machinery and capital goods brought from the Domestic Tariff Area for use by an enterprise in the SEZ.
The GOI stated in its April QR that Tata was not covered by this program.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 2.57 percent
In the Fifth HRS Review, we found that under this program companies that are suppliers are eligible to claim drawback or Duty Entitlement Pass Book (DEPB) on goods or services provided from the Domestic Tariff area or from outside India into a SEZ. However, we found the program was not used.
The GOI stated in its April QR that Tata was not covered by this program.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 13.98 percent
In the Fifth HRS Review, we found that under this program benefits are provided on sales made from the SEZ. However, the program was not used.
The GOI stated in its April QR that the Tata was not covered by this program.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the Fifth HRS Review, we found that under this program companies may be eligible for exemption from the 2 percent CST on inter-state purchases made by the SEZ unit.
The GOI stated in its April QR that Tata was not covered by this program.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the Fifth HRS Review, we found that under this program SEZ units are exempt from paying the national service tax of 12.36 percent. Therefore, a service provider to an SEZ unit is not required to pay the 12.36 percent service tax on invoices issued to SEZ units.
The GOI stated in its April QR that Tata was not covered by this program.
Pursuant to the AFA methodology described above, this program, we are assigning a net subsidy rate of 3.09 percent
The DFRC scheme was introduced by the GOI in 2001 and was administered by the Directorate General for Foreign Trade. The DFRC was a duty replenishment scheme that was available to exporters for the subsequent import of inputs used in the manufacture of goods without payment of basic customs duty. In order to receive a license, which entitled the recipient subsequently to import duty free certain inputs used in the production of the exported product, as identified in a SION, within the following 24 months, a company had to: (1) Export manufactured products listed in the GOI's export policy book and against which there is a SION for inputs required in the manufacture of the export product based on quantity; and (2) have realized the payment of export proceeds in the form of convertible foreign currency. The application was to be filed within six months of the realization of the profits. DFRC licenses were transferrable, yet the transferee was limited to importing only those products and in the quantities specified on the license.
In the past, the Department has found that in order to receive a DFRC license, firms must demonstrate that they made an export sale by submitting proof of payment to the GOI in the form of a bank realization certificate. As such, we found that duty exemptions provided under the DFRC program were earned on a shipment-by-shipment basis and, therefore, were tied to particular products and markets within the meaning of 19 CFR 351.525(b)(4) and (5). Moreover, we determined that the sale of DFRC licenses and the sales proceeds conferred a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also determined that because the receipt of DFRC licenses are contingent upon exports, the DFRC program was specific within the meaning of section 771(5A)(B) of the Act.
The GOI claimed that the DFRC program was terminated as of May 1, 2006, in accordance with paragraph 4.2.8 of Foreign Trade Policy (FTP) for the year 2006-07. Moreover, the GOI claimed that no benefits accrued under this program during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 13.98 percent
In the Fourth HRS Review, the Department found that import duty exemptions under the TPS were countervailable. Specifically, the Department determined that a financial contribution, in the form of revenue forgone, as defined under section 771(5)(D)(ii) of the Act, was provided under program because the GOI provides credits for the future payment of import duties. In addition, we found that the TPS program provides a benefit because the GOI did not have in place and did not apply a system that was reasonable and effective for the purposes intended to confirm which inputs, and in what amounts, were consumed in the production of the exported products. Therefore, in accordance with 19 CFR 351.519(a)(4) and section 771(5)(E) of the Act, we determined that the entire amount of import duty exemption earned during the POR constitutes a benefit. Moreover, we determined that the program was specific under section 771(5A)(B) of the Act because the program could only be used by exporters.
The GOI claimed that the TPS was terminated as of April 1, 2006, and reported that no benefits accrued under this program during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 13.98 percent
Pursuant to a 1995 Industrial Policy of Gujarat and an Incentive Policy of 1995-2000 (1995 IP), the SGOG offered incentives, such as sales tax exemptions and deferrals, to companies that locate or invest in certain disadvantaged or rural areas in the State of Gujarat. A company could be eligible to claim exemptions or deferrals valued up to 90 percent of the total eligible capital investment. These policies exempt companies from paying sales tax on the purchases of raw materials, consumable stores, packing materials, and processing materials. Other available benefits include exemption from or deferment of sales tax and turnover tax on the sale of intermediate products, by-products, and scrap. The Pioneer and Prestigious programs are the two programs that are available under this policy. To be eligible for the incentives, companies must have made a fixed capital investment of over five crores (Pioneer Scheme) or 300 crores (Prestigious Scheme) in a qualified under-developed area in the State of Gujarat.
The amount of the eligible capital investment is linked to the amount of the incentives received over a period of 8 to 14 years, depending on the category of participation. For the Pioneer Scheme, which initially began in 1986, companies making a capital investment during 1986 and 1991 were allowed to utilize this program. For the Prestigious Scheme, tax incentives were offered only for investment units which started production between 1990 and 1995.
In the
As noted above, under the 1995 IP, the SGOG offered incentives, such as sales tax deferrals, to companies that locate or invest in certain disadvantaged or rural areas in the State of Gujarat.
As explained above, the Department found this program countervailable under section 771(5A)(D)(iv) of the Act because it was regionally specific. The Department also found that the SGOG provides a financial contribution under section 771(5)(D)(ii) of the Act by foregoing the collection of sales tax revenue and that a company receives a benefit under section 771(5)(E) of the Act in the amount of sales tax that it does not pay.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, we found that the SGOG had established a VAT remission system on April 1, 2006 that remits VAT to eligible firms using the balance of tax incentives under the Prestigious Scheme another tax incentive program. This system remits VAT to eligible firms using the balance of tax incentives under the Prestigious Scheme that remained unutilized after the end of the 8- to 14-year time window allowed under the Prestigious Scheme.
The VAT remission system operates differently with respect to purchases and sales. For purchases within the State of Gujarat, eligible firms (
With respect to sales, a company is required to charge sales tax from its customers (both local VAT and central sales tax). However, the tax collected by the seller does not have to be paid to the SGOG, but instead can be retained through a remission order provided by the state's sales tax authorities. In such instances, the amount of sales tax retained by the firm is credited against the firm's remaining balance of tax credits leftover from the Prestigious Scheme.
In the
Pursuant to the AFA methodology described above, for this program, we are assigning to the VAT remission scheme program, a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 0.59 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.32 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Maharashtra Industrial Policy (MIP) of 2006, firms investing in what the SGOM deems are Mega Projects are eligible to receive infrastructure subsidies. The Department also investigated whether the SGOM has been providing infrastructure subsidies in the form of tax programs and grants to firms investing in Mega Projects in years prior to the enactment of the MIP of 2006. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning net subsidy rates of 3.09 and 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether the SGOM encourages development outside of the Bombay and Pune metropolitan areas by offering low-cost land. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
In the Fourth HRS Review, the Department initiated an investigation into whether the SGOM provided investment subsidies to firms in the state of Maharashtra. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Andhra Pradesh IP, companies from eligible industries which construct new facilities or substantially expand existing facilities and begin commercial production on or after April 1, 2005, may receive certain subsidies from the SGAP. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the Chhattisgarh Industrial Policy (CIP), companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the CIP, companies from eligible industries which construct new facilities or substantially expand existing facilities in most backward scheduled tribe dominated areas and begin commercial production between November 1, 2004 and October 31, 2009, may receive certain subsidies from the SGOC. However, the Department found that the program was not used during the POR.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
Under clause 15.2.2 of the Jharkhand State Industrial Policy (JSIP) of 2001, the SGOJ encourages the private sector in setting up of Captive Power Generation Plants. This program allows large industrial unit, consortium of industrial enterprises in growth centers, or industrial areas to set up power generating units as well as take over distribution of power in such industrial complexes. This captive power generation and purchase is exempted from electricity duty for a period of ten years from the date of commercial production.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
Under clause 28 of the JSIP of 2001, new industrial units, as well as existing units which are not using any facility of tax-deferment, tax-free purchases or tax-free sales under any earlier notification, are allowed to opt for an offset of Jharkhand Sales Tax (JST) paid on the purchases of raw materials, within the State of Jharkhand only against transfer or consignment sale outside the state, of finished products made out from such raw materials subject to a limitation of six months or the same financial year from the date of purchase of such raw materials.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of revenue
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
Under clause 29.3 of the JSIP of 2001, a capital investment incentive may be provided only to small and medium scale industries. According to Annexure 1, Entry No. 19 and 11 of the JSIP states that small and medium industries would be defined by the GOI. Pursuant to the terms of S.O. 1642(E) dated September 29, 2006, issued by the GOI, a small industry is one where the investment in plant and machinery is more than Rs. 2.5 million but does not exceed Rs. 50 million; a medium industry is one where the investment in plant and machinery is more than Rs. 50 million but does not exceed Rs. 100 million.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Under clause 29.4 of the JSIP of 2001, a capital power generating subsidy may be provided to new industries. According to Annexure 1, Entry No. 4 of the JSIP, a new industrial unit is a unit that has come into commercial production after November 15, 2000.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Under clause 29.5 of the JSIP of 2001, an interest subsidy may be provided to new industries. According to Annexure 1, Entry No. 4 of the JSIP, a new industrial unit is a unit that has come into commercial production after November 15, 2000.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Under clause 29.6 of the JSIP program of 2001, exemption from payment of 50 percent of stamp duty and registration fees upon registration of documents within the State of Jharkhand relating to the purchase or acquisition of land and buildings are provided for setting up a new unit.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 3.09 percent
Under clause 29.8 of the JSIP of 2001, 50 percent of the feasibility study and project report cost incurred by industrial units will be reimbursed subject to a maximum of Rs. 50,000 provided the report is prepared by a recognized consultant drawn from duly approved panel by the Industries Department. This reimbursement will be admissible after the commencement of commercial production.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Under clause 29.9 of the JSIP of 2001, new and existing industrial units are entitled to a subsidy of 20 percent of the cost of pollution control and monitoring equipment subject to a maximum of Rs. 2 million upon installation of pollution control and monitoring equipment allowed on the certificate of the State Pollution Control Board about the necessity for such installation.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Under clause 29.10 of the JSIP of 2001, small scale/ancillary industries would be encouraged to seek ISI/ISO certification. In accordance with 29.10, the state government shall facilitate for reimbursement of charges for acquiring ISO-900 (or its equivalent) certification to the extent of 75 percent of the cost subject to a maximum of Rs. 75,000 million from the central government.
As explained above, as AFA pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily find, based on AFA, that the program is limited to certain industries and, therefore, is specific within the meaning of section 771(5A)(D)(i) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the JSIP of 2001, the firms investing in what the SGOJ deems are Mega Projects are eligible to receive infrastructure subsidies. The Department further investigated whether the SGOJ has a policy to provide qualifying companies additional subsidies when making capital investment totaling more than Rs. 50 crore as a Mega Project.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the JSIP of 2001, the firms investing in what the SGOJ deems are Mega Projects are eligible to receive infrastructure subsidies. The Department further investigated whether the SGOJ has a policy to provide qualifying companies additional subsidies when making capital investment totaling more than Rs. 50 crore as a Mega Project.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department initiated an investigation into whether under the JSIP of 2001, the firms investing in what the SGOJ deems are Mega Projects are eligible to receive infrastructure subsidies. The Department further investigated whether the SGOJ has a policy to provide qualifying companies additional subsidies when making capital investment totaling more than Rs. 50 crore as a Mega Project.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.32 percent
Under clause 29.7 of the JSIP of 2001, the employment generation based incentives provided are available to a limited number of industries.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
In the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the assistance provided under the New Industrial Policy and Package of Incentives and Concessions for the period 1993-1998 (1993 KIP), were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “Adverse Facts Available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of provision of a good, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with
In the instant review, as discussed above in the “Adverse Facts Available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, as AFA we are assigning a net subsidy rate of 6.06 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 1.32 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1993 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program as AFA we are assigning a net subsidy rate of 3.09 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1996 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.32 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1996 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 1996 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the SGOK's New Industrial Policy and Package of Incentives and Concessions of 2001 (2001 KIP), were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2001 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 1.32 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2001 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program we are assigning a net subsidy rate of 6.06
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2001 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good or service, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the SGOK's New Industrial Policy and Package of Incentives and Concessions of 2006 (2006 KIP), were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a direct transfer of funds, and a benefit within the meaning of sections 771(5)(D)(i) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 1.32 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2006 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone, and a benefit within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 3.09 percent
As noted above in the “1993 KIP: Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2006 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this program constitutes a financial contribution in the form of a provision of a good or service, and a benefit within the meaning of sections 771(5)(D)(iii) and 771(5)(E) of the Act, respectively. We also preliminarily determine, as AFA, that this program is specific pursuant to section 771(5A) of the Act.
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 18.08 percent
As noted above in the “1993 KIP” Tax Incentives” section, in the Fourth HRS Review, the Department determined, based on AFA, and in accordance with section 776(b) of the Act that all newly alleged subsidy programs, including the 2006 KIP, were used and constitute a financial contribution and are specific pursuant to sections 771(5)(D) and 771(5A) of the Act.
In the instant review, as discussed above in the “adverse facts available” section, based on AFA, and pursuant to section 776(b) of the Act, we preliminarily find that Tata used and benefitted from this program during the POR. Furthermore, based on AFA, we preliminarily determine that this
Pursuant to the AFA methodology described above, for this program, we are assigning a net subsidy rate of 6.06 percent
Indian commercial banks were required to pay a tax on all interest accrued from borrowers. The banks passed along this interest tax to borrowers in its entirety. As of April 1, 1993, the GOI exempted from the interest tax all interest accruing to a commercial bank on export-related loans. The Department has previously found this tax exemption to be an export subsidy, and thus countervailable, because only interest accruing on loans and advanced made to exporters in this form of export curedti was exempt from interest tax.
In the instant review, the GOI reported in its April QR that pursuant to the Finance Act of 2000, the GOI has abolished the Interest Tax.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the reviewed company for the period January 1, 2008, through December 31, 2008. We preliminarily determine the net subsidy rate for Tata to be 586.43 percent
If the final results remain the same as these preliminary results, the Department intends to issue assessment instructions to U.S. Customs and Border Protection (CBP) 15 days after the date of publication of the final results of this review. We will instruct CBP to collect cash deposits for the respondent at the countervailing duty rate indicated above of the f.o.b. invoice price on all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. We will also instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company.
These deposit requirements, when imposed, shall remain in effect until further notice.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309(b)(1), interested parties may submit written arguments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs. See 19 CFR 351.309(c)(1)(ii). Parties who submit written arguments in this proceeding are requested to submit with the written argument: (1) A statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs.
Representative of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(1)(ii), are due. The Department will publish the final results of this administrative review, including the results of its analysis of arguments made in any case or rebuttal briefs.
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).