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Privacy Office, DHS.
Final rule.
The Department of Homeland Security is issuing a final rule to amend its regulations to exempt portions of a Department of Homeland Security/United States Citizenship and Immigration system of records entitled the “United States Citizenship and Immigration Services—009 Compliance Tracking and Management System of Records” from certain provisions of the Privacy Act. Specifically, the Department proposes to exempt portions of the Department of Homeland Security/United States Citizenship and Immigration Services—009 Compliance Tracking and Management System of Records from certain provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
This final rule is effective August 23, 2010.
For general questions please contact Monitoring and Compliance Branch Chief (202-358-7777), Verification Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 470 L'Enfant Plaza East, SW., Suite 8204, Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) in the
DHS/USCIS received seven comments on the NPRM (74 FR 23957, May 22, 2009) and twelve on the SORN (74 FR 24022, May 22, 2009). One set of comments relates to a potential operational concern with the SAVE program that pertains to the DHS/USCIS—004 Verification Information System (VIS). While CTMS does deal with SAVE data, the comments in question did not relate to compliance and monitoring issues. These comments are being addressed by the SAVE program. Another set of comments concerned corporate hiring practices and did not relate to CTMS or compliance and monitoring issues generally.
Below is an analysis of each comment that specifically relate to this NPRM that is not addressed directly above. Comments were received from the National Immigration Law Center (NILC) regarding several elements of the CTMS SORN and corresponding Notice of Proposed Rulemaking (NPRM)
(1) Responds to inquiries made by electing persons and other entities [* * *] at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed, and
(2) Maintains records of the inquiries that were made, of confirmations provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under the pilot programs.”. (8 U.S.C. 1324a note (at § 404(a)) “The confirmation system shall be designed and operated—
(1) To maximize its reliability and ease of use by persons and other entities making elections under section 402(a) of this division consistent with insulating and protecting the privacy and security of the underlying information;
(2) To respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
(3) With appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
(4) To have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including—
(A) The selective or unauthorized use of the system to verify eligibility;
(B) The use of the system prior to an offer of employment; or
(C) The exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.”. (8 U.S.C. 1324a note (at § 404(d))
CTMS serves as a vehicle by which USCIS can comply with its statutory mandate to ensure the integrity of the verification system as outlined above. Information in CTMS may provide
Comments were received from the American Immigration Lawyer Association (AILA) regarding several points.
CTMS serves as a vehicle by which USCIS can comply with its statutory mandate to ensure the integrity of the verification system by preventing the fraudulent use of E-Verify and SAVE and violation of the INA, as well as any misuse or discriminatory use of the system (8 U.S.C. 1324a note (at § 404(d))).
Comments were received from the American Council on International Personnel (ACIP) regarding two points.
USCIS Verification Division Monitoring and Compliance Branch operations have been developed based on best practices, as well as knowledge of the E-Verify system and the ways in which it could potentially be misused or abused. The previous Westat Reports served as a reference while the USCIS Verification Division Monitoring and Compliance Branch was being formulated; future Westat Reports will likewise be leveraged. However, the absence of a “perfect” E-Verify system should not preclude the establishment of a monitoring and compliance component, along with the associated tools, such as CTMS. As long as the system is being used, USCIS has a responsibility to ensure that the system is being used appropriately and in accordance with program rules and regulations. The USCIS Verification Division Monitoring and Compliance Branch, and associated management tools, fulfill that function.
Having taken into consideration and addressed public comments resulting from this NPRM and SORN, as well as the Department's position on these public comments, DHS will implement the rulemaking as proposed.
Freedom of information; Privacy.
Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.
49. The DHS/USCIS—009 Compliance Tracking and Management System of Records consists of electronic and paper files that will be used by DHS and its components. This system of records will be used to perform a range of information management and analytic functions involving minimizing misuse, abuse, discrimination, breach of privacy, and fraudulent use of SAVE and E-Verify. The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) pursuant to 5 U.S.C. 552a(k)(2). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation, and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation, and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of Federal law, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interest of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures
In rule document 2010-18148 beginning on page 44656 in the issue of Wednesday, July 28, 2010, make the following corrections:
On pages 44656 through 44684, in Separate Part IV, footnotes 1 through 67 were not correctly numbered. The entire preamble is being reprinted to include the correctly numbered footnotes.
Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, Treasury (OTS); Farm Credit Administration (FCA); and National Credit Union Administration (NCUA).
Final rule.
The OCC, Board, FDIC, OTS, FCA, and NCUA (collectively, the Agencies) are adopting final rules to implement the Secure and Fair Enforcement for Mortgage Licensing Act (the S.A.F.E. Act). The S.A.F.E. Act requires an employee of a bank, savings association, credit union or Farm Credit System (FCS) institution and certain of their subsidiaries that are regulated by a Federal banking agency or the FCA (collectively, Agency-regulated institutions) who acts as a residential mortgage loan originator to register with the Nationwide Mortgage Licensing System and Registry, obtain a unique identifier, and maintain this registration. The final rule further provides that Agency-regulated institutions must: require their employees who act as residential mortgage loan originators to comply with the S.A.F.E. Act's requirements to register and obtain a unique identifier, and adopt and follow written policies and procedures designed to assure compliance with these requirements.
This final rule is effective on October 1, 2010. Compliance with § __.103 (registration requirement) of the final rule is required by the end of the 180-day period for initial registrations beginning on the date the Agencies provide in a public notice that the Registry is accepting initial registrations.
The S.A.F.E. Act,
In connection with the Federal registration, the Agencies at a minimum must ensure that the Registry is furnished with information concerning the mortgage loan originator's identity, including: (1) Fingerprints for submission to the Federal Bureau of Investigation (FBI) and any other relevant governmental agency for a State and national criminal history background check; and (2) personal history and experience, including authorization for the Registry to obtain information related to any administrative, civil, or criminal findings by any governmental jurisdiction.
The Conference of State Bank Supervisors (CSBS) and the American Association of Residential Mortgage Regulators (AARMR) have developed and maintain a Web-based system, the Nationwide Mortgage Licensing System (NMLS), for the State licensing of mortgage loan originators in participating States.
The Federal banking agencies, through the FFIEC, and the FCA are working with CSBS to modify the NMLS so that it can accept registrations from mortgage loan originators employed by Agency-regulated institutions. This modified registry will be renamed the Nationwide Mortgage Licensing System and Registry. The existing NMLS was not designed to support the Federal registration of Agency-regulated institution employees, who are not required to obtain additional authorization from the appropriate Federal agency to engage in mortgage loan origination activities that are permissible for an Agency-regulated institution. Accordingly, the system must be modified to accommodate the differences between the requirements for State licensing/registration and Federal registration. It also must be modified to accommodate the migration of an individual between the State licensing/registration and the Federal registration regimes or the dual employment of an individual by both an Agency-regulated institution and a non-Agency-regulated institution.
The proposed rule required individuals employed by Agency-regulated institutions who act as mortgage loan originators and who do not qualify for the
The proposal provided for a 180-day period within which to complete initial registrations after the Registry is capable of accepting registrations from employees of Agency-regulated institutions. During this period, employees of Agency-regulated institutions would not be subject to sanctions if they originate residential mortgage loans without having completed their registration.
The Agencies received over 140 different comment letters from financial institutions and holding companies, trade associations, Federal government agencies, a training company, and individuals. A number of Agency-regulated institutions objected to the registration requirement in general, suggesting that the registration requirement should not be applied to them because they were not involved in the abuses that led to the enactment of the S.A.F.E. Act. In addition, many of these commenters found the registration requirement overly burdensome, especially as they are subject to regular examinations by the Agencies and they already closely supervise the activities of their employees.
Many commenters raised concerns related to the proposed
Most commenters objected to having employees who engage in loan modifications or assumptions register under the rule, noting that these activities are fundamentally different than the mortgage loan origination process in that loan modifications and assumptions: (1) Are loss mitigation activities, not loan originations; (2) provide loan modification or assumption personnel little to no discretion in negotiating the terms and conditions of any changes; and (3) are outside of the Congressional intent and the plain language of the S.A.F.E. Act.
While some commenters found the 180-day initial registration period adequate, a number of commenters suggested alternative periods ranging up to one year. Some trade associations and institutions supported staggering registration periods in order to reduce system demands and to tailor an implementation schedule to the particular capacities of an institution or group of institutions, as long as the implementation period would still be 180 days for each institution.
A number of commenters also raised issues related to the provision of fingerprints to the Registry. Commenters asserted that it was not appropriate to have an age limit on fingerprints as they tend not to change; that the Registry should be able to accept fingerprints in a variety of formats, such as paper and scanned digital prints; and that Agency-regulated institutions should be permitted to use existing channels to process fingerprints.
Many commenters expressed privacy and security concerns regarding the types of personal information that mortgage loan originators would have to provide to the Registry and the ability of the public to have Internet access to such information.
Trade associations and large Agency-regulated institutions overwhelmingly requested that the Registry accommodate batch processing of registrations in order to reduce the costs and burden of data input, reduce errors, and efficiently register bank employees.
The Agencies have modified the proposal to take into account many of these comments. A detailed discussion of these comment letters and the Agencies' responses to them appears in the section-by-section description of the final rule that follows.
The Agencies adopt paragraphs (a) and (b) of § __.101 as proposed.
As in the proposal, paragraph (c)(1) of § __.101 of the final rule identifies the specific entities that employ individual mortgage loan originators—entities referred to in this
With respect to the OCC, this rule applies to national banks, Federal branches and agencies of foreign banks, their operating subsidiaries, and their employees who are mortgage loan originators.
As discussed in Section II, a number of commenters objected to the application of this registration requirement to employees of Agency-regulated depository institutions because, in general, they are subject to regular examinations, would be overly burdened by the registration requirement, and already closely supervise the activities of their employees. Some commenters noted that this registration requirement would penalize them for the inappropriate actions of other lenders that led to the enactment of the S.A.F.E. Act.
The Agencies note that the registration of mortgage loan originators employed by Agency-regulated institutions is explicitly required by the S.A.F.E. Act. The statute imposes a registration requirement, rather than a licensing requirement, on the employees of Agency-regulated institutions. The Agencies note that such institutions (other than non-Federally insured credit unions) already are subject to a Federal regime of examination and supervision. The S.A.F.E. Act does not authorize the Agencies to create exceptions to the registration requirement other than the
Some credit union-related commenters discussed whether the final rule should apply to credit union service organizations (CUSOs). The NCUA notes that it answered these questions in a public legal opinion letter 08-0843, dated October 8, 2008, available on NCUA's Web site,
Some commenters also asked whether non-Federally insured credit unions must register with the Registry. NCUA's proposed rule applied to Federally insured credit unions and their employees who are mortgage loan originators but commenters requested NCUA include non-Federally insured credit unions and their employees who are mortgage loan originators in the scope of NCUA's final rule. The S.A.F.E. Act requires the Agencies to develop and maintain a system for registering employees of a depository institution,
When drafting its final rule, NCUA considered that, with the exception of non-Federally insured credit unions, entities covered by the Federal registration system are subject to Federal oversight. Entities subject to the Federal registration system are labeled throughout the rule as “Agency-regulated institutions.” Unlike Federal credit unions and Federally insured State-chartered credit unions, non-Federally insured credit unions are neither Federally insured nor subject to NCUA's oversight. In order for non-Federally insured credit unions and their employees who are mortgage loan originators to qualify for Federal registration, they must be subject to oversight for purposes of compliance with NCUA's rule. Therefore, due to the unique nature of non-Federally insured credit unions compared with all other credit unions, NCUA is working with State supervisory authorities in those States with non-Federally insured credit unions to implement an oversight program to enable them to participate in the Federal registration system.
The oversight program will require a State supervisory authority seeking to allow non-Federally insured credit unions in its State to participate in the Federal registration system to enter into a memorandum of understanding (MOU) with NCUA. The MOU will need to address various requirements such as, but not limited to: The requirement for an applicable State supervisory authority to maintain such an MOU to allow non-Federally insured credit unions and their employees in its State to have continuous access to, and use of, the registry; examination of the non-Federally insured credit unions' compliance with the rule by either the State supervisory authority or NCUA; non-Federally insured credit unions' payment of examination fees and payment for any necessary Registry modifications; and enforcement authority and penalties for non-Federally insured credit unions for noncompliance. Any information provided by the Registry to the public about a non-Federally insured credit union and its employees must include a clear and conspicuous statement that the non-Federally insured credit union is not insured by the National Credit Union Share Insurance Fund.
If any State supervisory authority where non-Federally insured credit unions are located fails to enter into or maintain an agreement with NCUA for this registration process and oversight, the non-Federally insured credit unions and their employees in that State cannot register or maintain an existing registration under the Federal system. They instead must use the appropriate State licensing and registration system, or if the State does not have such a system, the licensing and registration system established by the Department of Housing and Urban Department (HUD) for mortgage loan originators and their employees.
Finally, NCUA acknowledges that, while it is an added requirement for non-Federally insured credit unions to have their State supervisory authorities enter into an agreement with NCUA, this is necessary to have any oversight or enforcement authority at all over these entities. Absent any agreement, non-Federally insured credit unions cannot participate in the Federal registration system. They are not subject to a Federal regime of examination and supervision, and are unlike any other Agency-regulated depository institutions covered under this rule. Therefore, they are subject to a different procedure to participate in the same Federal registration system.
Section 1507 of the S.A.F.E. Act (12 U.S.C. 5106) requires the Federal banking agencies to make such
The Agencies received many, and varied, comments on this
A number of commenters also suggested that the final rule base a
Other commenters wanted the exception to be applied to institutions with no prior history of mortgage origination fraud or to institutions with good performance histories from previous supervisory examinations, regardless of the number of loans originated. Some commenters also suggested that the exception should apply only to individuals who do not regularly or principally function as a mortgage loan originator. Some commenters noted that the exception could instead be based on the percentage of time an employee spends engaged in the origination of residential mortgage loans.
The Agencies also received conflicting comments on whether to aggregate a subsidiary's loans with the parent institution for determining
Many commenters noted the complexity of the proposed exception. One commenter stated that the
The Agencies agree that the
Final § __.101(c)(2) thus provides that the registration requirements of this section do not apply to an employee of an Agency-regulated institution who has never been registered or licensed through the Registry as a mortgage loan originator and who has acted as a mortgage loan originator for 5 or fewer residential mortgage loans during the last 12 months. In order to prevent manipulation of the registration requirement by structuring this exception to apply to multiple employees who each would not meet the exception's threshold for registration, the final rule prohibits any Agency-regulated institution from engaging in any act or practice to evade the limits of the
Monitoring compliance with the exception as revised should be less burdensome for Agency-regulated institutions. In addition, in the Agencies' view, this revised exception better balances the usefulness of the exception to Agency-regulated institutions and their mortgage loan originators with the consumer protection and fraud prevention purposes of the S.A.F.E. Act. Although the final rule specifically applies this anti-evasion provision to the
The Agencies note that, as with the proposal, an employee must register with the Registry prior to engaging in mortgage loan origination activity that exceeds the exception limit. In addition, the Agencies note that the
The Agencies note that the Federal Housing Finance Agency (FHFA) has directed Fannie Mae and Freddie Mac to require all mortgage loan applications to include the mortgage loan originator's unique identifier. For Agency regulated institutions, Fannie Mae and Freddie Mac have announced that this requirement will apply to applications dated on or after the date the Agencies require mortgage loan originators to obtain unique identifiers.
The Agencies received a comment from one large financial institution requesting that we clarify whether the failure of a mortgage loan originator to register pursuant to this rulemaking has any substantive impact on a mortgage loan made by an institution that employs that originator. Neither the S.A.F.E. Act nor this final rule provides that a mortgage loan originator's failure to register as required affects the validity or enforceability of any mortgage loan contract made by the institution that employs the originator.
A few commenters suggested that in addition to the registration requirements, the final rule should impose educational and testing requirements on mortgage loan originators, as the S.A.F.E. Act does for State-licensed originators. The Agencies decline to impose such requirements. The S.A.F.E. Act does not include educational or testing requirements for mortgage loan originators employed by Agency-regulated institutions. In addition, as noted previously, the statute imposes different requirements on mortgage loan originators employed by Agency-regulated institutions. The Agencies note that these institutions already are subject to extensive Federal oversight, including regular on-site examination of their mortgage lending activities.
Section __.102 defines the terms used in the final rule. If a term is defined in the S.A.F.E. Act, the Agencies generally have incorporated the same definition in the final rule. The final rule also includes other definitions currently used by the NMLS in order to promote consistency and comparability, insofar as is feasible, between Federal registration requirements and the States' licensing requirements.
This time period for renewals generated many comments. A few commenters suggested that the renewal period for Agency-regulated institutions should be at a different time of year than for originators regulated by a State. Others stated that the renewal period should be based upon the original registration date or original hire date, noting that a staggered registration process would be less burdensome for the Registry. Another commenter suggested that the employing institution determine its own renewal period for its employees. Still other commenters requested that this renewal period be lengthened from 60 to 90 days.
The Agencies decline to change the dates for the annual renewal period. As indicated above, the current system for originators regulated by a State is configured for an annual renewal period from November 1 through December 31. A different renewal period for originators employed by Agency-regulated institutions would involve functionality changes to the existing system, adding costs and lengthening the implementation time. In addition, the Agencies note that different renewal periods could cause confusion and added burden to those originators who may work for both a State-regulated and Agency-regulated institution or who may switch from a State-regulated institution to an Agency-regulated institution during the year, and to employers of such originators, as well as for institutions that control both State- and Agency-regulated institutions. For these same reasons, the Agencies also decline to increase the renewal period from 60 to 90 days. Therefore, the final rule retains the proposed renewal period of November 1 through December 31 of each year.
For purposes of the definition of mortgage loan originator, section 1503(3)(C) of the S.A.F.E. Act (12 U.S.C. 5102(3)(C)) defines “administrative or clerical tasks” to mean: (1) The receipt, collection, and distribution of information common for the processing or underwriting of a loan in the mortgage industry; and (2) communication with a consumer to obtain information necessary for the processing or underwriting of a residential mortgage loan. The proposal included this definition as well, with one nonsubstantive difference—the proposal used the phrase “residential mortgage industry” instead of “loan in the mortgage industry” in the first prong of the definition.
The Agencies included an appendix to the proposal that listed examples of the types of activities the Agencies consider to be both within and outside the scope of residential mortgage loan origination activities. The final rule retains this appendix with certain changes as discussed in this
The Agencies specifically requested comment on whether the definition of “mortgage loan originator” should cover individuals who modify existing residential mortgage loans, engage in approving loan assumptions, or engage in refinancing transactions and, if so, whether these individuals should be excluded from the definition. While a few commenters believed the Agencies should cover individuals engaged in such transactions, the majority of commenters on this issue stated that this rulemaking should not cover these individuals. In general, they indicated that mortgage loan modifications and assumptions are very different from mortgage loan originations, and that employees engaged in these transactions do not meet the S.A.F.E. Act's definition of mortgage loan originator. Specifically, commenters indicated that these employees neither accept residential mortgage loan applications nor negotiate the terms of a new residential mortgage loan. Instead, they renegotiate an existing loan with the goals of mitigating any loss to the institution and, in the case of modifications, providing the borrower with a more affordable payment option or other type of modification, or, in the case of assumptions, replacing the party responsible for repaying the mortgage loan. Many commenters indicated that their employees who engage in modifications and assumptions do not
The determining factor in whether the S.A.F.E. Act applies to residential mortgage loan-related transactions is whether the employee engaged in the transaction meets the definition of “mortgage loan originator.” In general, neither modifications nor assumptions result in the extinguishment of an existing loan and the replacement by a new loan, but rather the terms of an existing loan are revised or the loan is assumed by a new obligor. Thus, Agency-regulated institution employees engaged in these activities typically do not take loan applications, within the meaning of the S.A.F.E. Act. Therefore, the Agencies conclude that the S.A.F.E. Act's definition of “mortgage loan originator” generally would not include employees engaged in loan modifications or assumptions because they typically would not meet the two-prong test of this definition. However, if an employee engaged in a transaction labeled a loan “modification” or “assumption” can be found to meet the definition of “mortgage loan originator,” due to the nature of the specific transaction in question, he or she would be subject to the S.A.F.E. Act and this final rule. The substance of a transaction, not the label attached to it, is determinative of whether the Agency-regulated institution employee associated with it is a mortgage loan originator for purposes of this rule. For example, the Agencies believe that Agency-regulated institution employees engaged solely in bona fide cost-free loss mitigation efforts that result in reduced and sustainable payments for the borrower generally would not meet the definition of “mortgage loan originator.” In this regard, it should be noted that third parties involved in foreclosure prevention activities for compensation or gain, although outside the scope of this rulemaking, may be subject to licensing and registration pursuant to State law.
The Agencies sought comment on whether the individuals who engage in certain refinancing transactions, specifically cash-out refinancing with the same lender, should be excluded from the definition of residential mortgage loan originator. Some industry commenters did not believe that such an exclusion was appropriate primarily because of the nature of a refinancing as a new loan and the potential for consumer abuse in these transactions. Other commenters also requested that we exclude individuals engaged in refinancings from the final rule's definition of mortgage loan originator, and that refinancings be excluded from the final rule's definition of residential mortgage loan, if the refinancing involves the same lender and the borrower obtained no cash proceeds. We decline to make this change. Refinancings are new loans, regardless of the lender, the loan terms, or proceeds, that involve a new application and an offer or negotiation of new loan terms. If an individual engaged in a refinancing transaction of a residential mortgage loan meets the two prongs of the definition of mortgage loan originator, he or she must comply with the requirements of the S.A.F.E. Act and this final rule.
Other commenters suggested that the Agencies exclude loan servicing personnel from the requirements of this rulemaking. We decline to take this suggested approach because the S.A.F.E. Act definition is based on the activities of mortgage loan origination, rather than the job classification of the individual. An individual, regardless of job title, is a mortgage loan originator if he or she engages in the activities of mortgage loan origination within the meaning of the S.A.F.E. Act. For example, if a loan servicing employee of an Agency-regulated institution mainly performs loan servicing activities but also occasionally engages in residential mortgage loan origination, that person is a mortgage loan originator, regardless of whether he or she is called “servicing personnel.” On the other hand, for example, as discussed above in connection with loan modifications, a loan servicing employee engaged solely in bona fide cost-free loss mitigation efforts which result in reduced and sustainable payments for the borrower generally would not meet the definition of “mortgage loan originator.” Loan servicing employees of Agency-regulated institutions must comply with the registration requirements of the final rule if they meet both prongs of the definition of “mortgage loan originator,” unless they qualify for the
Some commenters asked the Agencies to explain whether the S.A.F.E. Act and this rule apply to residential mortgage loan originations made through an automated underwriting system, whereby an applicant inquires about, applies for, and/or receives a decision on an application electronically through an institution's Web site.
For the reasons discussed above, the final rule includes the definition of “mortgage loan originator” as proposed, with one technical change to the definition of “administrative or clerical tasks” to make it identical to the definition of this term in section 1503(3)(C) of the S.A.F.E. Act (12 U.S.C. 5102(3)(C)).
One commenter suggested that ancillary liens on an underlying mortgage loan or liens taken to provide consumers with potential tax advantages should not be considered residential mortgage loans. In addition, another commenter asked that the definition of residential mortgage loan include an exception to exclude seller-sponsored financing of the sale of lender-owned property. The Agencies decline to adopt these exclusions to the definition of “residential mortgage loan” and adopt this definition as proposed. These types of loans clearly fall within the statutory definition of “residential mortgage loans,” and the S.A.F.E. Act makes no exceptions for these two situations. We do clarify, however, that this definition does not include loans for business, commercial, or agricultural purposes that use as collateral property that meets the definition of a “dwelling.”
As indicated in the
A number of commenters requested that the Agencies define “employee” for purposes of this rulemaking to provide more clarity regarding the individuals covered by the rule. Agency-regulated institutions must have a process for identifying which employees of the institution are required to be registered mortgage loan originators.
Section 1504(a) of the S.A.F.E. Act (12 U.S.C. 5103(a)) prohibits an individual who is an employee of an Agency-regulated institution from engaging in the business of a loan originator without registering as a loan originator with the Registry, maintaining annually such registration, and obtaining a unique identifier through the Registry. As in the proposal and described more specifically below, § __.103 of the final rule imposes the responsibility for complying with these requirements on both the individual employee and the employing institution. In addition, both the employee and the employing institution must submit information to the Registry for each registration to be complete. The Agencies note that an employee of an Agency-regulated institution who is not actively engaged in residential mortgage loan activity is not prohibited from registering with the Registry.
The Agencies did not receive substantive comments specifically on this section and therefore adopt it as proposed.
One commenter objected to this requirement as not being based on statutory language. Although the S.A.F.E. Act does not contain the same express prohibition as in the Agencies' proposed rule, determining the scope of mortgage loan origination activities that subject an individual or institution to the Act's requirements is well within the Agencies' authority to implement the statute. The imposition of this requirement on Agency-regulated institutions implements the purposes of the S.A.F.E. Act and ensures Agency-regulated institutions and their employees comply with all applicable laws. This commenter also stated that this requirement would be difficult to enforce because an employing institution may not know of the activities of its employees outside of their scope of employment at that institution. We agree with this commenter that the language in § __103(a)(2)(ii) should be clarified so that an institution's oversight of a mortgage loan originator applies only to the extent the originator is acting within the scope of his or her employment at that institution. We therefore adopt § __.103(a)(2)(ii) with this one change.
The Agencies specifically requested comment on whether this 180-day implementation period would provide Agency-regulated institutions and their employees with adequate time to complete the initial registration process. The Agencies also inquired as to whether an alternative schedule for implementation and initial registrations would be appropriate, what such an alternative schedule should be, and whether, and how, a staggered registration process should be developed.
The Agencies received many comments on this implementation period. Some commenters supported a 180-day period. Others supported the proposed 180-day implementation period provided that certain conditions are met, such as excluding loan modification and mitigation employees from the registration requirements, allowing batch processing, simplifying the employer verification requirements, and immediate confirmation of registration without delay for fingerprint or background check results.
Other commenters, however, stated that the proposed 180-day implementation period would not provide sufficient time to register the large number of employees subject to the registration requirement, properly train all employees, develop compliance policies, and program and implement system controls. Many noted that a longer period would prevent the Registry from being overwhelmed with registrations. Two commenters, including one Federal agency, stated that additional time will particularly benefit smaller financial institutions. Another commenter indicated that the time, effort, and resources required to meet new systems requirements can be
The Agencies understand that Agency-regulated institutions and their mortgage loan originator employees will face certain implementation issues in complying with the registration requirements established by this rulemaking. However, as indicated above, due to various system modifications and enhancements required to make the existing system capable of accepting Federal registrants, the system is not expected to be available to accept Federal registrations before January 2011. The 180-day implementation period will not begin until the system is available to accept Federal registrations. This in effect provides institutions with an implementation period longer than 180 days as institutions and their employees can begin to implement the final rule's requirements before the Registry is operational,
Many commenters indicated support for a staggered implementation period. Some noted that this could be based on institution size, loan origination volume, or employee qualifiers (such as birth date or last name). Some of these commenters, however, noted that they would support a staggered schedule only if it would provide a registration period of equal length for all registrants. Other commenters supported a staggered process that would give smaller institutions or institutions that do not originate many residential mortgage loans the greatest amount of time to comply with the requirements.
The Agencies agree that a staggered implementation process for those institutions that prefer one would be useful. Such a process would allow institutions to register their employees within specific time periods during the implementation period with the assistance of dedicated staff. Staggered registration would limit the number of originators registering at any one time and spread the registration of originators throughout the implementation period. Although such a schedule mostly would benefit those institutions with the largest number of mortgage loan originators, it also should enable the Registry to accommodate all registrations in a more timely and efficient manner, thereby benefiting all institutions. Accordingly, the Agencies will work with CSBS and SRR to develop a staggered registration schedule for institutions, in particular those that are estimated to have a large number of mortgage loan originators subject to Federal registration, that request such a schedule. This staggered process would occur within the 180-day implementation period in order not to delay the registration of mortgage loan originators and the ability of consumers to fully utilize the Registry. Because institutions that request a staggered registration process would have a dedicated period during which to register within the 180-day period, registration burdens may be eased for these institutions, lessening their need for the full 180-day registration period. Details on this staggered approach will be provided to applicable institutions when they have been finalized and may include the availability of this dedicated staff prior to the start of the registration period.
Specifically, proposed paragraph (a)(4) of § __.103 provided that if a new employee of an Agency-regulated institution had previously registered with, and obtained a unique identifier from, the Registry prior to becoming an employee of that institution and has maintained that registration (or license, if previously employed by a non-Agency-regulated institution), the registration requirements of this final rule are deemed to be met provided that: (1) The employee's employment information in the Registry is updated and the employee has completed the required authorizations and attestation; (2) new fingerprints of the employee are provided to the Registry for a background check, except in the case of mergers, acquisitions or reorganizations; (3) information concerning the new employing institution is provided to the Registry pursuant to § __.103(e)(1)(i), to the extent the institution has not previously met these requirements, and § __.103(e)(2)(i);
Some commenters requested that the Agencies reduce these requirements in order to further facilitate the movement of employees from one institution to another and prevent unnecessary interruption of mortgage origination activity. However, the Agencies believe that the current provision adequately reduces regulatory burden on Agency-regulated institutions as well as the residential mortgage industry when registered mortgage loan originators change employers and will allow a mortgage origination transaction in process at the time of the employment change to proceed smoothly. It requires less than what would be needed to
In response to a comment, the Agencies note that paragraph (a)(4) of § __.103 applies when an employee of an Agency-regulated institution becomes an employee of another Agency-regulated institution, regardless of whether the entities are affiliated. Similarly, when an employee of a subsidiary of an Agency-regulated institution becomes an employee of the institution, the requirements of § __.103 apply.
In order to reduce regulatory burden and to prevent an interruption in mortgage origination activity, the proposed § __.103(a)(4)(ii) provided a 60-day grace period to comply with the § __.103(a)(4)(i) requirements when a registered mortgage loan originator becomes an employee of an Agency-regulated institution as a result of an acquisition, merger, or reorganization. Some commenters agreed that this 60-day grace period is appropriate and provides the proper balance between implementing the purpose of the S.A.F.E. Act and protecting consumers. Other commenters, however, requested that this period be extended to 90 or 180 days due to the complexity and protracted nature of the merger and acquisition process. Some commenters also requested that a 60-day grace period apply to all changes in employment, regardless of whether the change is the result of a merger or acquisition transaction.
Final § __.103(a)(4)(ii) retains the proposed 60-day grace period for a change in employers due to acquisitions, mergers, or reorganizations. The Agencies find that 60 days is an adequate time for institutions and their employees to update registrations in the case of these transactions and agree with the commenters who stated that this time period balances the purposes of the S.A.F.E. Act and consumer protection.
Additionally, the Agencies find that a grace period is not necessary when a mortgage loan originator changes employers for other reasons. This situation does not raise the same compliance burden as does an acquisition, merger, or reorganization, in which a large number of employees are switching employers at the same time. Therefore, as proposed, the final rule requires that these registered mortgage loan originators comply with the requirements of § __.103(a)(4) before they may originate residential mortgage loans for their new employer.
Another commenter requested that the Agencies permit an employer to submit one update concerning all affected employees in the case of an acquisition, merger, or reorganization, rather than having each individual employee submit what is largely identical information about their change in employer. The Agencies agree that this approach would reduce burden for the employee, institution, and the Registry. We specifically have instructed CSBS and SRR to develop a process for these transactions that would allow the bulk transfer of business location and contact information for all mortgage loan originators from one institution to another. However, each individual employee still must complete the authorization and attestation for their own updated registration record.
The Agencies adopt proposed § __.103(a)(4) with the addition of the language discussed above related to fingerprints in § __.103(a)(4)(i)(B). The Agencies also have modified § __.103(a)(4) to clarify that an employee of a bank who has been properly registered or licensed as a mortgage loan originator need only update information in the Registry, and complete the required authorizations and attestation, whether that employee is a new employee of the Agency-regulated institution or becomes subject to this final rule while an employee of the institution.
The Agencies note that the registration of a mortgage loan originator who leaves any employer will be recorded as inactive in the Registry until he or she is hired by another entity, his or her record is updated in accordance with the final rule's requirements, and the new employer acknowledges employing the mortgage loan originator through the Registry. The individual will be prohibited from acting as a mortgage loan originator at an Agency-regulated institution until such time as the registration is reactivated, unless covered by the 60-day grace period for acquisitions, mergers, and reorganizations.
Some commenters opposed the requirement to renew registrations annually as overly burdensome and unnecessary. Some suggested alternatively that a registration remain valid until there is a change in employment status or other change that requires an update of database information. Others recommended that the renewal be every two, three, or five years, or based on the experience of the originator. The Agencies understand that an annual renewal process requires an expenditure of time and resources by individual originators and their employing Agency-regulated institutions. However, section 1504 of the S.A.F.E. Act (12 U.S.C. 5103), requires that mortgage loan originators maintain their registration annually. Therefore, the Agencies can not eliminate, or lengthen, the time between renewals. For this reason, the Agencies adopt § __.103(b)(1)(i) as proposed without revision. We note that the automated processing of annual renewals, as more fully described below, could lessen the impact on the resources needed for these renewals.
One commenter suggested that the final rule not require a mortgage loan originator to renew his or her
In addition to the annual renewal, proposed § __.103(b)(1)(ii) provided that a registration must be updated within 30 days of the occurrence of any of the following events: (1) A change in the employee's name; (2) the registrant ceases to be an employee of the institution; or (3) any of the employee's responses to the information required for registration pursuant to paragraphs (d)(1)(iii) through (viii) of § __.103 become inaccurate.
A few commenters requested that the Agencies increase this 30-day period for updates to 60 or 90 days. The Agencies believe that the Registry should be updated as soon as possible and therefore have not adopted this requested change. Updates are needed on only a case-by-case basis and therefore, unlike in the case of mergers and acquisitions, should not be burdensome to registrants or employing institutions. In addition, the 30-day updating period is consistent with what is required currently for State-licensed mortgage loan originators. Therefore, final § __.103(b)(1)(ii) includes a 30-day update requirement, as proposed.
Proposed § __.103(b) also required any employee who registers with the Registry to maintain his or her registration unless the employee is no longer a mortgage loan originator. As a result of this provision, once an employee registers as a loan originator with the Registry, the employee will be required to continue this registration until he or she is no longer engaged in the activity of a mortgage loan originator, even if, in any subsequent 12-month period, the employee originates fewer mortgage loans than the number specified in the
As indicated in the proposal's
The Agencies agree that on rare occasions there may be exigent circumstances or situations when the Agencies may deem it appropriate to temporarily waive or suspend the requirements of this rule or extend the initial registration or renewal periods. The Agencies do not believe, however, that the final rule must include specific language to effectuate such waivers, suspensions, or extensions. As is the Agencies' practice in other supervisory contexts, if a situation arises that warrants such an action, such as a serious interruption of communication, computer, or fingerprint collection systems at one or more institution(s) caused by circumstances beyond the institution's control, or an extended interruption of Registry service, the Agencies will announce the availability of waivers, suspensions, or extensions of time. In addition, Agency-regulated institutions may contact their regulators to discuss possible relief on a case-by-case basis.
We have made two changes to this provision in the final rule. Because the Registry is not technically capable of determining when a registrant actually receives its notification that the registration is complete, we have amended this provision to indicate that a registration is effective when the Registry transmits notification to the registrant that the registrant is registered. In addition, we have streamlined this provision to clarify that this notification of registration completes the registration process. We have made similar changes to § __.103(c)(2) regarding renewals and updates.
We note that, except as provided by the 180-day implementation period in § __.103(a)(3) or the 60-day grace period provided in § __.103(a)(4), an employee must not engage in residential mortgage loan origination activity if his or her registration is not yet effective or has not been renewed or updated pursuant to this rule.
A number of commenters requested further clarification of this effective date, and specifically requested that the effectiveness of the registration not be delayed for the processing of a registrant's fingerprints or receipt of a criminal background check. The Agencies did not intend to delay the effective date for fingerprint or criminal background check processing. There is no requirement for the processing of these fingerprints or the completion of a background check before a registration becomes effective. Nor, as indicated previously in this
Section 1510 of the S.A.F.E. Act (12 U.S.C. 5109), expressly authorizes the Registry to “charge reasonable fees to cover the costs of maintaining and providing access to information from
Under proposed § __.103(d), the employing Agency-regulated institution would have been required to have its registering employees submit, or to submit on behalf of its employees, information regarding the employee's identity (name and former names, social security number, gender, and date and place of birth) and home and business contact information; date the employee became an employee of the Agency-regulated institution; financial services-related employment and financial history for the past 10 years; criminal history involving certain felonies and misdemeanors; history of financial services-related civil actions, arbitrations and regulatory and disciplinary actions or orders; financial services-related professional license revocations or suspensions; voluntary or involuntary employment terminations based on violations of law or industry standards of conduct; and certain actions listed above that are pending against the employee. This information is similar to that required by the current NMLS data collection form for mortgage loan originators regulated by a State, form MU4. The information applies to employees but includes responsive information prior to their employment at the Agency-regulated institution.
The Agencies received many comments on this provision. Although some supported the proposed list of information to be submitted to the Registry, many others requested that the Agencies narrow this list, stating that the extent of personal information required by the proposal is overbroad, intrusive, and burdensome. Commenters also requested that we clarify the information that is required to be submitted.
Based on the comments received, the Agencies have carefully reviewed this list and agree that some of this information is more relevant for licensing purposes than for registration. In particular, we found that the collection of some of this information, which would not be publicly available to consumers, is not necessary to implement the purposes and requirements set forth in section 1502 of the S.A.F.E. Act (12 U.S.C. 5101).
Based on this review, we have deleted proposed § __.103(d)(1)(iii) from the final rule, which would have required submission of the registrant's financial history information (such as bankruptcies, unsatisfied judgments, liens, paid-out bonds,
In addition, the submission of employment termination information to the Registry is more appropriate for the purpose of licensing, as a State regulator would use this information to make a decision on licensure, conducting further inquiry, if appropriate. Because this sensitive information would not be made public, we have deleted proposed § __.103(d)(1)(x), which required submission of information regarding employment terminations to the Registry, from the final rule.
We also have not included in the final rule the requirement to provide information on pending matters. Because these matters are not final actions, requiring this information would effectively penalize mortgage loan originators before a decision had been rendered. We note that if a pending action does become final, it must be reported to the Registry and made publicly available within 30 days, pursuant to § __.103(b)(1)(ii).
The Agencies also have revised the requirement in proposed § __.103(d)(1)(iv) to provide information on the mortgage loan originator's felony and misdemeanor criminal history. The proposal provided that the registrant supply information regarding felony convictions or other final criminal actions involving a felony against the employee or organizations controlled by the employee; or misdemeanor convictions or other final misdemeanor actions against the employee or organizations controlled by the employee involving financial services, a financial services-related business, dishonesty, or breach of trust. After further review, the Agencies found the proposal's language too broad, and as a result, would have required the registrant to disclose convictions that are not directly relevant to his or her work as a mortgage loan originator. As such, this information is not necessary to meet the purposes or requirements of the S.A.F.E. Act.
Final and redesignated § __.103(d)(1)(iii) removes the distinction between felonies and misdemeanors and narrows the category of final actions an employee must disclose to the Registry to final criminal actions that involve dishonesty or breach of trust or money laundering. In addition, to fully encompass all relevant final criminal actions, the final rule amends this category of information to include an agreement to enter into a pretrial diversion or similar program in
The Agencies find the remaining information required by the proposal to be submitted to the Registry relevant to the registration process and the purposes and requirements of the S.A.F.E. Act. Section 1507(a)(2) of the S.A.F.E. Act (12 U.S.C. 5106(a)(2)) specifically requires that information regarding the registrant's identity, including personal history and experience, be furnished to the Registry. Identifying information, such as name (and any other names used, such as a nickname, full legal name, or maiden name), home address, address of principal business location and business contact information (business phone number and e-mail address) and the registrant's prior financial services-related employment history (not all of which will be made public) is necessary to meet this requirement. In addition to this information, the registrant's social security number, gender, and date and place of birth are necessary to conduct the criminal history background check required by section 1507(a)(2)(A) of the S.A.F.E. Act (12 U.S.C. 5106(a)(2)(A)). Likewise, the required information concerning final criminal actions (as amended), financial services-related civil judicial actions, publicly-adjudicated regulatory and disciplinary actions or orders, financial services-related professional license revocations or suspensions, and financial services-related customer-initiated arbitration and civil actions will be made public on the Registry, and, therefore, further the purpose of the S.A.F.E. Act to provide consumers with easily accessible information on disciplinary and enforcement actions against the originator. The Agencies therefore adopt the final rule with the requirement to provide this information to the Registry.
Pursuant to section 1507(a)(2)(A) of the S.A.F.E. Act (12 U.S.C. 5106(a)(2)(A)), proposed § __.103(d)(xii) (redesignated as § __.103(d)(ix) in the final rule) also required employees to provide fingerprints, in digital form if practicable, to the Registry for submission to the FBI and any governmental agency or entity authorized to receive such information for a State and national criminal history background check. The proposal permitted the use of fingerprints currently on file with the employing Agency-regulated institution if taken less than three years prior to the employee's registration with the Registry.
This requirement elicited many comments. Some commenters requested that the Agencies permit institutions to continue accessing existing fingerprint channels recognized and supported by existing relations with the FBI. Some commenters also suggested that the final rule should deem background checks conducted by the institution during the hiring process as compliant with the S.A.F.E. Act's fingerprint and background check requirement. Commenters also requested that the final rule permit the submission of fingerprints collected 10 or 15 years prior to registration. Many of the commenters argued that an age limit is unnecessary as fingerprints do not change over time. In addition, commenters noted that allowing the use of existing fingerprints, no matter when collected, will reduce registration costs and delays.
The S.A.F.E. Act specifically requires fingerprints to be furnished to the Registry for purposes of submission to the FBI, and any governmental agency or entity authorized to receive such information for a State and national criminal history background check.
In order to ensure that fingerprints are up-to-date, we have amended the redesignated § __.103(d)(1)(ix) to provide that fingerprints that are less than three years old may be used to satisfy the requirement to furnish fingerprints to the Registry. As indicated previously, this three-year age limit is consistent with the procedures to be used by SRR for mortgage loan originators licensed by a State. Institutions should consult their existing channelers regarding the furnishing of fingerprints that are less than three years old to the Registry.
CSBS and SRR are currently modifying the NMLS to act as a channeler for fingerprints of State license applicants, pursuant to the S.A.F.E. Act, and Federal registrants may use this same fingerprinting process when the NMLS is modified to accept Federal registrations.
Some commenters asked the Agencies to clarify whether the Registry may collect fingerprints and submit a request for a background check before the Agency-regulated institution employs a mortgage loan originator rather than waiting until after that individual is hired to submit fingerprints to the Registry. The Agencies have no objection to the Registry processing a background check just prior to the employment of a mortgage loan originator, should the Registry provide this service, and believe this could satisfy the requirements of the rule.
Some commenters also expressed the view that the Registry should have the capability to accept fingerprints in both
In order to provide relevant information to consumers and to implement the purposes of the S.A.F.E. Act, paragraph (d)(2)(iii) requires the employee to authorize the Registry to make available to the public the information required to be submitted to the Registry pursuant to § __.103(d)(1)(i)(A) and (C) and (d)(1)(ii) through (viii) (his or her name, other names used, name of current employer(s), current principal business location(s) and business contact information, 10 years of relevant employment history, and publicly adjudicated disciplinary and enforcement actions and arbitrations against the employee).
Although this rulemaking permits the employing institution or other institution employees to submit the information required by § __.103(d)(1) to the Registry on behalf of the registering employee, the employee, and not the employing institution or its other employees, must complete the attestation and authorizations required by § __.103(d)(2) for the registration to be complete. This task may not be delegated because it is necessary for the Registry to authenticate the employee's information.
The Registry plans to make this information available to the public in two phases. The first phase, implemented at the end of the initial registration period, would provide for public accessibility of the employee's name; other names used; name of current employer(s); current principal business location(s) and business contact information; and employment history. The remaining categories of information (publicly adjudicated disciplinary and enforcement actions and arbitrations against the employee) would be made public at a later date, once the Registry, in consultation with the Agencies, has designed and implemented a system through which the registrant may provide additional explanatory information to accompany a positive response to any of the disclosure questions regarding criminal history or the other information requested in paragraphs (d)(1)(iii) through (viii). The Agencies note that once the Registry makes this enhancement, registered mortgage loan originators will be able to provide this explanatory information at any time, including during the annual renewal process, and that this explanatory language may be made public. Relevant nonpublic information submitted to the Registry will be only accessible to the Agencies and State regulators of mortgage originators, as appropriate, and the submitting mortgage loan originator and his or her employing institution.
The Agencies received many comments on the public availability of personal information, particularly on how the Registry will store and prevent the unauthorized use of this personal information, and how nonpublic personal information will be appropriately protected. One commenter specifically stated that the final rule should take appropriate measures to ensure that the electronic submissions to the Registry are properly encrypted, authorized, and authenticated, and that the Registry complies with the FBI Criminal Justice Information Services Security Policy (CJIS Security Policy).
The Agencies are well aware of the security concerns associated with providing personal information to the Registry and are contracting with SRR to ensure appropriate data protection elements are incorporated within the Registry to ensure compliance with the requirements of the Federal Information Security Management Act (FISMA) of 2002, PL 107-347; the CJIS Security Policy; and the related Security and Management Control Outsourcing Standard.
As a channeler and outsourcer of fingerprints, the FBI requires the Registry to comply with its CJIS Security Policy. The CJIS provides the minimum level of information technology security requirements determined acceptable for the transmission, processing, and storage of the nation's criminal justice information systems data. The purpose of this policy is to establish uniformity and consistency in safeguarding criminal justice information security data which is accessed via networks throughout the Federal, State, and local user community. However, this policy does not prohibit more stringent security policies.
The requirements for protecting the privacy and security of the personal information obtained from employees of Agency-regulated institutions, and the confidential information obtained from the institutions themselves, are essentially similar whether a particular mortgage loan originator is State licensed or Federally registered. SRR and CSBS will institute security protocols to protect the privacy and security of such information.
The Agencies adopt § __.103(d)(2) as proposed, with the following conforming and clarifying changes.
We also have added a new paragraph (d)(3) to clarify that an Agency-regulated institution may identify an employee or employees of the bank who may submit the employee information required by paragraph (d)(1)(i) to the Registry on behalf of the institution's employees, provided that this individual, and any employee delegated this authority, does not act as a mortgage loan originator, consistent with § __.103(e)(1)(i)(F). In addition, as more fully explained below, this new paragraph specifically authorizes an institution to submit to the Registry some or all of the employee information required by paragraph (d)(1)(i) and the institution's information required by § __.103(e)(2) for multiple employees in bulk through batch processing in a format to be specified by the Registry, to the extent such batch processing is made available by the Registry.
Paragraph (e)(1) of § __.103 of the final rule requires the employing Agency-regulated institution to submit certain information to the Registry as a base record in connection with the registration of one or more mortgage loan originators. Specifically, the Agency-regulated institution must provide its name; main office address; business contact information, such as business phone number or e-mail address (not required by the proposed rule); primary Federal regulator; Employer Tax Identification Number (EIN) issued by the Internal Revenue Service; primary point of contact information; and contact information for “system administrators.”
System administrators will have the authority to enter data required in paragraph (e) of this section on the Registry and will be responsible for keeping institution information and the list of employees registered with the Registry current. These individuals, however, may not act as mortgage loan originators. The Agencies recognize that some small institutions may not be able to comply with this latter requirement because all of their staff may be registered mortgage loan originators. Therefore, we have amended this provision to exempt institutions with 10 or fewer full time equivalent employees from the requirement that system administrators do not act as mortgage loan originators. However, this exemption does not apply to a subsidiary of an Agency-regulated institution as the staff at the parent institution could perform this function. In the Agencies' experience, institutions with more than 10 full time equivalent employees generally have sufficient staff resources to support the segregation of these functions. The system administrators may delegate their authority and assign as many additional system users as necessary to comply with the registration requirements of the S.A.F.E. Act and the final rule, provided the delegated administrators meet this paragraph's requirements. While the primary point of contact also can be one of the institution's system administrators, the institution's management is responsible for ensuring proper oversight of the system administrator's activities.
In addition, paragraph (e)(1)(i)(C) of § __.103 requires an Agency-regulated institution to provide its Research Statistics Supervision Discount (RSSD) number as identifying data for validating the base record. The RSSD database is maintained by the Board. The Agencies will provide the Registry with an extract of the Board's database, indexed by RSSD number, to facilitate an Agency-regulated institution's authorized access to the Registry and its establishment of a new base record. Upon receiving the information for a new base record from an Agency-regulated institution, the Registry will confirm the information by comparing the application with RSSD data supplied by the Agencies. The Agencies will establish a mechanism by which Agency-regulated institutions that do not have an RSSD number will be added to the RSSD database.
If the institution is a subsidiary of an Agency-regulated institution, the final rule requires the subsidiary to indicate that it is a subsidiary of the parent and to provide its parent institution's RSSD number in addition to its own RSSD number, if it has one. It is not required to obtain its own RSSD number. The proposal had required that the subsidiary provide its parent's name. We have revised this provision in the final rule to require the subsidiary instead to provide its parent's RSSD number, which is a more accurate method of identifying the parent institution than by name.
Some Farm Credit System-affiliated commenters requested that the Agencies consider using the FCA's existing identification system as an alternative for the RSSD number for FCS institutions. The Agencies decline to make this modification. Validation of Agency-regulated institutions will be most efficient and complete if all institutions can be identified through a single identification system. The FCA will provide FCS institutions with information on how to obtain an RSSD number for the purposes of this rulemaking. The Agencies received no other significant comments on § __.103(e).
We also have amended proposed § __.103(e)(1) to require system administrators to follow NMLS protocols to verify their own identity and to attest that they have the authority to enter data on behalf of the Agency-regulated institution, that the information submitted pursuant to paragraph (e) is correct, and that the Agency-regulated institution will keep the information required by paragraph (e) current and will file accurate supplementary information on a timely basis. In addition, we have amended this paragraph to require institutions to renew the information they have submitted to the Registry pursuant to § __.103(e) on an annual basis. We have added these two requirements to conform to system protocols identified by CSBS and SRR.
As in the proposal, renumbered paragraph (e)(1)(iii) of § __.103 requires an Agency-regulated institution to update any information it has submitted within 30 days of the date that the information becomes inaccurate.
As proposed, § __.103(e)(2) of the final rule requires an Agency-regulated institution to provide information to the Registry for each employee who acts as a mortgage loan originator. The Agency-regulated institution must: (1) Confirm that it employs the registrant, after all the information required by paragraph (d) of this section has been submitted to the Registry; and (2) within 30 days of the date the registrant ceases to be an employee of the institution, provide notification that it no longer employs the registrant and the date the registrant ceased being an employee. This information will link the registering mortgage loan originator to the Agency-
The Agencies agree that some form of batch processing would be helpful for the registration process to run smoothly and efficiently and for all initial registrations to be completed within the 180-day initial registration period. Batch processing would be especially beneficial to larger institutions who must register tens of thousands of employees. The Agencies therefore are working with CSBS and SRR to ensure that the Registry supports the batch processing of large numbers of registrations by Agency-regulated institutions. As indicated above, we have added a new § __.103(d)(3) to specifically permit institutions to submit a portion of the information required by paragraphs (d)(1)(i) and (e)(2) of § __.103 for multiple employees in bulk through batch processing, to the extent such batch processing is made available by the Registry.
Specifically, it is our intent that the Registry will be able to provide Agency-regulated institutions the capability to submit batch registration of a portion of the information for multiple mortgage loan originators and to electronically notify the originators of the need to complete the registration. The Agencies expect the batch file to contain at least enough information to establish a mortgage loan originator record (such as the institution's name and RSSD number and employee name, SSN, and e-mail address). We also expect that the Registry will provide the capability for an Agency-regulated institution to confirm its relationship with mortgage loan originators either individually or in bulk. The Agencies, CSBS, and SRR are in the process of specifying the details and means of this batch processing. Batch processing should be available for institutions at the start of the initial registration period, and we will provide further information on batch processing prior to that time.
Proposed § __.104 required Agency-regulated institutions that employ mortgage loan originators to adopt and follow written policies and procedures designed to ensure compliance with the requirements of the final rule. The proposal stated that the policies and procedures must be appropriate to the nature, size, complexity, and scope of the mortgage lending activities of the Agency-regulated institution and must, at a minimum, include eight specified provisions.
The Agencies received many comments on these required policies and procedures. Although some supported them, others found the requirement to have detailed written plans for how to comply with the final rule unnecessary and overly burdensome, especially in light of other regulatory requirements imposed on financial institutions. A few commenters suggested that the Agencies develop model guidelines for, or samples of, these policies and procedures to reduce implementation and compliance costs for Agency-regulated institutions and to reduce burden on examiners in monitoring compliance. Commenters also requested further clarification of specific provisions and an explanation as to the reason for the provision.
The Agencies continue to believe that requiring Agency-regulated institutions to establish policies and procedures is an appropriate way to ensure and monitor compliance with this final rule. Appropriate policies and procedures provide an institution and its employees with the expectations of the institution's board and include the specific implementing guidance that is applicable to the activities of that institution. Furthermore, such policies and procedures are necessary to enable Agency examiners to evaluate the effectiveness of institutions' implementation of the S.A.F.E. Act requirements that apply to them. Institutions have the responsibility to adopt policies and procedures appropriate to their operations. The final rule therefore includes a policies and procedures requirement. Comments on specific provisions are addressed below.
First, proposed § __.104(a) required policies and procedures to establish a process for identifying which employees of the institution are required to be registered mortgage loan originators. This provision highlights a basic and necessary action each institution must take to comply with the rulemaking. We did not receive specific substantive comments on this requirement and therefore adopt § __.104(a) as proposed.
Second, proposed § __.104(b) required policies and procedures to require that all employees of the institution who are mortgage loan originators be informed of the registration requirements of the S.A.F.E. Act and the proposed rule and be instructed on how to comply with these requirements and procedures, including registering as a mortgage loan originator prior to engaging in any mortgage loan origination activity. As with the first provision, this action is necessary for Agency-regulated institutions to comply with the rule and facilitates employee compliance. We did not receive substantive comments addressing this requirement and therefore adopt § __.104(b) as proposed.
Third, proposed § __.104(c) required that policies and procedures must establish procedures to comply with the unique identifier requirements in § __.105. Once again, this provision merely reiterates that Agency-regulated institutions must ensure compliance with a requirement of the rulemaking. We received no specific comments on this requirement and therefore adopt it as proposed.
Fourth, proposed § __.104(d) required policies and procedures to establish reasonable procedures for confirming the adequacy and accuracy of employee registrations, including updates and renewals, by comparison with the institution's records. We adopt this provision as proposed. However, to address the many comments on this requirement, the Agencies clarify that they will consider an institution to have reasonable procedures if it confirms the information supplied to the Registry that is in the institution's personnel files. Typically this information would include the employee's identifying information, such as the employee's name; home address; business address and contact information; social security number; gender; date and place of birth; and financial services-related civil actions, arbitrations and regulatory
Fifth, proposed § __.104(e) required institutions to establish reasonable procedures and tracking systems for monitoring compliance with registration requirements and procedures. Under this regulatory provision, Agency-regulated institutions will be expected to demonstrate compliance with the registration and renewal requirements of this final rule, such as by maintaining appropriate records. The action required by this provision is one that an institution must take to ensure compliance with the rule and may be done in a number of different ways, such as by using an institution's existing tracking systems. Having received no substantive comments on this requirement, the Agencies adopt it as proposed.
Sixth, proposed § __.104(f) required policies and procedures that provide for periodic independent testing of the Agency-regulated institution's policies and procedures for compliance with the S.A.F.E. Act and the final rule and for such testing to be conducted by institution personnel or by an outside party. This compliance testing is standard procedure for Agency-regulated institutions as part of their internal controls, and we adopt it as proposed with one change. We have clarified that this compliance testing must be done on an annual basis, a necessary internal audit interval.
Seventh, proposed § __.104(g) required policies and procedures to provide for appropriate disciplinary action against any employee who fails to comply with the registration requirements of the S.A.F.E. Act, this rule, or the related policies and procedures of the institution, including prohibiting such employees from acting as mortgage loan originators or other appropriate disciplinary actions. The action required by this provision is one that an institution would need to take to ensure compliance with the rule. Having received no substantive comments on this requirement, we adopt it as proposed.
Finally, proposed § __.104(h) required policies and procedures to establish a process for reviewing the criminal history background reports on employees received from the FBI through the Registry, taking appropriate action consistent with applicable law and rules with respect to these reports, maintaining records of these reports, and documenting any action taken with respect to such employees consistent with applicable recordkeeping requirements, if any. A few commenters requested clarification on this requirement. As noted by other commenters, section 19 of the FDI Act (12 U.S.C. 1829), in general, prohibits insured depository institutions from employing a person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering or has entered into a pretrial diversion or similar program in connection with a prosecution for such offense. Similarly, section 5.65(d) of the Farm Credit Act (12 U.S.C. 2277a-14 (d)), states “[e]xcept with the prior written consent of the Farm Credit Administration, it shall be unlawful for any person convicted of any criminal offense involving dishonesty or a breach of trust to serve as a director, officer, or employee of any System institution.” For Federally insured credit unions, NCUA intends to rely upon 12 U.S.C. 1786(i) and 12 CFR 741.3(c). We have revised this provision of the final rule to include references to the appropriate statutory provision.
The Agencies have added a new provision to clarify the responsibilities of Agency-regulated institutions regarding their contracts relating to mortgage loan originations. Institutions must establish procedures designed to ensure that any third party with which it has arrangements related to mortgage loan origination has policies and procedures to comply with the S.A.F.E. Act, including appropriate licensing and/or registration of individuals acting as mortgage loan originators. Agency-regulated institutions should monitor third party entities' compliance with these policies and procedures. This provision will ensure that individuals acting as mortgage loan originators on behalf of an Agency-regulated institution are either State licensed and registered and/or Federally registered.
One commenter requested that the final rule limit an institution's oversight of its employees' compliance with this rulemaking only to those activities of the employee that are within the scope of his or her employment at the institution. It is not our intention to require the institution to enforce the final rule's requirements with respect to activities of its employees that are conducted outside of the employee's scope of employment with that institution and beyond the institution's control, and we have added language to § __.104 to clarify this.
This final rule's requirement to adopt these policies and procedures applies to all Agency-regulated institutions that employ individuals who act as mortgage loan originators, regardless of the application of any
Furthermore, the Agencies note that, consistent with the S.A.F.E. Act, the Registry will not screen or approve registrations received from employees of Agency-regulated institutions. Instead, it will be the repository of, and conduit for, information on those employees who are mortgage loan originators at Agency-regulated institutions. Pursuant to §§ __.104(d) and (h) of the final rule, it will be the responsibility of the Agency-regulated institution to establish reasonable procedures for confirming the adequacy and accuracy of employee registrations as well as to establish a process for reviewing any criminal history background reports received from the Registry.
The Agencies proposed in § __.105(a) to require an Agency-regulated institution to make the unique identifier(s) of its registered mortgage loan originator(s) available to consumers in a manner and method practicable to the institution. Proposed § __.105(b) required a registered mortgage loan originator to provide the originator's unique identifier to a consumer upon request, before acting as a mortgage loan originator, and through the originator's initial written communication with a consumer, if any.
Although a mortgage loan originator may change his or her name, change employment, or move, the unique identifier assigned to the originator by the Registry at the originator's original registration will remain the same. Once public access to the Registry is fully functional, the unique identifier will enable consumer access to an individual mortgage loan originator's profile stored in the Registry, including the mortgage loan originator's publicly available registration information, any State mortgage licenses held (active or inactive), employment history, and publicly adjudicated disciplinary and enforcement actions. If a mortgage loan originator is simultaneously employed by more than one State or Agency-regulated institution, that information
We received a number of comments on this requirement—some noting that it is cumbersome and of limited benefit to the consumer. However, the S.A.F.E. Act requires each mortgage loan originator to obtain a unique identifier to facilitate the electronic tracking of loan originators, and the uniform identification of, and public access to, the employment history and publicly adjudicated disciplinary and enforcement actions against a mortgage loan originator. In order to effectuate this requirement, a mortgage loan originator and the employing institution must ensure that the consumer has access to the originator's unique identifier. This access must be made available early enough in the relationship with the originator to enable the consumer to access the Registry before the consumer commits to the mortgage loan transaction. Because a consumer may not be aware of the Registry, it is important that both the institution and originator make this information available to the consumer, and not only just upon the consumer's request, as suggested by a number of commenters. Therefore, we adopt this requirement as proposed, with one clarifying change described below.
As noted in the
We note that the Board has proposed amendments to 12 CFR 226 (Regulation Z) that would require disclosure of the unique identifier as part of TILA disclosures, which generally must be provided to a borrower within three business days of the residential mortgage loan application and seven business days before consummation of the transaction.
The proposed Appendix included a nonexclusive list of examples of activities that fall within or outside the S.A.F.E. Act's definition of a mortgage loan originator. Specifically, the Appendix provided examples of activities that are, and are not, illustrative of taking an application, and offering or negotiating terms of a mortgage loan for compensation or gain. The Agencies note that an employee of an Agency-regulated institution is only subject to the S.A.F.E. Act to the extent that both prongs of the two-part test for acting as a mortgage loan originator are met, and that employees who take applications but do not offer or negotiate terms of a mortgage loan, or vice versa, do not meet the definition. Commenters generally asked the Agencies to provide more detail to the examples and to address whether specific activities of Agency-regulated institution employees would be covered by the two-prong test of a mortgage loan originator.
The Agencies have made several modifications to the examples of taking an application. The modified examples clarify that taking an application occurs when the mortgage loan originator receives information in connection with a request for a mortgage loan that will be used to determine whether the consumer qualifies for a loan. The Agencies note that the information may be provided by another person on behalf of the consumer.
Some commenters questioned whether an employee takes an application if that employee only collects limited data about the consumer or does not decide what data to collect. Another commenter suggested that when an employee collects the limited information about the consumer that is required by an automated loan approval system and quotes interest rates and fees for a specific mortgage loan product as generated by the system, that employee should not be considered to be engaged in taking an application. The Agencies disagree, as the limited information described by the commenter is sufficient to qualify the consumer for a specific mortgage product and terms. The example of taking an application was revised to address the receipt of information to be used to determine whether the consumer qualifies for a mortgage loan, which includes situations where there are limitations on the data collected or on the employee's discretion, as described by the commenter.
Similarly, these commenters also requested clarification as to whether an employee takes an application when the employee enters information into an online application in the process of receiving information from the consumer. The Agencies have provided clarification that the example of taking an application applies even if the employee is inputting information into an online or other automated approval system on behalf of the consumer. The Agencies do not intend this example to address employees who are engaged in the clerical act of inputting information from a loan application into an automated approval system on behalf of a loan officer. Furthermore, contrary to the suggestions of some commenters, the Agencies have clarified that an employee may take an application even if the employee is not engaged in approval of the mortgage loan. An employee also may take an application even if the employee does not take an application fee.
The Agencies also have clarified that, contrary to the suggestion of some commenters, an employee may take an application even if the employee has received the consumer's information indirectly in order to make an offer or negotiate terms of a mortgage loan. An
The Agencies also have provided further detail regarding the examples of activities that do not constitute taking an application. In response to questions raised by commenters, the Agencies have further clarified that the following activities would not constitute taking an application: (1) Assisting a consumer who is filling out an application by explaining the qualifications or criteria necessary to obtain a mortgage loan product, (2) describing the steps that a consumer would need to take to provide information to be used to determine whether the consumer qualifies for a mortgage loan or otherwise explaining the mortgage loan application process, and (3) responding to an inquiry regarding a prequalified offer that a consumer has received from an Agency-regulated institution, collecting only basic identifying information about the consumer and forwarding the consumer to a mortgage loan originator.
The Agencies also have revised the examples of offering or negotiating terms of a mortgage loan in response to the comments. The Agencies have revised one example to clarify that providing a disclosure of the mortgage loan terms after application pursuant to the Truth in Lending Act is included in presenting a mortgage loan offer. A number of commenters asked the Agencies to modify the examples to carve out employees who are limited in their ability to negotiate or finalize the terms of a mortgage loan. Some commenters posited that employees should be excluded if they only offer the loan rate to a consumer but are not permitted to negotiate the rate, or only quote a rate approved by an automated online system. Similarly, a commenter expressed the view that an employee would not offer or negotiate terms of a mortgage loan if involvement of a loan officer also was necessary to finalize the loan terms or otherwise conclude the mortgage loan approval process. The Agencies believe that many of these situations discussed by the commenters would involve an offer or a negotiation of a loan. Thus the revised examples clarify that presenting a mortgage loan offer to a consumer for acceptance, either verbally or in writing, is offering or negotiating terms of a mortgage loan even if other individuals must complete the mortgage loan process or if only the rate approved by the Agency-regulated institution's loan approval mechanism function for a specific loan product is communicated without authority to negotiate the rate. Similarly, one commenter suggested that an employee does not offer or negotiate terms of a mortgage loan if the employee does not lock the rate. The Agencies do not agree and declined to address this particular activity in the general example of offering or negotiating terms of a mortgage loan.
The Agencies also have modified and added to the examples of activities that are not offering or negotiating terms of a mortgage loan. Some commenters noted that the S.A.F.E. Act excludes employees who are engaged in administrative and clerical activities. The Agencies have considered this exclusion in formulating the examples of mortgage loan origination. Specifically, with respect to offering and negotiating terms of a mortgage loan, the Agencies have added an example that an employee who communicates on behalf of a mortgage loan originator that a written offer has been sent to a consumer, without providing details of that offer, is not offering or negotiating a loan.
In addition, in response to commenters' requests for more detail, the Agencies have clarified that providing descriptions, in addition to explanations, in response to consumer queries regarding qualification for a specific mortgage loan product or product-related service does not constitute offering or negotiating terms of a mortgage loan. In response to the suggestion of another commenter, the Agencies have provided another new example, specifying that “offer or negotiate” does not include explaining or describing the steps or process that a consumer would need to take in order to obtain a loan offer, including qualifications or criteria that would need to be met without providing guidance specific to the consumer's circumstances.
Some commenters asked whether employees engaged solely in making underwriting decisions with respect to mortgage loans are offering terms of a mortgage loan. These employees, although they do not typically communicate directly with consumers, would appear to fall within the definition of taking an application. The Agencies have added, as an example of an activity that is not offering or negotiating terms of a mortgage loan, making an underwriting decision about whether the consumer qualifies for a loan. An employee engaged solely in this activity would not offer or negotiate terms of a loan, and would not, therefore, meet the two-prong test for acting as a loan originator.
The Agencies, as described previously, understand from many commenters that numerous employees of Agency-regulated institutions are engaged solely in modifying loans, such as those which result in reduced and sustainable payments for a borrower who is in default. The Agencies have provided, as a new example of an activity that is not taking an application, receiving information in connection with a modification to the terms of an existing loan to a borrower as part of the institution's loss mitigation efforts, when the borrower is reasonably likely to default. An employee engaged solely in this activity does not receive a residential mortgage loan application, and would not, therefore, meet the two-prong test for acting as a loan originator. The Agencies note that modifying the terms of an existing loan to a borrower as part of the institution's loss mitigation efforts generally would not constitute acting as a mortgage loan originator for purposes of the S.A.F.E. Act. In addition, one commenter requested that the Agencies clarify that an employee acts as a mortgage loan originator when the employee renews an existing loan at maturity, thereby replacing the old loan with a new loan. The Agencies agree with this commenter.
Finally, one commenter queried whether registration requirements apply to Agency-regulated institution employees who, in addition to a variety of customer service duties, only at times act as a mortgage loan originator and only with respect to a limited number of mortgage loan products. The Agencies note that an employee who meets the two-prong test is acting as a mortgage loan originator, even if that activity is not their primary job duty or the employee may only act as a mortgage loan originator for a limited number of products. As described previously, the Agencies have provided a
Based in part on this comment letter, the OCC has reevaluated the effect of this final rule on small national banks, and, for the reasons stated below, has determined that this rule will have a significant economic impact on a substantial number of small entities. Therefore, we have prepared the following FRFA in accordance with 5 U.S.C. 604.
The need for, and objectives of, this final rule are described in detail in the
In the comment it submitted, SBA Advocacy expressed concern that the factual basis for the OCC's (and other Agencies') conclusion that the proposal would not have a significant economic impact on a substantial number of small entities may be insufficient, noting that the OCC's certification did not specify the assumptions used concerning labor costs or noninterest expenses. SBA Advocacy stated its concern that OCC's economic impact may be underestimated and sought clarification regarding the proposal's impact on the number of small national banks.
In part as a result of this comment letter, the OCC conducted further analysis of the effect of its rule on the banking industry as a whole and on small banks in particular. The OCC also obtained additional information about the impact of the proposal on national banks. As a result of this information we have modified our initial conclusions about the economic effect of the rule on small national banks.
For purposes of OCC regulation, the final rule applies to national banks, Federal branches and agencies of foreign banks, their operating subsidiaries (collectively referred to as national banks), and their employees who act as mortgage loan originators.
OCC estimates that 623 national banks with employees originating loans secured by residential real estate are small entities based on the SBA's general principles of affiliation (13 CFR 121.103(a)) and the size threshold for a small national bank. The OCC believes the final rule will have a significant impact on approximately 10 percent of these small national banks (65 banks).
The final rule imposes requirements on both national banks and their employees who engage in the business of mortgage loan origination, regardless of the size of the national bank. Typical recordkeeping, administrative, computer technology and bank management skills will be needed to comply with all of the rule's requirements.
Section 34.103(e) specifies bank and employee information that a bank must submit to the Registry in connection with the initial registration of one or more mortgage loan originators. The bank must annually renew this information and update this information if necessary between renewals. Authorized bank representatives must attest to the correctness of this information and that such information will be updated on a timely basis.
Section 34.105(a) requires the bank to make the unique identifier(s) of its mortgage loan originator(s) available to consumers in a manner and method practicable to the bank.
Section 34.104 requires a bank that employs one or more mortgage loan originators to adopt and follow written policies and procedures designed to assure compliance with this final rule.
The final rule reflects the consideration given by the OCC, along with the other Agencies, to the impact that its requirements would have on small entities.
First, the Agencies have revised the rule's
The Agencies also considered, pursuant to section 1507(c) of the S.A.F.E. Act (12 U.S.C. 5106(c)), applying the requirements of the rule only to institutions above a certain asset threshold, such as the threshold for Home Mortgage Disclosure Act reporting. However, the Agencies agreed that this would not further the consumer protection purposes of the S.A.F.E. Act
The OCC also has reviewed alternatives for small entity compliance, including eliminating the requirement for small banks to adopt and follow written policies and procedures addressing all of the elements described in the final rule. For example, under such an approach, a small bank's risk based compliance program might include only such procedures as are necessary to enable the bank to demonstrate compliance with the registration and renewal requirements of the S.A.F.E. Act. Although such an approach may have reduced the compliance cost per small bank, the OCC does not believe that it would best serve the interests of national banks or the OCC. Appropriate policies and procedures provide an institution and its employees with the expectations of the institution's board and include the specific implementing guidance that is applicable to the activities of that institution. Furthermore, such policies and procedures are necessary to enable examiners to evaluate the effectiveness of institutions' implementation of the S.A.F.E. Act requirements that apply to them. In reviewing this alternative, we determined that applying the policies and procedures requirement in the same way to all institutions, regardless of size, is necessary to ensure consistency in implementation and enforcement of the S.A.F.E. Act and is, therefore, the most appropriate way to ensure that the purposes of the S.A.F.E Act are met.
The OCC, and the other Agencies, also made changes to the final rule that reduce the impact that its requirements would have on all Agency-regulated financial institutions, including small entities. The final rule decreased the amount of information required for submission by a mortgage loan originator. Specifically, the final rule does not require submission of financial history information such as bankruptcies and liens; employment terminations; pending actions; and felonies unrelated to crimes of dishonesty. Furthermore, the Agencies declined to include loan modification activities in the final rule's definition of mortgage loan originator. Under the OCC's rule, Agency-regulated institution employees engaged solely in bona fide cost-free loss mitigation efforts which result in reduced and sustainable payments for the borrower generally would not meet the definition of “mortgage loan originator.” This reduces the number of bank employees subject to the final rule's requirements.
Board: Pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
The final rule implements the S.A.F.E. Act's Federal registration requirements for mortgage loan originators. The S.A.F.E. Act states that the objectives of this registration include providing increased accountability and tracking of mortgage loan originators and providing consumers with easily accessible information at no charge regarding mortgage loan originators. The Board is not aware of other Federal rules which may duplicate, overlap, or conflict with the proposed rule.
The final rule applies to all banks that are members of the Federal Reserve System (other than national banks) and certain of their respective subsidiaries, branches and Agencies of foreign banks (other than Federal branches, Federal
Under the Board's final rule, employees of the above entities who act as residential mortgage loan originators must register with the Registry, obtain a unique identifier, and maintain this registration, consistent with the requirements of the S.A.F.E. Act. The above institutions must require their employees who act as residential mortgage loan originators to comply with the registration requirements and obtain a unique identifier. These institutions also must provide certain information to the Registry and must adopt and follow written policies and procedures designed to assure compliance with these requirements. The institutions and their employees must disclose the unique identifier of mortgage loan originators in compliance with the rule.
Under regulations issued by the Small Business Administration,
The Board received comment from the Office of Advocacy of the U.S. Small Business Administration on its RFA analysis. This commenter expressed concern that the factual basis for the Board's (and other agencies') RFA analysis was insufficient and that the Board and other agencies may have underestimated the costs associated with the proposed rule. The commenter queried whether legal compliance costs and training and tracking costs should be estimated and included in the analysis. Specifically with respect to the Board's RFA analysis, the commenter recommended that the Board use revenue, rather than profits, in determining economic impact since revenue may be a more transparent indicator than profits.
The Board notes that legal compliance costs, tracking compliance, and training have been included in the burden analyses for the rule. The Board estimates compliance costs to be $7.6 million in the aggregate for the 433 small State member banks. As of December 31, 2008, these institutions had $2.4 billion in revenues in the aggregate. Therefore, compliance costs would be less than 1% of revenues.
The Board notes that it has adopted in the final rule alternatives to the proposed rule, which have reduced compliance costs of the rule. The final rule decreased the amount of information required for submission by a mortgage loan originator. For example, the final rule does not require submission of financial history information such as bankruptcies and liens; employment terminations; pending actions; and felonies unrelated to crimes of dishonesty. Furthermore, the Agencies declined to include loan modification activities in the definition of mortgage loan originator, after considering comments on this issue, including those regarding the burden and costs of compliance. Under the Board's rule, modifying the terms of an existing loan to a borrower as part of the institution's loss mitigation efforts would not constitute acting as a mortgage loan originator for purposes of the S.A.F.E. Act.
In addition, the final rule simplifies the
The Board has not adopted other significant alternatives to the proposed rule. For example, the final rule continues to include a mandate for Agency-regulated institutions to require their mortgage loan originator employees to meet registration requirements and adopt policies and procedures to assure compliance. These requirements remain in the final rule because the Board believes that these provisions are necessary to achieve the objectives of the statute and to assure compliance with the rule.
Therefore, pursuant to section 605(b) of the RFA, the Board hereby certifies that this proposal will not have a significant economic impact on a substantial number of small entities. Although a regulatory flexibility analysis is not needed, the Board has voluntarily provided an analysis.
FDIC: In accordance with the RFA, 5 U.S.C. 601-612, an agency must publish a final regulatory flexibility analysis with its final rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include banks with less than $175 million in assets). The FDIC hereby certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Approximately 3,116 FDIC-supervised banks are small entities. In the RFA analysis for the proposed rule, the FDIC determined that approximately 2,255 of those small entities would incur only those costs related to adopting and following appropriate policies and procedures, not registration-related expenses, because they originate 25 or fewer residential mortgage loans annually and therefore would not have qualified for the aggregate institution limit of the proposed rule's
Given the foregoing assumptions, only approximately 861 small entities supervised by the FDIC—about 28% of FDIC-supervised small entities—will be subject to all of the requirements of the final rule. For those 861 small entities, the estimated initial costs for complying with the final rule would represent, on average, approximately 0.7% of total non-interest expenses, and the annual compliance costs would represent, on average, approximately 0.3% of total non-interest expenses (based on the aforementioned mean non-interest expense of $2.5 million).
For the 861 FDIC supervised small entities that will be subject to all of the
OTS: The RFA
Based in part on this comment letter, the OTS has reevaluated the effect of this final rule on small savings associations, and, based on the information provided below, has reaffirmed that this rule will not have a significant economic impact on a substantial number of small entities. Therefore, OTS is not required to prepare an FRFA under 5 U.S.C. 604. However, OTS believes that the initial analysis included in the proposed rule should be slightly modified, and therefore, we have included in the final rule a description of the economic effect on small savings associations and additional information addressing the final rule and the comment letter on the certification.
For purposes of the OTS regulation, the final rule applies to savings associations and their operating subsidiaries and their employees who act as mortgage loan originators. In determining the economic impact on small savings associations, OTS determined that 385 small savings associations would potentially be affected by the final rule. We estimate that 23 of these savings associations, or 6 percent, have no mortgage loan originator (MLO) employees, and therefore, will incur no costs under the final rule. The remaining 362 small savings associations can be expected to incur costs under the final rule. Specifically, OTS estimates the average cost of compliance for these 362 small savings associations to be $17,085. In order to determine whether the costs of compliance have a significant economic impact on this population of small savings associations, we compared each association's projected compliance costs to both its total annualized labor costs and to its total annualized noninterest expense. (Noninterest expense is typically used as a benchmark for “overhead” in financial firms.) If projected S.A.F.E. Act compliance costs exceeded 5 percent of a small saving association's total labor costs, or 2.5 percent of its noninterest expense, OTS considered the impact of compliance to be “significant.” These benchmarks have been used in the past by OTS and other Federal financial regulatory agencies. OTS estimates that 32 small savings associations, or 8.3 percent of the small savings association population, will experience a significant economic impact associated with compliance using the benchmarks described above. The average cost of compliance for these 32 savings associations is projected to be $17,441. Pursuant to § 605(b) of the RFA, OTS therefore certifies that this final rule will not have a significant economic impact on a substantial number of small entities, and, accordingly, a FRFA is not required.
As described in the
• Section 1504 of the S.A.F.E. Act (12 U.S.C. 5103(a)), which provides that subject to the existence of a registration regime, an individual who is an employee of a depository institution may not engage in the business of a loan originator without first: (i) Obtaining and maintaining annually a registration as a registered loan originator, and, (ii) obtaining a unique identifier; and,
• Section 1507 of the S.A.F.E. Act (12 U.S.C. 5106), which requires the Agencies to: (i) Jointly develop and maintain a system for registering employees of a depository institution and of a subsidiary that is owned and controlled by a depository institution and regulated by an Agency as registered loan originators with the National Mortgage License System and Registry (Registry); and (ii) furnish certain information, or cause it to be furnished, to the Registry.
As indicated above, the OTS did not publish an IRFA with the proposed rule. We therefore did not receive any comments specifically directed at an analysis in an IRFA. However, in the comment the SBA Advocacy submitted, it expressed concern that the factual basis for the OTS's (and other Agencies') conclusion that the proposal would not have a significant economic impact on a substantial number of small entities may be insufficient, noting that the OTS's certification did not specify the assumptions used concerning labor costs or noninterest expenses. In addition, SBA Advocacy stated its concern that OTS's economic impact may be underestimated and sought clarification regarding the proposal's impact on the number of small savings associations.
The final rule applies to savings associations, their operating subsidiaries
Section 563.103(e) specifies savings association and employee information that an association must submit to the Registry in connection with the initial registration of one or more mortgage loan originators. The savings association must annually renew this information and update this information if necessary between renewals. Authorized savings association representatives must attest to the correctness of this information and that such information will be updated on a timely basis.
Section 563.105(a) requires the savings association to make the unique identifiers of its mortgage loan originators available to consumers in a manner and method practicable to the association.
The final rule reflects the consideration given by the OTS, along with the other Agencies, to the impact that its requirements would have on small entities. First, the Agencies have revised the rule's
The OTS also has reviewed alternatives for small entity compliance, including eliminating the requirement for small savings associations to adopt and follow written policies and procedures addressing all of the elements described in the final rule. For example, under such an approach, a small savings association's risk based compliance program might include only such procedures as are necessary to enable the association to demonstrate compliance with the registration and renewal requirements of the S.A.F.E. Act and the final rule. Although such an approach may have reduced the compliance cost per small savings association, the OTS does not believe that it would best serve the interests of savings associations or the OTS. Appropriate policies and procedures provide an institution and its employees with the expectations of the institution's board and include the specific implementing guidance that is applicable to the activities of that institution. Furthermore, such policies and procedures are necessary to enable examiners to evaluate the effectiveness of institutions' implementation of the S.A.F.E. Act requirements that apply to them. In reviewing this alternative, we determined that applying the policies and procedures requirement in the same way to all institutions, regardless of size, is necessary to ensure consistency in implementation and enforcement of the S.A.F.E. Act and is, therefore, the most appropriate way to ensure that the purposes of the S.A.F.E Act are met.
The OTS, and the other Agencies, also made changes to the final rule that reduce the impact that its requirements would have on all Agency-regulated financial institutions, including small entities. The final rule decreased the amount of information required for submission by a mortgage loan originator. Specifically, the final rule does not require submission of financial history information such as bankruptcies and liens; employment and terminations; pending actions; and felonies unrelated to crimes of dishonesty. Furthermore, the Agencies declined to include loan modification
FCA: Pursuant to section 605(b) of the RFA (5 U.S.C. 601
The comment letter from the Office of Advocacy in the Small Business Administration (SBA) stated that the FCA did not provide any information about the potential impact of the rule on FCS institutions. The RFA requires each agency to certify that a rulemaking will not have a significant economic impact on a significant number of small entities. The FCA observes that the RFA definition of “small entity” derives from the SBA's definition of “small business concern,” including size standards. According to section 3(a)(1) of the Small Business Act, as amended, a small business concern is independently owned and operated, and it is not dominant in its field of operation. Whether a business concern is “independently owned and operated” depends, in part, on its affiliation with other business entities. Generally, an affiliate is either controlled by, or has control over another entity. Businesses that are economically dependent on each other because of their ownership, management, and contractual relationships may be affiliates. FCS associations own and control their funding banks. Additionally, FCS associations borrow exclusively from their funding banks, and they pledge virtually all of their loans and other assets to these banks to secure their loans. For these reasons, the FCA has determined that the interrelated ownership, control, and contractual relationships are sufficient to treat FCS banks and associations as a single entity for the purposes of the RFA.
SBA regulations also establish size categories to determine whether entities that engage in “Credit Intermediation and Related Activities” are small business concerns. These regulations categorize “All Other Non-Depository Credit Intermediation” institutions as small entities if their annual receipts are $7 million or less. As affiliated entities, the combined annual receipts of each Farm Credit bank and its affiliated associations exceed $7 million. For this reason, FCS institutions do not qualify as small entities under the RFA.
NCUA: In accordance with the RFA, 5 U.S.C. 601-612, NCUA must publish a regulatory flexibility analysis with its final rule, unless NCUA certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include credit unions with less than $10 million in assets). Approximately 2,995 out of 7,554 Federally insured credit unions and 61 out of 156 non-Federally insured credit unions are small entities. NCUA hereby certifies that the final rule would not have a significant economic impact on a substantial number of these small entities.
The final rule will apply to all Federally insured credit unions, non-Federally insured credit unions located in States where the State supervisory authorities enter into and maintain MOUs with NCUA, and employees who act as mortgage originators for these credit unions. The final rule imposes no requirements on credit unions not originating residential mortgages. This accounts for 1,923 of the 2,995 small, Federally insured credit unions and 45 of the 61 small, non-Federally insured credit unions.
Under the final rule, all these credit unions, including small entities, originating any residential mortgages must have policies and procedures in place for mortgage loan origination registration. This currently includes only about 1,072 of the 2,995 small, Federally insured credit unions, and only about 16 of the 61 small, non-Federally insured credit unions. The policies and procedures must be appropriate to the nature, size, complexity, and scope of the credit unions' mortgage lending activities and will apply only to those employees acting within their scope of credit union employment.
Approximately 2,716 of the 2,995 small, Federally insured credit unions, and 15 of the 16 small, non-Federally insured credit unions, would qualify for the final rule's
Accordingly, NCUA estimates only about 279 of the 2,995 small Federally insured credit unions, about 9.3% of them, and only one of the 61 small, non-Federally insured credit unions, about 1.6%, will be subject to the final rule's registration requirements and will establish policies and procedures for the registration.
Therefore, for all of the above reasons, NCUA concludes the final rule would not have a significant economic impact on a substantial number of small credit unions.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the agencies may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The information collection requirements contained in this joint final rule have been submitted by the OCC, FDIC, OTS, and NCUA to, and pre-approved by, OMB under section 3506 of the PRA and § 1320.11 of OMB's implementing regulations (5 CFR part 1320). The FCA collects information from Farm Credit System institutions, which are Federal instrumentalities, in the FCA's capacity as their safety and soundness regulator, and, therefore, OMB approval is not required for this collection. The Board reviewed the proposed rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains requirements subject to the PRA. The requirements are found in 12 CFR __.103(a)-(b), (d)-(e), __.104, and __.105.
No comments concerning PRA were received in response to the notice of proposed rulemaking. Therefore, the hourly burden estimates for respondents noted in the proposed rule have not changed. The agencies have an ongoing interest in your comments. They should be sent to [Agency] Desk Officer, [OMB Control No.], by mail to U.S. Office of Management and Budget, 725 17th Street, NW., 10235, Washington, DC 20503, or by fax to (202) 395-6974. Written comments should address:
(a) Whether the collection of information is necessary for the proper performance of the Federal banking agencies' functions, including whether the information has practical utility;
(b) The accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Executive Order 12866 requires each Federal agency to provide to the Administrator of OMB's Office of Information and Regulatory Affairs (OIRA) a Regulatory Impact Analysis for agency actions that are found to be “significant regulatory actions.” “Significant regulatory actions” include, among other things, rulemakings that “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”
• The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need;
• An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate and, to the extent permitted by law, promotes the President's priorities and avoids undue interference with State, local, and Tribal governments in the exercise of their governmental functions;
• An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;
• An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs; and
• An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.
The OCC has concluded that the final rule exceeds the $100 million criterion and therefore is an economically significant regulatory action. As required by Executive Order 12866, the OCC prepared a Regulatory Impact Analysis, which was submitted to OIRA on January 8, 2010. The OCC's final set of revisions responding to OIRA comments was submitted on July 1, 2010. As discussed in more detail in the Regulatory Impact Analysis, the OCC determined that given the constraints imposed on the OCC by the S.A.F.E. Act, and based on the estimated mean cost, the rule was the least cost option available to the OCC. The OCC's Regulatory Impact Analysis in its entirety is available at
Executive Order 12866 requires each Federal agency to provide the Administrator of OMB's OIRA a Regulatory Impact Analysis for agency actions that are found to be “significant regulatory actions.” Significant regulatory actions include, among other things, rulemakings that “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities.”
• The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need;
• An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate and, to the extent permitted by law, promotes the President's priorities and avoids undue interference with State, local, and Tribal governments in the exercise of their governmental functions;
• An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;
• An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs; and
• An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.
The OTS has determined that this final rule is not a significant regulatory action under Executive Order 12866. We have concluded that the changes made by this final rule will not have an annual effect on the economy of $100 million or more. The OTS further concludes that this final rule does not meet any of the other standards for a significant regulatory action set forth in Executive Order 12866. As required by Executive Order 12866, the OTS prepared a Regulatory Impact Analysis, which was submitted to OIRA on March 9, 2010. The OTS's final revisions were submitted to OIRA on July 12, 2010. As discussed in more detail in the Regulatory Impact Analysis, the OTS determined that given the constraints imposed on the OTS by the S.A.F.E. Act, and based on the estimated cost, the rule was the least cost option available to the OTS. The OTS's Regulatory Impact Analysis in its entirety is available at
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532), requires the OCC and OTS to prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $133 million or more in any one year. However, this requirement does not apply to regulations that incorporate requirements specifically set forth in law. Because this proposed rule implements the S.A.F.E. Act, the OTS and OCC have not conducted an Unfunded Mandates Analysis for this rulemaking.
E.O. 13132 sets forth certain “Fundamental Federalism Principles” and “Federalism Policymaking Criteria” that must be followed by the OCC and OTS in developing any regulation that has Federalism implications. A regulation has Federalism implications if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” If a rule meets the test for Federalism implications, the executive order requires the agency, among other things, to prepare a Federalism summary impact statement for inclusion in the rule's
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on State and local interests. In adherence to fundamental Federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5) voluntarily complies with the Executive Order. The final rule applies to credit unions and would not have substantial direct effects on the States, on the connection between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that the final rule does not constitute a policy that has Federalism implications for purposes of the Executive Order.
The NCUA has determined that this final rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by section 551 of the Administrative Procedure Act. 5 U.S.C. 551. NCUA does not believe this final rule is a “major rule” within the meaning of the relevant sections of SBREFA. NCUA has submitted the rule to the Office of Management and Budget (OMB) for its determination and OMB concurred that the rule is not a major rule.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding an existing airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Strip results from some of the engines listed in the applicability section of this AD revealed excessively corroded low-pressure turbine disks stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this European Aviation Safety Agency (EASA) AD 2008-0122 was intended to avoid a failure of a low-pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. It has been later realized that the same unsafe condition could potentially occur on more serial numbers for the Tay 650-15 engines and on the Tay 651-54 engines. This AD, superseding EASA AD 2008-0122, retaining its requirements, is therefore issued to expand the Applicability in adding further engine serial numbers for the Tay 650-15 engines and in adding the Tay 651-54 engines.
We are issuing this AD to detect corrosion that could cause the stage 2 or stage 3 disk of the LP turbine to fail and result in an uncontained failure of the engine.
This AD becomes effective September 27, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 27, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
The FAA proposed to amend 14 CFR part 39 by superseding AD 2009-22-01, Amendment 39-16052 (74 FR 55121, October 27, 2009), with a proposed AD. The proposed AD applies to RRD Models Tay 650-15 and Tay 651-54 turbofan engines. We published the proposed AD in the Federal Register on May 6, 2010 (75 FR 24825). That action proposed to correct an unsafe condition for the specified products. The MCAI states:
Strip results from some of the engines listed in the applicability section of this AD revealed excessively corroded low-pressure turbine disks stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this European Aviation Safety Agency (EASA) AD 2008-0122 was intended to avoid a failure of a low-pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. It has been later realized that the same unsafe condition could potentially occur on more serial numbers for the Tay 650-15 engines and on the Tay 651-54 engines. This AD, superseding EASA AD 2008-0122, retaining its requirements, is therefore issued to expand the Applicability in adding further engine serial numbers for the Tay 650-15 engines and in adding the Tay 651-54 engines.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
One commenter, RRD, requests that we revise the AD to reference the current EASA type certificate approval rather than the original United Kingdom type certificate approval.
We agree that the current type certificate approval is from EASA, but since we do not repeat the preamble section of the proposed AD that references this information, we did not change the AD. We will reference the correct information in future AD actions.
RRD requests that we correct a typographical error under FAA's Determination and Requirements of this Proposed AD. Specifically, change “HP” to “LP”.
We agree that “HP” should be “LP”. However, that paragraph is not repeated in the Final Rule. We did not change the AD.
RRD requests that we delete the Gulfstream G-IV airplane from the applicability, as the Tay 650-15 and Tay 651-54 turbofan engines are not installed on that airplane.
We agree and removed that airplane from the applicability.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
Based on the service information, we estimate that this AD will affect about three Tay 651-54 engines installed on airplanes of U.S. registry. We also estimate that it will take about three work-hours per engine to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $40,000 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $120,765.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 27, 2010.
(b) This AD supersedes AD 2009-22-01, Amendment 39-16052.
(c) This AD applies to:
(1) RRD model Tay 650-15 turbofan engines that have a serial number listed in Table 1, Table 2, or Table 3 of this AD;
(2) All model Tay 651-54 turbofan engines; and
(3) Engines with a low-pressure (LP) turbine module M05300AA installed. These engines are installed on, but not limited to, Fokker F.28 Mark 0070 and 0100 airplanes, and Boeing 727 airplanes modified in accordance with Supplemental Type Certificate No. SA8472SW.
(d) Strip results from some of the engines listed in the applicability section of this AD revealed excessively corroded low-pressure turbine disks stage 2 and stage 3. The corrosion is considered to be caused by the environment in which these engines are operated. Following a life assessment based on the strip findings it is concluded that inspections for corrosion attack are required. The action specified by this European Aviation Safety Agency (EASA) AD 2008-0122 was intended to avoid a failure of a low-pressure turbine disk stage 2 or stage 3 due to potential corrosion problems which could result in uncontained engine failure and damage to the airplane. It has been later realized that the same unsafe condition could potentially occur on more serial numbers for the Tay 650-15 engines and on the Tay 651-54 engines. This AD, superseding EASA AD 2008-0122, retaining its requirements, is therefore issued to expand the Applicability in adding further engine serial numbers for the Tay 650-15 engines and in adding the Tay 651-54 engines.
We are issuing this AD to detect corrosion that could cause the stage 2 or stage 3 disk of the LP turbine to fail and result in an uncontained failure of the engine.
(e) Unless already done, do the following actions.
(1) Prior to accumulating 11,700 flight cycles (FC) since new of disk life, and thereafter at intervals not exceeding 11,700 FC of disk life, inspect the LP turbine disks stage 2 and stage 3 for corrosion using RRD Alert Service Bulletin (ASB) No. TAY-72-A1524, Revision 3, dated March 24, 2010.
(2) For engines with disk life that already exceed 11,700 FC on the effective date of this AD, perform the inspection within 90 days after the effective date of this AD.
(3) When, during any of the inspections as required by paragraphs (e)(1) and (e)(2) of this AD, corrosion is found, replace the affected parts. RRD TAY 650 Engine Manual—E-TAY-3RR, Tasks 72-52-23-200-000 and 72-52-24-200-000, and RRD TAY 651 Engine Manual—E-TAY-5RR, Tasks 72-52-23-200-000 and 72-52-24-200-000, contain guidance on performing the
(f) Initial inspections done before the effective date of this AD on LP turbine disks stage 2 and stage 3 listed in Table 1 and Table 2 of this AD using RRD ASB No. TAY-72-A1524, Revision 1, dated September 1, 2006, or Revision 2, dated June 13, 2008, comply with the initial inspection requirements specified in this AD.
(g) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(h) Refer to EASA AD 2010-060R1, dated April 14, 2010, for related information. Contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlwitz, 15827 Blankenfelde-Mahlow, Germany; phone: 011 49 (0) 33-7086-1883; fax: 011 49 (0) 33-7086-3276, for a copy of the service information referenced in this AD.
(i) Contact Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
(j) You must use RRD Alert Service Bulletin No. TAY-72-A1524, Revision 3, dated March 24, 2010, to do the inspections required by this AD.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlwitz, 15827 Blankenfelde-Mahlow, Germany; phone: 011 49 (0) 33-7086-1883; fax: 011 49 (0) 33-7086-3276.
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Several low pressure turbine (LPT) shafts have been found with cracks originating from the rear cooling air holes. The cracks were found at normal component overhaul, by the standard Magnetic Particle Inspection (MPI) technique defined in the associated engine manual. The cracks have been found to initiate from corrosion pits. Propagation of a crack from the rear cooling air holes may result in shaft failure and subsequently in an uncontained Low Pressure Turbine failure. For the reasons stated above, this AD requires the inspection of the affected engines' LPT shafts and replacement of the shaft, as necessary.
We are issuing this AD to detect cracks, initiated by corrosion pits, originating from the rear cooling air holes, which could result in shaft failure and subsequently in an uncontained failure of the LPT and damage to the airplane.
This AD becomes effective September 27, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 27, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
Several low pressure turbine (LPT) shafts have been found with cracks originating from the rear cooling air holes. The cracks were found at normal component overhaul, by the standard Magnetic Particle Inspection (MPI) technique defined in the associated engine manual. The cracks have been found to initiate from corrosion pits. Propagation of a crack from the rear cooling air holes may result in shaft failure and subsequently in an uncontained Low Pressure Turbine failure. For the reasons stated above, this AD requires the inspection of the affected engines' LPT shafts and replacement of the shaft, as necessary.
We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supports the NPRM.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.
Based on the service information, we estimate that this AD will affect about 10 products of U.S. registry. We also estimate that it will take about 7 work-hours per product to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $15,000 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $155,950.
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
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 27, 2010.
(b) None.
(c) This AD applies to Rolls-Royce plc RB211-22B series and RB211-524B4-D-02, RB211-524D4-19, RB211-524D4-39, RB211-524D4-B-19, RB211-524D4-B-39, RB211-524D4X-19, and RB211-524D4X-B-19 model turbofan engines. These engines are installed on, but not limited to, Boeing 747 series and Lockheed L-1011 series airplanes.
(d) This AD results from:
Several low pressure turbine (LPT) shafts have been found with cracks originating from the rear cooling air holes. The cracks were found at normal component overhaul, by the standard Magnetic Particle Inspection (MPI) technique defined in the associated engine manual. The cracks have been found to initiate from corrosion pits. Propagation of a crack from the rear cooling air holes may result in shaft failure and subsequently in an uncontained Low Pressure Turbine failure. For the reasons stated above, this AD requires the inspection of the affected engines' LPT shafts and replacement of the shaft, as necessary.
We are issuing this AD to detect cracks, initiated by corrosion pits, originating from the rear cooling air holes, which could result in shaft failure and subsequently in an uncontained failure of the LPT and damage to the airplane.
(e) Unless already done, do the following actions.
(1) At the next engine shop visit after the effective date of this AD when the LPT shaft is completely disassembled to piece-part level, inspect the LPT shaft using paragraphs 3.A.(1)(a) through 3.A.(4)(l) of the accomplishment instructions of Rolls-Royce Service Bulletin RB.211-72-AF336, dated October 24, 2007.
(2) Thereafter, reinspect the LPT shaft using paragraphs 3.A.(1)(a) through 3.A.(4)(l) of the accomplishment instructions of Rolls-Royce Service Bulletin RB.211-72-AF336, dated October 24, 2007 and the following schedule in Table 1 of this AD:
(3) Remove cracked LPT shafts, found using paragraphs (e)(1) or (e)(2) of this AD, from service before further flight.
(4) For the purpose of this AD, an engine shop visit is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges. The separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.
(f) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(g) Refer to MCAI EASA Airworthiness Directive 2007-0310 R1, dated January 8, 2008, for related information.
(h) Contact Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
(i) You must use Rolls-Royce Service Bulletin RB.211-72-AF336, dated October 24, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Rolls-Royce plc, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; telephone 044 1332 242424; fax 044 1332 249936.
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Friction or contact between a propeller de-ice bus bar and the backplate assembly can cause failure of the bus bar and a consequent intermittent short circuit. Such a short circuit can cause a dual AC generator shutdown that, particularly in conjunction with an engine failure in icing conditions, could result in reduced controllability of the airplane.
This AD becomes effective September 27, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 27, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
Michael Schwetz, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
Friction or contact between a propeller de-ice bus bar and the backplate assembly can cause failure of the bus bar and a consequent intermittent short circuit. Such a short circuit can cause a dual AC generator shutdown that, particularly in conjunction with an engine failure in icing conditions, could result in reduced controllability of the airplane.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
One commenter, a private citizen, requests that the AD allow propellers modified under earlier revisions of the service bulletin to meet the requirements of the AD, as the modification instructions are the same.
We agree. We added a paragraph that allows for previous credit for initial sealant application done before the effective date of the AD using earlier versions of the service bulletin. We also reference using Dowty Propellers Alert Service Bulletin No. D8400-61-A66, Revision 5, dated June 16, 2010 in the compliance section, which is the latest version. Since Revision 5 of the ASB requires repetitive applications of sealant, we eliminated the AD differences that appeared in the proposed AD.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
Based on the service information, we estimate that this AD will affect about 104 propellers installed on airplanes of U.S. registry. We also estimate that it will take about 2 work-hours per propeller to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $20 per propeller. Based on these figures, we estimate the cost of the AD on U.S. operators to be $18,720.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 27, 2010.
(b) None.
(c) This AD applies to Dowty Propellers R408/6-123-F/17 model propellers. These propellers are installed on, but not limited to, Bombardier, Inc. (formerly de Havilland Canada) models DHC-8-400, DHC-8-401, and DHC-8-402 series airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. We are issuing this AD to prevent an in-flight double generator failure, which could result in reduced controllability of the airplane.
(e) Unless already done, do the following actions.
(1) For R408/6-123-F/17 model propellers with a hub, actuator, and backplate assembly line-replaceable unit serial numbers below DAP0347, do the following initial sealant application within 5,000 flight hours (FH) after the effective date of this AD:
(i) Apply sealant between the bus bar assemblies and the backplate assembly.
(ii) Use paragraph 3 of the Accomplishment Instructions of Dowty Propellers Alert Service Bulletin No. D8400-61-A66, Revision 5, dated June 16, 2010, to do the sealant application.
(2) Thereafter, for all R408/6-123-F/17 model propellers, re-apply sealant as specified in paragraphs (e)(1)(i) through (e)(1)(ii) within every additional 10,000 FH.
(3) After modification of all propellers on an airplane as required by paragraph (e)(1) of this AD, do not install any Dowty R408/6-123-F/17 propeller on that airplane unless sealant has been applied between the bus bar assemblies and the backplate assembly of that propeller using the requirements of this AD.
(f) None.
(g) Sealant application performed before the effective date of this AD using Dowty Propellers Service Bulletin No. D8400-61-66, dated February 9, 2007, Revision 1, dated May 4, 2007, Alert Service Bulletin No. D8400-61-A66, Revision 2, dated August 19, 2009, Revision 3, dated November 10, 2009, Revision 4, dated January 19, 2010, or Revision 5, dated June 16, 2010, satisfies the initial sealant application requirement of this AD.
(h) The Manager, Boston Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(i) Refer to EASA AD 2009-0114, dated May 28, 2009, for related information.
(j) Contact Michael Schwetz, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
(k) You must use Dowty Propellers Alert Service Bulletin No. D8400-61-A66, Revision 5, dated June 16, 2010, to do the actions required by this AD.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Dowty Propellers, Anson Business Park, Cheltenham Road East, Gloucester GL 29QN, UK; telephone: 44 (0) 1452 716000; fax: 44 (0) 1452 716001.
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the Fuel Oil Heat Exchanger (FOHE) on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the Fuel Metering Unit (FMU), resulting in fuel flow drop and subsequent power reduction. P&WC has confirmed that this is a dormant failure that could result in an unsafe condition.
The PW615F-A engine Fuel Filter Bypass Valve installation is very similar to that of PW617F-E, but so far there have been no operational abnormalities reported due to subject valve failure on PW615F-A engines. However, evaluation by P&WC has confirmed similar dormant failure of worn through poppets of the subject valve on some PW615F-A engine installations, which could affect both engines at the same time on an aircraft and may result in an unsafe condition.
This AD becomes effective September 27, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 27, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the Fuel Oil Heat Exchanger (FOHE) on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the Fuel Metering Unit (FMU), resulting in fuel flow drop and subsequent power reduction. P&WC has confirmed that this is a dormant failure that could result in an unsafe condition.
The PW615F-A engine Fuel Filter Bypass Valve installation is very similar to that of PW617F-E, but so far there have been no operational abnormalities reported due to subject valve failure on PW615F-A engines. However, evaluation by P&WC has confirmed similar dormant failure of worn through poppets of the subject valve on some PW615F-A engine installations, which could affect both engines at the same time on an aircraft and may result in an unsafe condition.
P&WC on 9 December 2009, issued an alert Service Bulletin (SB) A63071 that introduced a new Fuel Filter Bypass Valve assembly with an improved design poppet to help alleviate the subject poppet wear problem. This airworthiness directive (AD) is issued to mandate replacement of FOHE Fuel Filter Bypass Valve on all PW615F-A engines as per the P&WC SB A63071 instructions.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
Based on the service information, we estimate that this AD will affect about 378 engines installed on airplanes of U.S. registry. We also estimate that it will take about 3.5 work-hours per engine to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $22,582 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $8,648,451.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 27, 2010.
(b) None.
(c) This AD applies to Pratt & Whitney Canada Corp. PW615F-A turbofan engines with fuel/oil heat exchanger (FOHE) part number (P/N) 35C3778-01 or P/N 35C3778-02 installed. These engines are installed on, but not limited to, Cessna 510 (Mustang) airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the Fuel Oil Heat Exchanger (FOHE) on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the Fuel Metering Unit (FMU), resulting in fuel flow drop and subsequent power reduction. P&WC has confirmed that this is a dormant failure that could result in an unsafe condition.
The PW615F-A engine Fuel Filter Bypass Valve installation is very similar to that of PW617F-E, but so far there have been no operational abnormalities reported due to subject valve failure on PW615F-A engines. However, evaluation by P&WC has confirmed similar dormant failure of worn through poppets of the subject valve on some PW615F-A engine installations, which could affect both engines at the same time on an aircraft and may result in an unsafe condition.
(e) Unless already done, replace the FOHE fuel filter bypass poppet valve with a larger fuel filter bypass poppet valve within 25 hours of the effective date of the AD. Use paragraph 3.A. of the Accomplishment Instructions of Pratt & Whitney Canada Corp. Alert Service Bulletin (ASB) No. PW600-72-A63071, Revision 1, dated January 7, 2010, to do the replacement.
(f) A fuel filter bypass poppet valve replacement performed before the effective date of this AD using Pratt & Whitney Canada Corp. ASB No. PW600-72-A63071, dated December 9, 2009, satisfies the replacement requirement of this AD.
(g) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(h) Refer to MCAI Transport Canada AD CF-2010-03, dated January 20, 2010, for related information. Contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; telephone 800-268-8000; fax 450-647-2888; Web site:
(i) Contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail:
(j) You must use Pratt & Whitney Canada Corp. ASB No. PW600-72-A63071, Revision 1, dated January 7, 2010 to do the replacement required by this AD.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; telephone 800-268-8000; fax 450-647-2888; Web site:
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the Fuel Oil Heat Exchanger (FOHE) on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the Fuel Metering Unit (FMU), resulting in fuel flow drop and subsequent power reduction.
Pratt & Whitney Canada Corp. issued an Alert Service Bulletin (ASB) No. PW600-72-A66019 to inspect and replace any discrepant valve with the same type new valve. The inspection results confirmed that failure of a worn through poppet is dormant and it can affect both engines at the same time that could result in an unsafe condition on PW617F-E powered aircraft.
This AD becomes effective September 27, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 27, 2010.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803;
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the FOHE on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the FMU, resulting in fuel flow drop and subsequent power reduction.
Pratt & Whitney Canada Corp. issued an ASB No. PW600-72-A66019 to inspect and replace any discrepant valve with the same type new valve. The inspection results confirmed that failure of a worn through poppet is dormant and it can affect both engines at the same time that could result in an unsafe condition on PW617F-E powered aircraft.
On November 23, 2009, Pratt & Whitney Canada Corp. issued an ASB No. PW600-72-A66021 that introduced a new fuel Filter Bypass Valve Assembly with an improved design poppet to help alleviate the subject poppet wear problem. This AD is issued to mandate replacement of the FOHE fuel filter bypass valve on all PW617F-E engines as per Pratt & Whitney Canada Corp. ASB No. PW600-72-A66021 instructions.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
Based on the service information, we estimate that this AD will affect about 77 engines installed on airplanes of U.S. registry. We also estimate that it will take about 3.5 work-hours per engine to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $22,582 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $1,761,722.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
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 AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective September 27, 2010.
(b) None.
(c) This AD applies to Pratt & Whitney Canada Corp. PW617F-E turbofan engines with fuel/oil heat exchanger (FOHE) part number (P/N) 35C4540-01 installed. These engines are installed on, but not limited to, Empresa Brasileira de Aeronáutica S.A (EMB) 500 airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A PW617F-E engine powered twin engined aircraft had recently experienced an uncommanded power reduction on one of its engines. Investigation showed that the Fuel Filter Bypass Valve poppet in the FOHE on that engine had worn through the housing seat, allowing unfiltered fuel and debris to contaminate the Fuel Metering Unit, resulting in fuel flow drop and subsequent power reduction.
Pratt & Whitney Canada Corp. issued an Alert Service Bulletin (ASB) No. PW600-72-A66019 to inspect and replace any discrepant valve with the same type new valve. The inspection results confirmed that failure of a worn through poppet is dormant and it can affect both engines at the same time that could result in an unsafe condition on PW617F-E powered aircraft.
(e) Unless already done, replace the FOHE fuel filter bypass poppet valve with a larger fuel filter bypass poppet valve within 25 hours of the effective date of the AD. Use paragraph 3.A. of the Accomplishment Instructions of Pratt & Whitney Canada Corp. ASB No. PW600-72-A66021, Revision 1, dated January 7, 2010, to do the replacement.
(f) A fuel filter bypass poppet valve replacement performed before the effective date of this AD using Pratt & Whitney Canada Corp. ASB No. PW600-72-A66021, dated November 23, 2009, satisfies the replacement requirement of this AD.
(g) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(h) Refer to MCAI Transport Canada Airworthiness Directive CF-2010-02, dated January 20, 2010, for related information.
(i) Contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803;
(j) You must use Pratt & Whitney Canada Corp. ASB No. PW600-72-A66021, Revision 1, dated January 7, 2010 to do the replacement required by this AD.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1;
(3) You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the Pacific High and Low Offshore Airspace Areas to provide additional airspace in which domestic air traffic control procedures can be used to separate and manage aircraft operations in the currently uncontrolled airspace off the California coast. This change will enhance the efficient utilization of that airspace within the National Airspace System.
Effective date 0901 UTC, November 18, 2010. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On Monday, June 7, 2010, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying the Pacific High and Low Offshore Airspace Areas, by extending the present airspace boundaries further southeast of the current location to the Mexico FIR capturing pockets of uncontrolled airspace off the California coast. This modification will allow the application of domestic ATC separation procedures in lieu of ICAO separation and enhance system capacity and allow for more efficient utilization of that airspace.
Offshore airspace areas are published in paragraph 2003 and 6007, respectfully, of FAA Order 7400.9T signed August 27, 2009 and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The offshore airspace listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the high and low offshore airspace areas off the coast of California.
As part of this action relates to navigable airspace outside the United States, this notice is submitted in accordance with the ICAO International Standards and Recommended Practices. The application of International Standards and Recommended Practices by the FAA, Office of System Operations Airspace and AIM, Airspace and Rules Group, in areas outside the United States domestic airspace, is governed by the Convention on International Civil Aviation. Specifically, the FAA is governed by Article 12 and Annex 11, which pertain to the establishment of necessary air navigational facilities and services to promote the safe, orderly, and expeditious flow of civil air traffic. The purpose of Article 12 and Annex 11 is to ensure that civil aircraft operations on international air routes are performed under uniform conditions.
The International Standards and Recommended Practices in Annex 11 apply to airspace under the jurisdiction of a contracting State, derived from ICAO. Annex 11 provisions apply when air traffic services are provided and a contracting State accepts the responsibility of providing air traffic services over high seas or in airspace of undetermined sovereignty. A contracting State accepting this responsibility may apply the International Standards and Recommended Practices that are consistent with standards and practices utilized in its domestic jurisdiction.
In accordance with Article 3 of the Convention, State-owned aircraft are exempt from the Standards and Recommended Practices of Annex 11. The United States is a contracting State to the Convention. Article 3(d) of the Convention provides that participating State aircraft will be operated in international airspace with due regard for the safety of civil aircraft. Since this action involves, in part, the designation of navigable airspace outside the United States, the Administrator is consulting with the Secretary of State and the Secretary of Defense in accordance with the provisions of Executive Order 10854.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 18,000 feet MSL to and including FL 600 bounded on the north by the Vancouver FIR boundary, on the east by a line 12 miles from and parallel to the U.S. shoreline, and on the south by the Mexico FIR boundary, and on the west by the Oakland Oceanic CTA/FIR boundary.
That airspace extending upward from 5,500 feet MSL bounded on the north by the Vancouver FIR boundary, on the east by a line 12 miles from and parallel to the U.S. shoreline, and on the south by the Mexico FIR boundary, and on the west by the Oakland Oceanic FIR boundary.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Colored Federal Airway Blue 38 (B-38), in Alaska. Specifically, this action removes a segment of B-38 from Haines Non-directional Beacon (NDB) to the Whitehorse, Yukon Territories Canada (XY NDB). The FAA is taking this action in preparation of the eventual decommissioning of XY NDB by the Canadian Air Authority NAV CANADA.
Effective date 0901 UTC, November 18, 2010. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On June 7, 2010, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Colored Federal Airway B-38, Alaska, terminating the airway at the HNS NDB, AK, instead of the XY NDB, Canada. The Canadian Air Authority NAV CANADA recently conducted a study to determine the feasibility of keeping the XY NDB operational. NAV CANADA determined it is no longer feasible and will be decommissioning the XY NDB.
Blue Federal Airways are published in paragraph 6009(d) of FAA Order 7400.9T, signed August 27, 2009 and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Colored Federal Airway listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies a Colored Federal Airway in Alaska.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Polices and Procedures, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Elephant, AK, NDB, to Haines, AK, NDB.
Federal Aviation Administration (FAA), DOT.
Final rule.
This establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 23, 2010. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 23, 2010.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPs, Takeoff Minimums and/or ODPs. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 23, 2010. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 23, 2010.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Postal Service
Final rule.
The Postal Service
Effective January 2, 2011.
Susan Hawes at 202-268-8980 or Kevin Gunther at 202-268-7208.
The Postal Service is revising the DMM to provide optional standards for bundle and pallet preparation of flat-size Standard Mail, Periodicals and Bound Printed Matter mailpieces prepared for delivery within the ZIP Codes served by Flats Sequencing System (FSS) processing. FSS is a critical element in the Postal Service's strategic operations plan and will allow the Postal Service to improve delivery efficiency and control costs.
In the 1990s the Postal Service, in an effort to control costs and limit postage prices, adopted technological changes designed to reduce the time carriers spent in the office preparing mail for delivery. The most notable of these changes was the implementation of Delivery Point Sequencing (DPS). Today, the Postal Service is now placing nearly 92 percent of all letter-size mailpieces into delivery sequence. Similar to DPS processing for letters, FSS automates the sequencing of flat-size mailpieces into delivery order, eliminating labor-intensive manual sortation by carriers.
One essential change to the methods that mailers use to prepare flat-size mail involves the modification of bundling standards when mailing to delivery areas with FSS-processing capability. The Postal Service, as it begins to determine the best practices for optimizing FSS implementation and operation, encourages mailers to prepare bundles of flat-size mail to facilitate the efficient loading of this mail into the FSS machines. Efficient induction of mailpieces into FSS requires bundles of flats to be of equal height, in order to facilitate their placement into the standard containers that feed into the FSS induction mechanism. Preparing bundles which can be placed easily into these containers improves efficiency in loading containers and ensures stability and ease of transport of mailer-prepared containers.
The Postal Service developed these optional preparation standards working with members of the mailing industry, representing a wide spectrum of flat mail owners and preparers. The group determined that the preparation of bundles and pallets specifically for FSS processing could lead to greater efficiencies and cost savings for both the USPS® and mailing industry. Industry members agreed that the production of uniform bundle heights could reduce the costs associated with preparing bundles, and that more stable pallet construction would improve mailer transport of the mail to drop shipment locations. In addition, preparing FSS scheme pallets allows for the creation of larger pallets, permitting the mail to move directly to the FSS mail prep area.
The Postal Service is also providing advance notice that FSS-based mail preparation requirements will become mandatory in the future; however we are currently not proposing a timeline for their implementation.
With this revision, mailers will have the option to prepare separate mailings of Standard Mail®, Periodicals, and Bound Printed Matter barcoded flats, including some barcoded nonmachinable Periodicals flats capable of being processed by FSS, into one or more of the following pallet-level separations:
1. A 5-digit FSS-scheme ZIP Code combination (including one or more 5-digit ZIP Codes);
2. FSS facility sort (all 5-digit FSS-scheme ZIP Code combinations processed within the same facility); or
3. A sectional center facility (SCF) with FSS capability, when combined on pallets with flat-size mailpieces not intended for FSS processing.
Mailers choosing to prepare flats for delivery to FSS zones, using this option, will place qualifying mailpieces from all price categories into a separate combined pool for each individual 5-digit FSS-scheme combination. Mailers will then prepare bundles of uniform size from the pieces in the pool. Bundles must be identified as a 5-digit scheme presort with an optional endorsement line (OEL) under 708.7.0. OELs used under this option may be applied to the top piece of each bundle, unless otherwise required to be placed on each piece by other standards. All pieces for each combined mailpiece pool must be prepared in bundles of similar height (3 inches minimum to 6.5 inches maximum), secured according to current bundling standards. Except for one overflow bundle that may be under the minimum height, all bundles within each mailpiece pool must be of uniform size. Though we will allow overflow bundles, we encourage “leveling” (adjusting bundle heights within a presort destination to avoid overflow bundles) of the bundles within each mailpiece pool. The counter-stacking (rotating groups of mailpieces within a bundle 180 degrees from the preceding and succeeding group) of mailpieces within bundles is not being addressed as a part of these optional standards, and mailers may continue this practice in accordance with current standards. In the future, the Postal Service may require that mailpieces not be counter-stacked within bundles when being prepared for FSS processing, but no decision on this potential requirement has been made.
Bundles must be placed on pallets to form layers of consistent thickness; and bundles of nonuniform thickness must be counter-stacked on pallets in accordance with current standards. Pallets must be prepared and labeled as described in DMM 705.8.0, with a pallet placard bearing an Intelligent Mail container barcode as described in 708.6.6.0.
Mailpieces that meet the current eligibility standards for basic and high density carrier route prices will continue to be eligible for these prices when prepared in accordance with the FSS optional preparation standards. Saturation price Standard Mail and Periodicals carrier route flats are not eligible for preparation under this option. The sequencing of mailpieces within carrier route bundles is not required or recommended when
To improve FSS processing, the Postal Service recommends that mailpieces be randomized within each bundle (
The 5-digit Outside-County bundle charge will be assessed on bundles of Outside-County Periodicals prepared in accordance with these standards, even though mailpieces being claimed at the carrier route piece price may be properly placed within these bundles. FSS 5-digit scheme pallets will be assessed the Outside-County container charge applicable to the 3-digit level pallet, and FSS facility sort level pallets will be charged a container price applicable to the SCF pallet.
The Postal Service adopts the following changes to
Administrative practice and procedure, Postal Service.
5 U.S.C. 552(a); 13 U.S.C 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633 and 5001.
All pieces in an Enhanced Carrier Route or Nonprofit Enhanced Carrier Route Standard Mail mailing must:
c. Be sorted to carrier routes, marked, and documented under 345.6.0,
All pieces in a Regular Standard Mail or Nonprofit Standard Mail automation mailing must:
f. Be marked, sorted and documented as specified in 345.7.0, and 705.8.0 through 705.13.0; or prepared under 705.14.0,
In addition to the basic standards in
b. Meet the preparation standards in 365.6.0,
Flat-size automation and carrier route mailpieces, including barcoded nonmachinable Periodicals pieces, may be optionally consolidated and prepared on pallets for delivery within individual 5-digit Flats Sequencing Systems (FSS) scheme ZIP Code combinations; multiple 5-digit FSS scheme ZIP Code combinations within the same facility; or to a sectional center facility (SCF) with FSS processing, when combined with flat-size mailpieces not intended for FSS processing. Mailers using this option will place qualifying mailpieces from all price categories into a separate combined pool for each individual 5-digit FSS-scheme combination. Mailers will then prepare bundles of uniform size from the pieces in the pool. Mailpieces that meet the eligibility standards for 5-digit automation prices, the Bound Printed Matter barcode discount, or basic and high density carrier route prices will continue to be eligible for these prices when prepared in accordance with the FSS optional preparation standards. Saturation price Standard Mail and Periodicals carrier route flats are not eligible for preparation under this option. Mailpieces and bundles must also be prepared as follows:
a. Bundles for all FSS sort plans must be identified as a 5-digit scheme presort through the use of an optional endorsement line under 708.7.0.
b. All pieces placed into an FSS pool must be barcoded. Automation and carrier route pieces must bear an
c. Nonautomation pieces must be barcoded to the finest extent possible.
d. All pieces for each combined mailpiece pool must be prepared in bundles with a 3-inches minimum and a 6.5-inches maximum height.
e. It is recommended that the mailpieces within each bundle be randomized within the 5-digit FSS-scheme ZIP Code combinations or FSS sort plan schemes as defined by L006 (
f. “Leveling” (adjusting bundle heights within a presort destination to avoid overflow bundles) of the bundles within each mailpiece pool is encouraged.
g. Except for one overflow bundle that may be under the minimum size, all bundles within each mailpiece pool must be of uniform size.
h. Bundles must be placed on pallets to form layers of consistent thickness; and bundles of uneven thickness must be counter-stacked on pallets in accordance with 8.5.8.
i. Pallets must be prepared under 8.0 and labeled under 8.6.0, with a pallet placard bearing an Intelligent Mail container barcode as described in 708.6.6.0.
Barcoded machinable Periodicals flats meeting the standards in 707.25 and 301.3.0; barcoded nonmachinable Periodicals flats, prepared under 707.26.0 (up to 1 inch in thickness); and carrier route Periodicals flats, prepared under 707.23.0; may be combined in bundles and placed on pallets for delivery to ZIP Codes having Flats Sequencing System (FSS) processing capability, as shown in L006. Periodicals prepared under this option are subject to the following:
a. Eligibility for pricing purposes is based on standards in 707.11.0 through 14.0, except that the 5-digit Outside-County bundle charge will be assessed to bundles of Outside-County Periodicals prepared in accordance with these standards, including those containing mailpieces being claimed at the carrier route piece price.
b. FSS 5-digit scheme pallets will be assessed the Outside-County container charge applicable to the 3-digit level pallet, and the FSS facility sort level pallet will be charged a container price applicable to the SCF pallet.
c. Mailers must provide standardized presort documentation under 708.1.0 that demonstrates eligibility for 5-digit (scheme) or carrier route prices in accordance with 707.13.0, 14.0 and 25.0.
d. Mailers may combine all 5-digit, carrier route and 5-digit scheme eligible flat-size mailpieces, into a combined mailpiece pool for each FSS 5-digit scheme combination according to L006.
e. Each bundle must be identified with a “SCH 5-DIGIT FSS” optional endorsement line in accordance with Exhibit 708.7.1.1, OEL Formats.
f. All pooled Periodicals mailpieces prepared on pallets to a single presort destination must be prepared in uniform size bundles, between 3 inches and 6.5 inches in height and secured in accordance with 19.4, except that one overflow bundle per mailpiece pool may be under the minimum size.
Preparation sequence and labeling:
a.
1.
2.
b.
1.
2.
c.
1.
2.
Standard Mail automation flats and Standard Mail barcoded carrier route flats, meeting the physical standards for automation flats under 301.3.0 may be combined in bundles and placed on pallets for delivery to ZIP Codes having Flats Sequencing System (FSS) processing capability, as shown in L006. Standard Mail flats are subject to the following:
a. Price eligibility is based on standards in 343.0.
b. Mailers must provide standardized presort documentation under 708.1.0 that demonstrates eligibility for 5-digit (scheme) or carrier route prices in accordance with 343.0.
c. Mailers may combine all 5-digit, carrier route and 5-digit scheme eligible flat-size mailpieces into a combined mailpiece pool for each FSS 5-digit scheme combination according to L006.
d. Each bundle must be identified with a “SCH 5-DIGIT FSS” optional endorsement line in accordance with Exhibit 708.7.1.1, OEL Formats.
e. All pooled mailpieces prepared to a single palletized presort destination must be prepared in uniform size bundles, between 3 inches and 6.5 inches in height and secured in accordance with 345.2.5, except that one overflow bundle per mailpiece pool may be under the minimum size.
Preparation sequence and labeling:
a.
1.
2.
b.
1.
2.
c.
1.
2.
Presorted and carrier route Bound Printed Matter flats bearing an accurate barcode meeting the eligibility standards in 363.6.0 may be combined in bundles and placed on pallets for delivery to ZIP Codes having Flat Sequencing System (FSS) processing capability, as shown in L006. Bound Printed Matter flats are subject to the following:
a. Price eligibility for pricing purposes is based on standards in 363.0.
b. Mailers must provide standardized presort documentation under 708.1.0 that demonstrates eligibility for 5-digit (scheme) or carrier route prices in accordance with 363.0.
c. Mailers may combine all 5-digit, carrier route and 5-digit scheme eligible flat-size mailpieces into a combined mailpiece pool for each FSS 5-digit scheme combination according to L006.
d. Each bundle must be identified with a “SCH 5-DIGIT FSS” optional endorsement line in accordance with Exhibit 708.7.1.1,
e. All pooled mailpieces prepared to a single palletized presort destination must be prepared in uniform size bundles, between 3 inches and 6.5 inches in height and secured in accordance with 365.2.5, except that one overflow bundle per mailpiece pool may be under the minimum size.
Preparation sequence and labeling:
a.
1.
2.
b.
1.
2.
c.
1.
2.
Preparation to qualify eligible pieces for carrier route prices is optional and need not be performed for all carrier routes in a 5-digit area. Carrier route prices apply to copies that are prepared in carrier route bundles of six or more addressed pieces each, subject to these standards:
4. Bundles prepared on pallets under 705.14.0,
All pieces in a Periodicals barcoded (automation) mailing must:
d. Be marked, sorted, and documented as specified in 705.8.0 (if palletized); or 24.0 (for letters) or 25.0 (for flats) or; for nonletter-size mail, 705.9.0, 705.10.0, 705.12.0, or 705.13.0; or for nonletter-size mail, bundles prepared on pallets under 705.14.0,
We will publish an amendment to 39 CFR 111 to reflect these changes.
Environmental Protection Agency.
Final rule.
Environmental Protection Agency (EPA) is granting a petition submitted by Tokusen USA, Inc. (called Tokusen hereinafter) to exclude (or delist) a wastewater treatment plant (WWTP) sludge filter cake (called sludge hereinafter) generated by Tokusen in Conway, AR from the list of hazardous wastes. The final rule
After careful analysis and use of the Delisting Risk Assessment Software (DRAS), EPA has concluded the petition waste is not hazardous waste. This exclusion applies to 2,000 cubic yards per year of the WWTP sludge with Hazardous Waste Number: F006. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle D landfill.
The public docket for this final rule is located at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for viewing in EPA Freedom of Information Act Review room on the 7th floor from 8 a.m. to 4 p.m. Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The reference number for this docket is EPA-R06-RCRA-2009-0549. The public may copy material from any regulatory docket at no cost for the first 100 pages and at a cost of $0.15 per page for additional copies.
Ben Banipal, Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning Permitting Division (6PD-C), Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information concerning this notice, contact Youngmoo Kim, Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD-C), Dallas, Texas 75202, at (214) 665-6788, or
The information in this section is organized as follows:
After evaluating the petition, on March 31, 2010, EPA proposed to exclude the WWTP sludge from the list of hazardous wastes under 40 CFR 261.31 and 261.32 (
Tokusen's petition requests an exclusion from the F006 hazardous waste listing pursuant to 40 CFR 260.20 and 260.22. Tokusen does not believe that the petitioned waste meets the criteria for which EPA listed it. Tokusen also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
This exclusion applies to the waste described in the petition only if the requirements described in 40 CFR part 261, Appendix IX, Table 1 and the conditions contained herein are satisfied.
If the sludge is delisted, the WWTP sludge from Tokusen will be disposed at a RCRA Subtitle D landfill: The Waste Management Industrial Landfill, North Little Rock, Arkansas.
This rule is effective August 23, 2010. The Hazardous and Solid Waste Amendments of 1985 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1), allows rules to become effective less than a six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous waste. This reduction in existing requirements also provides a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states which have received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929.
EPA has also authorized some states (for example, Louisiana, Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in place of the Federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states unless that state makes the rule part of its authorized program. If Tokusen transports the petitioned waste to or manages the waste in any state with delisting authorization, Tokusen must obtain delisting authorization from that state before it can manage the waste as non-hazardous in the state.
A delisting petition is a request from a generator to EPA, or another agency with jurisdiction, to exclude or delist from the RCRA list of hazardous waste, certain wastes the generator believes should not be considered hazardous under RCRA.
Under §§ 260.20 and 260.22, facilities may petition EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of 40 CFR parts 260 through 265 and 268. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists.
In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which EPA lists a waste are in part 261 and further explained in the background documents for the listed waste.
In addition, under 40 CFR 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste.
Generators remain obligated under RCRA to confirm whether their waste remains non-hazardous based on the hazardous waste characteristics even if EPA has “delisted” the waste.
Besides considering the criteria in 40 CFR 260.22(a) and § 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which EPA listed the waste, if a reasonable basis exists that these additional factors could cause the waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste.
On March 25, 2009, Tokusen petitioned EPA to exclude from the lists of hazardous wastes contained in § 261.31, WWTP sludge (F006) generated from its facility located in Conway, Arkansas. The waste falls under the classification of listed waste pursuant to § 261.31. Specifically, in its petition, Tokusen requested that EPA grant a standard exclusion for 2,000 cubic yards per year of the WWTP sludge.
The Tokusen USA, Inc. facility produces high-carbon steel tire cord for use in radial tire manufacturing. The steel cord is produced from steel rod which has been reduced in size and electroplated with copper and zinc to produce a brass coating. The facility generates F006 filter cake by the dewatering of wastewater sludge generated at the on-site wastewater treatment plants. This waste is stored on-site less than 90 days and is then transported from the site to the RCRA Subtitle C facility, Chemical Waste Management in Sulphur, LA 70556.
To support its petition, Tokusen submitted:
(1) Historical information on waste generation and management practices;
(2) Analytical results from four samples for total concentrations of compounds of concern (COCs);
(3) Analytical results from four samples for Toxicity Characteristic Leaching Procedure (TCLP) extract values of COCs; and
(4) Multiple pH testing for the petitioned waste.
EPA believes that the descriptions of the Tokusen analytical characterization provide a reasonable basis to grant Tokusen's petition for an exclusion of the WWTP sludge. EPA believes the data submitted in support of the petition show the WWTP sludge is non-hazardous. Analytical data for the WWTP sludge samples included in the March 2009 petition were used in the DRAS to develop delisting levels.
EPA has reviewed the sampling procedures used by Tokusen and has determined that it satisfies EPA criteria for collecting representative samples of the variations in constituent concentrations in the WWTP sludge. In addition, the data submitted in support of the petition show that constituents in Tokusen's waste are presently below health-based levels used in the delisting decision-making. EPA believes that Tokusen has successfully demonstrated that the WWTP sludge is non-hazardous.
For this delisting determination, EPA used such information gathered to identify plausible exposure routes (i.e., groundwater, surface water, air) for hazardous constituents present in the petitioned waste. EPA determined that disposal in a landfill is the most reasonable, worst-case disposal scenario for Tokusen's petitioned waste. EPA applied the Delisting Risk Assessment Software (DRAS) described in 65 FR 58015 (September 27, 2000), 65 FR 75637 (December 4, 2000), and 73 FR 28768 (May 19, 2008) to predict the maximum allowable concentrations of hazardous constituents that may be released from the petitioned waste after disposal and determined the potential impact of the disposal of Tokusen's petitioned waste on human health and
EPA believes that the EPACMTP fate and transport model represents a reasonable worst-case scenario for possible groundwater contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst-case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenarios resulted in conservative values for the compliance-point concentrations and ensures that the waste, once removed from hazardous waste regulation, will not pose a significant threat to human health or the environment.
The DRAS also uses the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways (
In most cases, because a delisted waste is no longer subject to hazardous waste control, EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, EPA currently believes that it is inappropriate to consider extensive site-specific factors when applying the fate and transport model. EPA does control the type of unit where the waste is disposed. The waste must be disposed in the type of unit on which the fate and transport model evaluates.
The DRAS results which calculate the maximum allowable concentration of chemical constituents in the waste are presented in Table I. Based on the comparison of the DRAS and TCLP Analyses results found in Table I, the petitioned waste should be delisted because no constituents of concern tested are likely to be present or formed as reaction products or by-products in Tokusen waste.
EPA concluded, after reviewing Tokusen's processes that no other hazardous constituents of concern, other than those for which tested, are likely to be present or formed as reaction products or by-products in the waste. In addition, on the basis of explanations and analytical data provided by Tokusen, pursuant to § 260.22, EPA concludes that the petitioned waste do not exhibit any of the characteristics of ignitability, corrosivity, reactivity or toxicity.
During the evaluation of Tokusen's petition, EPA also considered the potential impact of the petitioned waste via non-groundwater routes (i.e., air emission and surface runoff). With regard to airborne dispersion in particular, EPA believes that exposure to airborne contaminants from Tokusen's petitioned waste is unlikely. Therefore, no appreciable air releases are likely from Tokusen's waste under any likely disposal conditions. EPA evaluated the potential hazards resulting from the unlikely scenario of airborne exposure to hazardous constituents released from Tokusen's waste in an open landfill. The results of this worst-case analysis indicated that there is no substantial present or potential hazard to human health and the environment from airborne exposure to constituents from Tokusen's WWTP waste.
The descriptions of Tokusen's hazardous waste process and analytical characterization provide a reasonable basis for EPA to grant the exclusion. The data submitted in support of the petition show that constituents in the waste are below the leachable concentrations. EPA believes that Tokusen's waste, F006 from copper and zinc electroplating process to produce a brass coating will not impose any threat to human health and the environment.
Thus, EPA believes Tokusen should be granted an exclusion for the WWTP sludge. EPA believes the data submitted in support of the petition show Tokusen's WWTP sludge is non-hazardous. The data submitted in support of the petition show that constituents in Tokusen's waste are presently below the compliance-point concentrations used in the delisting decision and would not pose a substantial hazard to human health and the environment. EPA believes that Tokusen has successfully demonstrated that the WWTP sludge is non-hazardous.
EPA therefore, proposes to grant an exclusion to Tokusen in Conway, Arkansas, for the WWTP sludge described in its petition. EPA's decision to exclude this waste is based on descriptions of the treatment activities associated with the petitioned waste and characterization of the WWTP sludge.
EPA will no longer regulate the petitioned waste under parts 262 through 268 and the permitting standards of part 270.
The appropriate waste code for this waste is F006. The LDR treatment standard for F006 is found in 40 CFR 268.40.
No comments were received on the Proposed Rule during the comment period.
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The Agency's risk assessment did not identify risks from management of this material in a Subtitle D landfill. Therefore, EPA does not believe that any populations in proximity of the landfills used by this facility should not be adversely affected by common waste management practices for this delisted waste.
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
Environmental Protection Agency.
Final rule.
Environmental Protection Agency (EPA) is granting a petition submitted by Occidental Chemical Corporation (OxyChem) to exclude (or delist) its wastewater treatment biosludge generated by its Ingleside, Texas facility from the lists of hazardous wastes. This final rule responds to the petition submitted by OxyChem to delist K019, K020, F025, F001, F003, and F005 waste resulting from the treatment of wastewaters from the manufacturing processes at its facility.
After careful analysis and use of the Delisting Risk Assessment Software (DRAS), EPA has concluded that the petitioned waste is not hazardous waste. This exclusion applies to 7,500 cubic yards per year of the K019, K020, F025, F001, F003, and F005 waste. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle D Landfill.
The public docket for this final rule is located at the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for viewing in the EPA Freedom of Information Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The reference number for this docket is EPA-R06-RCRA-2009-0108. The public may copy material from any regulatory docket at no cost for the first 100 pages and at a cost of $0.15 per page for additional copies.
Ben Banipal, Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division (6PD-C), Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information concerning this notice, contact Wendy Jacques, Environmental Protection Agency Region 6, 1445 Ross Avenue, (6PD-F), Dallas, Texas 75202, at (214) 665-7395, or
The information in this section is organized as follows:
After evaluating the petition, EPA proposed, on July 9, 2009, to exclude the wastewater treatment biosludge from the lists of hazardous waste under 40 CFR 261.31 and 261.32 (
OxyChem's petition requests a delisting from K019, K020, F025, F001, F003, and F005 wastes listed under 40 CFR 260.20 and 260.22. OxyChem does not believe that the petitioned wastes meet the criteria for which EPA listed it. OxyChem also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the final delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste as originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is
This exclusion applies to the waste described in the petition only if the requirements described in 40 CFR part 261, Appendix IX, Table 1 and the conditions contained herein are satisfied.
The wastewater treatment biosludge from OxyChem will be disposed of in a RCRA Subtitle D landfill.
This rule is effective August 23, 2010. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1) allows rules to become effective less than six months after the rule is published when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous waste. This reduction in existing requirements also provides a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).
Because EPA is issuing this exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude States which have received authorization from EPA to make their own delisting decisions.
EPA allows States to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, EPA urges petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.
EPA has also authorized some States (for example, Louisiana, Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program in place of the Federal program; that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States unless that State makes the rule part of its authorized program. If OxyChem transports the petitioned waste to or manages the waste in any State with delisting authorization, OxyChem must obtain delisting authorization from that State before it can manage the waste as non-hazardous in the State.
A delisting petition is a request from a generator to EPA, or another agency with jurisdiction, to exclude or delist from the RCRA list of hazardous waste, certain wastes the generator believes should not be considered hazardous under RCRA.
Under §§ 260.20 and 260.22, facilities may petition EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of 40 CFR parts 260 through 265 and 268. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists.
Petitioners must provide sufficient information to EPA to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. Based on the complete application, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. The generator must also supply information to demonstrate that the waste does not exhibit any of the characteristics defined in § 261.21-§ 261.24.
On September 20, 2007, OxyChem petitioned EPA to exclude from the lists of hazardous wastes contained in § 261.31, wastewater treatment biosludge (K019, K020, F025, F001, F003, and F005) generated from its facility located in Ingleside, Texas. The waste falls under the classification of listed waste pursuant to § 261.31.
Specifically, in its petition, OxyChem requested that EPA grant a standard exclusion for 7,500 cubic yards per year of biosludge resulting from the treatment of wastewaters from the manufacturing processes at its facility.
To support its petition, OxyChem submitted:
• Analytical results of the toxicity characteristic leaching procedure and total constituent analysis for volatile and semi volatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for four wastewater treatment biosludge samples;
• Analytical results from multiple pH leaching of metals; and
• Descriptions of the waste water treatment process.
The EPA received a Freedom of Information request for OxyChem's original delisting petition and all supporting documents from Arnold & Porter LLP. The EPA submitted OxyChem's original delisting petition and all supporting documents, excluding all confidential material, to Arnold & Porter LLP. No specific comments were received.
EPA discovered an error in the proposed exclusion for the total concentration limit for 2,3,7,8-TCDD in the proposed rule. The calculated value for the delisting limit for 2,3,7,8-TCDD should be 5.23E-04 mg/kg instead of 4.30E-05 mg/kg as was proposed. This
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Similarly, because this rule will affect only a particular facility, this final rule does not have Tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used the DRAS program, which considers health and safety risks to infants and children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the directed fishery for butterfish in the Exclusive Economic Zone (EEZ) will be closed effective 0001 hours, August 24, 2010. Vessels issued a Federal permit to harvest butterfish may not retain or land more than 250 lb (0.11-mt) of butterfish per trip for the remainder of the year (through December 31, 2010). This action is necessary to prevent the fishery from exceeding its domestic annual harvest (DAH) of 485 mt, and to allow for effective management of this stock.
Effective 0001 hours, August 24, 2010, through 2400 hours, December 31, 2010.
Lindsey Feldman, Fishery Management Specialist, 978 675-2179, Fax 978-281-9135.
Regulations governing the butterfish fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). The procedures for setting the annual initial specifications are described in § 648.21.
The 2010 specification of DAH for butterfish was set at 485 mt (75 FR 5537, February 3, 2010).
Section 648.22 requires NMFS to close the directed butterfish fishery in the EEZ when 80 percent of the total annual DAH has been harvested. If 80 percent of the butterfish DAH is projected to be landed prior to October 1, a 250-lb (0.11-mt) incidental butterfish possession limit is put in effect for the remainder of the year, and if 80 percent of the butterfish DAH is projected to be landed on or after October 1, a 600-lb (0.27-mt) incidental butterfish possession limit is put in effect for the remainder of the year. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of butterfish permits at least 72 hr before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the
The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for butterfish in 2010 fishing year will be harvested. Therefore, effective 0001 hours, August 24, 2010, the directed fishery for the butterfish fishery is closed and vessels issued Federal permits for butterfish may not retain or land more than 250 lb (0.11 mt) of butterfish per trip or calendar day. The directed fishery will reopen effective 0001 hours, January 1, 2011, when the 2011 DAH becomes available.
This action is required by 50 CFR part 648, and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the butterfish fishery until January 1, 2011, under current regulations. The regulations at § 648.21 require such action to ensure that butterfish vessels do not exceed the 2010 TAC. Data indicating the butterfish fleet will have landed at least 80 percent of the 2010 TAC have only recently become available. If implementation of this closure if delayed to solicit prior public comment, the quota for this year will be exceeded, thereby undermining the conservation objectives of the FMP. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures; request for comments.
This final rule makes inseason adjustments to commercial fishery management measures for several groundfish species taken in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.
Effective 0001 hours (local time) August 18, 2010. Comments on this final rule must be received no later than 5 p.m., local time on September 22, 2010.
You may submit comments, identified by RIN 0648-BA10, by any one of the following methods:
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NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Gretchen Hanshew (Northwest Region, NMFS), 206-526-6147, fax: 206-526-6736,
This final rule is accessible via the Internet at the Office of the Federal Register's Web site at
On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (73 FR 80516). The final rule to implement the 2009-2010 specifications and management measures for the Pacific Coast Groundfish Fishery was published on March 6, 2009 (74 FR 9874). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011), July 6, 2009 (74 FR 31874), October 28, 2009 (74 FR 55468), February 26, 2010 (75 FR 8820), May 4, 2010 (75 FR 23620), July 1, 2010 (75 FR 38030), and July 16, 2010 (75 FR 41386). Additional changes to the 2009-2010 specifications and management measures for petrale sole were made in two final rules: On November 4, 2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). NMFS issued a final rule in response to a duly issued court order on July 8, 2010 (75 FR 39178). These specifications and management measures are at 50 CFR part 660, subpart G.
Changes to the groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its June 11-17, 2010, meeting in Foster City, CA. The Council recommended adjusting the groundfish management measures to respond to updated fishery information and other inseason management needs. These changes include increases to bi-monthly cumulative limits in the commercial fisheries off Washington, Oregon, and California and a change to the lingcod retention regulations for salmon troll fishermen. The increases to cumulative limits are intended to allow additional harvest opportunities for species for which catch estimates through the end of the year are lower than anticipated. The change to the lingcod retention regulations is intended to relieve a restriction for salmon trollers that do not fish inside the groundfish rockfish conservation area (RCA). The increase to chilipepper rockfish trip limits in the limited entry trawl fishery slightly increases the projected impacts to bocaccio, a co-occurring overfished species. However, even with the slight increase in impacts for bocaccio, when combined with the projected impacts from all other fisheries, the 2010 OY for this rebuilding species is not projected to be exceeded.
Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of overfished stocks by remaining within their rebuilding OYs.
Chilipepper rockfish is an underutilized species, primarily due to fishery management measures that are intended to reduce impacts to co-occurring bocaccio, an overfished species. Recent inseason restrictions to trip limits for sablefish, Dover sole, petrale sole and other flatfish in the limited entry trawl fishery to prevent exceeding the 2010 OY for petrale sole and the limited entry trawl allocation for sablefish have reduced projected impacts to bocaccio in the trawl fishery. Due to the lower than anticipated projected impacts to bocaccio, the Council considered increasing the trip limits for chilipepper rockfish to provide additional harvest opportunities for this underutilized healthy stock. With the recommended chilipepper rockfish trip limit adjustments, projected impacts to overfished bocaccio are anticipated to be 7.5 mt, or 47 percent of the trawl fisheries' initially projected bocaccio impacts of
Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry non-whiting trawl fishery: Increase chilipepper rockfish cumulative limits caught with all trawl gears South of 40°10.00′ N. lat. from “12,000 lb (5,443 kg) per 2 months” to “17,000 lb (7,711 kg) per 2 months” in July-December.
Catch of sablefish in the limited entry fixed gear daily trip limit (DTL) fishery north of 36° N. lat. is lower than anticipated. Based on the most recent fishery information, if no action is taken and catch remains lower than expected, only 236 mt out of the 321 mt sablefish allocation (73 percent) will be caught through the end of the year. The Council considered modest increases to the bi-monthly cumulative limits in the limited entry fixed gear sablefish DTL fishery north of 36° N. lat. to allow the fishery to attain a larger proportion of its sablefish allocation.
Projected impacts to overfished species in the limited entry fixed gear fishery are calculated assuming the entire sablefish allocation is harvested. Therefore, increases to trip limits to harvest a larger proportion of the sablefish allocation do not result in higher than anticipated impacts to co-occurring overfished groundfish species.
Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry fixed gear sablefish DTL fishery North of 36° N. lat.: Increase the sablefish trip limits from “1,750 lb (794 kg) per week, not to exceed 7,000 lb (3,175 kg) per 2 months” to “1,750 lb per week, not to exceed 8,500 lb (3,856 kg) per 2 months” in periods 4 and 5 and from “1,750 lb per week, not to exceed 7,000 lb per 2 months” to “1,750 lb per week, not to exceed 8,000 lb (3,629 kg) per 2 months” in period 6, beginning as soon as possible.
As part of the 2009-2010 Groundfish harvest specifications and management measures, the Council considered a change to the lingcod retention regulations for fishermen in the salmon troll fishery that wish to retain incidentally caught lingcod North of 40°10.00′ N. lat. Prior to 2009, salmon troll fishermen were not allowed to retain any groundfish, except yellowtail rockfish, if they were fishing inside the non-trawl rockfish conservation area (RCA). The Council recommended that salmon troll fishermen be allowed to retain a limited amount of lingcod, even if they were fishing for salmon inside of the non-trawl RCA, beginning in 2009. NMFS implemented language in Table 5 North that changed the lingcod retention regulations for salmon troll fishermen: “Salmon trollers may retain and land up to 1 lingcod per 15 Chinook, plus 1 lingcod up to a trip limit of 10 lingcod, both within and outside of the RCA.” At their June 2010 meeting, the Council requested that NMFS revise the lingcod retention allowance language to clarify that if salmon trollers fished entirely outside of the non-trawl RCA on a trip then they were not subject to the lingcod landing ratio of 1:15 with a trip limit of 10 lingcod, but were subject to the lingcod cumulative limit for the open access fishery, which is currently 400 lb (181 kg) per month. The intent of the change to the regulations in 2009 was to allow limited lingcod retention opportunities for salmon trollers fishing for salmon within the groundfish non-trawl RCA, and no changes to regulations that apply to salmon trollers operating outside of the RCA were intended.
At their June 2010 meeting, the Council requested that NMFS revise the lingcod retention regulations for salmon troll fishermen to relieve the restriction of “1 lingcod per 15 Chinook, plus 1 lingcod up to a trip limit of 10 lingcod” for salmon trollers that are operating entirely outside of the groundfish non-trawl RCA.
Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to lingcod retention allowances for vessels fishing in the salmon troll fishery and operating outside of the non-trawl RCA North of 40°10.00′ N. lat.: From “Salmon trollers may retain and land up to 1 lingcod per 15 Chinook, plus 1 lingcod up to a trip limit of 10 lingcod, both within and outside of the RCA” to “Salmon trollers may retain and land up to 1 lingcod per 15 Chinook, plus 1 lingcod up to a trip limit of 10 lingcod, on a trip when any fishing occurs within the RCA.”
This rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.
These actions are taken under the authority of 50 CFR 660.370(c) and are exempt from review under Executive Order 12866.
These inseason adjustments are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see
For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b)(B) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective as quickly as possible.
The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its June 11-17, 2010, meeting in Foster City, CA. The Council recommended that these changes be implemented as quickly as possible. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science to approach, without exceeding, the OYs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California.
These adjustments to management measures must be implemented in a timely manner to allow fishermen an opportunity to harvest higher limits in 2010 for chilipepper, sablefish and lingcod beginning as quickly as possible. Increases are necessary to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks while staying within the OYs for these species. These changes must be implemented in a timely manner, as quickly as possible, so that fishermen are allowed increased opportunities to harvest available healthy stocks and meet the objective of
Fisheries, Fishing, Indian fisheries.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule; reopening of comment period.
Due to requests from members of the fruit and vegetable industry, notice is hereby given that the comment period on the proposed rule published on June 8, 2010 [75 FR 32306] titled, Perishable Agricultural Commodities Act: Impact of Post-Default Agreements on Trust Protection Eligibility is reopened and extended for an additional 30 days. Reopening the comment period would allow interested parties time to fully analyze the proposed rule and submit comments.
Comments must be received by September 22, 2010.
You may submit written or electronic comments to PACA Trust Post-Default Comments, AMS, F&V Programs, PACA Branch, 1400 Independence Avenue, SW., Room 2095-S, Stop 0242, Washington, DC 20250-0242; fax: 202-720-8868; or Internet:
Phyllis L. Hall or Josephine E. Jenkins, Trade Practices Section, 202-720-6873.
A proposed rule was published on June 8, 2010 (75 FR 32306). The proposed amendment to the regulations under the Perishable Agricultural Commodities Act (PACA) would allow a seller, supplier, or agent who has met the eligibility requirements to enter into a written scheduled payment agreement for payment of the past due amount while maintaining its trust eligibility.
The comment period for the proposed rule ended on August 9, 2010; however, several produce associations have requested an additional 30 days to provide comments that are more thorough. AMS believes it is beneficial to reopen and extend the comment period for an additional 30-days in order to receive input from all interested parties.
7 U.S.C. 499a-499t.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Due to manufacturing problems of BR700-710 HP stage 1 and 2 turbine discs it was necessary to re-calculate the Declared Safe Cyclic Life (DSCL) for all BR700-710 HP turbine discs. The analysis concluded that it is required to reduce the approved life limits for the HP turbine disc part numbers that are listed in Table 1 and Table 2 of this AD (MCAI). Exceeding the revised approved life limits could potentially result in non-contained disc failure.
We are proposing this AD to prevent-failure of the high-pressure turbine (HPT) stage 1 and stage 2 discs, uncontained engine failure, and damage to the airplane.
We must receive comments on this proposed AD by October 7, 2010.
You may send comments by any of the following methods:
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Contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany, telephone: +49 (0) 33-7086-1883, fax: +49 (0) 33-7086-3276, for the service information identified in this proposed AD.
You may examine the AD docket on the Internet at
Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on Rolls-Royce Deutschland Ltd & Co KG Models BR700-710A1-10; BR700-710A2-20; and BR700-710C4-11 turbofan engines. The MCAI states:
Due to manufacturing problems of BR700-710 HP stage 1 and 2 turbine discs it was necessary to re-calculate the Declared Safe Cyclic Life (DSCL) for all BR700-710 HP turbine discs. The analysis concluded that it is required to reduce the approved life limits for the HP turbine disc part numbers that are listed in Table 1 and Table 2 of this AD (MCAI). Exceeding the revised approved life limits could potentially result in non-contained disc failure.
You may obtain further information by examining the MCAI in the AD docket.
This product has been approved by the aviation authority of Germany and is approved for operation in the United States. Pursuant to our bilateral agreement with Germany, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require replacing the HPT stage 1 or HPT stage 2 discs with serviceable discs at the DSCL as applicable, as listed in Table 1 or Table 2 of the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 1,026 BR700-710 engines of U.S. registry. We also estimate that no additional labor cost will be incurred to replace the discs. The average labor rate is $85 per work-hour. Required parts would cost about $6,000 per disc. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $6,156,000. Our cost estimate is exclusive of possible warranty coverage.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments by October 7, 2010.
(b) None.
(c) This AD applies to Rolls-Royce Deutschland Ltd & Co KG models BR700-710A1-10, BR700-710A2-20, and BR700-710C4-11 turbofan engines with any of the high-pressure turbine (HPT) stage 1 and stage 2 discs installed as listed by part number (P/N) in Table 1 and Table 2 of this AD. These engines are installed on, but not limited to, Gulfstream model G-V and GV-SP airplanes, and Bombardier model BD-700-1A10 and BD-700-1A11 airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI states:
Due to manufacturing problems of BR700-710 HP stage 1 and 2 turbine discs it was necessary to re-calculate the Declared Safe Cyclic Life (DSCL) for all BR700-710 HP turbine discs. The analysis concluded that it is required to reduce the approved life limits for the HP turbine disc part numbers that are listed in Table 1 and Table 2 of this AD (MCAI). Exceeding the revised approved life limits could potentially result in non-contained disc failure.
We are issuing this AD to prevent failure of the HPT stage 1 and stage 2 discs, uncontained engine failure, and damage to the airplane.
(e) Unless already done, do the following actions.
(1) Within 30 days after the effective date of this AD, or upon accumulating the declared safe cyclic life indicated in Table 1 or Table 2 of this AD as applicable, whichever occurs later, initially replace the HPT stage 1 or HPT stage 2 discs with serviceable discs.
(2) Thereafter, upon accumulating the declared safe cyclic life indicated in Table 1 or Table 2 of this AD, as applicable, repetitively replace the HPT stage 1 or HPT stage 2 discs with serviceable discs.
(f) None.
(g) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(h) Refer to European Aviation Safety Agency AD 2010-0075, dated April 20, 2010, and AD 2010-0076, dated April 20, 2010, for related information.
(i) Refer to Rolls-Royce Deutschland Ltd & Co KG SB No. SB-BR700-72-A900492, dated February 12, 2010, and SB No. SB-BR700-72-A900497, dated February 12, 2010, for related information. Contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany,
(j) Contact Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B airplanes. The original NPRM would have required inspecting the fuselage surface for corrosion and cracking behind the external adapter plate of the antennae installation, and repair if necessary. The original NPRM resulted from a report of a crack found behind the external adapter plate of the antennae during inspection. Similar cracking was found on two additional airplanes, and extensive corrosion was found on one airplane. This action revises the original NPRM by correcting an STC number, which would expand the applicability of the original NPRM. We are proposing this supplemental NPRM to detect and correct corrosion and cracking behind the external adapter plate of the antennae of certain damage-tolerant structure, which could result in reduced structural integrity and consequent rapid depressurization of the airplane.
We must receive comments on this supplemental NPRM by September 17, 2010.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
William Griffith, Aerospace Engineer, Airframe Branch, ACE-118W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4116; fax (316) 946-4107.
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
We issued a notice of proposed rulemaking (NPRM) (the “original NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B airplanes. That original NPRM was published in the
Since we issued the original NPRM, we have determined that STC number SA00244WI-D, identified in the applicability of the NPRM, is an incorrect STC number; the correct number is SA00224WI-D. We have corrected this error, which expands the airplanes affected by the original NPRM.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Saab AB/Aerosystems asks that we change the description of the unsafe condition specified in the NPRM. Saab states that the NPRM indicates that the fuselage skin is classified as “certain safe-life structure.” Saab notes that this does not meet the definition of the airframe/fuselage structure; the fuselage skin is damage tolerant structure according to Section 25.571 of the Federal Aviation Regulations (14 CFR 25.571). Saab adds that this definition is included in the fatigue critical baseline structure (FCBS) list.
We agree with the commenter for the reasons provided. We have changed the description of the unsafe condition in the Summary section and paragraph (e) of this AD accordingly.
Saab asks that we define the method necessary to repair the discrepancies specified in the NPRM. Saab states that the NPRM does not give any details on how to repair those discrepancies. Saab adds that the method in the NPRM specifies that only approval by the Manager, Wichita Aircraft Certification Office (ACO), will be accepted.
We disagree with the commenter. The discrepancies referred to in this AD are corrosion, and cracking of the fuselage surface as a result of that corrosion. Each airplane may exhibit different extremes of both types of corrosion and cracking, and each repair must be evaluated by the ACO based on the extent of the damage. We have not changed the AD in this regard.
Saab states that it has reservations about the STC procedures for installation of the TCAS antennae because of the possibility of compromised long-term effects on the airplane. Saab notes that the installation procedures include anchor nuts installed directly in the skin without anchor nut places, acceptance of improper edge distances, compromised surface protection, and no structural reinforcement of the antennae.
We infer that Saab is requesting re-evaluation of the STC procedures; we do not agree. The STC was approved by us in 1991, and there is not enough data at this time to warrant re-evaluation of the STC procedures. Corrosion issues are more than likely the result of the initial installer applying inadequate corrosion protection as indicated by the initial fleet data. Without additional fleet data to confirm otherwise, we cannot concur with any design inadequacies. Therefore, we have not changed the AD in this regard.
Saab asks that a replacement procedure for corroded adapter plates be included in Chapter 51-70-60 of the Saab Structural Repair Manual (SRM). Saab states that typical installation of the antennae and associated actions is outlined in the SRM, and the antennae plates are subject to corrosion. Saab adds that a replacement procedure for the adapter plate should be included in the SRM to allow operators to install replacement plates according to design procedures.
We acknowledge and agree with the commenter's concern that the STC holder should have provided appropriate procedures for replacement of corroded adapter plates. Once STC procedures are developed, approved, and available, we might consider additional rulemaking. However, we consider that any further delay in issuing this supplemental NPRM would result in an unacceptable level of risk because doing so would allow the unsafe condition to continue for an indefinite length of time. Therefore, we have not changed the AD in this regard.
We are proposing this supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
Since issuance of the original NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
We estimate that this proposed AD would affect 201 airplanes of U.S. registry. The proposed inspection would take about 4 work hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $68,340, or $340 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), 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.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by September 17, 2010.
(b) None.
(c) This AD applies to the Saab AB, Saab Aerosystems airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD, that have been modified in
(1) Model SAAB 340A (SAAB/SF340A) airplanes, serial numbers 004 through 159 inclusive.
(2) Model SAAB 340B airplanes, serial numbers 160 through 459 inclusive.
(d) Air Transport Association (ATA) of America Code 53: Fuselage.
(e) This AD results from a report of a crack found behind the external adapter plate of the antennae during inspection. Similar cracking was found on two additional airplanes, and extensive corrosion was found on one airplane. The Federal Aviation Administration is issuing this AD to detect and correct corrosion and cracking behind the external adapter plate of the antennae of certain damage-tolerant structure, which could result in reduced structural integrity and consequent rapid depressurization of the airplane.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified.
(g) Within 600 flight cycles after the effective date of this AD: Remove the external adapter plate of the antennae installation and do a general visual inspection of the fuselage surface for corrosion and cracking behind the external adapter plate of the antennae installation. If any corrosion or cracking is found, repair before further flight. If no corrosion or cracking is found, before further flight, ensure that proper corrosion protection has been applied before reinstalling the adapter plate. Do all the actions required by this paragraph in accordance with a method approved by the Manager, Wichita Aircraft Certification Office (ACO), FAA.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(h) At the applicable time specified in paragraph (h)(1) or (h)(2) of this AD: Submit a report of the positive findings of the inspections required by paragraph (g) of this AD. Send the report to the Manager, Wichita ACO. The report must contain, at a minimum, the inspection results, a description of any discrepancies found, the airplane serial number, and the number of flight cycles and flight hours on the airplane since installation of the STC. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
(i) Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), may be issued to operate the airplane to a location where the requirements of this AD can be accomplished, but concurrence by the Manager, Wichita ACO, FAA, is required prior to issuance of the special flight permit.
(j)(1) The Manager, Wichita 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 ATTN: William Griffith, Aerospace Engineer, Airframe Branch, ACE-118W, FAA, Wichita ACO, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4116; fax (316) 946-4107.
(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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: The ball screw nut assemblies of the first 70 Trimmable Horizontal Stabilizer Actuators (THSA) manufactured by Goodrich were fitted with an upper attachment gimbal having a thickness of 58 mm (2.28 in), which is different from the design of the final production standard. The gimbal installed on the subsequent THSAs (final production standard) is more robust, having a thickness of 70mm (2.76 in). During the fatigue life demonstration of the THSA upper attachment primary load path elements, only a gimbal having a thickness of 70mm (2.76 in) was used. Thereafter, no additional justification work to demonstrate the robustness of the upper attachment fitted with a gimbal of 58 mm was accomplished. In case of failure of this gimbal, the THSA upper attachment primary load path would be lost and the THSA upper attachment secondary load path would engage. Because the upper attachment secondary load path will only withstand the loads for a limited period of time, the condition where it would be engaged and not detected could lead to failure of the secondary load path, which would likely result in loss of control of the aeroplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by October 7, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail:
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0092, dated May 21, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The ball screw nut assemblies of the first 70 Trimmable Horizontal Stabilizer Actuators (THSA) manufactured by Goodrich were fitted with an upper attachment gimbal having a thickness of 58 mm (2.28 in), which is different from the design of the final production standard. The gimbal installed on the subsequent THSAs (final production standard) is more robust, having a thickness of 70 mm (2.76 in).
During the fatigue life demonstration of the THSA upper attachment primary load path elements, only a gimbal having a thickness of 70mm (2.76 in) was used. Thereafter, no additional justification work to demonstrate the robustness of the upper attachment fitted with a gimbal of 58 mm was accomplished.
In case of failure of this gimbal, the THSA upper attachment primary load path would be lost and the THSA upper attachment secondary load path would engage.
Because the upper attachment secondary load path will only withstand the loads for a limited period of time, the condition where it would be engaged and not detected could lead to failure of the secondary load path, which would likely result in loss of control of the aeroplane.
As the affected ball screw nut assemblies (including the gimbal) could have been moved from one THSA to another during maintenance operation and because the change from the old design to the final production standard design is not identified through a dedicated THSA Part Number, a gimbal with thickness of 58 mm (2.28 in) can be fitted on any A310 or A300-600 aeroplane.
For the reasons described above, this AD requires the identification of the THSA which have a 58 mm (2.28 in) gimbal installed, repetitive [general visual] inspections to check whether there is engagement of the secondary load path and, depending on findings, associated corrective action(s).
Airbus has issued Mandatory Service Bulletins A300-27A6067, Revision 01, including Appendix 01, dated May 12, 2010; and A310-27A2104, Revision 01, including Appendix 01, dated May 12, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 170 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $28,900, or $170 per product.
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
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by October 7, 2010.
(b) None.
(c) This AD applies to Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, and F4-622R airplanes; Model A300 C4-605R Variant F airplanes; and Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; certificated in any category, all certified models, all manufacturer serial numbers.
(d) Air Transport Association (ATA) of America Code 27: Flight controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
The ball screw nut assemblies of the first 70 Trimmable Horizontal Stabilizer Actuators (THSA) manufactured by Goodrich were fitted with an upper attachment gimbal having a thickness of 58 mm (2.28 in), which is different from the design of the final production standard. The gimbal installed on the subsequent THSAs (final production standard) is more robust, having a thickness of 70mm (2.76 in).
During the fatigue life demonstration of the THSA upper attachment primary load path elements, only a gimbal having a thickness of 70mm (2.76 in) was used. Thereafter, no additional justification work to demonstrate the robustness of the upper attachment fitted with a gimbal of 58 mm was accomplished.
In case of failure of this gimbal, the THSA upper attachment primary load path would be lost and the THSA upper attachment secondary load path would engage.
Because the upper attachment secondary load path will only withstand the loads for a limited period of time, the condition where it would be engaged and not detected could lead to failure of the secondary load path, which would likely result in loss of control of the aeroplane.
(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.
(g) Within 130 flight cycles or 650 flight hours after the effective date of this AD, whichever occurs first, measure the thickness of the trimmable horizontal stabilizer actuators (THSA) upper attachment gimbal, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010 (for Model A300-600 series airplanes); or A310-27A2104, Revision 01, dated May 12, 2010 (for Model A310 series airplanes).
(1) If, during the measurement required by paragraph (g) of this AD, the gimbal thickness is 58 mm (2.28 in.) ± 5 mm (0.20 in.), before further flight, do a general visual inspection of the THSA upper attachment to determine if the THSA upper attachment secondary load path is engaged, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010 (for Model A300-600 series airplanes); or A310-27A2104, Revision 01, dated May 12, 2010 (for Model A310 series airplanes). Repeat the inspection thereafter at intervals not to exceed 130 flight cycles or 650 flight hours, whichever occurs first, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010 (for Model A300-600 series airplanes); or A310-27A2104, Revision 01, dated May 12, 2010 (for Model A310 series airplanes).
(2) If, during the measurement required by paragraph (g) of this AD, the gimbal thickness is not 58 mm (2.28 in.) ± 5 mm (0.20 in.), except for the requirements of paragraph (k) of this AD, no further action is required of this AD.
(h) If, during any inspection required by paragraph (g)(1) of this AD, the THSA upper attachment secondary load path is found to be engaged, before further flight, contact Airbus for repair instructions and do the repair.
(i) Actions accomplished before the effective date of this AD in accordance with Airbus Mandatory Service Bulletin A300-27A6067 (for Model A300-600 series airplanes) or A310-27A2104 (for Model A310 series airplanes), both dated May 6, 2010, are considered acceptable for compliance with the corresponding action specified in this AD.
(j) Submit a report of the findings (both positive and negative) of the measurement required by paragraph (g) of this AD to Airbus, as identified in Appendix 01 of Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010 (for Model A300-600 series airplanes); or A310-27A2104, Revision 01, dated May 12, 2010 (for Model A310 series airplanes); at the applicable time specified in paragraph (l)(1) or (l)(2) of this AD. The report must include the information specified in Appendix 01 of Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010 (for Model A300-600 series airplanes); or A310-27A2104, Revision 01, dated May 12, 2010 (for Model A310 series airplanes).
(1) If the measurement was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the measurement was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
(k) As of the effective date of this AD, no person may install, on any airplane, a THSA, unless it is in compliance with the requirements of this AD.
This AD differs from the MCAI and/or service information as follows: The MCAI does not include a reporting requirement; however, the service bulletin recommends reporting. Paragraph (j) of this AD specifies a reporting requirement.
(l) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149. 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.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(m) Refer to MCAI EASA Airworthiness Directive 2010-0092, dated May 21, 2010; Airbus Mandatory Service Bulletin A300-27A6067, Revision 01, dated May 12, 2010; and Airbus Mandatory Service Bulletin A310-27A2104, Revision 01, dated May 12, 2010; for related information.
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 certain Learjet Inc. Model 45 airplanes. The existing AD currently requires, for certain airplanes, repetitive inspections for chafing and other damage of the case drain tube from the hydraulic pump case installed on the left-hand engine, and corrective action if necessary. The existing AD also requires, for all airplanes, repetitive inspections for discrepancies of the left engine's nacelle tubing, repetitive inspections for evidence of fluid leakage within the left engine accessory compartment, and corrective actions if necessary. This proposed AD would require replacing the left engine fuel and hydraulic tubing and installing a tubing support channel, which would terminate the repetitive inspections required in the existing AD. This proposed AD also removes airplanes from the applicability. This proposed AD results from reports of chafed hydraulic tubes in the left-hand engine. We are proposing this AD to detect and correct chafed hydraulic tubes in the left-hand engine and consequent hydraulic tube failure and uncontrolled loss of flammable fluid within the engine cowling, which could result in a fire in the engine nacelle and loss of control of the airplane.
We must receive comments on this proposed AD by October 7, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942; telephone: 316-946-2000; fax: 316-946-2220; e-mail:
You may examine the AD docket on the Internet at
James Galstad, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4135; fax (316) 946-4107.
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 May 20, 2009, we issued AD 2009-11-13, amendment 39-15923 (74 FR 26288, June 2, 2009), for certain Learjet Inc. Model 45 airplanes. That AD requires, for certain airplanes, repetitive inspections for chafing and other damage of the case drain tube from the hydraulic pump case installed on the left-hand engine, and corrective action if necessary. This AD also requires, for all airplanes, repetitive inspections for discrepancies of the left engine's nacelle tubing, repetitive inspections for evidence of fluid leakage within the left engine accessory compartment, and corrective actions if necessary. That AD resulted from reports of chafed hydraulic tubes in the left-hand engine. We issued that AD to detect and correct chafed hydraulic tubes in the left-hand engine and consequent hydraulic tube failure and uncontrolled loss of flammable fluid within the engine cowling, which could result in a fire in the engine nacelle and loss of control of the airplane.
The preamble to AD 2009-11-13 specifies that we consider the requirements “interim action” and that the manufacturer is developing a modification to address the unsafe condition. That AD explains that we might consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination.
The applicability of AD 2009-11-13 includes airplanes having serial numbers (S/N) 45-002 through 45-4000 inclusive. This proposed AD would apply to airplanes having S/Ns 45-005 through 45-405 inclusive, and 45-2001 through 45-2126 inclusive. Airplanes having S/Ns 45-406 through 45-2000 and 45-2127 through 45-4000, have incorporated a design change in production that addresses the identified unsafe condition, and therefore we removed these airplanes from the applicability. We also removed S/N 45-002 because it is an experimental airplane at Learjet, and we removed S/Ns 45-003 and 45-004 because they no longer exist.
We have reviewed Bombardier Service Bulletins 40-71-04 (Model 45, serial numbers 45-2001 through 45-2126) and 45-71-7 (Model 45, serial numbers 45-005 through 45-405), both dated December 7, 2009. These service bulletins describe procedures for replacing the left engine fuel and hydraulic tubing and installing a tubing support channel, including doing a general visual inspection for galling of the fuel supply manifold assembly, a general visual inspection for minimum clearance between the firewall fuel supply tube assembly and the engine firewall cutout, a general visual inspection for minimum clearance between the lower nacelle hydraulic tube and hose assemblies, a general visual inspection for minimum clearance between the lower nacelle fuel tubes and flexible hoses, and corrective actions if necessary. The corrective actions include replacing the fuel supply manifold, trimming the cutout to meet minimum clearance specifications, and adjusting parts to meet minimum clearance specifications. Modification of the applicable in-service airplanes eliminates the need for the existing requirements of AD 2009-11-13.
Bombardier Service Bulletin 45-71-7, dated December 7, 2009, specifies prior or concurrent accomplishment of Bombardier Service Bulletin 45-71-5, dated February 13, 2007, for airplanes having serial numbers 45-005 through 45-319, and 45-321. Bombardier Service Bulletin 40-71-04, dated December 7, 2009, specifies prior or concurrent accomplishment of Bombardier Service Bulletin 40-71-02, dated February 13, 2007, for airplanes having serial numbers 45-2001 through 45-2069. Bombardier Service Bulletins 45-71-5 and 40-71-02, both dated February 13, 2007, describe the following procedures:
• For certain airplanes, changing the routing and clamping configuration of the engine and alternator wire harnesses, and the starter/generator wire bundles.
• For certain airplanes, doing a detailed inspection for chafing of specific hydraulic tubes located within the left engine nacelle between the adjacent fuel tubes and to determine if there is interference between the fuel tubing and hydraulic tubing, securing the hydraulic tubes with additional clamps, inspecting adjacent fuel tubing for interference with the hydraulic tubing, and corrective actions if necessary. Corrective actions include replacing chafed hydraulic tubes and replacing fuel tubes if interference is found.
• For certain airplanes, replacing the left engine hydraulic pump case drain tube.
• For certain airplanes, inspecting for clearance between the left engine hydraulic tubing with adjacent tubing, structure, and other components; and replacing tubing if necessary.
• For all airplanes, inspecting for clearance between the wire harnesses and the hydraulic and fuel tubing on the left engines, if necessary; and replacing tubing if necessary.
• For certain airplanes, inspecting for clearance between the wire harnesses and the hydraulic and fuel tubing on the right engines, if necessary; and replacing tubing if necessary.
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 2009-11-13 and would retain the requirements of the existing AD until the modification is done. This proposed AD would also require accomplishing the actions specified in Bombardier Service Bulletins 40-71-04 and 45-71-7, both dated December 7, 2009; and Bombardier Service Bulletins 40-71-02 and 45-71-5, both dated February 13, 2007.
There are about 530 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.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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. See the
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 39-15923 (74 FR 26288, June 2, 2009) and adding the following new AD:
(a) The FAA must receive comments on this AD action by October 7, 2010.
(b) This AD supersedes AD 2009-11-13, Amendment 39-15923.
(c) This AD applies to Learjet Inc. Model 45 airplanes; certificated in any category; serial numbers 45-005 through 45-405 inclusive, and 45-2001 through 45-2126 inclusive.
(d) Air Transport Association (ATA) of America Code 71: Powerplant.
(e) This AD results from reports of chafed hydraulic tubes in the left-hand engine. The Federal Aviation Administration is issuing this AD to detect and correct chafed hydraulic tubes in the left-hand engine and consequent hydraulic tube failure and uncontrolled loss of flammable fluid within the engine cowling, which could result in a fire in the engine nacelle and loss of control of the airplane.
(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.
(g) For airplanes having serial numbers identified in Table 1 of this AD: Within 50 flight hours after June 17, 2009 (the effective date of AD 2009-11-13), do a detailed inspection for chafing and other damage of the case drain tube from the hydraulic pump case installed on the left-hand engine, in accordance with the applicable service bulletin identified in Table 1 of this AD. If any damage is found, before further flight, reposition or replace the tube, as applicable, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in Table 1 of this AD. Repeat the inspection thereafter at intervals not to exceed 150 flight hours until the modification required by paragraph (l) of this AD is done.
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.”
(h) Within 50 flight hours after June 17, 2009, do a detailed inspection for discrepancies of the left engine's nacelle tubing, in accordance with the applicable temporary revision (TR) identified in Table 2 of this AD. Discrepancies include damaged tubing, and inadequate clearance between any unsupported section of the tube or other tubing and surrounding components. If any discrepancy is found, before further flight, adjust the tubing and clamping or replace the tubing, as applicable, in accordance with the applicable TR identified in Table 2 of this AD. Repeat the inspection thereafter at intervals not to exceed 150 flight hours until the modification required by paragraph (l) of this AD is done.
(i) Concurrently with each inspection required by paragraph (h) of this AD, do a detailed inspection for evidence of engine oil, hydraulic fluid, or fuel leakage within the left engine accessory compartment, in accordance with the applicable maintenance manual section identified in Table 3 of this AD. If there is evidence of leakage: Before further flight, remove each plumbing clamp within the inspection areas specified in paragraphs (g) and (h) of this AD, and clean and remove all evidence of fluid leakage.
(j) If evidence of fluid leakage was found during any inspection required by paragraph (i) of this AD, or if inadequate clearance was found during any action required by paragraph (g) or (h) of this AD: Before further flight, replace each clamp associated with the fluid leakage or inadequate clearance with a new clamp, in accordance with the applicable maintenance manual identified in Table 3 of this AD.
(k) As of June 17, 2009, no person may re-install, on any airplane, any plumbing clamp that has been removed in accordance with the requirements of paragraphs (g), (h), (i), or (j) of this AD.
(l) Within 300 flight hours or 12 months after the effective date of this AD, whichever occurs first, do the actions specified in paragraphs (l)(1) and (l)(2) of this AD, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 40-71-04 (Model 45, serial numbers 45-2001 through 45-2126) or 45-71-7 (Model 45, serial numbers 45-005 through 45-405), both dated December 7, 2009, as applicable. Accomplishment of the requirements of paragraphs (l) and (m), as applicable, of this AD terminates the requirements of paragraphs (g), (h), (i), and (j) of this AD.
(1) Replace the left engine fuel and hydraulic tubing and install a tubing support channel using new parts.
(2) Do the inspections specified in paragraphs (l)(2)(i), (l)(2)(ii), (l)(2)(iii), and (l)(2)(iv) of this AD and all applicable corrective actions. Do all applicable corrective actions before further flight.
(i) A general visual inspection for galling of the fuel supply manifold assembly;
(ii) A general visual inspection for minimum clearance between the firewall fuel supply tube assembly and the engine firewall cutout;
(iii) A general visual inspection for minimum clearance between the lower nacelle hydraulic tube and hose assemblies; and
(iv) A general visual inspection for minimum clearance between the lower nacelle fuel tubes and flexible hoses.
(m) For airplanes having serial numbers 45-005 through 45-319, and 45-321, as identified in Bombardier Service Bulletin 45-71-5, dated February 13, 2007; and for airplanes having serial numbers 45-2001 through 45-2069, as identified in Bombardier Service Bulletin 40-71-02, dated February 13, 2007: Before or concurrently with accomplishing the requirements of paragraph (l) of this AD, do the applicable actions specified in paragraphs (m)(1), (m)(2), (m)(3), (m)(4), and (m)(5) of this AD, depending on airplane serial number and configuration, as specified in, and in accordance with, the Accomplishment Instructions of Bombardier Service Bulletin 45-71-5 (Model 45, serial numbers 45-005 through 45-319, and 45-321), dated February 13, 2007; and Bombardier Service Bulletin 40-71-02 (Model 45, serial numbers 45-2001 through 45-2069), dated February 13, 2007; as applicable. Do all applicable corrective actions before further flight. If, during any inspection required by paragraph (m)(3), (m)(4), or (m)(5) of this AD, it is determined that clearances are not met, before further flight, replace the tubing in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 45-71-5, dated February 13, 2007; and Bombardier Service Bulletin 40-71-02, dated February 13, 2007; as applicable.
(1) Change the routing and clamping configuration of the engine and alternator wire harnesses and the starter/generator wire bundles.
(2) Do a detailed inspection for chafing damage of specific hydraulic tubes located within the left engine nacelle between the adjacent fuel tubes and to determine if there is interference between the fuel tubing and hydraulic tubing; secure hydraulic tubes with additional clamps, inspect adjacent fuel tubing for interference with the hydraulic tubing, replace the left engine hydraulic pump case drain tube on certain airplanes, and do all applicable corrective actions.
(3) Do a general visual inspection for clearance between the left engine hydraulic
(4) Do a general visual inspection for clearance between the wire harnesses and the hydraulic and fuel tubing on the left engine.
(5) Do a general visual inspection for clearance between the wire harnesses and the hydraulic and fuel tubing on the right engine.
(n)(1) The Manager, Wichita 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 ATTN: James Galstad, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita ACO, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4135; fax (316) 946-4107.
(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) AMOCs approved previously in accordance with AD 2009-11-13, amendment 39-15923, are approved as AMOCs for the corresponding provisions of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: A recent Widespread Fatigue Damage (WFD) calculation on A300-600 aeroplanes has shown that a reinforcement of the upper fuselage circumferential joint at FR (frame) 58 is necessary to enable the aeroplane to reach the Extended Service Goal (ESG). The failure of the circumferential joint of the upper fuselage could affect the structural integrity of the aeroplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by October 7, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS-EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax: +33 5 61 93 44 51;
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
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 have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0007, dated January 7, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A recent Widespread Fatigue Damage (WFD) calculation on A300-600 aeroplanes has shown that a reinforcement of the upper fuselage circumferential joint at FR (frame) 58 is necessary to enable the aeroplane to reach the Extended Service Goal (ESG).
The failure of the circumferential joint of the upper fuselage could affect the structural integrity of the aeroplane.
For the reasons described above, this AD requires the reinforcement of the affected fuselage frame butt joint.
Airbus has issued Mandatory Service Bulletin A300-53-6146, Revision 01,
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 124 products of U.S. registry. We also estimate that it would take about 347 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $5,670 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,360,460, or $35,165 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by October 7, 2010.
(b) None.
(c) This AD applies to Airbus Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; Model A300 B4-605R and B4-622R airplanes; Model A300 F4-605R airplanes on which modification 12699 has not been accomplished; and Model A300 C4-605R Variant F airplanes; certificated in any category; all serial numbers.
(d) Air Transport Association (ATA) of America Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
A recent Widespread Fatigue Damage (WFD) calculation on A300-600 aeroplanes has shown that a reinforcement of the upper fuselage circumferential joint at FR (frame) 58 is necessary to enable the aeroplane to reach the Extended Service Goal (ESG).
The failure of the circumferential joint of the upper fuselage could affect the structural integrity of the aeroplane.
(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.
(g) Before the accumulation of 42,500 total flight cycles, or within 2,000 flight cycles after the effective date of this AD, whichever occurs later, reinforce the fuselage butt joint at FR 58 in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-53-6146, Revision 01, including Appendix 1, dated June 26, 2009.
This AD differs from the MCAI and/or service information as follows: No differences.
(h) The following provisions also apply to this AD:
(1)
(2)
(3)
(i) Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2010-0007, dated January 7, 2010; and Airbus Mandatory Service Bulletin A300-53-6146, Revision 01, dated June 26, 2009; for related information.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations relating to Federal tax deposits (FTDs) by Electronic Funds Transfer (EFT). The proposed regulations affect all taxpayers that currently use FTD coupons. In response to the decision of the Financial Management Service to discontinue the system that processes FTD coupons, the proposed regulations provide rules under which depositors must use EFT for all FTDs and eliminate the rules regarding FTD coupons. This document also provides notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by September 22, 2010. Outlines of topics to be discussed at the public hearing scheduled for September 21, 2010, must be received by September 20, 2010.
Send submissions to: CC:PA:LPD:PR (REG-153340-09), 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-153340-09), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Michael E. Hara, (202) 622-4910; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Regina Johnson, (202) 622-7180 (not toll-free numbers).
This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1), the Employment Tax and Collection of Income Tax at the Source Regulations (26 CFR part 31), the Excise Tax Procedural Regulations (26 CFR part 40), and the Procedure and Administration Regulations (26 CFR part 301), to require that all FTDs be made by EFT.
These proposed regulations are expected to be finalized by the end of 2010. The final regulations are expected to apply to remittances made after the date that final regulations are published in the
Section 6302(h) of the Internal Revenue Code (Code) authorizes the Secretary to prescribe regulations as may be necessary for the development and implementation of an EFT system that is required to be used for the collection of depository taxes. On July 14, 1997, final regulations under section 6302(h) relating to the collection of Federal tax deposits (FTDs) by EFT (TD 8723, 62 FR 37490) were issued. These final regulations phased in depositors to the EFT system through 1999. In the final stages of the phase-in under those regulations, depositors with more than $50,000 in employment tax deposits during calendar year 1995, 1996, or 1997, and depositors that, in any of those years, had no employment tax deposits but made deposits of other FTDs exceeding $50,000, were required to begin to deposit by EFT.
On July 13, 1999, final regulations amending TD 8723 (TD 8828, 64 FR 37675) were issued. Under those regulations, which are currently in effect, depositors whose aggregate annual FTDs exceed $200,000 generally must use EFT. Depositors that exceed the $200,000 threshold have an initial one-year grace period after which they must use EFT in all later years even if their FTDs fall below the threshold.
The Electronic Federal Tax Payment System (EFTPS) is the EFT system currently used by the Treasury Department to collect FTDs. More than 97.5 percent of all FTDs are currently deposited electronically through EFTPS. Depositors not currently required to use EFTPS for deposits may instead use the paper-based FTD coupon system to make a deposit by presenting a check and an FTD coupon to a bank teller at one of approximately 8,000 financial institutions authorized as a government depositary or to a financial agent, a process that dates back to World War I.
These proposed regulations are being issued to effectuate system changes made by the Financial Management Service (FMS), a Bureau of the Treasury Department. Beginning in 2011, FMS is eliminating the system that enables the processing of FTD coupons. Accordingly, these proposed regulations require the use of EFT for all FTDs, effective January 1, 2011. The proposed regulations remove references to “banking” days and provide that, if the day an FTD would otherwise be due is a Saturday, Sunday, or legal holiday under section 7503, the taxes will be treated as timely deposited if deposited on the next succeeding day which is not a Saturday, Sunday, or legal holiday. The proposed regulations do not change existing rules for determining a depositor's status as either a monthly or semi-weekly depositor for employment taxes. The proposed regulations also do not change existing rules on whether a taxpayer can remit taxes with a return in lieu of making an FTD.
For example, under the proposed regulations, employers must deposit income taxes withheld from wages and taxes under the Federal Insurance Contributions Act (FICA) (collectively, “employment taxes”) by EFT unless the
Because the FTD coupon system will be eliminated by FMS, the proposed regulations require all FTDs of the following taxes to be made by EFT:
1. Corporate income and corporate estimated taxes pursuant to § 1.6302-1;
2. Unrelated business income taxes of tax-exempt organizations under section 511 pursuant to § 1.6302-1;
3. Private foundation excise taxes under section 4940 pursuant to § 1.6302-1;
4. Taxes withheld on nonresident aliens and foreign corporations pursuant to § 1.6302-2;
5. Estimated taxes on certain trusts pursuant to § 1.6302-3;
6. FICA taxes and withheld income taxes pursuant to § 31.6302-1;
7. Railroad retirement taxes pursuant to § 31.6302-2;
8. Nonpayroll taxes, including backup withholding pursuant to § 31.6302-4;
9. Federal Unemployment Tax Act (FUTA) taxes pursuant to § 31.6302(c)-3; and
10. Excise taxes reported on Form 720, Quarterly Federal Excise Tax Return, pursuant to § 40.6302(c)-1.
The benefits to taxpayers using EFTPS are substantial. According to IRS data, depositors using EFTPS are 31 times less likely to make an error resulting in a penalty than depositors using an FTD coupon. Depositors can schedule an EFTPS transaction 120 days in advance of the desired payment date at their convenience, 24 hours a day, 365 days a year. EFTPS also provides a confirmation number, called an “EFT Number,” which guarantees depositors that the tax deposit has been scheduled and allows the transaction to be traced if necessary. EFTPS processes over 100 million transactions per year, totaling nearly $2 trillion dollars, with an error rate of 0.18 percent. In addition, many financial institutions are no longer accepting FTD coupons through their branch infrastructure. Eliminating FTD coupons will also result in projected cost savings for the Federal Government of at least $65 million over the first five years, with an estimated savings of $13 million each year thereafter.
These proposed regulations also align with the Treasury Department's broad initiative to significantly increase the number of electronic transactions between taxpayers and the Federal Government. In addition to greatly reducing costs, enhancing customer service, and minimizing Treasury's environmental impact, the move from paper to electronic transactions will increase reliability, safety, and security for taxpayers.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.
It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and because this regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. Comments are requested on the clarity of the proposed regulations and how they can be made more understandable. Comments are also requested on the accuracy of the certification that the regulations in this document will not have a significant economic impact on a substantial number of small entities. All comments will be available for public inspection and copying.
A public hearing has been scheduled for September 21, 2010, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted 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
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by September 22, 2010 and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by September 20, 2010. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Michael E. Hara, Office of the Associate Chief Counsel (Procedure and Administration).
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social Security, Unemployment compensation.
Excise taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1, 31, 40, and 301 are proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.1461-1, 1.6302-1, 1.6302-2, 1.6302-3 and 1.6302-4 also issued under 26 U.S.C. 6302(h). * * *
(a)
1. Revising the heading.
2. Revising paragraph (a).
3. Removing paragraph (b)(1) and redesignating paragraph (b)(2) as paragraph (b).
4. Removing paragraph (c).
5. Redesignating paragraph (d) as paragraph (c).
6. Adding paragraph (d).
The revisions and additions read as follows:
(a)
(b)
(d)
1. Revising the heading.
2. Revising paragraphs (a)(1)(i), (ii), and (iv).
3. Revising the heading for paragraph (b).
4. Revising paragraph (b)(1).
5. Removing paragraph (b)(6).
6. Adding a sentence to the end of paragraph (g).
The revisions and additions read as follows:
(a)
(ii)
(iv)
(b)
(g) * * * Paragraph (b)(1) of this section applies to payments made after the date that final regulations are published in the
1. Revising the heading.
2. Revising paragraph (a).
3. Revising paragraph (c).
4. Adding paragraph (d).
The revisions and additions read as follows:
(a)
(c)
(d)
(a)
(b)
26 U.S.C. 7805 * * *
Section 31.6302-1 also issued under 26 U.S.C. 6302(a) and (h).
Section 31.6302-1T also issued under 26 U.S.C. 6302(a).
Section 31.6302-2, 31.6302-3, and 31.6302-4 also issued under 26 U.S.C. 6302(a) and (h).
Section 31.6302(c)-2A also issued under 26 U.S.C. 6157(d) and 6302(a) and (h).
Section 31.6302(c)-3 also issued under 26 U.S.C. 6302(a) and (h). * * *
1. Revising the heading.
2. Revising paragraphs (c)(1), (c)(2), (c)(3), and (c)(4).
3. Revising paragraph (d)
4. Revising paragraph (h)(2)(ii).
5. Redesignating paragraph (h)(2)(iii) as paragraph (h)(2)(iv) and revising newly-designated paragraph (h)(2)(iv).
6. Adding new paragraph (h)(2)(iii).
7. Revising paragraph (i)(1) and (i)(3).
8. Removing paragraphs (i)(4), (i)(5) and (i)(6).
9. Adding paragraph (o).
The revisions and additions read as follows:
(c)
(2)
(ii)
(iii)
(3)
(i) A monthly depositor takes into account only those employment taxes accumulated in the calendar month in which the day occurs; and
(ii) A semi-weekly depositor takes into account only those employment taxes accumulated in the Wednesday-Friday or Saturday-Tuesday semi-weekly period in which the day occurs.
(4)
(d) * * *
(i)
(ii)
(i)
(ii)
(iii)
On Monday, January 10, 2011, Employer C accumulates $110,000 in employment taxes with respect
Employer D is subject to the semi-weekly rule for calendar year 2011. On Monday, January 10, 2011, D accumulates $115,000 in employment taxes. D has a deposit obligation that must be satisfied by the next business day. On Tuesday, January 11, D accumulates an additional $30,000 in employment taxes. Although D has a $115,000 deposit obligation incurred earlier in the semi-weekly period, D has an additional and separate deposit obligation of $30,000 on Tuesday that must be satisfied by the following Friday.
[Reserved].
(h) * * *
(2) * * *
(ii)
(iii)
(iv)
(i)
(3)
(o)
1. Revising paragraph (g)(1).
2. Revising paragraph (n)(1).
The revisions read as follows.
(g)
(n)
1. Revising the heading.
2. Revising paragraph (d).
The revisions read as follows.
(d)
1. Revising the heading.
2. Revising paragraph (d).
3. Adding paragraph (e).
The revisions and additions read as follows:
(d)
(e)
1. Revising the heading.
2. Revising paragraph (a)(1), introductory text.
3. Revising paragraph (a)(1)(i).
4. Revising paragraph (a)(1)(ii), introductory text.
5. Removing paragraph (a)(3).
6. Revising paragraph (b).
7. Revising paragraph (c).
8. Removing paragraph (d).
The revisions read as follows:
(a)
(i) If the person is described in section (a)(1) of section 6157, deposit the amount of such tax by the last day of the first calendar month following the close of each of the first three calendar quarters in the calendar year; or
(ii) If the person is other than a person described in section (a)(1) of section 6157, deposit the amount of such tax by the last day of the first calendar month following the close of—
(b)
(2)
(c)
26 U.S.C. 7805 * * *
1. Revising the heading.
2. In paragraph (b)(2)(v), removing the language “that failure may be reported to the appropriate IRS office and”.
3. Revising paragraphs (d) and (f).
The revisions read as follows:
(d)
(f)
1. The heading is revised to read as set forth below.
2. In paragraph (c), the language “banking” is removed in both places it appears and “business” is added in its place.
3. In paragraph (g), the language “2004” is removed and “2004, except that paragraph (f)(5) of this section does not apply on and after the date described in § 40.6302(c)-1(f)” is added in its place.
26 U.S.C. 7805 * * *
(a)
(b)
(2) For provisions relating to the deposits of tax required to be withheld under chapter 3 of the Code on nonresident aliens and foreign corporations and tax-free covenant bonds, see § 1.6302-2 of this chapter.
(c)
1. Revising paragraph (b).
2. Revising paragraph (c).
The revisions read as follows:
(b)
(c)
Office of the Secretary, Treasury.
Withdrawal of notice of proposed rulemaking, notice of proposed rulemaking, and notice of public hearing.
This document contains proposed modifications revising the regulations governing practice before the Internal Revenue Service (IRS). The proposed regulations affect individuals who practice before the IRS and providers of continuing education programs. The proposed regulations modify the general standards of practice before the IRS and the standards with respect to tax returns. This document also provides notice of a public hearing on these proposed regulations and withdraws the notice of proposed rulemaking published on September 26, 2007.
Written or electronic comments must be received by October 7, 2010. Outlines of topics to be discussed at the public hearing scheduled for Friday, October 8, 2010 at 10 am must be received by Monday, September 27, 2010.
Send submissions to: CC:PA:LPD:PR (REG-138637-07), Room 5205, Internal Revenue Service, PO 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-138637-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Matthew D. Lucey or Matthew S. Cooper at (202) 622-4940; concerning submissions of comments, the public hearing, and/or to be placed on the building access list to attend the public hearing, Regina Johnson of the Publications and Regulations Branch at (202) 622-7180 (not toll-free numbers).
The collection of information contained in these proposed regulations was previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1726. Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by October 22, 2010. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proper collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The collection of information in these proposed regulations is in §§ 10.6 and 10.9. The total annual burden of this collection of information is an increase from the burden in the current regulations.
Section 10.6 requires a registered tax return preparer to maintain records and educational materials regarding the completion of the required qualifying continuing education credits. Section 10.9 also requires providers of qualifying continuing education programs to maintain records and educational material concerning these programs and the individuals who attend them. Continuing education providers also obtain approval of each program as a qualified continuing education program. The collection of this material helps to ensure that individuals authorized to prepare tax returns are informed of the latest developments in Federal tax practice.
Currently, there are approximately 46,000 enrolled agents and 300 enrolled retirement plan agents who are required to maintain records and educational materials regarding the completion of the required continuing education credits. There are approximately 350 continuing education providers of qualifying continuing education programs required to maintain records and educational material concerning these programs and the individuals who attend them. It is expected that there will be an additional 600,000 registered tax return preparers and 1,900 continuing education providers who will be affected by the collection of information requirements in these proposed regulations. The IRS and the Treasury Department estimate that the total annual costs resulting from these requirements will be $9,880,000 for all affected practitioners and $38,632,500 for all affected continuing education providers.
This collection of information is mandatory. The likely respondents and record keepers are individuals and businesses.
Estimated total annual recordkeeping and reporting burden is 1,710,000 hours.
Estimated annual burden per practitioner varies from 30 minutes to one hour, depending on individual circumstances, with an estimated average of 54 minutes.
Estimated annual burden per continuing education provider varies from five hours to 5,000 hours, depending on individual circumstances, with an estimated average of 500 hours.
Estimated number of affected practitioners is 650,000.
Estimated number of affected continuing education providers is 2,250.
Estimated annual frequency of responses is on occasion.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.
Books or records relating to a collection of information must be retained as long as their contents might become material in the administration of any internal revenue law.
Section 330 of title 31 of the United States Code authorizes the Secretary of the Treasury (the Secretary) to regulate the practice of representatives before the Treasury Department. The Secretary is authorized, after notice and an opportunity for a proceeding, to censure, suspend, or disbar from practice before the Treasury Department those representatives who are incompetent, disreputable, or who violate regulations prescribed under section 330 of title 31. The Secretary also is authorized to impose a monetary penalty against these individuals and the individuals' firms or other entities that employ them. Additionally, the Secretary may seek an injunction against these individuals under section 7408 of the Internal Revenue Code (Code).
The Secretary has published regulations governing the practice of representatives before the IRS in 31 CFR part 10 and reprinted the regulations as Treasury Department Circular No. 230 (Circular 230). These regulations authorize the Director of the Office of Professional Responsibility (OPR) to act upon applications for enrollment to practice before the IRS, to make inquiries with respect to matters under OPR's jurisdiction, to institute proceedings to impose a monetary penalty or to censure, suspend, or disbar a practitioner from practice before the IRS, to institute proceedings to disqualify appraisers, and to perform other duties necessary to carry out these functions.
Circular 230 has been amended periodically. The regulations were amended most recently on September 26, 2007 (72 FR 54540), to modify various provisions relating to the general standards of practice. For example, the 2007 regulations established an enrolled retirement plan agent designation, modified the conflict of interest rules, limited the use of contingent fees by practitioners, and required public disclosure of OPR disciplinary decisions after the decisions become final.
Those final regulations, however, did not finalize the standards with respect to tax returns under § 10.34(a) and the definitions under § 10.34(e) because of the amendments to section 6694(a) of the Code made by the Small Business and Work Opportunity Tax Act of 2007, Public Law 110-28, 121 Stat. 190. Rather, the IRS and the Treasury Department reserved § 10.34(a) and (e) in those final regulations and also simultaneously issued a notice of proposed rulemaking (REG-138637-07) in the
On October 3, 2008, the Tax Extenders and Alternative Minimum Tax Relief Act of 2008, Div. C. of Public Law 110-343, 122 Stat. 3765, again amended the standard of conduct that must be met to avoid imposition of the tax return preparer penalty under section 6694(a). The IRS and the Treasury Department published final regulations (TD 9436) in the
The proposed regulations also provide new rules governing the oversight of tax return preparers. Currently, an individual tax return preparer generally is not subject to the provisions in Circular 230 unless the tax return preparer is an attorney, certified public accountant, enrolled agent, or other type of practitioner identified in Circular 230. Under current law, any individual may prepare tax returns and claims for refund without meeting any qualifications or competency standards. A tax return preparer also may exercise the privilege of limited practice before the IRS pursuant to the rules in § 10.7(c)(1)(viii) of Circular 230 and Revenue Procedure 81-38 (1981-2 CB 592).
In June 2009, the IRS launched a review of tax return preparers with the intent to propose a comprehensive set of recommendations to ensure uniform and high ethical standards of conduct for all tax return preparers and to increase taxpayer compliance. As part of this effort, the IRS received input from a large and diverse community through numerous channels, including public forums, solicitation of written comments, and meetings with advisory groups.
The IRS made findings and recommendations in Publication 4832, “Return Preparer Review” (the Report), which was published on January 4, 2010. The Report recommends increased oversight of the tax return preparer industry through the issuance of regulations.
This document proposes amendments to Circular 230 based upon certain of the recommendations in the Report. Specifically, the proposed regulations establish “registered tax return preparers,” as a new class of practitioners. Sections 10.3 through 10.6 of the proposed regulations describe the process for becoming a registered tax return preparer and the limitations on a registered tax return preparer's practice before the IRS. In general, practice by registered tax return preparers is limited to preparing tax returns, claims for refund, and other documents for submission to the IRS. A registered tax return preparer may prepare all or substantially all of a tax return or claim for refund, and sign a tax return or claim for refund, commensurate with the registered tax return preparer's level of competence as demonstrated by written examination. The proposed regulations also revise § 10.30 regarding solicitation, § 10.36 regarding procedures to ensure compliance, and § 10.51 regarding incompetence and disreputable conduct.
Proposed regulations under section 6109 of the Code (REG-134235-08) published in the
The scope of these proposed regulations is limited to practice before the IRS. The Director of OPR has general oversight responsibilities for the rules in these proposed regulations, but specific duties related to the administration of certain procedural aspects of these rules (for example, test administration, issuance of enrollment or registration certificates or cards) may be delegated to employees of other IRS functions or third party vendors if the Commissioner determines that the performance of these duties by these organizations will aid tax administration. These proposed regulations do not change the existing authority of attorneys, certified public accountants, and enrolled agents to practice before the IRS under Circular 230. These proposed regulations also do not alter or supplant ethical standards that might otherwise be applicable to practitioners.
“Practice before the Internal Revenue Service” under § 10.2(a)(4) comprehends all matters connected with a presentation to the IRS or any of its officers or employees relating to a taxpayer's rights, privileges, or liabilities under laws or regulations administered by the IRS. Under the current definition of practice, preparing a tax return or claim for refund (even if the tax return or claim for refund is filed by another person) is practice before the IRS. Similarly, an individual who files a tax return or claim for refund prepared by someone else also is engaged in practice before the IRS. The IRS and the Treasury Department are aware that some tax professionals have suggested that they are not engaged in practice before the IRS unless they both prepare and file a tax return, claim for refund, or other document. Accordingly, § 10.2(a)(4) of the proposed regulations is revised to eliminate this misunderstanding, and specifically clarifies that either preparing a document or filing a document may constitute practice before the IRS. Section 10.2(a)(8) of the proposed regulations also clarifies that the definition of “tax return preparer” in Circular 230 is the same as the meaning in section 7701(a)(36) of the Code and 26 CFR 301.7701-15.
Section 10.3(f) of the proposed regulations establishes a new “registered tax return preparer” designation. A registered tax return preparer is any individual so designated under § 10.4(c) who is not currently under suspension or disbarment from practice before the IRS. An individual who is a registered tax return preparer pursuant to this part is a practitioner authorized to practice before the IRS, subject to the limitations identified in these proposed regulations.
These proposed regulations generally limit practice as a registered tax return preparer to preparing tax returns, claims for refund, and other documents for submission to the IRS. Pursuant to § 10.3(f)(2) of these proposed regulations, a registered tax return preparer may only prepare, or assist in the preparation of, all or substantially all of a tax return or claim for refund that is commensurate with the level of competence that the registered tax return preparer has demonstrated by written examination. Registered tax return preparers also are permitted to sign tax returns, claims for refund, and other documents as the preparer provided the document is commensurate with the level of competence demonstrated, and may represent taxpayers before revenue agents, customer service representatives or similar officers and employees of the IRS (including the Taxpayer Advocate Service) during an examination if the registered tax return preparer signed the tax return or claim for refund for the taxable year or period under examination. Consistent with the limited practice rights currently available to unenrolled return preparers under § 10.7(c)(1)(viii), registered tax return preparers are not permitted to represent taxpayers, regardless of the circumstances requiring representation, before appeals officers, revenue officers, Counsel or similar officers or employees of the IRS or the Treasury Department. A registered tax return preparer's authorization to practice under this part also does not include the authority to provide tax advice to a client or another person except as necessary to prepare a tax return, claim for refund, or other document intended to be submitted to the IRS.
The conduct of the registered tax return preparer in connection with the preparation of the return, claim for refund, or other document, as well as any representation of the client during an examination, will be subject to the standards of conduct in Circular 230. Inquiries into possible misconduct and disciplinary proceedings relating to registered tax return preparer misconduct will be conducted under the provisions in Circular 230.
An individual must pass a minimum competency examination and possess a current or otherwise valid PTIN or other prescribed identifying number to become a registered tax return preparer. The examination will be administered by, or administered under the oversight of, the IRS, similar to the special enrollment examinations for enrolled agents and enrolled retirement plan agents. After completing competency testing, tax return preparers will be subject to suitability checks to determine whether the tax return preparer has engaged in disreputable conduct which, at the time the application is filed with OPR, could result in suspension or disbarment under Circular 230. An individual who has engaged in disreputable conduct is not eligible to become a registered tax return preparer.
Consistent with the recommendations made in the Report, these proposed regulations do not exempt a tax return preparer from the competency testing requirements based upon the individual's past tax return preparation experience. Initially, the IRS will offer two competency examinations. One examination will cover wage and nonbusiness income Form 1040 series returns, while another examination will cover wage and small business income Form 1040 series returns. An individual must successfully complete an examination prior to becoming a registered tax return preparer and obtaining a PTIN. The IRS will prescribe by forms, instructions, or other appropriate guidance the tax returns and claims for refund, including the schedules and forms, that a registered tax return preparer may prepare based upon the written examination successfully completed under § 10.4(c). The registered tax return preparer who passes the wage and small business income Form 1040 series examination, however, will be able to prepare any Form 1040 series returns. The IRS and the Treasury Department request comments on whether a tax return preparer who solely prepares tax returns other than Form 1040 series returns (for example, Form 941, Employer's QUARTERLY Federal Tax Return, or Form 706, U.S. Estate Tax Return) should be permitted to prepare these other tax returns without successfully completing any examination.
It is currently anticipated that the examination to become a registered tax
Section 10.5 of the regulations sets forth the applicable procedures relating to the application to become a registered tax return preparer, which generally are consistent with the procedures currently utilized for enrolled agents and enrolled retirement plan agents. The proposed regulations provide that applicants must utilize forms and comply with the procedures established and published by the IRS. The proposed regulations permit the IRS to change the procedures to apply to become a registered tax return preparer.
As a condition for consideration of an application, the IRS may conduct a Federal tax compliance check and suitability check. The tax compliance check will be limited to an inquiry regarding whether an applicant has filed all required individual or business tax returns (such as employment tax returns that might have been required to be filed by the applicant) and whether the applicant has failed to pay, or make proper arrangement with the IRS for payment of, any Federal tax debts. The suitability check will be limited to an inquiry regarding whether an applicant has engaged in any conduct that would justify suspension or disbarment of any practitioner under the provisions of this part, including whether the applicant has engaged in disreputable conduct.
The IRS may deny an application only if the results of the tax compliance or suitability check are sufficient to establish that the practitioner engaged in conduct subject to sanctions under Circular 230 at the time the application is filed or the applicant does not pass the required competency examination. If the applicant does not pass the competency examination or the tax compliance or suitability check, the applicant will not be issued an enrollment or registration card or certificate, and will be provided information regarding the denial of the application and the rules on appealing the denial. An applicant who is initially denied enrollment or registration for failure to pass a tax compliance check may reapply after the initial denial if the applicant becomes current with respect to the applicant's tax liabilities.
Once an application to become a registered tax return preparer is approved, the IRS will issue a registration card or certificate to each individual and each card or certificate will be valid for the period stated on the card or certificate. The card or certificate will be in addition to any certificate that may be issued to an attorney, certified public accountant, enrolled agent, or registered tax return preparer who obtains a PTIN. Registered tax return preparers must have both a current and valid registration card or certificate and a current and valid PTIN certificate to practice before the IRS.
Section 10.6 of the proposed regulations sets forth the procedures for renewal of application to practice before the IRS as a registered tax return preparer. A registered tax return preparer must apply for renewal as prescribed in forms, instructions, or other appropriate guidance. A condition of renewal, as recommended in the Report, is the completion of continuing education requirements by registered tax return preparers. A registered tax return preparer must complete 15 hours of continuing education during each registration year, with a minimum of three hours of Federal tax law updates, two hours of tax-related ethics and 10 hours of Federal tax law topics. The registration year is defined as each 12-month period that the registered tax return preparer is authorized to practice before the IRS. Registered tax return preparers will be required to maintain records with respect to the completion of the continuing education credit hours and to self-certify the completion of the continuing education credit at the time of renewal. The proposed regulations require that a qualifying continuing education course enhance professional knowledge in Federal taxation or Federal tax related matters and be consistent with the Code and effective tax administration.
Section 10.6(f)(2)(iii) and (f)(2)(iv) of the current regulations authorizes continuing education credit to be awarded for hours relating to work as an instructor, discussion leader, or speaker at an education program, as well as hours for authoring articles, books, or other publications on Federal taxation or Federal tax-related matters. The maximum credit for instruction and preparation currently may not exceed 50 percent of the continuing education requirement for an enrollment cycle. After further consideration, the IRS and the Treasury Department believe that the maximum credit for instruction and preparation should be reduced to encourage a more diverse educational program. These proposed regulations, therefore, reduce the maximum credit for instruction and preparation to four hours annually of the continuing education requirement. These proposed regulations also remove the ability to receive hours for authoring articles, books, or other publications.
Section 10.5(b) and § 10.6(d)(6) of the proposed regulations are revised to reflect that the IRS will charge a reasonable nonrefundable fee for each initial application and application for renewal as a registered tax return preparer filed with OPR. Separate regulation projects under 26 CFR part 300 will provide further details on the amounts of those user fees in the near future.
The rules regarding continuing education providers that currently are in § 10.6 of Circular 230 are moved to new § 10.9. Under § 10.9 of the proposed regulations, providers of continuing education courses are required to maintain records and educational material concerning these programs and the individuals who attend them, as well as obtain approval of each program to be qualified as a qualified continuing education program. Section 10.9(a)(6) also states that the IRS may charge a reasonable nonrefundable fee for each application for qualification as a qualified continuing education program. A separate regulation project under 26 CFR part 300 will provide further details on the amounts of the user fee in the near future.
Section 10.7(c)(1)(viii) currently authorizes an individual, who is not otherwise a practitioner, to represent a taxpayer during an examination if that individual prepared the return for the taxable period under examination. The proposed regulations remove this limited practice authorization from § 10.7(c) because of the addition to § 10.3(f) regarding registered tax return preparers. Additionally, these proposed regulations remove current § 10.8 regarding customhouse brokers from Circular 230 and move the language in current § 10.7(e) to new § 10.8(a). Section 10.8(a) of the proposed regulations provides that any individual, whether or not the individual is a practitioner, may assist with the preparation of a tax return or claim for refund (provided the individual prepares less than substantially all of the tax return or claim for refund). This revision is consistent with the inclusion of
These proposed regulations also establish a new § 10.8(b) regarding other individuals. Any individual who prepares for compensation all or a substantial portion of a document pertaining to a taxpayer's tax liability for submission to the IRS is subject to the duties and restrictions relating to practice before the IRS and may be sanctioned, after notice and opportunity for a conference, for any conduct that would justify a sanction under § 10.50. An individual described in 26 CFR 301.7701-15(f) is not treated as having prepared all or a substantial portion of the document by reason of such assistance. For example, an individual who only furnishes typing, reproducing, or other mechanical assistance with respect to a document is not subject to the duties and restrictions relating to practice before the IRS. Only an attorney, certified public accountant, enrolled agent, or registered tax return preparer may prepare for compensation all or substantially all of a tax return or claim for refund, or sign as a preparer tax returns and claims for refund.
An individual who is not an attorney, certified public accountant, enrolled agent, or registered tax return preparer who nevertheless prepares for compensation all or a substantial portion of a document (including tax returns and claims for refund) for submission to the IRS is engaged in practice before the IRS, and subject to the rules and standards of Circular 230.
Section 10.30(a)(1) of these proposed regulations provides that a practitioner may not, with respect to any IRS matter, in any way use or participate in the use of any form of public communication or private solicitation containing a false, fraudulent, coercive, misleading, or deceptive statement or claim. In describing their professional designation, registered tax return preparers may not utilize the term “certified” or imply an employer/employee relationship with the IRS. An example of an acceptable description for registered tax return preparers under § 10.4(c), in describing their professional designation, is “designated as a registered tax return preparer with the Internal Revenue Service.”
After careful consideration, the IRS and the Treasury Department continue to conclude that the professional standards in § 10.34(a) generally should be consistent with the civil penalty standards in section 6694 for tax return preparers. As discussed in this preamble, the limited differences between the proposed standards in § 10.34 and section 6694 arise from the different purposes served by those provisions and the different manner in which the two standards will be administered.
The standards with respect to tax returns in § 10.34(a) are being reproposed to provide broader guidelines that are more appropriate for professional ethics standards. Under § 10.34(a)(1)(i) of these proposed regulations, a practitioner may not willfully, recklessly, or through gross incompetence, sign a tax return or claim for refund that the practitioner knows or reasonably should know contains a position that: (A) Lacks a reasonable basis; (B) is an unreasonable position as described in section 6694(a)(2) (including the related regulations and other published guidance); or (C) is a willful attempt by the practitioner to understate the liability for tax or a reckless or intentional disregard of rules or regulations by the practitioner as described in section 6694(b)(2) (including the related regulations and other published guidance).
Under § 10.34(a)(1)(ii) of these proposed regulations, a practitioner may not willfully, recklessly, or through gross incompetence, advise a client to take a position on a tax return or claim for refund, or prepare a portion of a tax return or claim for refund containing a position, that: (A) Lacks a reasonable basis; (B) is an unreasonable position as described in section 6694(a)(2) (including the related regulations and other published guidance); or (C) is a willful attempt by the practitioner to understate the liability for tax or a reckless or intentional disregard of rules or regulations by the practitioner as described in section 6694(b)(2) (including the related regulations and other published guidance).
These proposed ethical guidelines under § 10.34 closely mirror the civil penalty standards in section 6694 with only a few minor differences. First, these proposed regulations specifically provide that a position on a return or claim for refund must always meet the minimum threshold standard of reasonable basis. Because Circular 230 establishes minimum standards for practitioners, these proposed regulations provide that a practitioner acts unethically when the practitioner advises a taxpayer to take a return position that lacks a reasonable basis. The proposed regulations do not provide an exception to § 10.34(a) merely because there is a final determination that no understatement of liability for tax exists. This differs from section 6694(d), which provides that the IRS must abate (or refund) a preparer penalty any time there is a final administrative determination or a final judicial decision that there was no understatement of liability by the taxpayer. A practitioner, therefore, may still be subject to discipline under § 10.34(a) for a position on a tax return or claim for refund even if other positions on the same tax return or claim for refund eliminate the understatement of liability.
Second, these proposed regulations provide that a practitioner is subject to discipline under § 10.34(a) only after willful, reckless, or grossly incompetent conduct. Under section 6694, a single, unintentional error that is not willful, reckless, or grossly incompetent may result in a section 6694(a) penalty. Similarly, a return preparer may claim a reasonable cause defense to the imposition of penalties under section 6694, while Circular 230 does not provide such a defense but rather relies on the requirement that a practitioner must have acted willfully, recklessly, or through gross incompetence to ensure that sanctions are not imposed on a practitioner who acts reasonably and in good faith. If the IRS imposes a penalty against a practitioner under section 6694 and also refers the practitioner for possible discipline under Circular 230, OPR will make an independent determination as to whether the practitioner engaged in willful, reckless, or grossly incompetent conduct subject to discipline under § 10.34(a) before any disciplinary proceedings are instituted or any sanctions are imposed. Thus, a practitioner liable for a penalty under section 6694 is not automatically subject to discipline under § 10.34(a).
Third, multiple practitioners from the same firm may be disciplined if their conduct in connection with the same act(s) does not comply with the standard of conduct required under § 10.34. Under the provisions in the regulations under section 6694, only one person within a firm is subject to the penalty under section 6694. The provisions of section 6694 prevent unwarranted duplication of civil penalties, but in the Circular 230 context, it may be critical that each practitioner engaged in misconduct be subject to appropriate sanctions.
Finally, § 10.34(a)(2) of these proposed regulations expressly provides that a pattern of conduct is a factor that will be taken into account in
With these revisions, the definitions previously proposed under § 10.34(e) are withdrawn because the well-established definitions under the section 6662 and section 6694 penalty regulations and other published guidance will control for purposes of § 10.34.
Section 10.36 currently provides procedures to ensure that tax practitioners with responsibility for overseeing a firm's practice before the IRS take reasonable steps to ensure that the firm has adequate procedures in effect for all members, associates, and employees for purposes of complying with § 10.35 regarding covered opinions. The procedures to ensure compliance have produced great successes in encouraging firms to self-regulate, while at the same time doing so in a flexible way that is not a rigid one-size-fits-all regulatory burden. Firm responsibility is a critical factor in ensuring high quality advice and representation for taxpayers. Accordingly, the IRS and the Treasury Department conclude that the procedures to ensure compliance should be expanded to include practice involving tax return preparation activities. Section 10.36 of the proposed regulations provides that firm management with principal authority and responsibility for overseeing a firm's practice of preparing tax returns, claims for refunds and other documents filed with the IRS must take reasonable steps to ensure that the firm has adequate procedures in effect for purposes of complying with Circular 230.
Section 10.51 of Circular 230 defines disreputable conduct for which a practitioner may be sanctioned. Section 6011(e)(3) of the Code, enacted by section 17 of the Worker, Homeownership, and Business Assistance Act of 2009, Public Law 111-92 (123 Stat. 2984, 2996) (Nov. 6, 2009), requires certain specified tax return preparers to file individual income tax returns electronically. Because the IRS and the Treasury Department believe that the failure to comply with this requirement is disreputable conduct, these proposed regulations are amended to add a new paragraph in § 10.51 to address practitioners who fail to comply with this requirement. Under § 10.51(a)(16) of the proposed regulations, disreputable conduct includes willfully failing to file on magnetic or other electronic media a tax return prepared by the practitioner when the practitioner is required to do so by the Federal tax laws (unless the failure is due to reasonable cause and not due to willful neglect).
Under § 10.51(a)(17) of the proposed regulations, disreputable conduct also includes willfully preparing all or substantially all of, or signing as a compensated tax return preparer, a tax return or claim for refund when the practitioner does not possess a current or otherwise valid PTIN or other prescribed identifying number. Section 10.51(a)(18) states that it is disreputable conduct for a practitioner to willfully represent a taxpayer before an officer or employee of the IRS unless the practitioner is authorized to do so pursuant to Circular 230. These changes are consistent with the other revisions in these proposed regulations and under section 6109.
Under § 10.90 of the current regulations, OPR must maintain and may make available for public inspection in the time and manner prescribed by the Secretary a roster of enrolled agents, including those who are active, inactive, and sanctioned. These proposed regulations clarify that the roster requirements also pertain to registered tax return preparers and qualified continuing education programs.
These regulations are generally proposed to apply 60 days after the date that final regulations are published in the
Executive Order 12866 requires certain regulatory assessments and procedures for a significant regulatory action, defined as adversely affecting in a material way the economy, a sector of the economy, productivity, competition, or jobs. This rule has been designated as significant and has been reviewed by the Office of Management and Budget as required under the provisions of E.O. 12866. The Regulatory Assessment prepared for this regulation is provided below under the heading “Regulatory Assessment under E.O. 12866.”
It has been determined that an initial regulatory flexibility analysis is required for this notice of proposed rulemaking under 5 U.S.C. 603. This analysis is set forth later in this preamble under the heading “Initial Regulatory Flexibility Analysis.”
Pursuant to section 7805(f) of the Internal Revenue Code (Code), this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Although the IRS has exercised its authority to regulate for attorneys, certified public accountants, and other specified tax professionals, regulations under Circular 230 currently do not apply to a critical group of tax professionals: tax return preparers. As discussed in the Report, taxpayers' reliance on tax return preparers has grown steadily in recent decades. The number of taxpayers who prepared their own tax returns without assistance fell by more than two-thirds between 1993 and 2005. In fact, today, tax return preparers assist a majority of U.S. taxpayers in meeting their Federal tax filing obligations. In 2008 and 2009, for example, tax return preparers prepared almost 60 percent of all federal tax returns filed, including approximately 87 million federal individual income tax returns. The IRS expects these numbers to increase in 2010 and the coming years.
Tax return preparers are not only responsible for assisting taxpayers in filing complete, timely, and accurate returns, but also help educate taxpayers about the tax laws, and facilitate electronic filing. Tax return preparers provide advice to taxpayers, identify items or issues for which the law or guidance is unclear, and inform taxpayers of the benefits and risks of positions taken on a tax return, and the tax treatment or reporting of items and transactions. The IRS and the Treasury Department recognize that the majority of tax return preparers serve the interests of their clients and the tax system by preparing complete and accurate returns.
The tax system is best served by tax return preparers who are ethical, provide good service, and are qualified. Recent government studies, including studies from the Government Accountability Office and the Treasury Inspector General for Tax Administration,
An overwhelming number of commentators (98 percent of the persons who offered comments on oversight and enforcement) supported increased government oversight of tax return preparers, particularly for individuals who are not attorneys, certified public accountants or others currently authorized to practice before the IRS. These commentators argued that taxpayers, the IRS and tax administration generally would benefit from the registration of tax return preparers. Eighty-eight percent of the persons who expressed an opinion on registering paid tax return preparers favor registration. Ninety percent of the persons who commented on testing and education favor minimum education or testing requirements for paid tax return preparers. And 98 percent of the persons who commented on quality and ethics favor establishment of quality and ethics standards for paid tax return preparers.
Because the IRS has not adopted a uniform set of regulations for tax return preparers, the amount of oversight of tax return professionals varies greatly depending on professional affiliations and the geographic area in which they practice. Most tax return preparers do not have to pass any government or professionally mandated competency requirement. Most tax return preparers are not required to participate in a specified program of continuing professional education. And the ethical rules found in Circular 230 currently are not applicable to all tax return preparers.
As such, the IRS recognizes the need to apply a uniform set of rules to offer taxpayers some assurance that their tax returns are prepared completely and accurately. Increasing the completeness and accuracy of returns would necessarily lead to increase compliance with tax obligations by taxpayers.
These proposed regulations generally extend current regulations that apply to attorneys, certified public accountants and other specified tax professionals to all tax return preparers, including currently unenrolled tax return preparers, who prepare all or substantially all of a tax return or claim for refund for compensation. The rules apply to all returns prepared by tax return preparers regardless of the taxpayer. The rule is not limited by the type of return or claim for refund. For example, the rule applies to self-employed tax return preparers who prepare primarily individual tax returns for persons who have only wage and interest income. The rule also applies to tax return preparers employed by large accounting firms who prepare primarily corporate and large partnership returns. It also applies to those tax returns preparers who prepare only estate or excise tax returns. These examples are nonexclusive and the application of these rules is not limited to only those tax return preparers covered by the examples.
The IRS and the Treasury Department believe that the expansion of these regulations to currently unenrolled tax return preparers may impact individual taxpayers more than large corporate taxpayers because the IRS and the Treasury Department believe that large corporate taxpayers more likely employ the services of those who are currently regulated than those who are currently unenrolled to prepare their tax returns. The IRS and the Treasury Department are seeking comments on the types of returns (for example: individual versus corporate tax returns) currently being prepared by currently unenrolled tax return preparers.
The primary benefit anticipated from these regulations is that they will improve the accuracy, completeness, and timeliness of tax returns prepared by tax return preparers. As illustrated in the recent government studies, including the IRS's recent review of the tax return preparer industry, inaccurate tax returns are costly both to taxpayers and the government. Inaccurate returns may affect the finances of taxpayers, who might overpay their respective share of taxes or fail to take advantage of available tax benefits. Inaccurate tax returns may also affect the U.S. government because of underpayments and increased costs of enforcement and collection.
The regulations are expected to improve the accuracy, completeness, and timeliness of tax returns in a number of ways. First, requiring tax return preparers to demonstrate the necessary qualifications to provide a valuable service by successfully completing a government or professionally mandated competency examination and continued competence by completing the specified continuing education credits annually will result in more competent and ethical tax return preparers who are well educated in the rules and subject matter. A more competent and ethical tax return preparer community will prevent costly errors, potentially saving taxpayers from unwanted problems and relieving the IRS from expending valuable examination and collection resources. Thus, these proposed regulations are critical to assisting the IRS curtail the activities of noncompliant and unethical tax return preparers.
Second, these regulations, in association with new and separate regulations under section 6109 requiring all individuals who prepare all or substantially all of a tax return for compensation to obtain a PTIN, are expected to improve the accuracy, completeness and timeliness of tax returns because they will help the IRS identify tax return preparers and the tax returns and claims for refund that they prepare, which will aid the IRS's oversight of tax return preparers, and to administer requirements intended to ensure that tax return preparers are competent, trained, and conform to rules of practice. Individuals who prepare all or substantially all of a tax return or claim for refund will be required to obtain a PTIN prescribed by the IRS and furnish the PTIN when the tax return preparer signs (as the tax return preparer) a tax return or claim for refund. These individuals who are currently not attorneys, certified public accountants, or enrolled agents will apply for status as a registered tax return preparer and regularly renew that status. Given the important role that tax return preparers play in Federal tax administration, the IRS has a significant interest in being able to accurately identify tax return preparers and monitor the tax return preparation activities of these individuals. These regulations, in conjunction with the final PTIN regulations, will enable the IRS to more accurately identify tax return preparers and improve the IRS's ability to associate filed tax returns and refund claims with the responsible tax return preparer.
Third, the proposed regulations are expected to improve the accuracy of tax
The availability of these sanctions will act as a deterrent to paid preparers engaging in misconduct because disreputable or incompetent paid preparers who are suspended or disbarred from practice will no longer be able to prepare tax returns, claims for refund, and other documents submitted to the IRS. Competent and ethical tax return preparers who are well educated in the rules and subject matter of their field can prevent costly errors, potentially saving a taxpayer from unwanted problems later on and relieving the IRS from expending valuable examination and collection resources.
Because these regulations apply to all tax return preparers, the IRS and the Treasury Department anticipate that they will improve the accuracy of tax returns prepared by all types of tax professionals. The IRS and the Treasury Department expect that the largest marginal improvements in accuracy will be with regard to tax returns prepared by tax return preparers who previously were unregulated through the Circular 230 requirements. Unlike certified public accountants, attorneys, and enrolled agents, unenrolled tax return preparers generally are not subject to any form of testing, continuing professional education, or uniform ethical standards. The tax returns prepared by unenrolled tax return preparers may involve tax issues that are less complicated and smaller in amount than issues in tax returns prepared by other types of tax professionals. In addition, individual taxpayers may face a variety of complex tax issues, for which the advice of a qualified tax advisor will improve the accuracy on the return. Finally, by requiring registration of all tax return preparers, these regulations will allow the IRS to better monitor the relative accuracy of tax returns prepared by various types of tax professionals.
Comments are requested on whether these proposed regulations will improve overall tax administration. In particular, comments are specifically requested regarding the extent to which the improved accuracy of tax returns will be achieved through these regulations and whether the testing and continuing education provisions of these regulations are properly focused on currently unregulated tax return preparers.
There are various costs anticipated from this regulatory action.
Tax return preparers will incur costs associated with taking a minimum competency examination, including the cost of the examination, the amount of time required to study for the examination, and any associated travel depending on the proximity of tax return preparer to the test site location. Although it is anticipated that the vendor will offer the test at several locations in the United States and outside the United States, the vendor and the test locations have not been selected at this time. Future regulations will be proposed that address the costs to the government for creating, administering, and reviewing the examination and the user fee the IRS will charge to recover these costs. The third-party vendor who helps administer the registered tax return preparer competency examination also will charge a reasonable fee to take the registered tax return preparer examination. Comments are specifically requested on the costs associated with the examination and the impact these costs may have on tax return preparers, entities that employ them or taxpayers who use their services.
Additionally, preparers will be subject to user fees for applying for a PTIN and renewing the PTIN. Proposed regulations published in the
Tax return preparers will incur recordkeeping and other costs associated with taking continuing education classes and any associated travel. Section 10.6 of these proposed regulations requires a registered tax return preparer to maintain records and educational materials regarding the completion of the required qualifying continuing education credits. The IRS and the Treasury Department estimate that there are 650,000 practitioners who will be affected by these recordkeeping requirements and the estimated annual
Continuing education providers will be subject to recordkeeping costs and user fees for each application for qualification as a qualified continuing education program. Section 10.9 of these proposed regulations requires providers of qualifying continuing education programs to maintain records and educational material concerning these programs and the individuals who attend them. Continuing education providers also obtain approval of each program as a qualified continuing education program. Approximately 500 continuing education providers are currently approved to provide continuing education programs for the approximately 50,000 enrolled agents, enrolled actuaries and enrolled retirement plan agents who must complete continuing education currently, but the IRS and the Treasury Department estimate that there are 2,250 continuing education providers who will be affected by these recordkeeping requirements and the estimated annual burden per continuing education provider will vary from 5 hours to 5,000 hours, depending on individual circumstances, with an estimated average of 500 hours. The estimated total annual costs resulting from these requirements will be $38,632,500 for all affected continuing education providers.
The amounts of the user fee for providing continuing education programs are still to be determined and another regulation addressing user fees will be proposed. These future regulations will address the costs to the government for the review, approval, and oversight of continuing education providers to ensure their compliance with program design and maintenance for continuing education programs and the user fee to be charged by the IRS to recover these costs.
Currently, the cost to the tax return preparer of any particular continuing education course can vary greatly from free to hundreds of dollars. Many tax return preparation firms either provide continuing education courses at the firm to its employees for no charge or sponsor the cost of external courses for its employees. Other tax return preparers, however, will have to personally pay the cost of each continuing education course, which generally ranges anywhere from $20 to $300 per course depending on whether the continuing education provider offers the course in person, online, or over the phone. After the publication of this regulatory action, continuing education providers may increase the costs of the courses in response to the new user fee on continuing education providers. Tax return preparers also may incur additional costs if they travel to attend continuing education programs. These costs may include the time to travel to the program, transportation, lodging and incidentals.
Entities may be directly affected by the competency examination, PTIN and continuing education costs if they choose to pay any or all of the user fees or expenses for their employees. Some individuals and entities also may lose sales and profits while preparers are studying and sitting for the examination or taking the continuing education courses. Finally, individual tax return preparers and entities that employ individuals who prepare tax returns may need to close or change their business model if all, or a majority, of their employees cannot satisfy the necessary qualifications and competency requirements. The IRS and the Treasury Department believe that only a small percentage of tax return preparers will need to close or change their business model based upon these proposed rules. Comments are specifically requested on the costs associated with continuing education and the impact these costs may have on tax return preparers, continuing education providers, entities that employ tax return preparers or taxpayers who use the services of a tax return preparer.
The IRS and the Treasury Department considered various alternatives in determining the best ways to implement proposed changes to the regulation of tax return preparers. In order to place the costs and benefits of the proposed rule in context, E.O. 12866 requires a comparison between the proposed rule, a baseline of what the world would look like without the proposed rule, and reasonable alternatives to the proposed rule.
Under a baseline scenario, the current ethical standards in Circular 230 would continue to apply only to attorneys, certified public accountants, enrolled agents, and other practitioners who prepare tax returns and claims for refund, but not to unenrolled tax return preparers. Also, any unenrolled tax return preparer under this baseline scenario would be able to prepare and sign tax returns and claims for refund without passing an examination to establish competence or satisfying continuing education requirements.
Remaining under the current rules regarding tax return preparers would eliminate the benefits of the proposed rule described in section A2 of this preamble. For example, under the baseline, OPR would not be authorized to institute disciplinary proceedings seeking sanctions against unenrolled tax return preparers.
Continuing to authorize any individual to prepare tax returns and claims for refund for compensation without passing an examination or taking continuing education courses also would eliminate any costs associated with the proposed rule described in section A3 of this preamble. Tax return preparers, however, would still potentially be subject to user fees for obtaining a PTIN and renewing the PTIN if other Treasury Department and IRS regulations specifically prescribed those fees.
The first alternative that was considered is to require all tax return preparers to comply with the ethical standards in Circular 230, but not to require any tax return preparer to pass an examination and complete continuing education courses. Under this alternative, the provisions of the proposed rule clarifying that tax return preparers are subject to the ethical rules in Circular 230 would remain intact, but all of the other changes would not be adopted.
The benefits resulting from this alternative would likely be less than the rules in the proposed regulations because tax return preparers would not need to meet a minimum competency level and keep educated and up-to-date on Federal tax issues. The most significant drawback to this alternative is the potential loss of these benefits and the benefits that result from monitoring the return preparation activities of tax return preparers generally. Under this alternative, however, tax return preparers would not incur the majority of costs that exist under the proposed regulations.
A second alternative is to require tax return preparers who are not currently authorized to practice before the IRS to apply for such authorization with the IRS, satisfy annual continuing education requirements, and meet certain ethical
The benefits resulting from this alternative are more comparable to the benefits in the proposed regulations than under the alternative one. Nevertheless, the lack of an examination probably would not be as effective in ensuring that tax return preparers are qualified to obtain professional credentials and practice before the IRS. Tax return preparers under this alternative would incur all of the same costs that are in the proposed regulations other than the costs associated with taking the examination.
A third alternative is to “grandfather in” unenrolled tax return preparers who have accurately and competently prepared tax returns for a certain amount of years. This alternative is the same as the rules in the proposed regulations other than authorizing some unenrolled return preparers who have a specified amount of prior experience preparing tax returns and claims for refund to continue to prepare and sign returns without passing a minimum competency examination.
The benefits resulting from this alternative would likely be less than the rules in the proposed regulations because the IRS and the Treasury Department believe a minimum level of competency needs to be assured through examination. Additionally, this alternative is not as likely to promote the same taxpayer confidence in the tax return preparation community as the proposed regulations, which may, in turn, influence taxpayers when choosing a tax return preparer. Tax return preparers under this alternative would incur all of the same costs that are in the proposed regulations except certain unenrolled preparers would avoid the costs associated with taking the examination.
Comments are specifically requested on the benefits and costs of these alternatives compared to the approach taken in the proposed regulations.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (5 U.S.C. chapter 6) (RFA) requires the agency “to prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.”
As discussed in more detail in section A1 of this preamble, tax return preparers are critical to ensuring compliance with the Federal tax laws and are an important component in the IRS's administration of those laws. More than eighty percent of U.S. taxpayers use a tax return preparer or consumer tax return preparation software to help prepare and file tax returns. Most tax return preparers are currently not subject to the ethical rules governing practice before the IRS and do not have to pass any competency requirement established by the government or a professional organization. After completing a comprehensive six-month review of tax return preparers, which included receiving input through public forums, solicitation of written comments, and meetings with advisory groups, the IRS concluded that there was a need for increased oversight of the tax return preparer industry. These proposed regulations implement higher standards for the tax return preparer community with the goal of significantly enhancing protections and service for taxpayers, increasing confidence in the tax system, and resulting in greater long-term compliance with the tax laws.
The principal objective of the proposed regulations is to increase oversight of all tax return preparers and to provide guidance to tax return preparers about the new requirements imposed on them under Circular 230. Specifically, the proposed regulations clarify that any registered tax return preparer is a practitioner practicing before the IRS and thereby is subject to the ethical rules in Circular 230. The proposed regulations require a tax return preparer to demonstrate the necessary qualifications and competency to advise and assist other persons in the preparation of all or substantially all of a tax return or claim for refund. The legal basis for these requirements is contained in section 330 of title 31.
The proposed regulations affect all individuals currently working as paid preparers, individuals who want to become designated as a registered tax return preparer under the new oversight rules in Circular 230, and those small entities that are owned by or employ paid preparers. Only individuals, not businesses, can practice before the IRS or become a registered tax return preparer. Thus, the economic impact of these regulations on any small entity generally will be a result of an unenrolled individual owning a small business or on a small business that otherwise employs unenrolled paid return preparers. These regulations also will economically affect any small entity that is a provider of qualifying continuing education programs.
The appropriate NAICS codes for tax return preparers relate to tax preparation services (NAICS code 541213) and other accounting services (NAICS code 541219). Entities identified under these codes are considered small under the Small Business Administration size standards (13 CFR 121.201) if their annual revenue is less than $7 million or $8.5 million, respectively. The IRS estimates that approximately seventy to eighty percent of the individuals subject to these proposed regulations are paid preparers operating as or employed by small entities. The IRS estimates that there will be 2,250 providers of qualifying continuing education programs.
The IRS estimates that there are approximately 600,000 to 700,000 unenrolled tax return preparers who are currently not attorneys, certified public accountants, or enrolled agents and who will apply for status as a registered tax return preparer if these proposed rules are adopted. Under the proposed regulations, tax return preparers who become registered tax return preparers are subject to a recordkeeping requirement within the meaning of the PRA because they are required to
The estimated 2,250 providers of qualifying continuing education programs will be required to maintain records and educational material concerning these programs and the persons who attended them. These entities will need to obtain approval of the program as a qualified continuing education program from OPR. These continuing education providers will annually spend approximately 5 minutes per attendee maintaining the required records and approximately 30 minutes to one hour per program completing and filing the application for approval as a qualified continuing education program.
As previously discussed in section A3 of this preamble, the proposed rule contains a number of other compliance requirements not subject to the PRA. These include the costs tax return preparers incur to take a competency examination, costs for continuing education classes, and other incidental costs and user fees. Small entities may be directly affected by these costs if they choose to pay any or all of these fees for their employees. In some cases, small entities may lose sales and profits while their employees prepare for and take the examination or participate in continuing education courses. Finally, some small entities that employ individuals who prepare tax returns may need to alter their business model if a significant number of their employees cannot satisfy the necessary qualifications and competency requirements. The IRS and the Treasury Department believe that only a small percentage of small entities, if any, may need to cease doing business or radically change their business model due to these proposed rules.
All tax return preparers currently are subject to various civil and criminal penalties under the Code. For example, section 6694 imposes civil penalties on tax return preparers for conduct giving rise to certain understatements of liability on a return, while section 6695 imposes civil penalties for, among other acts, failing to sign or provide an identification number on a return they prepare. Tax return preparers who demonstrate a pattern of misconduct may be enjoined from preparing further returns under section 7407. Additionally, the IRS, under its broad authority to regulate the filing of electronic returns, requires any tax return preparer who files returns electronically to comply with certain rules, including requiring the electronic return originator to pass background and credit history checks. The IRS and the Treasury Department believe that the proposed rules complement these existing rules with a resulting comprehensive enforcement strategy that ensures that all tax return preparers are assisting clients appropriately.
The IRS received a large volume of comments, through the Return Preparer Review, on the oversight and enforcement of tax return preparers from all interested parties, including tax professional groups representing large and small entities, Federal and state organizations, IRS advisory groups, software vendors, individual return preparers, and the public. The input received from this large and diverse community overwhelmingly expressed support for efforts to increase the oversight of tax return preparers, particularly for those who are not attorneys, certified public accountants, or other individuals currently authorized to practice before the IRS.
In concert with this tremendous public support for increased IRS oversight of tax return preparers, the IRS and the Treasury Department considered various alternatives in determining the best ways to implement proposed changes to the regulation of paid preparers. As discussed in more detail in section A4 of this preamble, these alternatives included:
(1) Requiring all tax return preparers to comply with the ethical standards in Circular 230 or a code of ethics similar to Circular 230, but not requiring any tax return preparers to demonstrate their qualifications and competency;
(2) Requiring tax return preparers who are not currently authorized to practice before the IRS to apply for authorization with the IRS, satisfy annual continuing education requirements, and meet certain ethical standards, but not to pass a minimum competency examination; and
(3) Requiring all tax return preparers who are not currently authorized to practice before the IRS to pass a minimum competency examination and meet other requirements, but “grandfather in” tax return preparers who have accurately and competently prepared tax returns for a certain number of years.
After consideration of these and other alternatives and all of the input provided through the public comment process, the IRS and the Treasury Department concluded that the provisions of the proposed regulations are necessary for sound tax administration and are the best way to increase oversight of all paid preparers. The testing requirements in the proposed rules will ensure that tax return preparers pass a minimum competency examination to obtain their professional credentials, while the continuing education requirements will help ensure that tax return preparers remain current on Federal tax law and continue to expand their tax knowledge. The extension of the rules in Circular 230 to registered tax return preparers will require all practitioners to meet certain ethical standards and allow the IRS to suspend or otherwise discipline tax return preparers who engage in unethical or disreputable conduct. Accordingly, the implementation of the qualification and competency standards in these proposed rules is expected to increase taxpayer compliance and ensure uniform and high ethical standards of conduct for tax return preparers. The public comments submitted during the Return Preparer Review overwhelmingly supported the provisions in these proposed rules.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the substance of the proposed regulations, as well as on the clarity of the proposed rules and how they can be made easier to understand. All comments that are submitted by the public will be made available for public inspection and copying.
A public hearing has been scheduled for Friday, October 8, 2010, beginning at 10 a.m. in Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic by Monday, September 27, 2010. A period of 10 minutes will be allocated to each person for making comments.
An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these regulations is Matthew S. Cooper of the Office of the Associate Chief Counsel (Procedure and Administration).
Accountants, Administrative practice and procedure, Lawyers, Reporting and recordkeeping requirements, Taxes.
Accordingly, under the authority of 31 U.S.C. 330, the notice of proposed rulemaking (REG-138637-07) that was published in the
Accordingly, 31 CFR part 10 is proposed to be amended to read as follows:
Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 et seq.; 5 U.S.C. 301, 500, 551-559; 31 U.S.C. 321; 31 U.S.C. 330; Reorg. Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-1953 Comp., p. 1017.
This part contains rules governing the recognition of attorneys, certified public accountants, enrolled agents, enrolled retirement plan agents, registered tax return preparers, and other persons representing taxpayers before the Internal Revenue Service. Subpart A of this part sets forth rules relating to the authority to practice before the Internal Revenue Service; Subpart B of this part prescribes the duties and restrictions relating to such practice; Subpart C of this part prescribes the sanctions for violating the regulations; Subpart D of this part contains the rules applicable to disciplinary proceedings; and Subpart E of this part contains general provisions relating to the availability of official records.
(a) * * *
(4)
(5)
(8)
(b)
1. Redesignating paragraphs (f), (g), (h), and (i) as paragraphs (g), (h), (i), and (j), respectively.
2. Adding new paragraph (f).
3. Revising paragraphs (d)(3) and (e)(3), and newly designated paragraph (j).
The revisions and additions read as follows:
(d) * * *
(3) An individual who practices before the Internal Revenue Service pursuant to paragraph (d)(1) of this section is subject to the provisions of this part in the same manner as attorneys, certified public accountants, enrolled agents, enrolled retirement plan agents, and registered tax return preparers.
(e) * * *
(3) An individual who practices before the Internal Revenue Service pursuant to paragraph (e)(1) of this section is subject to the provisions of this part in the same manner as attorneys, certified public accountants, enrolled agents, enrolled actuaries, and registered tax return preparers.
(f)
(2) Practice as a registered tax return preparer is limited to preparing tax returns, claims for refund, and other documents for submission to the Internal Revenue Service. A registered tax return preparer may prepare, or assist in preparing, all or substantially all of a tax return or claim for refund for which the registered tax return preparer has passed the requisite written examination. A registered tax return preparer also may sign tax returns, claims for refund, or other documents for which the registered tax return preparer has passed the requisite written examination. The Internal Revenue Service will prescribe by forms, instructions, or other appropriate guidance the tax returns and claims for refund, including the schedules and forms, that a registered tax return preparer may prepare or sign based on the written examination that the registered tax return preparer has successfully completed. A registered tax return preparer may represent taxpayers before revenue agents, customer service representatives, or similar officers and employees of the Internal Revenue Service during an examination if the registered tax return preparer signed the tax return or claim for refund for the taxable year or period under examination. Unless otherwise prescribed by regulation or notice, this right does not permit such individual to represent the taxpayer, regardless of the circumstances requiring representation, before appeals officers, revenue officers, Counsel or similar officers or employees
(3) An individual who practices before the Internal Revenue Service pursuant to paragraph (f)(1) of this section is subject to the provisions of this part in the same manner as attorneys, certified public accountants, enrolled agents, enrolled retirement plan agents, and enrolled actuaries.
(j)
(a)
(b)
(c)
(d)
(1) The former employee applies for enrollment to the Director of the Office of Professional Responsibility on a form supplied by the Director of the Office of Professional Responsibility and supplies the information requested on the form and such other information regarding the experience and training of the applicant as may be relevant.
(2) An appropriate office of the Internal Revenue Service, at the request of the Director of the Office of Professional Responsibility, will provide the Director of the Office of Professional Responsibility with a detailed report of the nature and rating of the applicant's work while employed by the Internal Revenue Service and a recommendation whether such employment qualifies the applicant technically or otherwise for the desired authorization.
(3) Enrollment as an enrolled agent based on an applicant's former employment with the Internal Revenue Service may be of unlimited scope or it may be limited to permit the presentation of matters only of the particular specialty or only before the particular unit or division of the Internal Revenue Service for which the applicant's former employment has qualified the applicant. Enrollment as an enrolled retirement plan agent based on an applicant's former employment with the Internal Revenue Service will be limited to permit the presentation of matters only with respect to qualified retirement plan matters.
(4) Application for enrollment as an enrolled agent or enrolled retirement plan agent based on an applicant's former employment with the Internal Revenue Service must be made within three years from the date of separation from such employment.
(5) An applicant for enrollment as an enrolled agent who is requesting such enrollment based on former employment with the Internal Revenue Service must have had a minimum of five years continuous employment with the Internal Revenue Service during which the applicant must have been regularly engaged in applying and interpreting the provisions of the Internal Revenue Code and the regulations relating to income, estate, gift, employment, or excise taxes.
(6) An applicant for enrollment as an enrolled retirement plan agent who is requesting such enrollment based on former employment with the Internal Revenue Service must have had a minimum of five years continuous employment with the Internal Revenue Service during which the applicant must have been regularly engaged in applying and interpreting the provisions of the Internal Revenue Code and the regulations relating to qualified retirement plan matters.
(7) For the purposes of paragraphs (d)(5) and (d)(6) of this section, an aggregate of 10 or more years of employment in positions involving the application and interpretation of the provisions of the Internal Revenue Code, at least three of which occurred within the five years preceding the date of application, is the equivalent of five years continuous employment.
(e)
(f)
(a)
(b)
(c)
(d)
(2) If the applicant does not pass the tax compliance or suitability check, the applicant will not be issued an enrollment or registration card or certificate pursuant to § 10.6(b) of this part, and will be provided information regarding the denial of the application and the rules on appealing the denial. An applicant who is initially denied enrollment or registration for failure to pass a tax compliance check may reapply after the initial denial if the applicant becomes current with respect to the applicant's tax liabilities.
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(2)
(ii) All individuals enrolled to practice before the Internal Revenue Service who have a social security number or tax identification number that ends with the numbers 4, 5, or 6, except for those individuals who received their initial enrollment after November 1, 2004, must apply for renewal between November 1, 2004, and January 31, 2005. The renewal will be effective April 1, 2005.
(iii) All individuals enrolled to practice before the Internal Revenue Service who have a social security number or tax identification number that ends with the numbers 7, 8, or 9, except for those individuals who received their initial enrollment after
(iv) Thereafter, applications for renewal as an enrolled agent will be required between November 1 and January 31 of every subsequent third year as specified in paragraph (d)(2)(i), (d)(2)(ii), or (d)(2)(iii) of this section according to the last number of the individual's social security number or tax identification number. Those individuals who receive initial enrollment as an enrolled agent after November 1 and before April 2 of the applicable renewal period will not be required to renew their enrollment before the first full renewal period following the receipt of their initial enrollment.
(3)
(4)
(5)
(6)
(7)
(e)
(1)
(i)
(ii)
(iii)
(iv) The
(2)
(ii)
(iii)
(B)
(3)
(f)
(A) Be a qualifying continuing education program designed to enhance professional knowledge in Federal taxation or Federal tax related matters (programs comprised of current subject matter in Federal taxation or Federal tax related matters, including accounting, tax return preparation software, taxation, or ethics); and
(B) Be a qualifying continuing education program consistent with the Internal Revenue Code and effective tax administration.
(ii)
(A) Be a qualifying continuing education program designed to enhance professional knowledge in qualified retirement plan matters; and
(B) Be a qualifying continuing education program consistent with the Internal Revenue Code and effective tax administration.
(iii)
(A) Be a qualifying continuing education program designed to enhance professional knowledge in Federal taxation or Federal tax related matters (programs comprised of current subject matter in Federal taxation or Federal tax related matters, including accounting, tax return preparation software, taxation, or ethics); and
(B) Be a qualifying continuing education program consistent with the Internal Revenue Code and effective tax administration.
(2)
(A) Requires attendance and provides each attendee with a certificate of attendance;
(B) Requires that the program be conducted by a qualified instructor, discussion leader, or speaker (in other words, a person whose background, training, education, and experience is appropriate for instructing or leading a discussion on the subject matter of the particular program);
(C) Provides or requires a written outline, textbook, or suitable electronic educational materials; and
(D) Is approved as a qualified continuing education program by the Director of the Office of Professional Responsibility pursuant to § 10.9.
(ii)
(A) Require registration of the participants by the continuing education provider;
(B) Provide a means for measuring successful completion by the participants (for example, a written examination), including the issuance of a certificate of completion by the continuing education provider;
(C) Provide a written outline, textbook, or suitable electronic educational materials; and
(D) Are approved as a qualified continuing education program by the Director of the Office of Professional Responsibility pursuant to § 10.9.
(iii)
(B) A maximum of two hours of continuing education credit will be awarded for actual subject preparation time for each contact hour completed as an instructor, discussion leader, or speaker at such programs. It is the responsibility of the individual claiming such credit to maintain records to verify preparation time.
(C) The maximum credit for instruction and preparation may not exceed four hours annually of the continuing education requirement.
(D) An instructor, discussion leader, or speaker who makes more than one presentation on the same subject matter during an enrollment cycle or registration year, will receive continuing education credit for only one such presentation for the enrollment cycle or registration year.
(3)
(A) Achieving a passing score on each part of the Special Enrollment Examination administered under this part during the three year period prior to renewal; and
(B) Completing a minimum of 16 hours of qualifying continuing education during the last year of an enrollment cycle.
(ii) Courses designed to help an applicant prepare for the examination specified in § 10.4 are considered basic in nature and are not qualifying continuing education.
(g)
(2) A contact hour is 50 minutes of continuous participation in a program. Credit is granted only for a full contact hour, which is 50 minutes or multiples thereof. For example, a program lasting more than 50 minutes but less than 100 minutes will count as only one contact hour.
(3) Individual segments at continous conferences, conventions and the like will be considered one total program. For example, two 90-minute segments (180 minutes) at a continuous conference will count as three contact hours.
(4) For university or college courses, each semester hour credit will equal 15 contact hours and a quarter hour credit will equal 10 contact hours.
(h)
(i) The name of the sponsoring organization;
(ii) The location of the program;
(iii) The title of the program, qualified program number, and description of its content;
(iv) Written outlines, course syllibi, textbook, and/or electronic materials provided or required for the course;
(v) The dates attended;
(vi) The credit hours claimed;
(vii) The name(s) of the instructor(s), discussion leader(s), or speaker(s), if appropriate; and
(viii) The certificate of completion and/or signed statement of the hours of attendance obtained from the continuing education provider.
(2) To receive continuing education credit for service completed as an instructor, discussion leader, or speaker, the following information must be maintained for a period of four years following the date of renewal —
(i) The name of the sponsoring organization;
(ii) The location of the program;
(iii) The title of the program and copy of its content;
(iv) The dates of the program; and
(v) The credit hours claimed.
(i)
(i) Health, which prevented compliance with the continuing education requirements;
(ii) Extended active military duty;
(iii) Absence from the United States for an extended period of time due to employment or other reasons, provided the individual does not practice before the Internal Revenue Service during such absence; and
(iv) Other compelling reasons, which will be considered on a case-by-case basis.
(2) A request for waiver must be accompanied by appropriate documentation. The individual is required to furnish any additional documentation or explanation deemed necessary by the Director of the Office of Professional Responsibility. Examples of appropriate documentation could be a medical certificate or military orders.
(3) A request for waiver must be filed no later than the last day of the renewal application period.
(4) If a request for waiver is not approved, the individual will be placed in inactive status, so notified by the Director of the Office of Professional Responsibility, and placed on a roster of inactive enrolled agents, enrolled retirement plan agents, or registered tax return preparers.
(5) If a request for waiver is approved, the individual will be notified and issued a card or certificate evidencing renewal.
(6) Those who are granted waivers are required to file timely applications for renewal of enrollment or registration.
(j)
(2) The Director of the Office of Professional Responsibility may require any individual to provide copies of any records required to be maintained under this part. The Director of the Office of Professional Responsibility may disallow any continuing education hours claimed if the individual fails to comply with this requirement.
(3) An individual who has not filed a timely application for renewal, who has not made a timely response to the notice of noncompliance with the renewal requirements, or who has not satisfied the requirements of eligibility for renewal will be placed on a roster of inactive enrolled individuals or inactive registered individuals. During this time, the individual will be ineligible to practice before the Internal Revenue Service.
(4) Individuals placed in inactive status and individuals ineligible to practice before the Internal Revenue Service may not state or imply that they are eligible to practice before the Internal Revenue Service, or use the terms enrolled agent, enrolled retirement plan agent, or registered tax return preparer, the designations “EA” or “ERPA” or other form of reference to eligibility to practice before the Internal Revenue Service.
(5) An individual placed in inactive status may be reinstated to an active status by filing an application for renewal and providing evidence of the completion of all required continuing education hours for the enrollment cycle or registration year. Continuing education credit under this paragraph (k)(5) may not be used to satisfy the requirements of the enrollment cycle or registration year in which the individual has been placed back on the active roster.
(6) An individual placed in inactive status must file an application for renewal and satisfy the requirements for renewal as set forth in this section within three years of being placed in inactive status. Otherwise, the name of such individual will be removed from the inactive status roster and the individual's status as an enrolled agent, enrolled retirement plan agent, or registered tax return preparer will terminate. Future eligibility for active status must then be reestablished by the individual as provided in this section.
(7) Inactive status is not available to an individual who is the subject of a pending disciplinary matter before the Office of Professional Responsibility.
(k)
(l)
(m)
(n)
(o)
1. Revising the section heading.
2. Removing paragraphs (c)(1)(viii) and (e).
3. Redesignating paragraphs (f) and (g) as paragraphs (e) and (f).
4. Revising newly designated paragraphs (e) and (f).
The revisions read as follows:
(e)
(f)
(a)
(b)
(c)
(a)
(i) Be an accredited educational institution;
(ii) Be recognized for continuing education purposes by the licensing body of any State, territory, or possession of the United States, including a Commonwealth, or the District of Columbia; or
(iii) Be recognized by the Director of the Office of Professional Responsibility
(2)
(3)
(i) Programs must be developed by individual(s) qualified in the subject matter;
(ii) Program subject matter must be current;
(iii) Instructors, discussion leaders, and speakers must be qualified with respect to program content;
(iv) Programs must include some means for evaluation by the Director of the Office of Professional Responsibility of technical content and presentation;
(v) Certificates of completion bearing a current qualified continuing education program number issued by the Director of the Office of Professional Responsibility must be provided to the participants who successfully complete the program; and
(vi) Records must be maintained by the continuing education provider to verify the participants who attended and completed the program for a period of four years following completion of the program. In the case of continuous conferences, conventions, and the like, records must be maintained to verify completion of the program and attendance by each participant at each segment of the program.
(4)
(b)
(c)
(a)
(e)
1. Adding paragraph (a).
2. Redesignating paragraph (f) as paragraph (e).
3. Revising newly designated paragraph (e).
The revisions read as follows:
(a)
(i) Sign a tax return or claim for refund that the practitioner knows or reasonably should know contains a position that—
(A) Lacks a reasonable basis;
(B) Is an unreasonable position as described in section 6694(a)(2) of the Internal Revenue Code (Code) (including the related regulations and other published guidance); or
(C) Is a willful attempt by the practitioner to understate the liability for tax or a reckless or intentional disregard of rules or regulations by the practitioner as described in section 6694(b)(2) of the Code (including the related regulations and other published guidance).
(ii) Advise a client to take a position on a tax return or claim for refund, or prepare a portion of a tax return or claim for refund containing a position, that—
(A) Lacks a reasonable basis;
(B) Is an unreasonable position as described in section 6694(a)(2) of the Code (including the related regulations and other published guidance); or
(C) Is a willful attempt by the practitioner to understate the liability for tax or a reckless or intentional disregard of rules or regulations by the practitioner as described in section 6694(b)(2) of the Code (including the related regulations and other published guidance).
(2) A pattern of conduct is a factor that will be taken into account in determining whether a practitioner acted willfully, recklessly, or through gross incompetence.
(e)
1. Redesignating paragraph (b) as paragraph (c).
2. Adding new paragraph (b).
3. Revising newly designated paragraph (c).
The addition and revisions read as follows:
(b)
(1) The practitioner through willfulness, recklessness, or gross incompetence does not take reasonable steps to ensure that the firm has adequate procedures to comply with Circular 230, and one or more individuals who are members of, associated with, or employed by, the firm are, or have, engaged in a pattern or practice, in connection with their practice with the firm, of failing to comply with Circular 230; or
(2) The practitioner knows or should know that one or more individuals who are members of, associated with, or employed by, the firm are, or have, engaged in a pattern or practice, in connection with their practice with the firm, who does not comply with Circular 230, and the practitioner, through willfulness, recklessness, or gross incompetence fails to take prompt action to correct the noncompliance.
(c)
(a) * * *
(16) Willfully failing to file on magnetic or other electronic media a tax return prepared by the practitioner when the practitioner is required to do so by the Federal tax laws unless the failure is due to reasonable cause and not due to willful neglect.
(17) Willfully preparing all or substantially all of, or signing, a tax return or claim for refund when the practitioner does not possess a current or otherwise valid preparer tax identification number or other prescribed identifying number.
(18) Willfully representing a taxpayer before an officer or employee of the Internal Revenue Service unless the practitioner is authorized to do so pursuant to this part.
(b)
1. Revising paragraph (a).
2. Redesignating the second paragraph (b) as paragraph (c).
3. Revising newly designated paragraph (c).
The revisions read as follows:
(a)
(1) Individuals (and employers, firms, or other entities, if applicable) censured, suspended, or disbarred from practice before the Internal Revenue Service or upon whom a monetary penalty was imposed.
(2) Enrolled agents, including individuals—
(i) Granted active enrollment to practice;
(ii) Whose enrollment has been placed in inactive status for failure to meet the requirements for renewal of enrollment;
(iii) Whose enrollment has been placed in inactive retirement status; and
(iv) Whose offer of consent to resign from enrollment has been accepted by the Director of the Office of Professional Responsibility under § 10.61.
(3) Enrolled retirement plan agents, including individuals—
(i) Granted active enrollment to practice;
(ii) Whose enrollment has been placed in inactive status for failure to meet the requirements for renewal of enrollment;
(iii) Whose enrollment has been placed in inactive retirement status; and
(iv) Whose offer of consent to resign from enrollment has been accepted by the Director of the Office of Professional Responsibility under § 10.61.
(4) Registered tax return preparers, including individuals—
(i) Authorized to prepare all or substantially all of a tax return or claim for refund;
(ii) Who have been placed in inactive status for failure to meet the requirements for renewal;
(iii) Who have been placed in inactive retirement status; and
(iv) Whose offer of consent to resign from their status as a registered tax return preparer has been accepted by the Director of the Office of Professional Responsibility under § 10.61.
(5) Disqualified appraisers.
(6) Programs granted status as a qualified continuing education program.
(c)
Environmental Protection Agency (EPA).
Proposed rule; announcement of meeting.
EPA will hold a public meeting to give members of the public an opportunity to comment on a proposed rule under section 4(a)(1)(B) of the Toxic Substances Control Act (TSCA) entitled “Testing of Certain High Production Volume Chemicals; Third Group of Chemicals.” The proposed rule, when finalized, would require manufacturers, importers, and processors of certain high production volume (HPV) chemical substances to conduct testing to obtain screening level data for health and environmental effects and chemical fate. Opportunity to present oral comment was provided in the proposed rule and in response to that opportunity, a request to present oral comments was received.
The meeting will be held on September 9, 2010, from 1 p.m. to 4 p.m.
Requests to participate in the meeting must be received on or before September 8, 2010.
To request accommodation of a disability, please contact the person listed under
The meeting will be held at the Environmental Protection Agency, 1201 Constitution Ave., NW., Rm. 1117A, Washington, DC 20460-0001.
Requests to participate in the meeting, identified by docket identification (ID) number EPA-HQ-OPPT-2009-0112, may be submitted to the technical person listed under
You may be potentially affected by this action if you manufacture (defined by statute to include import) or process any of the chemical substances that are listed in §799.5089(j) of the proposed test rule’s regulatory text published in the
• Manufacturers (defined by statute to include importers) of one or more of the 29 subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
• Processors of one or more of the 29 subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult either technical person listed under
EPA has established a docket for this action under docket ID number EPA-HQ-OPPT-2009-0112. All documents in the docket are listed in the docket index available at
In the
In response to the proposed rule, EPA received a request to present oral comment from People for the Ethical Treatment of Animals (PETA). Written comments provided during the comment period for the proposed rule, including those requesting an opportunity for oral comment, are available and can be viewed in the docket under docket ID number EPA-HQ-OPPT-2009-0112.
You may submit a request to participate in this meeting to the technical person listed under
Environmental protection, Chemicals, Hazardous substances, Laboratories, Reporting and recordkeeping requirements.
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on ways to amend its rules to detect and prevent fraud and misuse in the provision of Video Relay Service (VRS). Because the VRS program has been subject to fraud and abuse, the Commission proposes these changes in order to deter the billing of illegitimate minutes to the Interstate Telecommunications Relay Service (TRS) Fund (Fund).
For issues regarding Location of VRS Call Centers, VRS Communications Assistants (CAs) Working from Home and Compensation, and Whistleblower Protections for VRS CAs and Other Provider Employees, comments are due on or before September 7, 2010, and reply comments due on or before September 16, 2010. For all other issues, comments are due on or before September 13, 2010, reply comments due on or before September 27, 2010. Written comments on the proposed information collection requirements, subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (PRA), should be submitted on or before October 22, 2010.
You may submit comments, identified by [CG Docket No. 10-51 and/or FCC 10-88], by any of the following methods:
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS)
• Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to 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. The filing hours are 8 a.m. to 7 p.m.
• 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.
In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, or via e-mail to
In addition, document FCC 10-88 contains proposed information collection requirements subject to the PRA. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collection requirements contained in this document. PRA comments should be submitted to Cathy Williams, Federal Communications Commission via email at
Gregory Hlibok, Consumer and Governmental Affairs Bureau, Disability Rights Office at (202) 559-5158 (voice and videophone), (202) 418-0431 (TTY), or e-mail at
This is a summary of the Commission's
The full text of document FCC 10-88 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet:
Pursuant to 47 CFR 1.1200
People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the proposed information collection requirements contained in this document, as required by the PRA. Public and agency comments are due October 22, 2010. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
(A) Whether TRS providers should be required to automatically capture the conversation time, to the nearest second, for each call submitted for payment from the Fund.
(B) Whether the TRS rules should be amended to specifically require that relay providers submit specified call data information in order to be eligible for compensation from the Fund; and whether they should be amended to require that the data be submitted electronically and in a standardized format, and, if so, what the standardized format should be.
(C) Whether the Commission should require VRS providers eligible for compensation from the Fund that submit minutes for payment to file with the Commission and Fund administration on a quarterly basis a statement detailing the name and address of each call center the provider owns or controls (this would include subcontractors operating call centers and entities operating call centers for a subcontractor), the number of CAs and CA managers at the call center, and the name and contact information for the managers of the call center; and whether the Commission should require VRS providers to file an amendment to their most recent quarterly filing each time they open a new call center, close a call center, or the ownership or management of a call center changes, or changes to the list of providers whose calls are processed through the call center within 30 days of such an event.
(D) Whether all VRS providers should be required to make available their cost and demand data to the public.
(E) Whether Internet-based TRS providers should be required to retain their call detail records, other records that support their claims for payment from the Fund, and those records used to substantiate the costs and expense data submitted in the annual relay service data request form, for five years.
(F) Whether the CEO, CFO, or other senior executive of a relay service provider should be required to certify, under penalty of perjury, that: (1) Minutes submitted to the Fund administrator for compensation were handled in compliance with 47 U.S.C. 225 and the Commission's rules and orders, and are not the result of impermissible financial incentives, or payments or kickbacks, to generate calls, and (2) cost and demand data submitted to the Fund administrator related to the determination of compensation rates or methodologies are true and correct.
In the
1. The Commission recognizes that some providers have established VRS call centers that are located outside the United States where ASL is generally not the primary form of sign language. The Commission is also concerned that VRS call centers outside the United States may lack appropriate supervision and otherwise not operate in compliance with the Commission's rules, and that these call centers may be (or have been) a source of fraud and or otherwise may not be handling legitimate VRS calls. The Commission therefore tentatively concludes that it will amend its rules to require that all VRS call centers be located in the United States, and seeks comment on this tentative conclusion.
2. The Commission recognizes that some VRS CAs work from home, and that there are benefits that come with the flexibility of these arrangements.
3. The Commission also understands that some CAs have in the past been paid bonuses for working through scheduled breaks or working overtime in order to relay more minutes which may have resulted in schemes by CAs to initiate or participate in fraudulent VRS calls in order to receive such bonuses while still receiving necessary breaks. While the Commission believes the vast majority of CAs do not engage in this type of minute-pumping, the Commission seeks comment on whether such bonus schemes or any other type of compensation arrangement exist; and, if so, whether they incent CAs to arrange or cause to be arranged calls that would not otherwise be made, and what types of safeguards can be adopted to deter and prevent use of them.
4. The TRS rules that authorize the Fund administrator to suspend or delay payments to a TRS provider if the provider fails to provide adequate verification of payment do not set forth in detail procedures for the suspension of payment and the resolution of whether certain minutes are legitimate and should be paid. The Commission therefore seeks comment on the adoption of new rules addressing the procedures for the suspension or withholding of payments to providers in circumstances where the Fund administrator reasonably believes that the minutes may not be legitimate or otherwise were not submitted in compliance with the TRS rules.
5. In ensuring that the providers must be afforded due process, the Commission tentatively concludes that the rules must, at a minimum: (1) Give timely notice to the providers of the minutes for which payment is being withheld, as well as the reason(s) for the withholding; (2) afford providers an opportunity to show why they believe the withheld minutes are in fact compensable; and (3) require that providers be given, in a timely fashion, a final determination of whether payment will be made for the disputed minutes with a supporting explanation. The Commission also tentatively concludes that the rules should place the burden on the provider to show that the minutes in question are compensable and were handled in accordance with the Commission's rules. The Commission seeks comment on these tentative conclusions, and on the nature of the showing providers should be required to make to establish that minutes submitted for payment are legitimate. Further, the Commission seeks comment on whether it should adopt new rules or modify existing rules to provide the TRS Fund administrator with the tools necessary to execute its administrative and auditing responsibilities.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18. The Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(1). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
19. In the
20. The
21. With regard to whether a substantial number of small entities may be affected by the requirements proposed in the
22. Therefore, the Commission certifies that the proposals in the
23. The Commission will send a copy of the
Pursuant to sections 1, 4(i) and (o), 225, 303(r), 403, 624(g), and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 225, 303(r), 403, 554(g), and 606, document FCC 10-88 is adopted.
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 10-88, including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.
Claims, Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:
1. The authority citation for part 64 continues to read as follows:
47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 228, and 254(k) unless otherwise noted.
2. Section 64.604 is amended by adding paragraphs (a)(3)(ix), (a)(6), (a)(7), and (b)(4)(iii), and by revising paragraph (c)(5)(iii)(E), to read as follows:
(a) * * *
(3) * * *
(ix) Relay calls that enable a person with hearing or speech disability to participate in a remote training program, made available to the public or to an entity's employees, do not fall within the scope of this subpart.
(6) In addition to those standards set forth above, Internet-based TRS providers shall be subject to the following standards:
(i)
(ii)
(iii)
(iv)
(7) In addition to those standards set forth above, Video Relay Service providers shall be subject to the following standards:
(i)
(ii)
(b) * * *
(4) * * *
(iii)
(c) * * *
(5) * * *
(iii) * * *
(E)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to modify the Individual Fishing Quota (IFQ) Program for the Fixed-Gear Commercial Fisheries for Pacific Halibut and Sablefish in waters in and off Alaska (IFQ Program) by revoking quota share (QS) that have been inactive since they were originally issued in 1995. Inactive QS are those held by persons that have never harvested their IFQ and have never transferred QS or IFQ into or out of their accounts.
This action is necessary to achieve the catch limit from the halibut fisheries and optimum yield from the sablefish fisheries in Alaska in accordance with National Standard 1 of the Magnuson-Stevens Fishery Conservation and Management Act and results in more efficient use of these species as supported by National Standard 5. The intended effect is to promote the management provisions in the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, the Fishery Management Plan for Groundfish of the Gulf of Alaska, and the Northern Pacific Halibut Act of 1982.
Comments must be received by 5 p.m., local time, on September 22, 2010.
Send comments to Sue Salveson, Assistant Regional
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at
• Fax: (907) 586-7557, Attn: Ellen Sebastian.
• Mail: P.O. Box 21668, Juneau, AK 99802.
• Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.
No comments will be posted for public viewing until after the comment period has closed. 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). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Electronic copies of the Categorical Exclusion and the Regulatory Impact Review and Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS, Alaska Region, e-mailed to
Peggy Murphy, (907) 586-7228.
Management of the commercial fishery for Pacific halibut (Hippoglossus stenolepis) in and off Alaska is based on an international agreement between Canada and the United States. This agreement, titled “Convention Between United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea” (Convention), was signed in Ottawa, Canada, on March 2, 1953, and amended by the “Protocol Amending the Convention,” signed in Washington, D.C., March 29, 1979. The Convention is administered by the International Pacific Halibut Commission (IPHC) and is given effect in the United States by the Northern Pacific Halibut Act of 1982 (Halibut Act).
Generally, the IPHC surveys the Pacific halibut stock and develops fishery management regulations pursuant to the Convention. The IPHC's regulations are subject to approval by the U.S. Secretary of State with concurrence from the Secretary of Commerce (Secretary). NMFS publishes approved regulations in the
The Halibut Act (section 773(c)) also authorizes the North Pacific Fishery Management Council (Council) to develop halibut fishery regulations, including limited access regulations that are in addition to, and not in conflict with, approved IPHC regulations for U.S. Convention waters. Such regulations may be implemented by NMFS only after approval by the Secretary. The Council has exercised this authority most notably in the development of the Individual Fishery Quota (IFQ) Program codified at 50 CFR part 679.40.
Federal management of the commercial fishery for sablefish (Anoplopoma fimbria) is authorized by the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The FMPs were prepared by the Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
The Council and NMFS developed the IFQ Program for the halibut and sablefish fixed-gear fishery in waters in and off Alaska. The IFQ Program limits access to the fisheries to persons holding QS. Annually, the amount of halibut and sablefish that each QS holder may harvest is calculated and issued as IFQ. The Council adopted the IFQ Program in 1991 under the authority of the Halibut Act and the Magnuson-Stevens Act. The preamble to the proposed rule, published December 3, 1992 (57 FR 57130), provides details of the conservation and management background leading to the Council's adoption of the IFQ Program. NMFS implemented the program on November 9, 1993 (58 FR 59375) through Federal regulations at 50 CFR part 679. Fishing under the IFQ Program began on March 15, 1995.
The IFQ Program is designed to maintain the social character and economic benefits of the commercial, fixed-gear fisheries that Alaskan coastal communities rely on as a source of revenue. The Council and NMFS intend the IFQ Program to provide economic stability for the Pacific halibut and sablefish commercial fisheries and improve long-term productivity of the resources. The IFQ management approach extended the fishing season, and harvests of the annual total allowable catch (TAC) now occur throughout most of the year. The season length and known amount of QS let fishermen set their own pace and their fishing effort to focus more attention on safety, operational efficiency and product quality. The IFQ program also allows fishermen to transfer QS, giving them flexibility to determine what type of investment to make based on when, where, and how much halibut and sablefish they can harvest.
Quota shares were initially assigned to persons that owned vessels or held a vessel lease and made at least one landing in a regulatory area in any one of the years 1988, 1989, or 1990. The intent was to assign initial shares only to those fishermen then currently active in the halibut and sablefish fixed-gear fisheries. The amount of QS a person received was based on his or her documented, historical catch for 5 out of 6 years (1985 through 1990) for sablefish, and for 5 out of 7 years (1984 through 1990) for halibut. This allowed a person to choose the best 5 years to calculate his or her assignment. The number of QS units issued to each person was based on each person's selection of years of landings.
Persons holding QS for an area have harvesting privileges for an amount of halibut or sablefish that is derived annually from their QS holdings in that area and authorized on their IFQ permit. The specific amount (in pounds) is determined by the number of QS units held for that species, the total number of QS units issued for that species in a
One design feature of the IFQ Program requires IFQ permit holders to be on board the vessel to maintain a predominantly “owner-operated” fishery with a narrow exemption for initial recipients of QS. Initial recipients of catcher vessel QS may be absent from a vessel conducting IFQ halibut or sablefish fishing, provided the QS holder can demonstrate at least a minimum specified level of ownership of the vessel that harvests the IFQ halibut or sablefish, as well as representation on the vessel by a hired master. This exception allows fishermen-who historically operated their fishing businesses using hired masters before the implementation of the IFQ Program-to retain the flexibility of using hired masters under the IFQ Program.
In June 2006, the Council recommended removal of initially allocated halibut and sablefish QS from QS holders that had never harvested IFQ halibut or IFQ sablefish, or that had never transferred any QS or IFQ since initially receiving the QS. Quota share would be considered inactive if the QS and the associated annual allocation of IFQ pounds have been neither transferred nor fished.
Inactive QS exists for a variety of reasons. The initial allocation of halibut or sablefish QS was made to qualified persons according to regulations at § 679.40(a). These regulations specified no minimum pounds of halibut or sablefish to be harvested during the respective halibut and sablefish base periods (1984-1990 for halibut and 1985-1990 for sablefish), but one catch landing had to occur in any one of the last 3 years of the base period. Hence, the calculation of initial QS for some qualified persons resulted in their receiving very small QS allocations. The IFQ poundage derived from these allocations of QS also is small: in some cases summing to fewer pounds than a whole fish. The recipients of these small QS allocations have presumably elected not to participate actively in the IFQ fisheries. Though, persons holding inactive QS have had the same opportunity as persons with active QS to participate in the IFQ program by fishing and transferring QS and IFQ. Other persons holding inactive QS are no longer in the commercial fishing industry, are deceased, or have been unable or unwilling to divest or otherwise transfer their inactive QS.
The existence of inactive QS was not specifically addressed during the implementation, development or maintenance of the IFQ program. As a result, several hundred accounts with very small amounts of inactive QS remain in the IFQ Program database. Even though the QS is inactive, NMFS must perform routine administrative tasks to process, monitor, and maintain data on the inactive QS, including recordkeeping, regular correspondence with QS holders, and monthly and annual reporting. IFQ permit holders are responsible for the costs and reimburse NMFS for those costs through the IFQ cost recovery program (50 CFR 679.45). When inactive QS are held and not harvested, active IFQ holders pay slightly higher fees for the IFQ Program because IFQ cost recovery fees apply only when IFQ species are landed.
As a result of the inactive QS, some IFQ will not be harvested and a portion of the TAC will remain unharvested. This reduces economic and social benefits from QS harvest typically realized by fishery dependent businesses and the public. Unused IFQ also deprives consumers of product. Holding inactive QS prevents access to halibut and sablefish QS by persons qualified to fish the QS, and limits the ability of fishermen interested in entering the IFQ Program or expanding their QS holdings. Hence the inactive QS prevent the IFQ fisheries from optimizing yield.
This action proposes to revoke inactive halibut and sablefish QS from the QS pools. The portion of the annual halibut and sablefish TACs represented by the revoked QS and associated IFQ would be distributed among IFQ permit holders in an amount proportional to their IFQ allocation. Alternatively, if a permit holder requests NMFS not to revoke his or her inactive QS, then NMFS would assign an active status to that QS and the associated IFQ would continue to be issued annually.
All halibut and sablefish QS identified as inactive are held by initial recipients of QS. Revoking QS as proposed would not change the initial recipient status of the QS holder. Hence, if a person was initially allocated QS that would be revoked under this action, and then subsequently acquires new QS in the future, that person still would retain the benefit of being an initial recipient of QS for purposes of retaining the flexibility of using a hired master.
Although the administrative burden for the retained QS would not be reduced, annual administrative tasks and costs for managing revoked QS would be eliminated. Reducing the administrative burden would allow for more efficient use of IFQ Program resources, and, for the sablefish fisheries, is consistent with National Standard 5. Revoking inactive QS also would reduce costs and improve operational flexibility of active program participants. The change in distribution of IFQ allows broader opportunity to achieve the catch limit in halibut fisheries and optimum yield from the sablefish fisheries as required by National Standard 1 of the Magnuson-Stevens Act.
The Council recommended this proposed action as part of a multi-part IFQ regulatory amendment package. NMFS subsequently separated the Council's multiple recommendations into independent regulatory amendment packages to better address priority actions in a timely manner. This proposed rule is the final one of the series recommended by the Council in 2006. As a result, several years have passed between the Council's action notifying the public of the pending change to the IFQ Program and publication of this proposed rule. During these years, NMFS followed the Council's recommendation to contact persons holding inactive halibut or sablefish QS by mail and to communicate that NMFS is pursuing rulemaking that, if implemented, would require persons to notify NMFS in writing that they do not want their inactive QS and associated annual IFQ revoked. NMFS notified persons with inactive QS of the status of the proposed action in letters sent by direct mail in January 2008 and in March 2009. The notification process was productive, stimulating transfers of inactive QS that resulted in almost a 50-percent decline in the number of persons holding inactive halibut and sablefish QS. An additional recommendation of the Council to provide broad public notice of the Council's intent to withdraw inactive QS is addressed with publication of this proposed rule in the
The RIR/IRFA prepared for this action (see ADDRESSES) reports that when the Council initially considered the proposal in June 2006, 534 persons held inactive QS for halibut, which yielded roughly 280,000 pounds (127 mt) of IFQ. Inactive sablefish QS was held by
NMFS reported to the Council at its December 2008 meeting that the amount of IFQ associated with the number of inactive halibut QS fell below the 50,000 pound (22.7 mt) threshold for implementing a lottery to redistribute the inactive QS. At that time, 278 persons held inactive QS: 275 held halibut QS, and 4 held sablefish QS (one person held QS for both species). Using 2008 ratios, this inactive QS represented 34,719 halibut IFQ pounds (15.8 mt) and 924 sablefish IFQ pounds (0.4 mt). During 2006-2008, the total number of unique, inactive QS holders declined 49 percent. Assuming year-specific ratios of QS units to IFQ pounds, the amount of change in inactive IFQ pounds of halibut and sablefish can be generally represented as a decline of 87.6 percent and 94.2 percent, respectively. The Council noted the extent of QS consolidation and notified the public of its intention to review its preferred alternative during the February 2009 Council meeting.
In February 2009, the Council reaffirmed its preferred alternative to remove inactive halibut and sablefish QS. It acknowledged that the amount of inactive halibut QS had consolidated below the 50,000 (22.7 mt) pound threshold level the Council previously identified to implement a lottery for the redistribution of inactive QS; therefore, the proposed action was narrowed to exclude the lottery recommendation and to revoke inactive QS only when no action is taken by the QS holder. Action by the QS holder means that the QS holder must notify NMFS in writing to specifically request that their inactive QS not be revoked or present evidence that the QS should not have been determined inactive.
In the time since the Council discussed this issue at the beginning of 2009, the number of persons holding inactive QS has declined further. As of December 31, 2009, 242 permit holders held inactive QS; 240 held halibut QS, and three held sablefish QS (one person held QS for both species). Using 2009 ratios, the amount of inactive QS held represent 24,299 pounds (11.02 mt) of halibut IFQ and 731 pounds (0.33 mt) of sablefish IFQ. Between December of 2008 and December of 2009 the total number of persons holding inactive QS declined 13 percent. The ratio of QS units to IFQ pounds is similar in 2008 and 2009, allowing direct comparison of the IFQ pounds of inactive QS between the two years. In the 12 months between December 2008 and 2009, the amount of inactive halibut QS declined 30 percent and the amount of inactive sablefish QS declined 21 percent.
If the proposed rule is approved by the Secretary of Commerce and implemented, NMFS would send each holder of inactive QS a “Notice of Determination of Quota Share Inactivity” (Inactive QS Notice). The Inactive QS Notice would be sent by certified mail to the address of record at the time the Inactive QS Notice is sent (50 CFR 679.43(e)). NMFS bears no responsibility if the Inactive QS Notice is sent to the address of record and is not received because NMFS has not been notified of the change in the address of record. The Inactive QS Notice would describe the inactive status of the QS, identify the IFQ permit holder, and provide the date the authorized 60-day response period ends.
NMFS would issue an Inactive QS Notice alerting a holder of inactive halibut or sablefish QS that their QS is considered inactive based on records maintained by NMFS indicating that initially issued QS was never used to land IFQ halibut or IFQ sablefish or to transfer any QS or IFQ to or from another person. The official record of an IFQ halibut or IFQ sablefish landing would contain the IFQ permit number to which the IFQ landing would have been credited. The number and amount of landings would be based only on legally submitted harvest documentation. This documentation must include a state catch report, a Federal catch report, or other valid documentation that indicates the amount of IFQ halibut or IFQ sablefish harvested, the IPHC or groundfish reporting area in which the IFQ pounds were harvested, the vessel and gear type used for the harvest, and the date of harvesting, landing, or reporting. Federal catch reports are production reports required under 50 CFR 679.5. NMFS has used production reports only for catcher/processors to document IFQ landing and active QS. State catch reports are Alaska, California, Oregon, or Washington fish tickets. State fish tickets are used by NMFS only for catcher vessels as data sources to determine the specific amount and location of landings that would demonstrate active QS.
NMFS presumes that the official record data sources are correct. In the case where a person believes the official record is incorrect, his or her claim can be raised in a separate correspondence to NMFS, Restricted Access Management Program, Juneau, AK (see ADDRESSES).
A person that holds inactive QS would have two options to respond to receipt of an Inactive QS Notice. During the 60-day response period specified in the Inactive QS Notice, the person holding the inactive QS could choose to (1) do nothing, thereby resulting in revocation of the inactive QS; or (2) request in writing that the inactive QS not be revoked. Alternatively, a person holding inactive QS could exercise options that have existed since the beginning of the IFQ Program in 1995 to either transfer some or all of the inactive QS, or harvest halibut or sablefish based on IFQ derived from the inactive QS. These options are further explained below.
First, a person holding inactive QS could choose to do nothing. That person's inactive QS would be revoked at the end of the 60-day period specified in the Inactive QS Notice. Revoked QS would cease to exist in the QS pool and would not receive an annual allocation of IFQ poundage for IFQ halibut or IFQ sablefish. Any IFQ derived from the inactive QS also would be revoked at the time that the inactive QS are revoked. After inactive QS are revoked, the previous holder of those QS could participate in the IFQ halibut or IFQ sablefish fisheries only if they receive QS by transfer.
Second, a person with inactive QS could choose to retain or activate the QS by notifying NMFS in writing that he or she does not want the inactive QS revoked. Such written requests would have to be postmarked within the 60-day response period specified in the Inactive QS Notice. This response would allow NMFS to activate the otherwise inactive QS by the QS holder's demonstration of at least minimal activity in the IFQ Program. NMFS would allocate IFQ based on the activated QS as it has done since the beginning of the IFQ Program, and the holder of such QS would continue to benefit from the initial recipient
The options to activate otherwise inactive QS by either transferring some or all of the inactive QS, or harvesting halibut or sablefish based on IFQ derived from the inactive QS, would continue to be available to a person holding inactive QS through the end of the 60-day response period specified in the Inactive QS Notice. No additional period of time is proposed to demonstrate these activities because the person holding the inactive QS has already had an opportunity to demonstrate such activity since the beginning of the IFQ Program in 1995. Further, the two information letters sent by NMFS to persons holding inactive QS notifying them of this proposed action successfully alerted a significant number of persons holding inactive QS as demonstrated by comparison of IFQ program participation over time as summarized under Council consideration above.
A person holding inactive QS who is unable to respond to the Inactive QS Notice from NMFS within the 60-day response period may appeal to NMFS to submit his or her response late to the NMFS Alaska Region Office of Administrative Appeals pursuant to § 679.43. As a practical matter, any other challenge of the Inactive QS Notice within the 60-day response period would be considered as a written request to not revoke the inactive QS. As such, a challenge would activate the otherwise inactive QS by demonstrating a reaction and therefore at least minimal activity in the IFQ Program.
The Inactive QS Notice provides the person holding the inactive QS with the opportunity to respond in writing to NMFS within a single 60-day response period, from the date that the Inactive QS Notice is sent, and clearly request the QS and IFQ remain active. Response will only be accepted by mail to simplify processing of responses. E-mail, fax or any other form of response is not acceptable. The Inactive QS Notice would be constructed to allow the bottom half of the document to be separated and used as a mail-in response form to NMFS indicating whether the holder of the inactive QS wants to retain the QS. The following written statement would be printed on the mail-in response form as an expression of request to not revoke the inactive QS: “I [print first name, middle initial and surname] request that NMFS not revoke my quota share authorized by my signature on this date. Signed [Write signature]. Dated [Enter the current date].” A holder of inactive QS may also respond by mail without using the provided form, but must include all the same specific information, names, signatures and dates as included on the mail-in response form. Once the completed mail-in form or other response statement is received in the mail by NMFS and verified correct, a letter of acknowledgement will be issued to the person identified as the holder of the inactive QS or his or her legal representative. The letter would serve as final agency action advising that QS would be 'active' and no further response by the person holding the inactive QS or NMFS would be required.
NMFS previously sent QS holders two informational letters noticing them of this proposed action to revoke inactive QS. A QS holder who previously responded to NMFS letters that still holds inactive QS must resubmit a response to NMFS by mail within the authorized 60-day response period or NMFS would revoke the inactive QS. Any previous request to NMFS to activate inactive QS is not sufficient for NMFS to change that QS status. A written response is required within the 60-day response period specifically provided by the Inactive QS Notice. If a response was submitted to NMFS on the subject of inactive QS and the IFQ permit holder has since had the inactive QS officially activated by completing a transfer or fishing the IFQ, then no further response is required. If an IFQ permit holder previously responded to NMFS letters about inactive QS and requested he or she be able to keep the inactive QS, then the IFQ permit holder must submit that request to NMFS again within the 60-day response period provided by the Inactive QS Notice or the inactive QS will be revoked. If a person holding inactive QS fails to notify NMFS of his or her interest to activate their QS within the 60-day response period, then NMFS would revoke the inactive QS.
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Halibut Act, the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
Regulations governing the U.S. fisheries for Pacific halibut are developed by the International Pacific Halibut Commission, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. This action is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska.
This proposed rule has been determined to be not significant for 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. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
The IRFA prepared for this proposed action assesses the potential adverse economic impacts each alternative would have on directly regulated small entities if the proposed regulations were adopted to revoke inactive QS. A business is considered a small entity if annual gross revenues are less than $4.0 million. NMFS defines all halibut and sablefish vessels as small businesses, for the purpose of this analysis. The number of small entities operating as fishing vessels in the IFQ fisheries may be deduced from the restrictions placed on the amount of annual IFQ that may be landed from any individual vessel. In 1995, the year the IFQ Program began and the year before the Council recommended this proposed action, a total of 2,057 vessels participated in IFQ halibut fisheries in all areas, and a total of 616 vessels participated in the IFQ sablefish fisheries in all areas combined. In late 2008, when the Council chose to revisit this action, a total of 1,156 vessels participated in the IFQ halibut fishery, and 362 vessels participated in the IFQ sablefish fishery in all areas. The total number of vessels includes
The purpose of amending the regulations for the halibut and sablefish IFQ Program is to improve program administration, reduce costs and improve operational flexibility of program participants, and help achieve optimum yield. Inquiries about the cost of the IFQ Program and access to inactive QS provided impetus for the Council to consider this proposed action. There is no regulatory authority for NMFS to revoke QS or accept relinquishment of QS amounts that are impractical or uneconomical to fish; instead, QS may be voluntarily transferred or fished.
The Council initiated analysis of four issues pertaining to the IFQ Program for the fixed-gear halibut and sablefish fishery in 2006. An RIR/IRFA was provided for public review May 12, 2006 that analyzed each issue in one, multi-part, IFQ regulatory amendment package. This proposed action on the issue of inactive QS was referred to as Action 3 in the 2006 RIR/IRFA. The Council reviewed the status quo alternative of not revoking inactive halibut or sablefish QS, and two alternatives to withdraw inactive QS. Alternative 1 is the no action alternative and would not change any economic impacts on directly regulated small entities. Under the status quo, holders of inactive QS would have no option to relinquish their inactive halibut or sablefish QS. Federal regulations do not provide for the voluntary removal of QS other than through transfer.
Alternative 2 would revoke all inactive halibut and sablefish QS. Inactive QS is initially allocated QS that has never been used to harvest halibut or sablefish and has never been transferred in to or out of the initial QS account. Only persons who do not hold active QS would be affected. Persons that transferred some or all of their halibut or sablefish IFQ but never harvested any IFQ halibut or IFQ sablefish would not be subject to revocation of their QS under this alternative.
Alternative 3, recommended by the Council, would revoke all inactive QS unless the holder of the inactive QS notifies NMFS of his or her interest to retain their inactive QS. Alternative 3 also provides for a lottery to redistribute revoked QS to eligible persons unless the amount of inactive QS available to be revoked is below a threshold of QS units equal to 50,000 pounds (22.7 mt) for all IPHC regulatory areas.
NMFS is not aware of any additional alternatives to those considered that would accomplish the objectives of the action and that would minimize the economic impact of the proposed rule on small entities.
In June 2006, the Council adopted a preferred alternative, Alternative 3, to (a) revoke all inactive halibut and sablefish QS, held by initial QS recipients, from the QS pools and (b) redistribute inactive halibut QS through a lottery if the final amount of revoked inactive QS exceeds the number of QS units equivalent to 50,000 pounds (22.7 mt) for all IPHC regulatory areas in the year of the lottery.
After the Council's 2006 action on the multi-part IFQ regulatory amendment package, NMFS separated the Council's multiple recommendations into different regulatory amendment packages, including this proposed action on inactive QS. In 2008, the amount of inactive QS was less than the threshold poundage prompting the Council, in February 2009, to reaffirm its previous recommendation for Alternative 3, minus the lottery. An updated RIR/IRFA for this proposed regulatory amendment to the halibut and sablefish IFQ program was finalized September 8, 2009.
In 1995, more than 500 persons were issued QS that they subsequently did not use and that would be considered inactive QS under this proposed action. By December 31, 2009, the number of IFQ permit holders with inactive QS declined to 242, with 240 holding inactive halibut QS, and three holding inactive sablefish QS (one person held inactive QS for both species). Using 2009 ratios, the amount of inactive QS held in December 2009 represent 24,299 pounds (1 mt) of halibut and 731 pounds (0.33 mt) of sablefish.
This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under Control No. 0648-0272. Public reporting burden for a letter requesting NMFS not revoke IFQ Program QS is estimated to average 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Alaska, Fisheries, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:
1. The authority citation for part 679 continues to read as follows:
16 U.S.C. 773
2. In § 679.40, add paragraph (a)(10) to read as follows:
(a) * * *
(10) NMFS revokes inactive QS if the person holding inactive QS does not:
(i) Respond in writing to NMFS, within 60 days after NMFS issues a Notice of Determination of Quota Share Inactivity (Inactive QS Notice) sent to the address of record as defined at § 679.43(e) of this part, requesting that the inactive QS not be revoked.
(ii) For purposes of paragraph (a)(10) of this section, “respond in writing” means write a statement directing NMFS to change the status of QS to “active” and sign and date the statement or complete the form attached to the Inactive QS Notice and send through U.S Mail to the NMFS, Alaska Region address provided on the Inactive QS Notice and printed on the front side of the form.
(iii) For purposes of paragraph (a)(10) of this section, the term “inactive QS” means halibut QS or sablefish QS, held by a person who received an initial allocation of halibut QS or sablefish QS and has not taken any of the following actions:
(A) Transferred any halibut QS or sablefish QS pursuant to § 679.41;
(B) Transferred any halibut IFQ or sablefish IFQ pursuant to § 679.41;
(C) Landed any halibut authorized by IFQ halibut permit(s) issued to that person; or
(D) Landed any sablefish authorized by IFQ sablefish permit(s) issued to that person.
Forest Service, USDA.
Notice of meeting.
The GMUG RAC will meet in Delta, Colorado. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to gather the appointed committee members together to decide the review and recommending criteria that the committee will use and to review and make recommendations for Title II Project funding within Garfield, Mesa, Delta, Gunnison and Montrose Counties, Colorado.
The meeting will be held Tuesday, September 14, 2010, at 1 p.m.
The meeting will be held at the Forest Supervisor's Office at 2250 Highway 50, Delta, Colorado in the South Spruce Conference Room. Written comments should be sent to Attn: GMUG RAC, 2250 Highway 50, Delta, CO 81416. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at
Lee Ann Loupe, GMUG RAC Coordinator, 970.8874.6717 or e-mail: lloupe@fs.fed.us
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: The appointed Committee members will decide and approve the review process and evaluation criteria for Title II projects; review and discuss the projects that were submitted to the Committee by August 2; and make recommendations for funding/approval of those projects to utilize Title II funds within Garfield, Mesa, Delta, Gunnison and Montrose Counties, Colorado.
Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by September 8, 2010 will have the opportunity to address the Comittee at those sessions.
Forest Service, USDA.
Notice of meeting.
The North Mt. Baker-Snoqualmie (MBS) Resource Advisory Committee (RAC) will meet in Sedro Woolley, Washington on September 22, 2010. The committee is meeting to review and rank 2010 and 2011 Title II RAC proposals.
The meeting will be held on Wednesday, September 22, 2010, from8 a.m. to 4 p.m.
The meeting will be held at the Mt. Baker Ranger District office located at 810 State Route 20, Sedro Woolley, Washington 98284.
Jon Vanderheyden, District Ranger, Mt. Baker Ranger District, phone (360) 854-2601, e-mail
The meeting is open to the public. More information will be posted on the Mt. Baker-Snoqualmie National Forest Web site at
Comments may be sent via e-mail to
Forest Service, USDA.
Notice of meeting.
The Ashley Resource Advisory Committee will meet in Vernal, Utah. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub.L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to conduct “welcomes” and introductions, review the Federal Advisory Committee Act requirements, brief participants on Payments to States legislative history, discuss the guidelines for Title II and Title III funding and proposals, capture and record preliminary project ideas and receive public comment on the meeting subjects and proceedings.
The meeting will be held August 19, 2010, from 6 p.m. to 9 p.m.
The meeting will be held at the Ashley National Forest Supervisor's Office, 355 North Vernal Avenue, in Vernal, Utah. Written comments should be sent to Ashley National Forest, 355 North Vernal Avenue, Vernal, UT 84078. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ashley National Forest, 355 North Vernal Avenue, Vernal, UT.
Louis Haynes, RAC Coordinator, Ashley National Forest, (435) 781-5105; e-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Welcome and Committee introductions; (2) Federal Advisory Committee Act overview; (3) review of Payments to States legislative history and discussion of requirements related to Title II and Title III funding; (4) discussion of Committee member roles and operational guidelines; (5) discussion of preliminary project ideas; (6) election of committee chairperson, (7) review of next meeting purpose, location, and date; (8) and receive public comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by August 10, 2010 will have the opportunity to address the committee at those sessions.
Forest Service, USDA.
Notice of meeting.
The Pike & San Isabel Resource Advisory Committee will meet in Pueblo, Colorado. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose is to hold the first meeting of the newly formed committee.
The meeting will be held on September 23, 2010, and will begin at 9 a.m.
The meeting will be held at the Supervisor's Office of the Pike & San Isabel National Forests, Cimarron and Comanche National Grasslands (PSICC) at 2840 Kachina Dr., Pueblo, Colorado. Written comments should be sent to Barbara Timock, PSICC, 2840 Kachina Dr., Pueblo, CO 81008. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at PSICC, 2840 Kachina Dr., Pueblo, CO 81008. Visitors are encouraged to call ahead to 719-553-1415 to facilitate entry into the building.
Barbara Timock, RAC coordinator, USDA, Pike & San Isabel National Forests, 2840 Kachina Dr., Pueblo, CO 81008; (719) 553-1415; E-mail
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Introductions of all committee members, replacement members and Forest Service personnel. (2) Selection of a chairperson by the committee members. (3) Receive materials explaining the process for considering and recommending Title II projects; and (4) Public Comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by September 20, 2010 will have the opportunity to address the Committee at those sessions.
Forest Service, USDA.
Notice of meeting.
The Shasta County Resource Advisory Committee (RAC) will meet at the USDA Service Center in Redding, California, on September 1, 2010 beginning at 8:30 a.m. The meeting will consist of an update on Shasta County projects, RAC recommended project progress, as well as changes made to projects to meet RAC funding 2010/2011 allocations.
Wednesday, September 1, 2010 at 8:30 a.m.
The meeting will be held at the USDA Service Center, 3644 Avtech Parkway, Redding, California 96002.
Resource Advisory Committee Coordinator Rita Vollmer at (530) 226-2595 or
The meeting is open to the public. Public input sessions will be provided and individuals will have the opportunity to address the Shasta County Resource Advisory Committee.
Notice
Pursuant to the Food for Peace Act of 2008, notice is hereby given that the Draft Request for Applications for Title II Non-Emergency Food Aid Programs will be available to interested parties for general viewing.
For individuals who wish to review, the Draft Request for Applications for Title II Non-Emergency Food Aid
Architectural and Transportation Barriers Compliance Board.
Notice of public information meeting.
The Access Board plans to develop new accessibility guidelines specific to shared use paths (SUPs) designed for use by pedestrians, cyclists, roller skaters, skateboarders, and other non-motorized users. In addition to general recreational use, SUPs often serve a transportation purpose, providing a system of off-road transportation routes for users. The Access Board will hold a public information meeting in conjunction with the ProWalk/ProBike 2010 Conference to provide an opportunity for individuals with disabilities, designers of shared use paths, and those with expertise in this area to provide information to assist the Access Board in establishing accessibility guidelines for shared use paths.
The information meeting will be on Monday, September 13, 2010 from 1 p.m. until 5 p.m.
The public information meeting will be held in conjunction with the ProWalk/ProBike 2010 Conference at the Chattanooga Convention Center, Ballroom G, 1150 Carter Street, Chattanooga, Tennessee 37402.
Peggy Greenwell, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., suite 1000, Washington, DC 20004-1111. Telephone number: 202-272-0017 (voice); 202-272-0082 (TTY). Electronic mail address:
The Access Board plans to develop new accessibility guidelines specific to shared use paths (SUPs) designed for use by pedestrians, cyclists, roller skaters, skateboarders, and other non-motorized users. In addition to general recreational use, SUPs often serve a transportation purpose, providing a system of off-road transportation routes for users. Whether located within a highway right-of-way, provided along a river, or established over natural terrain within an independent right of way, SUPs are differentiated from sidewalks, trails, and accessible routes on sites by their multipurpose use.
The Access Board will hold a public information meeting on September 13, 2010 in conjunction with the ProWalk/ProBike 2010 Conference to provide an opportunity for individuals with disabilities, designers of shared use paths, and those with expertise in this area to provide information to assist the Access Board in establishing accessibility guidelines for shared use paths. The meeting will feature representatives from the State of Washington Department of Transportation, Florida Department of Transportation, and the American Association of State Highway and Transportation Officials (AASHTO) who will address upcoming guidance on shared use path design. Attendees are encouraged to discuss issues related to accessibility of shared use paths.
The information meeting is open to all members of the public, including those who are not registered to attend the ProWalk/ProBike Conference. The meeting location is accessible to individuals with disabilities. Sign language interpreters and real-time captioning will be provided. For the comfort of other participants, persons attending the hearing are requested to refrain from using perfume, cologne, and other fragrances.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act, that a planning and briefing meeting of the Pennsylvania State Advisory Committee will convene on September 16, 2010 at 11:30 a.m. at the Stayer Building, MultiPurpose Room, 51 Lyte Road Millersville University, Millersville, PA 17551. The purpose of the briefing meeting is to consider issues surrounding the employment of persons with disabilities in the state of Pennsylvania. The purpose of the planning meeting is to discuss the Committee's next steps.
Members of the public are entitled to submit written comments; the comments must be received in the regional office by October 16, 2010. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 624 Ninth Street, NW., Suite 740, Washington, DC 20425. They may be faxed to 202-376-7748, or e-mailed to
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Eastern Regional Office at least ten (10) working days before the scheduled date of the meeting.
Records generated from this meeting may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are directed to the Commission's Web site,
The meeting will be conducted pursuant to the rules and regulations of the Commission and FACA.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act, that a planning meeting of the New Jersey State Advisory Committee will convene at on September 21, 2010 at 11 a.m. at the Legislative Annex Building, 125 West State Street, Trenton, New Jersey 08625, Room 10. The purpose of the planning meeting is to discuss committee member suggestions for a briefing topic to be scheduled in FY 2011.
Members of the public are entitled to submit written comments; the comments must be received in the regional office by October 21, 2010. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 624 Ninth Street, NW., Suite 740, Washington, DC 20425. They may be faxed to 202-376-7748, or e-mailed to
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Eastern Regional Office at least ten (10) working days before the scheduled date of the meeting.
Records generated from this meeting may be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are directed to the Commission's Web site,
The meeting will be conducted pursuant to the rules and regulations of the Commission and FACA.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before October 22, 2010.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Kevin Werner, (801) 524-5130 or
This is a proposed new information collection.
As part of the NOAA mission: “To understand and predict changes in the Earth's environment and conserve and manage coastal and marine resources to meet our Nation's economic, social, and environmental needs”, the proposed survey will be part of a stakeholder engagement effort to more clearly define what those needs are. The proposed survey will be used to engage with and assess the science and forecasting needs of stakeholders in the water resources sector. The water resources sector includes agencies and companies operating reservoirs, and private and public interests in regulating rivers. The survey is designed to (1) assess the accessibility and utility of water and climate information and data, (2) assess participants' perceptions and knowledge about water and climate, and (3) evaluate user needs and the gaps in existing water and climate information. Participation in the survey will be entirely voluntary and will usually be in conjunction with workshops related to water resources and/or climate. This information collection will be conducted by the National Weather Service.
Respondents will have a choice of either electronic or paper forms. Methods of submittal include electronic forms, and mail and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before October 22, 2010.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Janell Majewski, 206-860-3293, or
This is a request for a renewal of a currently approved information collection.
The National Marine Fisheries Service At-Sea Hake and West Coast Groundfish Observer Programs define observer duties, train and debrief observers, and manage observer data and its release. The observers, deployed aboard vessels participating in the US West Coast groundfish fishery, are hired by observer providers who contract with the vessels to provide the required observer coverage (50 CFR 660). This data collection relates to the response time for observer providers and observers to register for training, debriefing or responses to suspension or decertification.
Respondents have a choice of either electronic or paper forms. Methods of submittal include electronic (Web-based or e-mail) and facsimile transmission of paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Indianapolis Airport Authority, grantee of FTZ 72, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09; correction 74 FR 3987, 1/22/09). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 17, 2010.
FTZ 72 was approved by the Board on September 28, 1981 (Board Order 179, 46 FR 50091, 10/9/1981) and expanded on September 2, 1992 (Board Order 598, 57 FR 41915, 9/14/1992) and on November 18, 2004 (Board Order 1359, 69 FR 70121, 12/2/2004).
The current zone project includes the following sites:
The grantee's proposed service area under the ASF would be Bartholomew, Benton, Boone, Carroll, Cass, Clay, Clinton, Decatur, Delaware, Fayette, Fountain, Franklin, Grant, Greene, Hamilton, Hancock, Hendricks, Henry, Howard, Jennings, Johnson, Lawrence, Madison, Marion, Miami, Monroe, Montgomery, Morgan, Owen, Parke, Putnam, Rush, Shelby, Tippecanoe, Tipton, Vigo, Warren, Wayne and White Counties, Indiana, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is adjacent to the Indianapolis Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize and expand its existing zone project to include existing Sites 1-3 and 12-13 as “magnet” sites and Sites 9-11 as “usage-driven” sites, as well as to remove Sites 4 and 5. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted. The applicant is also requesting approval of the following new “magnet” sites:
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 22, 2010. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 8, 2010.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Northeast Ohio Trade & Economic Consortium, grantee of FTZ 181, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09; correction 74 FR 3987, 1/22/09). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 17, 2010.
FTZ 181 was approved by the Board on December 23, 1991 (Board Order 546, 57 FR 41, 1/2/1992) and expanded on: June 20, 1997 (Board Order 902, 62 FR 36044, 7/3/1997); March 30, 1998 (Board Order 968, 63 FR 16962, 4/7/1998); September 13, 1999 (Board Order 1053, 64 FR 51291, 9/22/1999); November 21, 2002 (Board Order 1260, 67 FR 71933, 12/3/2002); May 19, 2004 (Board Order 1334, 69 FR 30281-30282, 5/27/2004); September 28, 2006 (Board Order 1479, 71 FR 59072, 10/6/2006); December 11, 2006 (Board Order 1493, 71 FR 71507-71508, 12/11/2006); and, August 23, 2007 (Board Order 1522, 72 FR 8/31/2007).
The current zone project includes the following sites:
(21 acres) located at 3175, 3325 & 3375 Gilchrist Road, Mogadore (Summit County);
The grantee's proposed service area under the ASF would be Ashtabula, Trumbull, Mahoning, Columbiana, Portage, Summit, Stark, Medina, Wayne and Richland Counties, Ohio, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is adjacent to the Cleveland Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize and expand its existing zone project to include existing Sites 1, 3-6, and 8-27 as “magnet” sites, as well as to remove Sites 2, 7 and 28. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 1 be so exempted. The applicant has also requested that Site 1 be expanded to include an additional 193 acres. In addition, the applicant is requesting approval of the following new “magnet” site:
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 22, 2010. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 8, 2010.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
Import Administration, International Trade Administration, Department of Commerce.
Catherine Bertrand, 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) 482-3207.
On May 28, 2010, the Department of Commerce (“Department”) published in the
On July 8, 2010, Calgon Carbon Corporation and Norit Americas Inc. (“Petitioners”) withdrew their request for an administrative review for the following companies: Anhui Handfull International Trading (Group) Co., Ltd.; Anyang Sino-Shon International Trading Co., Ltd.; China Nuclear Ningxia Activated Carbon Plant; Datong Forward Activated Carbon Co., Ltd.; Datong Guanghua Activated Carbon Co., Ltd.; Datong Hongtai Activated Carbon Co., Ltd.; Datong Huibao Active Carbon Co., Ltd.; Datong Huibao Activated Carbon Co., Ltd.; Datong Juqiang Activated Carbon Co., Ltd.; Datong Locomotive Coal & Chemicals Co., Ltd.; Datong Yunguang Chemicals Plant; Dongguan SYS Hitek Co., Ltd.; Fujian Yuanli Active Carbon Co., Ltd.; Hangzhou Nature Technology; Hebei Foreign Trade and Advertising Corporation; Huairen Jinbei Chemical Co., Ltd.; Jiangsu Taixing Yixin Activated Carbon Technology Co., Ltd.; Jilin Bright Future Chemicals Co., Ltd.; Jilin Province Bright Future Industry and Commerce Co., Ltd.; Keyun Shipping (Tianjin) Agency Co., Ltd.; Ningxia Guanghua Activated Carbon Co., Ltd.;
Also on July 8, 2010, Petitioners withdrew their request for review of Jiangxi Huaiyushan Suntar Active Carbon Co., Ltd. However, the review for this company was rescinded previously in the
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws
At this time, the Department cannot order liquidation for the above companies because they remain part of the PRC-wide entity and their respective entries may be under review in the ongoing administrative review. The Department intends to issue assessment instructions for the PRC-wide entity, which will cover any entries by the above companies, 15 days after publication of the final results of the ongoing administrative review.
This notice serves as a final reminder to importers for whom this review is being rescinded, as of the publication date of this notice, 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 the antidumping duties occurred and the subsequent assessment of double 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.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce
Public hearing; request for comments.
The New England Fishery Management Council (Council) will hold a public hearing to solicit comments on proposals to be included in the Draft Amendment 3 to the Deep Sea Red Crab Fishery Management Plan (FMP).
The public hearing will be held on Thursday, September 9, 2010, at 5 p.m. Written comments should be sent on or before September 23, 2010, by 5 p.m. EDT to Patricia Kurkul, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930.
The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; Telephone: (508) 339-2200; Fax: (508) 339-1040.
Comments may also be sent via fax to (978) 281-9135 or submitted via e-mail to
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Council proposes to take action to amend the Deep Sea Red Crab Fishery Management Plan (FMP) and to address the new and revised requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The Council will consider comments from fishermen, interested parties and the general public on the proposals and alternatives described in the public hearing document for Draft Amendment 3 to the Red Crab FMP. Once it has considered public comments, the Council will approve final management measures and prepare a submission package for NMFS. There will be an additional opportunity for written public comments on the Proposed Rule when it is published in the
Major elements of the alternatives in the Draft Amendment 3, including a Draft Supplemental Environmental Impact Statement, include: (1) implementation and specification of annual catch limits (ACLs) and accountability measures (AMs) to comply with a new mandate of the reauthorized MSA; (2) establish specifications for fishing years 2011-13; (3) consider changes to the management system that respond to industry suggestions for increasing efficiency in the fishery; (4) replace the Target Total Allowable Catch (TAC) and days-at-sea management system with a hard TAC; (5) eliminate trip limits; and (6) replace the blanket prohibition on landing more than one tote of females per trip with a procedure that would allow the harvest of female crab contingent upon Scientific and Statistical Committee (SSC) and Council approval of specifications that include female allowable biological catch (ABC) and ACL.
This hearing is physically accessible to people with physical disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
16 U.S.C. 1801
Import Administration, International Trade Administration, Department of Commerce.
On March 22, 2010, the Department of Commerce (the Department) initiated a changed circumstances review of the antidumping duty order on certain frozen warmwater shrimp from India to determine whether R.D.R. Exports (RDR) is the successor-in-interest company to Jaya Satya Marine Exports Pvt. Ltd. (Jaya Satya).
Blaine Wiltse; AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6345.
On February 1, 2005, the Department published in the
On January 25, 2010, RDR requested that the Department conduct an expedited changed circumstances review under 19 CFR 351.221(c)(3)(iii) to determine whether it is the successor-in-interest to Jaya Satya for purposes of determining antidumping liability. On March 22, 2010, the Department initiated a changed circumstances review but did not expedite the review, as requested by RDR, because we required additional information regarding the factual statements forming the basis of RDR's changed circumstances review request.
In April, June, and July 2010, we requested further information and documentation from RDR to substantiate its claim to be the successor-in-interest to Jaya Satya. RDR submitted additional information in response to the first two of these requests in May and June 2010. On July 30, 2010, before the deadline for submitting its response to the third additional information request, RDR withdrew its request for a changed circumstances review.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
Although it does not specifically reference changed circumstances reviews, section 351.213(d)(1) of the Department's regulations provides that the Department will rescind an administrative review if the party requesting the review withdraws its request within ninety days of the date of publication of the notice of initiation of the requested review. The Department's practice has been to apply this ninety-day deadline to changed circumstances review rescission requests.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with 19 CFR 351.213(d)(4) and sections 751(b) and 777(i)(1) of the Tariff Act of 1930, as amended.
Foreign-Trade Zone 167 was approved by the FTZ Board on August 23, 1990 (Board Order 483, 55 FR 35916, 9/4/1990), and expanded on August 4, 2005 (Board Order 1407, 70 FR 48537-48538, 8/18/2005).
FTZ 167 currently consists of two “sites” totaling 4,001 acres in the Green Bay area. The current update does not alter the physical boundaries that have previously been approved, but instead involves an administrative renumbering that separates certain non-contiguous sites for record-keeping purposes.
Under this revision, the site list for FTZ 167 will be as follows:
For further information, contact Elizabeth Whiteman at
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to the Procurement List.
This action adds a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On 7/9/2010 (75 FR 39497-39499), the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide a service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is 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 provide the service to the Government.
2. The action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
National Advisory Committee on Institutional Quality and Integrity, Office of Postsecondary Education, Department of Education.
Revised meeting notice and solicitation of third-party written comments.
This notice advises interested parties of changes concerning the scheduling of the first meeting of the reconstituted National Advisory Committee on Institutional Quality and Integrity (NACIQI) and amends information provided in the original meeting notice published in the April 23, 2010
Melissa Lewis, Executive Director, National Advisory Committee on Institutional Quality and Integrity, U.S. Department of Education, Room 8060, 1990 K Street, NW., Washington, DC 20006, telephone: (202) 219-7009; fax: (202) 219-7005, e-mail:
• The North Central Association Commission on Accreditation and School Improvement, which was originally proposed for review during the NACIQI's September 2010 meeting, is no longer proposed for review because it is now considered a new agency known as AdvancED.
• The New England Association of Schools and Colleges, Commission on Technical and Career Institutions, which was originally proposed for review during the NACIQI's September 2010 meeting, is no longer proposed for review because they no longer wish to seek continued recognition from the Department of Education.
(3) Because of the new meeting date and the revised list of agencies, written third-party comments may be submitted up to September 22, 2010 for consideration.
In all instances, written comments about agencies seeking initial recognition, continued recognition, and/or an expansion of an agency's scope of recognition must relate to the Criteria for Recognition found at section 496 of the Higher Education Act of 1965, as amended, and 34 CFR parts 602 and 603. In addition, comments for any agency whose interim report/compliance report is proposed for review must relate to the issues raised within the letter that requested the report.
The agencies proposed for review now comprise:
1. Association of Advanced Rabbinical and Talmudic Schools, Accreditation Commission.
2. Commission on Accreditation of Healthcare Management Education.
3. Council on Accreditation of Nurse Anesthesia Educational Program.
4. Council on Education for Public Health.
5. Northwest Commission on Colleges and Universities (progress report).
6. The Higher Learning Commission of the North Central Association of Colleges and Schools.
1. AdvancED.
1. American Academy for Liberal Education.
2. American Board of Funeral Service Education.
3. American Speech Language Hearing Association, Council on Academic Accreditation in Audiology and Speech-Language Pathology.
4. Commission on Massage Therapy Accreditation.
5. Council on Naturopathic Medical Education.
6. Midwifery Education Accreditation Council.
7. Montessori Accreditation Council for Teacher Education, Commission on Accreditation.
8. National Accrediting Commission of Cosmetology Arts and Sciences.
9. Western Association of Schools and Colleges Accrediting Commission for Schools.
When, where, and how should I submit my written comments?
Submit your written comments by e-mail no later than September 22, 2010 to the Accreditation and State Liaison (ASL) Records Manager at
Only materials submitted by the deadline to the e-mail address listed in this notice, and in accordance with these instructions, become part of the official record and are considered by the Department and the NACIQI in their deliberations.
Yes. This notice announces the only opportunity you will have to submit written comments on those agencies for this meeting. However, a subsequent
Any third-party written comments regarding an agency received by September 22, 2010, in accordance with either this
Department staff will review any comments received after the deadline. If such comments, upon investigation, reveal that the agency is not acting in accordance with the Criteria for Recognition, we will take action either before or after the meeting, as appropriate. Documents responsive to this notice but received after September 22, 2010 will not be distributed to the NACIQI for its consideration. Individuals making oral presentations may not distribute written materials at the meeting.
You may view this document, as well as all other Department of Education documents published in the
The official version of this document is the document published in the
5 U.S.C. Appendix 2.
U.S. Election Assistance Commission (EAC).
Notice.
Pursuant to Sections 254(a)(11)(A) and 255(b) of the Help America Vote Act (HAVA), Pub. L. 107-252, the U.S. Election Assistance Commission (EAC) hereby causes to be published in the
This notice is effective upon publication in the
Bryan Whitener, Telephone 202-566-3100 or 1-866-747-1471 (toll-free).
On March 24, 2004, the U.S. Election Assistance Commission published in the
The amendments to California's state plan provide for compliance with the Military and Overseas Voter Empowerment Act (MOVE Act) and account for changes in the methods of implementing HAVA. In accordance with HAVA Section 254(a)(12), all the state plans submitted for publication provide information on how the respective state succeeded in carrying out its previous state plan. California confirms that its amendments to the state plan were developed and submitted to public comment in accordance with HAVA Sections 254(a)(11), 255, and 256.
Upon the expiration of thirty days from August 23, 2010, the state is eligible to implement the changes addressed in the plan that is published herein, in accordance with HAVA Section 254(a)(11)(C). EAC wishes to acknowledge the effort that went into revising this state plan and encourages further public comment, in writing, to the state election official listed below.
The appendices referred to in California's state plan can be found at
The Honorable Debra Bowen, Secretary of State, 1500 11th Street, 6th Floor, Sacramento, California 95814-2974, Phone: (916) 653-7244, Fax: (916) 653-4795.
Thank you for your interest in improving the voting process in America.
Environmental Protection Agency (EPA).
Notice of public comment period.
EPA is announcing a 45-day public comment period for the draft document titled, “Climate Change Vulnerability Assessment: Four Case Studies of Water Utility Practices” (EPA/600/R-10/077a). The document was prepared by the National Center for Environmental Assessment within EPA's Office of Research and Development.
This draft report presents a series of case studies describing the approaches currently being taken by four water utilities to assess their vulnerability to future climate change. The report is intended to illustrate the types of analyses, models, and climate change information being developed and used by selected utilities that are leaders in climate adaptation to understand and respond to climate risk.
The public comment period and the external peer-review workshop, which will be scheduled at a later date and announced in the
EPA is releasing this draft document solely for the purpose of pre-dissemination peer review under applicable information quality guidelines. This document has not been formally disseminated by EPA. It does not represent and should not be construed to represent any Agency policy or determination.
The draft document and EPA's peer-review charge are available via the Internet on the NCEA home page under the Recent Additions and the Data and Publications menus at
The 45-day public comment period begins August 23, 2010, and ends October 7, 2010. Technical comments should be in writing and must be received by EPA by October 7, 2010.
The draft “Climate Change Vulnerability Assessment: Four Case Studies of Water Utility Practices” is available primarily via the Internet on the National Center for Environmental Assessments home page under the Recent Additions and the Data and Publications menus at
Comments may be submitted electronically via
For information on the public comment period, contact the Office of Environmental Information Docket; telephone: 202-566-1752; facsimile: 202-566-1753; or e-mail:
For technical information, contact Thomas Johnson, NCEA; telephone: 703-347-8618; facsimile: 703-347-8694; or e-mail:
This report presents a series of case studies describing the approaches currently being taken by four water utilities in the United States to assess their vulnerability to climate change. The report is not intended to be a comprehensive listing of assessment approaches or utilities conducting vulnerability assessments. Rather, its purpose is to illustrate a range of issues and current approaches taken by selected utilities that are leaders in climate adaptation to understand and respond to climate risk. The approaches taken by the different utilities to assess their vulnerability to climate change range from sophisticated environmental modeling and scenario analysis to qualitative methods based on reviews of available literature. The case studies illustrate different approaches that reflect specific local needs and conditions, existing vulnerabilities, local partnerships, and available information about climate change. Information from these case studies will be of use to water utilities and other members of the water resources community to inform the development of strategies for understanding and responding to climate change. The issue of climate change is complex and will require ongoing attention and study.
Submit your comments, identified by Docket ID No. EPA-HQ-ORD 2010-0701, by one of the following methods:
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•
•
•
•
If you provide comments by mail or hand delivery, please submit three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office is announcing a public teleconference on September 15, 2010, of the Clean Air Scientific Advisory Committee (CASAC) Ambient Air Monitoring & Methods Subcommittee (AAMMS or Subcommittee) to provide advice on EPA's white paper,
The teleconference will be held on Wednesday, September 15, 2010 from 10 a.m. to 2 p.m. (Eastern Time).
The teleconference will be conducted by phone only.
Any member of the public who wishes to submit a written or brief oral statement or wants further information concerning the teleconference may contact Mr. Aaron Yeow, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via telephone/voice mail (202) 564-2050; fax (202) 565-2098; 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 NAAQS for the six “criteria” air pollutants, including lead. In November 2008, EPA published the final rule for the NAAQS for lead (73 FR 66934), revising the primary standard from 1.5 µg/m
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments for a Federal advisory committee to consider as it develops advice for EPA. They should send their comments directly to the Designated Federal Officer for the relevant advisory committee.
Environmental Protection Agency (EPA)
Notice; program authorization, request for comments and opportunity for public hearing.
This notice announces that on April 20, 2010, the State of Rhode Island, and on July 9, 2010, the State of Massachusetts, were deemed authorized under section 404(a) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2684(a), and 40 CFR 745.324(d)(2), to administer and enforce requirements for renovation, repair and painting programs in accordance with section 402(c)(3) of TSCA, 15 U.S.C. 2682(c)(3). This notice also announces that EPA is seeking comment during a 45-day public comment period, and is providing an opportunity to request a public hearing within the first 15 days of this comment period, on whether Rhode Island's and Massachusetts's programs are at least as protective as the Federal program and provide for adequate enforcement. This notice also announces that Rhode Island's and Massachusetts's 402(c)(3) programs were deemed authorized by regulation and statute on April 20, 2010, and July 9, 2010, respectively, and will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves the Rhode Island and Massachusetts program applications on or before October 20, 2010 and January 9, 2011, respectively.
Comments, identified by docket control number, EPA-R01-OPPT-2010-0470 must be received on or before October 7, 2010. In addition, a public hearing request must be submitted on or before September 7, 2010.
Comments, and requests for a public hearing, may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Section I of the
James M. Bryson, Technical Contact, Toxics and Pesticides Unit, Office of Environmental Stewardship, Environmental Protection Agency, Region 1, 5 Post Office Square—Suite 100, OES 05-4, Boston, MA 02109, telephone number: (617) 918-1524; e-mail address:
This action is directed to the public in general, to entities offering Lead Safe Renovation courses, and to firms and individuals engaged in renovation and remodeling activities of pre-1978 housing in the State of Rhode Island and the State of Massachusetts, individuals and firms falling under the North American Industrial Classification System (NAICS) codes 231118, 238210, 238220, 238320, 531120, 531210, 53131, e.g., General Building Contractors/Operative Builders, Renovation Firms, Individual Contractors, and Special Trade Contractors like Carpenters, Painters, Drywall Workers and Plumbers, “Home Improvement” Contractors, as well as Property Management Firms and some Landlords, who are also affected by these rules. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this notice could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number EPA-R01-OPPT-2010-0470 in the subject line on the first page of your response.
1.
2.
Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark on each page the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person identified under
EPA is announcing that on April 20, 2010, the State of Rhode Island, and on July 9, 2010, the State of Massachusetts, were deemed authorized under section 404(a) of TSCA, and 40 CFR 745.324(d)(2), to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA. This notice also announces that EPA is seeking comment and providing an opportunity to request a public hearing on whether these State programs are at least as protective as the Federal program and provide for adequate enforcement. The 402(c)(3) program ensures that training providers are accredited to teach renovation classes, that individuals performing renovation activities are properly trained and certified as renovators, that firms are certified as renovation firms, and that specific work practices are followed during renovation activities. On April 20, 2010, Rhode Island and on July 9, 2010, the State of Massachusetts submitted applications under section 404 of TSCA requesting authorization to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, and submitted a self-certification that their respective program is at least as protective as the Federal program and provides for adequate enforcement. Therefore, pursuant to section 404(a) of TSCA, and 40 CFR 745.324(d)(2), the Rhode Island and Massachusetts renovation programs were deemed authorized as of the date of submission and until such time as the Agency disapproves the program application or withdraws program authorization. Pursuant to section 404(b) of TSCA and 40 CFR 745.324(e)(2), EPA is providing notice, opportunity for public comment and opportunity for a public hearing on whether the State program application is at least as protective as the Federal program and provides for adequate enforcement. If a hearing is requested and granted, EPA will issue a
On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601
Under section 404 of TSCA, a state may seek authorization from EPA to administer and enforce its own renovation, repair and painting program in lieu of the Federal program. The regulation governing the authorization of a State program under section 402 of
The following program summary is from Rhode Island's self-certification application:
The state of Rhode Island is submitting an application to the U.S. Environmental Protection Agency (EPA) certifying that the state's Renovation, Repair, and Painting Program/Lead-Safe Renovator Program is as protective as the EPA program and is authorized when the application is submitted to EPA. The Rhode Island Department of Health (HEALTH) is the lead agency for these programs. HEALTH currently has EPA-authorized programs for lead-based paint activities training and certification and pre-renovation notification.
The rules for the Renovation, Repair, and Painting Program/Lead-Safe Renovator Program are found in R23-24.6-PB-Section 14.0 of the
1. Establish the licensing of lead hazard control firms, effective May 1, 2010.
2. Establish work practice requirements for renovation.
3. Establish licensing requirements for persons and firms that conduct these activities. To be licensed, persons must complete an approved training program, apply for licensure, and pay a fee of $40. Firms must employ at least one licensed lead-safe remodeler/renovator, must apply for licensure and pay a fee of $40.
4. Establish procedures for the suspension, revocation, or modification of certifications.
5. Establish requirements for the approval of lead-safe renovator training programs and procedures for the suspension, revocation, or modification of training program approvals.
6. Define violations of these rules, establish procedures to assess penalties for violations of these rules, and establish administrative procedures for persons or firms to appeal these penalties.
The legal authority for the renovation, repair, and painting program/lead-safe renovator certification is found in Chapters 23-24.6.6 and 42-35 of the Rhode Island General Laws, as amended.
The following program summary is from the Massachusetts self-certification application:
The State of Massachusetts is submitting an application to the U.S. Environmental Protection Agency (EPA) certifying that the state's Renovation, Repair, and Painting Program/Lead-Safe Renovator Program is as protective as the EPA program and is authorized when the application is submitted to EPA. The Massachusetts Department of Labor, Division of Occupational Safety (MADOS), is the lead agency for these programs. MADOS currently has an EPA-authorized program for lead-based paint activities training and certification.
The rules for the Renovation, Repair, and Painting Program/Lead-Safe Renovator Program are found in 454 CMR 22.00, Deleading And Lead-Safe Regulations of the State of Massachusetts and are promulgated in accordance with and under the authority of M.G.L. c. 111, sections 189A through 199B and M.G.L. c. 149, section 6. The amendments to this regulation that contain these requirements are effective on July 9, 2010. These rules cover all renovation, repair and painting activities that are conducted in target housing and child-occupied facilities. These rules:
1. Establish the discipline of lead-safe renovator.
2. Establish work practice requirements for renovation.
3. Require firms and other entities who carry out the work to be licensed as Lead-Safe Renovation Contractors and that the work be overseen at all times by Certified Lead-Safe Renovator-Supervisors. To be certified, persons must complete an approved training program. Firms must employ at least one certified lead-safe renovator, must apply for licensing and pay a fee of $375.
4. Establish procedures for the suspension, revocation, or modification of licenses and certifications.
5. Establish requirements for the approval of lead-safe renovator training programs and procedures for the suspension, revocation, or modification of training program approvals.
6. Define violations of these rules, establish procedures to assess penalties for violations of these rules, and establish administrative procedures for persons or firms to appeal these penalties.
The renovation, repair, and painting program/lead-safe renovator provisions found in 454 CMR 22.00 are promulgated in accordance with and under the authority of M.G.L. c. 111, section 189A through 199B and M.G.L. c. 149, section 6.
Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved state program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized state program.
Pursuant to section 404(c) of TSCA, the EPA Administrator may withdraw authorization of a state or Indian Tribal renovation, repair and painting program, after notice and opportunity for corrective action, if the program is not being administered or enforced in compliance with standards, regulations, and other requirements established under the authorization. The procedures EPA will follow for the withdrawal of an authorization are found at 40 CFR 745.324(i).
Environmental protection, Hazardous substances, Lead, Renovation, Renovation work practice standards, Renovation training, Renovation certification, Renovation notification, Reporting and recordkeeping requirements, State of Rhode Island, State of Massachusetts.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 - 3520. Comments are requested concerning: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 22, 2010. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via the Internet at Nicholas_A._Fraser@omb.eop.gov and to the Federal Communications Commission via email to PRA@fcc.gov.
Judith B. Herman, Office of Managing Director, (202) 418-0214. For additional information, contact Judith B. Herman, OMD, 202-418-0214 or email judith-b.herman@fcc.gov.
OMB Control Number: 3060-0999.
Title: Hearing Aid Compatibility Status Report and Section 20.19, Hearing Aid-Compatible Mobile Handsets (Hearing Aid Compatibility Act of 1988).
Form No.: FCC Form 655 - electronic only.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit.
Number of Respondents and Responses: 925 respondents; 925 responses.
Estimated Time Per Response: 1 - 2.5 hours.
Frequency of Response: Annual and on occasion reporting requirements and third party disclosure requirement.
Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. sections 151, 154(i), 157, 201, 202, 208, 214, 301, 303, 308, 309(j), 310 and 610.
Total Annual Burden: 12,063 hours.
Total Annual Cost: N/A.
Privacy Act Impact Assessment: N/A.
Nature and Extent of Confidentiality: Information in the reports may include confidential information. However, covered entities would be allowed to request that such materials submitted to the Commission be withheld from public inspection under 47 CFR 0.459 of the Commission's rules.
Needs and Uses: The Commission is requesting OMB approval of a revision to this currently approved collection regarding hearing aid compatibility disclosure requirements. In the Report and Order in WT Docket No. 01-309, FCC 03-168, adopted and released in September 2003, the Federal Communications Commission modified the exemption for telephone used with public mobile services from the requirements of the Hearing Aid Compatibility Act of 1988 (HAC Act). The Order required digital wireless phone manufacturers and service providers to make certain digital wireless phones capable of effective use with hearing aids, label certain phones they sold with information about their compatibility with hearing aids, and report to the Commission (at first every six months, then on an annual basis) on the numbers and types of hearing aid-compatible phones they were producing or offering to the public.
In February 2008, the Commission adopted final rules in the Report and Order (FCC 08-68) that updated several performance benchmarks and instituted new requirements. To assist the Commission in monitoring the implementation of the new requirements and to provide information to the public, the Report and Order also required manufacturers and service providers to continue to file annual reports on the status of their compliance with the requirements, and required manufacturers and service providers that maintain public websites to publish up-to-date information on those websites regarding their hearing-aid compatible handset models. The existing, OMB-approved collection under this OMB control number supports these disclosure requirements.
Recently, on August 5, 2010, the Commission adopted final rules in a Second Report and Order, FCC 10-145, that, among other things, updated disclosure requirements for manufacturers and service providers. As a result, the Commission is requesting a revision of this collection due to the change in language required for disclosures under Section 20.19(f)(2) of the Commission's rules and the addition of content to be disclosed for certain headsets under Section 20.19(f)(2) of the Commission's rules. The updated requirements will create no additional burden for manufacturers and service providers, but will ensure that consumers are provided with consistent and sufficient information about the functionality and the limitations of their handsets. These actions are taken to ensure that consumers who use hearing aids and cochlear implants have access to a variety of phones and are adequately informed about the functionality and the limitations of the handsets, while preserving competitive opportunities for small companies as well as opportunities for innovation and investment.
Federal Communications Commission.
Notice.
In this document, the Commission, via the Consumer and Governmental Affairs Bureau (Bureau), initiates a review of the Commission's policies and practices under Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 504 requires Federal agencies to make their programs and activities accessible to people with disabilities. This document seeks comment on the accessibility of the Commission's programs and activities.
Comments are due on or before September 20, 2010.
You may submit comments identified by [CG Docket No. 10-162], and by any of the following methods:
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• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street, 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
• 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.
• Pursuant to 47 CFR 1.1810(b): “Written comments shall be signed by the commenter or by someone authorized to do so on his or her behalf. The signature of the commenter, or signature of someone authorized by the commenter to do so on his or her behalf, shall be provided on print comments. Comments in audio, Braille, electronic, and/or video formats shall contain an affirmative identity statement of the individual, which for this purpose shall be considered to be functionally equivalent to a commenter's signature.”
Pam Gregory, Consumer and Governmental Affairs Bureau, Consumer Affairs and Outreach Division, at (202) 418-2498 (voice), (202) 418-1169 (TTY), or e-mail at
This is a summary of the Commission's document, DA 10-1325, released July 19, 2010 in CG Docket No. 10-162. The full text of DA 10-1325 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS (insert [CG Docket No. 10-162] into the Proceeding block) and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or via its Web site,
In document DA 10-1325, the Bureau initiates a review of the Commission's policies and practices under Section 504. Section 504 requires Federal agencies to make their programs and activities accessible to people with disabilities.
The Commission's rules mandate that it conduct a review of its current Section 504 policies and practices in view of advances in relevant technology and achievability, and that it update its
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: BRYAN BROADCASTING CORPORATION, Station KWBC, Facility ID 40912, BP-20100712ABU, From NAVASOTA, TX, To COLLEGE STATION, TX; CUMULUS LICENSING LLC, Station KNRQ-FM, Facility ID 12501, BMPH-20100805AKO, From TUALATIN, OR, To ALOHA, OR; IORIO BROADCASTING, INC., Station WNAE-FM, Facility ID 164188, BPH-20100728ABK, From CLARENDON, PA, To WATTSBURG, PA; LIFELINE MINISTRIES, INC., Station WGTI, Facility ID 173, BPH-20100804AAU, From DUCK, NC, To WINFALL, NC; LIGHT OF LIFE COMMUNITY, INC., Station WLOL-FM, Facility ID 172639, BMPED-20100722BOH, From MORGANTOWN, WV, To STAR CITY, WV.
Comments may be filed through October 22, 2010.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Tung Bui, 202-418-2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Deposit Insurance Corporation (FDIC).
Notice of information collections to be submitted to OMB for review and approval under the Paperwork Reduction Act.
In accordance with requirements of the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
Comments must be submitted on or before September 22, 2010.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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•
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Leneta Gregorie, at the FDIC address above.
1.
2.
3.
Comments are invited on: (a) Whether these collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collections, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collections on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Federal Deposit Insurance Corporation.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 7, 2010.
Board of Governors of the Federal Reserve System, August 18, 2010.
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 September 16, 2010.
Board of Governors of the Federal Reserve System, August 17, 2010.
National Institute of Environmental Health Sciences (NIEHS); National Institutes of Health (NIH), HHS.
Call for information and nomination of scientific experts.
CERHR is evaluating the scientific evidence regarding the potential health effects associated with low-level lead exposure (defined as having blood lead levels < 10 μg/dL). CERHR invites the submission of information about ongoing studies or upcoming publications on the health effects of low-level lead exposure that might be considered for inclusion in the evaluation. CERHR also invites the nomination of scientific experts to potentially serve as technical advisors in conducting the evaluation or as members of an
All information and nominations should be received by CERHR by October 7, 2010.
Information may be submitted to Dr. Andrew A. Rooney, NTP/CERHR, NIEHS, P.O. Box 12233, MD K2-04, Research Triangle Park, NC 27709 (mail), 919-316-4704 (telephone), or
The main uses of lead are in manufacture of storage batteries, ammunition, nuclear and x-ray shielding devices, cable coverings, pipes, and solders. Lead may be present in paint pigments, ceramics, caulk, plastics, and electronic devices. Exposure to the general population can occur through inhalation of lead in dust and industrial emissions, intake of lead in drinking water, consumption of contaminated food, ingestion of lead dust, eating of paint flakes by children, occupational exposure, and secondary exposure in families of workers exposed occupationally to lead. Lead exposure remains a significant health concern despite policies and practices that have resulted in continued progress in reducing exposures and lowering blood lead levels in the U.S. population. CERHR selected low-level lead for evaluation because of: (1) Widespread human exposure, (2) published studies on health effects associated with low blood lead levels (< 10 μg/dL) in humans, and (3) public concern. An evaluation of low-level lead was initially discussed by the NTP Board of Scientific Counselors (BSC) on December 6, 2007 (72 FR 58854) and the approach for the evaluation was discussed at the May 10, 2010 BSC meeting (75 FR 12244). BSC meeting minutes are available at
CERHR invites the public and other interested parties to submit information on low-level lead including toxicology information from completed and ongoing studies, information on planned studies, and information about current production levels, human exposure, use patterns, and environmental occurrence. This information will be considered in evaluating the potential health effects of exposure to low-level lead. Information should be submitted to CERHR (
CERHR invites nominations of qualified scientists to serve as technical advisors and/or as members of an
The NTP established CERHR in 1998 (63 FR 68782). CERHR is a publicly accessible resource for information about adverse reproductive and/or developmental health effects associated with exposure to environmental and/or occupational exposures. CERHR publishes monographs that assess the evidence regarding whether environmental chemicals, physical substances, or mixtures (collectively referred to as “substances”) cause adverse effects on reproduction and/or development and provide opinion on whether these substances are hazardous for humans. Information about CERHR can be obtained from its homepage (
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees from the Norton Company, Worcester, Massachusetts, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000. The initial proposed definition for the class being evaluated, subject to revision as
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the De Soto Avenue Facility in Los Angeles County, California, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 14, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the De Soto Avenue Facility in Los Angeles County, California, from January 1, 1959 through December 31, 1964, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Downey Facility in Los Angeles County, California, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 13, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Downey Facility in Los Angeles County, California from January 1, 1948 through December 31, 1955, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Mound Plant in Miamisburg, Ohio, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 14, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy (DOE), its predecessor agencies, and its contractors and subcontractors who had at least one tritium bioassay sample and worked at the Mound Plant in Miamisburg, Ohio from March 1, 1959 through March 5, 1980, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the St. Louis Airport Storage Site in St. Louis, Missouri, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 14, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked in any area and in any job capacity at the St. Louis Airport Storage Site in St. Louis, Missouri from January 3, 1947 through November 2, 1971, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more of the other classes of employees in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Bethlehem Steel Corporation facility in Lackawanna, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 14, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All Atomic Weapons Employer employees who worked at the Bethlehem Steel Corporation facility in Lackawanna, New York from January 1, 1949 to December 31, 1952, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from BWX Technologies, Inc., in Lynchburg, Virginia, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 13, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All Atomic Weapons Employer employees who worked at BWX Technologies, Inc., in Lynchburg, Virginia from January 1, 1959 through December 31, 1959; and/or from January 1, 1968 through December 31, 1972, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Los Alamos National Laboratory in Los Alamos, New Mexico, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 13, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Los Alamos National Laboratory in Los Alamos, New Mexico from March 15, 1943 through December 31, 1975, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the University of Rochester Atomic Energy Project in Rochester, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On July 13, 2010, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked at the University of Rochester Atomic Energy Project in Rochester, New York, from September 1, 1943 through October 30, 1971, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC.
Stuart L. Hinnefeld, Interim Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a Federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC 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 (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a Federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC 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 (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meeting.
This notice announces a forthcoming meeting of a public advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meeting will be open to the public.
Persons attending ONC's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
ONC welcomes the attendance of the public at its advisory committee meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC 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 (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meeting.
This notice announces a forthcoming meeting of a public advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meeting will be open to the public.
Persons attending ONC's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
ONC welcomes the attendance of the public at its advisory committee meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC 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 (Pub. L. 92-463, 5 U.S.C., App. 2).
ADD has already designed the instruments, methodologies, procedures, and analytical techniques for this task. Moreover, they have been pilot tested in 11 States. The tools and techniques were submitted for review, and were approved, by Institutional Review Boards for the Protection of Human Subjects (IRB) in those States in which IRB approval was necessary. The tools and techniques were repeatedly revised and improved, then applied successfully, and now they are ready to apply across the nation as soon as Office of Management and Budget (OMB) approval is received.
These instruments and methods are all aimed to answer the elementary scientific outcome questions: Are the participants in the FS 360 programs “better off” because of their participation? If so, how much, in what way(s), and at what public cost?
This information will inform public policy regarding the best methods to deliver important supports to families of people with developmental disabilities.
Estimated Total Annual Burden Hours: 1,020
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, e-mail
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The National Health Service Corps (NHSC) Loan Repayment Program (LRP) was established to assure an adequate supply of trained primary care health care professionals to provide services in the neediest Health Professional Shortage Areas (HPSAs) of the United States. Under this program, the Department of Health and Human Services agrees to repay the educational loans of the primary care health
The annual estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the OMB desk officer for HRSA, either by e-mail to
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. E-mail address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of Federally funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
NIH inventors have developed a transgenic mouse model, designated β1
The invention discloses the
• Diagnostic test for women suffering from infertility or irregular menstrual periods.
• Tool for the study of early embryonic development.
• Tool for the development of MATER-based contraceptives.
1. Zhi-Bin Tong
2. Zhi-Bin Tong
3. Zhi-Bin Tong
4. Zhi-Bin Tong
• U.S. Patent 7,217,811 issued 15 May 2007 (HHS Reference No. E-239-2000/0-US-03).
• U.S. Patent 7,531,635 issued 12 May 2009 (HHS Reference No. E-239-2000/0-US-08).
• U.S. Patent 7,432,067 issued 07 Oct 2008 (HHS Reference No. E-239-2000/0-US-09).
• U.S. Patent 7,189,812 issued 13 Mar 2007 (HHS Reference No. E-239-2000/1-US-02).
• Foreign counterparts issued/pending in Australia, Canada, Europe, and Japan.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
NIH
• Therapeutics for skin disorders.
• Therapeutics for skin cancer.
1. Choi W, Wolber R, Gerwat W, Mann T, Hearing VJ. Characterization of the influence of fibroblasts on melanocyte function and pigmentation. In: Proc. XXth Intl. Pigment Cell Conf., edited by K. Jimbow, Bologna, Italy: Medimond, 2008, p. 79-82.
2. Choi W, Wolber R, Gerwat W, Mann T, Batzer J, Smuda C, Liu H, Kolbe L, Hearing VJ. A novel fibroblast-derived melanogenic paracrine factor neuregulin-1 (NRG-1) that modulates the constitutive color and melanocyte function in human skin. J. Cell Sci. in press, 2010.
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) New Jersey District Office, in cosponsorship with the Society of Clinical Research Associates (SoCRA) is announcing a public workshop. The public workshop on FDA's clinical trial requirements is designed to aid the clinical research professional's understanding of the mission, responsibilities, and authority of FDA and to facilitate interaction with FDA representatives. The program will focus on the relationships among FDA and clinical trial staff, investigators, and institutional review boards (IRBs). Individual FDA representatives will discuss the informed consent process and informed consent documents; regulations relating to drugs, devices, and biologics; as well as inspections of clinical investigators, IRBs, and research sponsors.
If you need special accommodations due to a disability, please contact SoCRA (see
Extended periods of question and answer and discussion have been included in the program schedule. This program offers 13.3 hours of continuing medical education (CME) and continuing nursing education (CNE) credit.
Payment by major credit card is accepted (Visa/MasterCard/AMEX only). For more information on the meeting registration, or for questions on the workshop, contact SoCRA (see
The public conference helps fulfill the Department of Health and Human Services' and FDA's important mission to protect the public health. The workshop will provide those engaged in FDA-regulated (human) clinical trials with information on a number of topics concerning FDA requirements related to informed consent, clinical investigation requirements, IRB inspections, electronic record requirements, and investigator initiated research. Topics for discussion include the following: (1) What FDA expects in a pharmaceutical clinical trial; (2) adverse event reporting—science, regulation, error, and safety; (3) Part 11 Compliance—Electronic signatures; (4) informed consent regulations; (5) IRB regulations and FDA inspections; (6) keeping informed and working together; (7) FDA conduct of clinical investigator inspections; (8) meetings with FDA: why, when, and how; (9) investigator initiated research; (10) medical device aspects of clinical research; (11) working with FDA's Center for Biologics Evaluation and Research; (12) the inspection is over—what happens next? Possible FDA compliance actions.
FDA has made education of the drug and device manufacturing community a high priority to help ensure the quality of FDA-regulated drugs and devices. The public workshop helps to achieve objectives set forth in section 406 of the FDA Modernization Act of 1997 (21 U.S.C. 393) which includes working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. The public workshop also is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121) as outreach activities by Government agencies to small businesses.
Food and Drug Administration, HHS.
Notice of public conference.
The Food and Drug Administration (FDA) is announcing a public conference entitled “The New Paradigm: Quality and Compliance in Merging and Emerging Cultures.” The conference, cosponsored with the Parenteral Drug Association (PDA), will focus on challenges facing the medical products industry in navigating regulatory compliance, achieving worldwide quality improvement, and enhancing quality system controls in an environment of merging and emerging cultures.
If you need special accommodations because of a disability, please contact Wanda Neal, at least 7 days in advance of the conference.
The registrar will also accept payment by major credit cards (VISA/MasterCard only). For more information on the meeting, or for questions on registration, contact the PDA (see
The PDA/FDA Joint Public Conference offers the unique opportunity for participants to join FDA representatives and industry experts in face-to-face dialogues. Each year, FDA speakers provide updates on current efforts affecting the development of global regulatory strategies, while industry professionals from some of today's leading pharmaceutical companies present case studies on how they employ global strategies in their daily processes.
Through a series of sessions and meetings, the conference will provide participants with the opportunity to hear directly from FDA experts and representatives of global regulatory authorities on best practices, including:
• Pharmaceutical Safety and Good Distribution Practices
• Patient Requirements and Product Development
• Quality Unit Responsibility
• Continual Improvement
• Technology Transfer
• Supply Chain
• Combination Products
• Recall Root Causes
• Biologics
• Knowledge Management
• Foreign Inspection Practices
• Process Validation
• Risk Management in Manufacturing
• Change Control
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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Recombinant DNA Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Information is also available on the Institute's/Center's home page:
OMB's “Mandatory Information Requirements for Federal Assistance Program Announcements” (45 FR 39592, June 11, 1980) requires a statement concerning the official government programs contained in the Catalog of Federal Domestic Assistance. Normally NIH lists in its announcements the number and title of affected individual programs for the guidance of the public. Because the guidance in this notice covers virtually every NIH and Federal research program in which DNA recombinant molecule techniques could be used, it has been determined not to be cost effective or in the public interest to attempt to list these programs. Such a list would likely require several additional pages. In addition, NIH could not be certain that every Federal program would be included as many Federal agencies, as well as private organizations, both national and international, have elected to follow the NIH Guidelines. In lieu of the individual program listing, NIH invites readers to direct questions to the information address above about whether individual programs listed in the Catalog of Federal Domestic Assistance are affected.
The purpose of this notice is to inform the public about a meeting of the NIH Blue Ribbon Panel to Advise on the Risk Assessment of the National Emerging Infectious Diseases Laboratories (NEIDL) at Boston University Medical Campus.
The meeting will be held Wednesday, September 22, 2010 at the Hyatt Regency Bethesda, 7400 Wisconsin Avenue, Bethesda, MD 20814 from approximately 8:30 a.m. to 3:30 p.m.
This meeting is the third in a series of public meetings between the Blue Ribbon Panel and the National Research Council Committee on Technical Input (NRC Committee) to review and discuss the ongoing supplementary risk assessment study being conducted for the Boston University NEIDL.
The meeting will be open to the public, with attendance limited to space available. There will be a live webcast of the meeting which can be accessed at
Oral public comment will begin at approximately 3 p.m. Written comments may be provided, as well, by sending them to the address below. Written comments must be postmarked by October 1, 2010 and should include the name, address, telephone number and, when applicable, the business or professional affiliation of the commenter.
A draft agenda and slides for the meeting may be obtained by connecting to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of meetings of the National Advisory Council for Human Genome Research.
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
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/or contract proposals 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 and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA) is announcing a public workshop entitled “Medical Devices & Nanotechnology: Manufacturing, Characterization, and Biocompatibility Considerations.” The purpose of this workshop is to obtain information on manufacturing, characterization, and biocompatibility evaluation of medical devices containing or utilizing nanomaterials and nanostructures, including diagnostics. FDA is seeking input on these topics and requests comments on a number of related questions.
If you wish to make an oral presentation during any of the public comment sessions at the workshop (see section II of this document), you must indicate this at the time of registration. FDA requests that presentations focus on the areas defined in section III of this notice. You should also identify which discussion topic you wish to address in your presentation. In order to keep each open session focused on the discussion topic at hand, each oral presentation should address only one discussion topic. FDA will do its best to accommodate requests to speak. Registered participants may send written material for oral presentations to the contact person by 5 p.m. on September 15, 2010.
If you would like to participate in the two planned round-table discussions (see section II of this document), you must indicate this interest at the time of registration, and also submit a brief statement that describes your experience or expertise with nanotechnology. There will be a limited number of round-table participants. FDA will attempt to have a range of constituencies represented in this discussion group. Others in attendance at the public workshop will have an opportunity to listen to each round-table discussion and provide public comments, time permitting.
If you need special accommodations due to a disability, please contact Susan Monahan at 301-796-5661 or email:
Regardless of attendance at the public workshop, interested persons may submit to the Division of Dockets Management either electronic or written comments on this document. Submit electronic comments to
Nanomaterials, measured in nanometers (a billionth of a meter), often possess physical and chemical properties that are different from their larger counterparts. Due to the high surface area to volume ratio, the small size, and the type of nanoscale material, these materials may exhibit altered magnetic, electrical, optical properties and altered chemical and biological activities. These characteristics provide the potential for nanomaterials to be used in a variety of medical device applications. However, some of these nanomaterial properties may also present safety concerns that are not found in their larger counterparts. The use of nanotechnology is increasingly applicable and provides novel opportunities in medical device development. The scientific hurdles (e.g., biocompatibility and toxicity) for safe use of nanomaterials in medical devices, including the processes and standards for their manufacture and characterization, are not understood.
In July 2007, FDA's Nanotechnology Task Force issued a report describing the state of the science and regulatory challenges in translating nanotechnology into FDA-regulated products (available at
The objective of this public workshop is to obtain information on manufacturing, characterization, and evaluation of biocompatibility of medical devices containing or utilizing nanomaterials and nanostructures.
There are two types of opportunities for participation planned for the public workshop: Time limited oral presentations and round-table discussions.
If you wish to make an oral presentation during the public workshop, you must indicate this at the time of registration. The number of presentations may be limited based on the number of requests received during the public comment period. When registering, you will be required to identify the title of the topic you wish to address in your presentation and answer all the related questions on the registration form at
To close each of the two sessions, FDA will hold a round-table discussion between FDA staff and selected participants representing a range of constituencies. If you wish to be a participant in round-table discussions, you must indicate this interest at the time of registration, and also submit a brief statement that describes your experience or expertise with nanotechnology. FDA will attempt to have a range of constituencies represented in this discussion group. Others in attendance at the workshop will have an opportunity to listen during each round-table discussion and provide public comments, time permitting. FDA will determine the participants based on the requests received. The participants in each round-table discussion will remark on the presentations given during the session, engage in a dialogue with each other and FDA staff, and provide closing thoughts on the session. Round-table participants will not be asked to develop consensus opinions during the discussion, but rather to provide their individual perspectives.
The workshop will focus on two topics: (1) Manufacturing and characterization of medical devices containing or utilizing nanomaterials or nanostructures; (2) biocompatibility evaluation of medical devices containing or utilizing nanomaterials or nanostructures. The discussion on manufacturing and characterization will include the evaluation of physico-chemical properties of nanomaterials or nanostructures, characterization methods required, device manufacturing processes and evaluation of the final processed device after sterilization, and stability and aging studies. The discussion on biocompatibility evaluation will include testing for potential release of nanomaterials and additional testing considerations other than standard testing methods to determine the biocompatibility and toxicity of devices containing or utilizing nanomaterials or structures. For further information, please refer to the meeting registration Web page at
Please be advised that as soon as a transcript is available, it can be obtained in either hardcopy or on CD-ROM, after submission of a Freedom of Information Act request. Written requests are to be sent to Division of Freedom of Information (HFI-35), Office of Management Programs, Food and Drug Administration, 5600 Fishers Lane, rm. 6-30, Rockville, MD 20857, approximately 15 working days after the public workshop. A transcript of the public workshop will be available on the Internet at
National Institutes of Health (NIH), National Cancer Institute (NCI).
Notice with request for comment.
As part of the commitment to maintaining current and scientifically accurate best practices, the National Cancer Institute (NCI) is seeking public comment on a revised version of the
Comments submitted via e-mail should use
Implementation assistance and inquiries should be directed to senior staff of the relevant NCI Extramural and Intramural Program offices.
The
Agency for Healthcare Research and Quality (AHRQ), DHHS.
Notice of request for measures.
The Agency for Healthcare Research and Quality (AHRQ) is soliciting the submission of instruments or items that measure how well health plans and health providers address health plan enrollees' health literacy needs and how well they communicate with health plan enrollees. This initiative is in response to the need identified by AHRQ to develop a new supplemental item set (the “new instrument”) for addressing health literacy for the CAHPS® Health Plan Survey. The intent of the planned survey is to gain patients' perspective on how well health and health plan information is communicated to them by healthcare professionals and health plans. The results of the planned survey may become an important source of information for health plans, clinicians, group practices, and other interested parties assessing quality of health information or planning changes in how health plan information is delivered to health plan enrollees.
Based on prior work, there are several functional areas that the new instrument could address. Depending on the communication mode, the new instrument could assess, for example, clarity and simplicity of provided health information related to: (a) Preventive services (
Please submit instruments and supporting information on or before October 22, 2010. AHRQ will not respond individually to submitters, but will consider all submitted instruments and publicly report the results of the review of the submissions in aggregate.
Submissions should include a brief cover letter, a copy of the instrument or items for consideration and supporting information as specified under the Submission Criteria below. Submissions may be in the form of a letter or e-mail, preferably with an electronic file as an E-mail attachment. Responses to this request should be submitted to:
Cindy Brach, Center for Delivery, Organization, and Markets, Agency for Healthcare Research and Quality, 540 Gaither Road, Room 5129, Rockville, MD 20850,
Cindy Brach, at the address above.
Instruments and items submitted should focus on patients' perspective on quality of health and health plan information provided by health plans, clinicians, and/or group practices.
Measures submitted must meet these criteria to be considered: (a) Assess patients' or their caregivers' experiences receiving health and health plan information and (b) demonstrate substantial reliability and validity. Submitters must agree to grant to the Government a nonexclusive, irrevocable, royalty-free right to use, distribute to the public, reproduce and create derivative works from the proffered instruments, items or their arrangement. AHRQ must have the right to freely use and authorize others to use the new instrument, which will be distributed under the CAHPS® trademark. The new instrument will combine the best features of all the submissions as well as any ideas that may develop from reviewing them. AHRQ, in collaboration with CAHPS grantees, will evaluate all submitted instruments or items. As they construct the CAHPS instrument, they may select one or more proffered instruments and their items either in whole or in part or modify the items prior to testing them. AHRQ will own and assume responsibility for new instrument as well as any future modifications to it. The new instrument will bear the CAHPS® trademark and it will be made freely available for use by all interested parties.
Each submission should include the following information: The name of the instrument, domains included, language(s) the instrument is available in, evidence of cultural/cross group comparability, if any, instrument reliability (internal consistency, test-retest,
To facilitate handling of submissions, please include full information about the instrument developer or contact: (a) Name; (b) title; (c) organization; (d) mailing address; (e) telephone number; (f) fax number; and (g) e-mail address.
The CAHPS program was initiated in 1995 to develop a survey and report on the consumers' perspective on the quality of their health plans. Since that time, the CAHPS program in partnership with CMS and others has expanded its scope and developed surveys and reports regarding individual clinicians, group practices, in-center hemodialysis services, nursing
The vision of the Agency for Healthcare Research and Quality is to foster health care research that helps the American health care system provide access to high-quality, cost effective services; be accountable and responsive to consumers and purchasers; and improve health status and quality of life. The CAHPS program was developed as a result of the AHRQ's vision. One of the components missing from the current measurement set is an assessment of patients' perspective on how well health plans, hospital, clinicians, and group practices address health literacy issues.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Rhode Island (FEMA-3311-EM), dated March 30, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the emergency declared on March 30, 2010, for the State of Rhode Island due to the damage resulting from severe storms and flooding. The Rhode Island emergency declaration is amended as follows:
Federal funds for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program provided under this declaration are authorized at 90 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Kansas (FEMA-1932-DR), dated August 10, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 10, 2010, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Kansas resulting from severe storms, flooding, and tornadoes during the period of June 7 to July 21, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
Therefore, I declare that such a major disaster exists in the State of Kansas.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael R. Scott, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Kansas have been designated as adversely affected by this major disaster:
The counties of Atchison, Brown, Butler, Chase, Clay, Cloud, Comanche, Doniphan, Ellis, Franklin, Greenwood, Harvey, Jewell, Kiowa, Lyon, Marion, Marshall, Miami, Mitchell, Morris, Norton, Osage, Osborne, Pawnee, Phillips, Pottawatomie, Republic, Riley, Rooks, Rush, Smith, Wabaunsee, Washington, and Woodson for Public Assistance.
All counties within the State of Kansas are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Wisconsin (FEMA-1933-DR), dated August 11, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 11, 2010, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Wisconsin resulting from severe storms, tornadoes, and flooding during the period of July 20-24, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Paul J. Ricciuti, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Wisconsin have been designated as adversely affected by this major disaster:
Grant and Milwaukee Counties for Public Assistance.
All counties within the State of Wisconsin are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-1931-DR), dated
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 3, 2010.
Cottle, Floyd, Foard, Garza, Lamb, Lubbock, Lynn, Motley and Terry Counties for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Dakota (FEMA-1887-DR), dated March 10, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Parker, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Nancy M. Casper as Federal Coordinating Officer for this disaster.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Dakota (FEMA-1915-DR), dated May 13, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Parker, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Nancy M. Casper as Federal Coordinating Officer for this disaster.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Mississippi (FEMA-1916-DR), dated May 14, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the major disaster declared on May 14, 2010, for the State of Mississippi due to the damage resulting from severe storms, tornadoes, and flooding. The Mississippi major disaster declaration is amended as follows:
Federal funds for all categories of Public Assistance (Categories A-G) provided under this declaration are authorized at 90 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-1930-DR), dated July 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following areas among those
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Kentucky (FEMA-1925-DR), dated July 23, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the Commonwealth of Kentucky is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of July 23, 2010.
Madison, Mason, and Rowan Counties for Individual Assistance.
Madison County for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Dakota (FEMA-1886-DR), dated March 9, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Parker, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Nancy M. Casper as Federal Coordinating Officer for this disaster.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Dakota (FEMA-1914-DR), dated May 13, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael L. Parker, of FEMA is appointed to act as the Federal Coordinating Officer for this disaster.
This action terminates the appointment of Nancy M. Casper as Federal Coordinating Officer for this disaster.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Mississippi (FEMA-1906-DR), dated April 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the major disaster declared on April 29, 2010, for the State of Mississippi due to the damage resulting from severe storms, tornadoes, and flooding. The Mississippi major disaster declaration is amended as follows:
Federal funds for all categories of Public Assistance (Categories A-G), including direct Federal assistance, provided under this declaration are authorized at 90 percent of total eligible costs.
(The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Rhode Island (FEMA-1894-DR), dated March 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the major disaster declared on March 29, 2010, for the State of Rhode Island due to the damage resulting from severe storms and flooding. The Rhode Island major disaster declaration is amended as follows:
Federal funds for all categories of Public Assistance (Categories A-G) provided under this declaration are authorized at 90 percent of total eligible costs.
(The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Kentucky (FEMA-1912-DR), dated May 11, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the major disaster declared on May 11, 2010, for the Commonwealth of Kentucky due to the damage resulting from severe storms, flooding, mudslides, and tornadoes. The Kentucky major disaster declaration is amended as follows:
Federal funds for all categories of Public Assistance (Categories A-G) provided under this declaration are authorized at 90 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Tennessee (FEMA-1909-DR), dated May 4, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, pursuant to the Supplemental Appropriations Act, 2010, Public Law 111-212, FEMA is amending the cost-sharing arrangement concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5140b, 5172, and 5123 for the major disaster declared on May 4, 2010, for the State of Tennessee due to the damage resulting from severe storms, flooding, straight-line winds, and tornadoes. The Tennessee major disaster declaration is amended as follows:
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-1930-DR), dated July 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the Individual Assistance program for the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of July 29, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Montana (FEMA-1922-DR), dated July 10, 2010, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 13, 2010, the President amended the cost-sharing arrangements concerning Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in the Chippewa Cree Tribe of the Rocky Boy's
Therefore, I amend my declaration of July 10, 2010, to authorize Federal funds for Public Assistance at 100 percent Federal funding of total eligible costs, solely for the Rocky Boy's Reservation.
This adjustment to the Chippewa Cree Tribe of the Rocky Boy's Reservations cost sharing applies only to Public Assistance costs eligible for such adjustments under applicable law. The Stafford Act prohibits a similar adjustment for funds provided under the Hazard Mitigation Grant Program (Section 404). These funds will continue to be reimbursed at 75 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA-1930-DR), dated July 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of July 29, 2010.
Black Hawk, Boone, Buchanan, Clayton, Delaware, Dickinson, Dubuque, Emmet, Fayette, Guthrie, Jackson, Jasper, Jones, Lucas, Mahaska, Polk, Sioux, and Story Counties for Public Assistance.
Direct Federal assistance is authorized.
Department of the Interior, U.S. Geological Survey.
Notice; request for comments on draft Coastal and Marine Ecological Classification Standard.
The Federal Geographic Data Committee (FGDC) is conducting a public review of the draft Coastal and Marine Ecological Classification Standard (CMECS). CMECS provides a means of classifying ecological and habitat units using a common terminology. It provides a uniform protocol for identifying, characterizing and naming ecological units in support of monitoring, protection, and restoration of unique biotic assemblages, protected species, critical habitat, and important ecosystem components. The FGDC Coastal and Marine Spatial Data Subcommittee, chaired by the National Oceanic and Atmospheric Administration (NOAA), developed this draft standard. The FGDC Coordination Group, comprised of representatives of Federal agencies, approved releasing this draft standard for public review at its July 20, 2010 meeting. The FGDC invites all stakeholders in coastal and marine ecology and management to comment on this standard to ensure that the standard meets their needs.
The draft Coastal and Marine Ecological Classification Standard may be downloaded at
Comments that concern specific issues/changes/additions may result in revisions to the draft Coastal and Marine Ecological Classification Standard. Reviewers may obtain information about how comments were addressed upon request. After formal endorsement of the standard by the FGDC, the standard and a summary analysis of the changes will be made available to the public on the FGDC Web site.
Comments on the draft Coastal and Marine Ecological Classification Standard must be submitted no later than Monday, December 13, 2010.
Ms. Julie Binder Maitra, U.S. Geological Survey, Federal Geographic Data Committee,
The FGDC coordinates the development of the National Spatial Data Infrastructure (NSDI), which encompasses the policies, standards, and procedures for organizations to cooperatively produce and share geospatial data. Federal agencies that make up the FGDC develop the NSDI in cooperation with organizations from State, local and tribal governments, the academic community, and the private sector. The authority for the FGDC is OMB Circular No. A-16 Revised on Coordination of Geographic Information and Related Spatial Data Activities (Revised August 19, 2002). More information on the FGDC and the NSDI is available at
The Coastal and Marine Ecological Classification Standard (CMECS) is a framework for organizing scientific information about the marine and coastal environments of the United States. It was developed to provide a common language that facilitates standardization of information in
CMECS describes the defining features of individual habitats via five component classifications. The surface geology component describes the geological composition of surface and near-surface substrates including biogenic structures. The benthic biotic component is a hierarchical classification of the biological composition of coastal and marine benthos. The sub-benthic component classifies characteristics of the sediments and soils below the surface providing detailed information on the composition of the sediment column. The geoform component describes the major geomorphic and structural characteristics of the coasts, islands and the seafloor. The water column component defines and organizes the structure, characteristics and processes of the water column and associated biota. A comprehensive set of modifiers allows the inclusion of additional information on environmental, structural, physical, chemical and biotic features in addition to required elements of the classification. Each component can be used and mapped independently or combined as needed to address specific questions or applications. The proposed standard was developed to be technology- and scale-neutral; users may choose the operational scale and level of detail suited for their purpose. CMECS is a dynamic content standard that will allow additional types and refinement of the classification with improvements in technology and information.
Bureau of Indian Affairs, Interior.
Notice of Intent.
This notice advises the public that the Bureau of Indian Affairs (BIA), in cooperation with the Ute Indian Tribe, Bureau of Land Management (BLM), U.S. Forest Service (USFS), U.S. Army Corp of Engineers (ACE), U.S. Fish and Wildlife Service (USFWS), U.S. Environmental Protection Agency (EPA), the State of Utah, and Duchesne County, intends to gather information necessary for preparing an Environmental Impact Statement (EIS) that evaluates proposed oil and gas development activities on the Uintah and Ouray Indian Reservation (Reservation), Utah. The Proposed Action consists of drilling up to 4,899 oil and/or natural gas wells over the next 15 years, with a life-of-project of 40 years. In addition to well pad development, linear developments would include roads, pipelines, and power lines. The Proposed Action would also include the development of ancillary facilities such as compressor stations, water treatment facilities, and storage areas. This notice also announces public scoping meetings that will be held to identify potential issues and alternatives to be considered in the EIS.
The dates of the public scoping meetings will be included in notices posted in the
You may mail or hand carry written comments to Bucky Secakuku, Realty Specialist, Bureau of Indian Affairs, Uintah and Ouray Agency, 988 South 7500 East, P.O. Box 130, Fort Duchesne, Utah 84026; telephone: (435) 722-4331; e-mail:
Manuel Moyre, Acting Energy Minerals Director, Ute Indian Tribe, Energy and Minerals Department, 988 South 7500 East Annex Building, P.O. Box 70, Fort Duchesne, Utah 84026; telephone: (435) 725-4967; e-mail:
The goals of this EIS are to provide agency decision makers, the Ute Tribe, and the general public with a comprehensive analysis and understanding of oil and gas development alternatives on the Reservation, and their existing and potential future impacts; to provide a better understanding of the cumulative impacts of increased development on the Reservation; to identify and propose mitigation measures that would minimize or prevent significant adverse impacts; to provide a programmatic National Environmental Policy Act (NEPA) document from which to tier future site-specific environmental analyses of oil and gas development proposals; and to provide a framework for approval of oil and gas operations for the next 15 years.
This EIS analyzes oil and gas development strategies on the Reservation over the next 15 years. For the purposes of this EIS the “Analysis Area” will include a total of 1,886,770 acres. This acreage includes a non-congruent combination of Tribal surface (1,064,570 acres) and estate (873,540 acres) that intermittently overlap across the Reservation.
The Proposed Action consists of drilling up to 4,899 oil and/or natural gas wells over the next 15 years, with a life-of-project of 40 years. Approximately 10 percent of the wells would be drilled on existing pads. Economic conditions and the evaluation of the drilling results would determine the actual number of wells that would be drilled. In addition to well pad development, linear developments would include roads, pipelines, and powerlines. Surface disturbance would also occur as a result of development of ancillary facilities such as compressor stations, water treatment facilities, and storage areas. Initial disturbance from construction of these components is estimated to be approximately 23,254 acres.
The purpose for the activities proposed in this EIS is to economically extract, in an efficient and environmentally compatible manner, the oil and gas resources known to exist in mineral estates held in trust by the United States for the benefit of the Ute Indian Tribe and individual Indians. The action is proposed to meet the Ute Indian Tribe's need to maximize their economic benefit from this trust source.
The BIA will have authority over decisions regarding the EIS and these decisions will be documented in a Record of Decision. Cooperating agencies will provide expertise and data for their resources of interest and will aid in the development of alternatives and mitigation measures that will minimize or prevent significant adverse impacts.
Please include your name, return address, and the caption “EIS, Uintah and Ouray Oil and Gas Development,” on the first page of your written comments. You may also submit comments at the public scoping meetings.
Comments, including names and addresses of respondents, will be available for public review at the BIA address shown in the
This notice is published in accordance with sections 1503.1 of the Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508) implementing the procedural requirements of NEPA, as amended (42 U.S.C. 4371
Bureau of Land Management, Interior.
Notice of Arizona Resource Advisory Council meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM), Arizona Resource Advisory Council (RAC), will meet on September 23, 2010, at the BLM National Training Center located at 9828 North 31st Avenue in Phoenix from 8 a.m. until 4:30 p.m. Agenda items include: BLM State Director's update on statewide issues; Presentation on water processes, issues and strategies affecting public lands in Arizona; State Director Update on the BLM Arizona National Landscape Conservation System (NLCS), Update on the Renewable Energy Strategy and RAC discussion and recommendations on factors BLM should consider as these strategies are implemented; RAC questions on BLM District Managers' Reports; and reports by RAC working groups. A public comment period will be provided at 11:30 a.m. on September 23, 2010, for any interested members of the public who wish to address the Council on BLM programs and business.
Under the Federal Lands Recreation Enhancement Act, the RAC has been designated as the Recreation Resource Advisory Council (RRAC), and has the authority to review all BLM and Forest Service (FS) recreation fee proposals in Arizona. The afternoon meeting agenda on September 23, will include a brief review of the Recreation Enhancement Act (REA) Working Group Report, REA Working Group meeting schedule and future BLM/FS recreation fee proposals. The RRAC will review any recreation fee proposals at this meeting.
Dorothea Boothe, Bureau of Land Management, Arizona State Office, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427, 602-417-9504.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before July 31, 2010. Pursuant to section 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by September 7, 2010.
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.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes to sell, at no less than the appraised fair market value, approximately 800 acres of public lands in Churchill County, Nevada, through direct sale procedures under the provisions of Section 203 of the Federal Land Policy and Management Act (FLPMA) of 1976, as amended. Upon publication of this notice, the lands will be segregated for a period of up to 2 years from all forms of appropriation under the public land laws, including the mining laws, except the sale provisions of FLPMA, in order to facilitate orderly processing of this proposed sale.
Interested parties may submit written comments to the BLM regarding the proposed sale of these lands until October 7, 2010.
Written comments may be submitted by mail to the Field Manager, BLM Stillwater Field Office, 5665 Morgan Mill Road, Carson City, Nevada 89701, e-mail:
Erik Pignata, telephone (775) 885-6110 or e-mail
The following described public lands in Churchill County, Nevada, proposed for sale are located 65 miles northeast of Fallon, Nevada.
The areas described aggregate 800 acres, more or less, in Churchill County. The 2001 BLM Carson City Consolidated Resource Management Plan identifies these public lands as suitable for disposal. The lands are not needed for any Federal purpose, and their disposal would be in the public interest. The sale meets the disposal qualification of Section 205 of the Federal Land Transaction Facilitation Act of July 25, 2000, 43 U.S.C. 2304. The sale will be subject to the provisions of FLPMA and applicable regulations of the Secretary of the Interior (Secretary), specifically those regulations governing direct sale procedures and the patent, when issued, will contain the reservation to the United States of a right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945). All mineral deposits in the parcel shall be reserved to the United States together with the right to prospect for, mine and remove the minerals, according to any regulations the Secretary shall prescribe, along with all necessary access and exit rights.
The conveyance will be subject to:
1. Valid existing rights and encumbrances of record, including but not limited to, rights-of-way for roads and public utilities;
2. A right-of-way, NVN-11441, for a power line granted to Sierra Pacific Power Company, its successors and assigns, pursuant to the Act of March 4, 1911, 43 U.S.C. 961; and
3. An appropriate indemnification clause protecting the United States from claims arising out of the lessees/patentees use, occupancy, or occupations on the leased/patented lands. Pursuant to the requirements established by Section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9620(h)), as amended by the Superfund Amendments and Reauthorization Act of 1988, (100 Stat. 1670), notice is hereby given that the above-described parcel has been examined and no evidence was found to indicate that any hazardous substances have been stored for 1 year or more, nor have any hazardous substances been
Upon publication of this notice in the
Interested parties and the general public may submit in writing any comments concerning the lands being considered for sale, including notification of any encumbrances or other claims relating to the identified land to the Field Manager, BLM Stillwater Field Office.
In order to ensure consideration in the environmental analysis of the proposed sale, comments must be in writing and postmarked by October 7, 2010. Only written comments submitted by mail, e-mail, fax, or delivered to the Field Manager, BLM Stillwater Field Office, and received by the date indicated in the
Any adverse comments will be reviewed by the BLM Nevada State Director who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become the final determination of the Department of the Interior.
43 CFR 2711.1-2.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 8) granting complainant's motion to amend the complaint and notice of investigation.
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 21, 2010, based on a complaint filed by Georgia-Pacific Consumer Products LP of Atlanta, Georgia (“Georgia-Pacific”), alleging violations of Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic paper towel dispensing devices and components thereof by reason of infringement of certain claims of United States Patent Nos. 6,871,815; 7,017,856; 7,182,289; and 7,387,274. 75 FR 28651-2 (May 21, 2010). The complainant named as respondents Kruger Products LP of Mississauga, Canada (“Kruger”); KTG USA LP of Memphis, Tennessee (“KTG USA”); Stefco Industries, Inc. of Haines City, Florida (“Stefco”); Cellynne Corporation of Haines City, Florida (“Cellyne”); Draco Hygienic Products Inc. of Ontario, California; NetPak Electronic Plastic and Cosmetic, Inc., d/b/a/Open for Business of Chicago, Illinois (“NetPak Chicago”); NetPak Electronik Plastik ve Kozmetik Sanayi, Ve Ticaret Ltd of Izmir, Turkey (“NetPak Turkey”); Paradigm Marketing Consortium, Inc. of Syosset, New York; United Sourcing Network Corp. of Syosset, New York; New Choice (H.K.) Ltd. of Shatin, Hong Kong; and Vida International Inc. of Taipei, Taiwan.
On June 23, 2010, Georgia-Pacific filed a motion seeking to amend the complaint and Notice of Investigation for the following reasons: (1) To correct the corporate name of NetPak Chicago; (2) to redefine “Kruger” to “Kruger Products and/or KTG USA”; (3) to indicate that Georgia-Pacific no longer alleges that NetPak Turkey is the source of Stefco's and Cellynne's accused product; (4) to add new proposed respondent Jet Power International Limited; (5) to add new proposed respondents Winco Industries Co. and DWL Industries Co.; (6) to add new proposed respondent Ko-Am Corporation d/b/a/Janitors' World; (7) to add new proposed respondent Natury, S.A. De C. V.; (8) to add new proposed respondent Update International Inc.; and (9) to add new proposed respondent Alliance in Manufacturing LLC. No responses to the motion were filed.
On July 29, 2010, the ALJ issued the subject ID granting the motion, finding that, pursuant to Commission Rule 210.14(b)(1) (19 CFR 210.14(b)(1)), there is good cause to correct the corporate names of the identified respondents and to add the newly proposed respondents. No petitions for review of this ID were filed.
The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 9) of the presiding administrative law judge (“ALJ”) granting complainant's motion to amend the complaint and notice of investigation in the above-captioned investigation.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 5, 2010, based on a complaint filed by Panasonic Corporation (“Panasonic”) of Japan. 75 FR 24742-43. The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain large scale integrated circuit semiconductor chips and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 5,933,364 and 6,834,336. The complaint further alleges the existence of a domestic industry. The Commission's notice of investigation named several respondents including the following: Freescale Semiconductor Xiqing Integrated Semiconductor Manufacturing Site (“Freescale Xiqing”) of China; Freescale Semiconductor Innovation Center (“Freescale Innovation”) of China; Freescale Semiconductor Pte. Ltd. (“Freescale Pte.”) of Singapore; and Premier Farnell Corporation d/b/a Newark (“Premier”) of Independence, Ohio.
On July 2, 2010, Panasonic filed an unopposed motion to amend the complaint and notice of investigation to: (1) Substitute Freescale Qiangxin (Tianjin) IC Design Co., Ltd. of China, Freescale Semiconductor (China) Limited of China, and Newark Electronics Corporation and Newark Corporation of Chicago, Illinois for respondents Freescale Xiqing, Freescale Innovation, and Premier, respectively; (2) correct the name and address of Freescale Pte. to Freescale Semiconductor Singapore Pte. Ltd., 10 Ang Mo Kio Street 65, 03-01/03, Singapore 569059; and (3) remove “Ltd.” following “Panasonic Corporation” on the cover page of the complaint.
On July 27, 2010, the ALJ issued the subject ID granting Panasonic's unopposed motion to amend the complaint and notice of investigation. No party petitioned for review of the ID pursuant to 19 CFR 210.43(a). The Commission has determined not to review this ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.14 and 210.42(h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.14, 210.42(h).
By order of the Commission.
Employee Benefits Security Administration, Department of Labor.
Notice.
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Employee Benefits Security Administration is soliciting comments on the proposed extension of the information collection provisions of its regulation relating to default investment alternatives (29 CFR 2550.404c-5). A copy of the information collection request (ICR) may be obtained by contacting the office listed in the
Written comments must be submitted to the office shown in the
G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW., Washington, DC 20210, (202) 693-8410, FAX (202) 693-4745 (these are not toll-free numbers).
Section 404(c) of the Employee Retirement Income Security Act of 1974 (ERISA) states that participants or beneficiaries who can hold individual accounts under their pension plans, and who can exercise control over the assets in their accounts “as determined in regulations of the Secretary [of Labor]” will not be treated as fiduciaries of the plan. Moreover, no other plan fiduciary will be liable for any loss, or by reason of any breach, resulting from the participants' or beneficiaries' exercise of control over their individual account assets.
The Pension Protection Act (PPA), Public Law No. 109-280, amended ERISA section 404(c) by adding subparagraph (c)(5)(A). The new subparagraph says that a participant in an individual account plan who fails to make investment elections regarding his or her account assets will nevertheless be treated as having exercised control over those assets so long as the plan
The Department of Labor issued a final regulation under ERISA section 404(c)(5)(A) offering guidance on the types of investment vehicles that plans may choose as their “qualified default investment alternative” (QDIA). The regulation also outlines two information collections. First, it implements the statutory requirement that plans provide annual notices to participants and beneficiaries whose account assets could be invested in a QDIA. Second, the regulation requires plans to pass certain pertinent materials they receive relating to a QDIA to those participants and beneficiaries with assets invested in the QDIA as well to provide certain information on request. The ICRs are approved under OMB Control Number 1210-0132, which is scheduled to expire on October 31, 2010.
This notice requests public comment pertaining to the Department's request for extension of OMB approval of the information collection contained in its final rule at 29 CFR 2550.404c-5. After considering comments received in response to this notice, the Department intends to submit an ICR to OMB for continuing approval. No change to the existing ICRs is proposed or made at this time. An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICR and the current burden estimates follows:
The Department of Labor (Department) is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Employee Benefits Security Administration, Department of Labor.
Notice.
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Employee Benefits Security Administration is soliciting comments on the proposed extension of the information collection provisions of its regulation relating to loans to plan participants and beneficiaries who are parties in interest with respect to the plan (29 CFR 2550.408b-1). A copy of the information collection request (ICR) may be obtained by contacting the office listed in the
Written comments must be submitted to the office shown in the Addresses section on or before October 22, 2010.
G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-8410, FAX (202) 693-4745 (these are not toll-free numbers).
The Employee Retirement Income Security Act of 1974 (ERISA) prohibits a plan fiduciary from causing the plan to engage in a transaction if he knows or should know that such transaction constitutes direct or indirect loan or extension of credit between the plan and a party in interest. ERISA section 408(b)(1) exempts from this prohibition loans from a plan to parties in interest who are participants and beneficiaries of the plan, provided that certain requirements are satisfied. In final regulations published in the
This notice requests public comment on the Department's request for extension of OMB approval of the information collection contained in its final rule at 29 CFR 2550.408b-1. After considering all the responses to this notice, the Department intends to submit an ICR to OMB for continuing approval. The Department is not proposing any changes to the existing
The Department of Labor (Department) is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on April 1, 2010, applicable to workers of Diebold, Incorporated, North Canton, Ohio. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of banking security equipment.
New findings show that worker separations occurred during the relevant time period at the North Canton, Ohio location of Diebold, Incorporated. The North Canton, Ohio location produced banking security equipment and served as the headquarter offices for Diebold, Incorporated.
Accordingly, the Department is amending the certification to include workers of the North Canton, Ohio location of Diebold, Incorporated.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by a shift in production of banking security equipment to Hungary and China.
The amended notice applicable to TA-W-70,993 is hereby issued as follows:
All workers of Diebold, Incorporated, Hebron, Ohio (TA-W-70,993 and Diebold, Incorporated, North Canton, Ohio (TA-W-70,993A), who became totally or partially separated from employment on or after June 4, 2008, through April 1, 2012, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on June 2, 2010, applicable to workers of Chrysler Group, LLC, Manufacturing Division, St. Louis North Plant, including on-site leased workers from American Food, G4S Wackenhut, C R Associates, Syncreon and Robinson Solutions, Fenton, Missouri. The notice was published in the
At the request of petitioners, the Department reviewed the certification for workers of the subject firm. The workers develop and produce performance coating solutions for vehicles.
The company reports that workers leased from DuPont Performance Coatings, a wholly-owned subsidiary of E.I. DuPont de Nemours Company, OEM, were employed on-site at the Fenton, Missouri location of Chrysler Group, LLC, Manufacturing Division, St. Louis North Plant. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from DuPont Performance Coatings, a wholly-owned subsidiary of E.I. DuPont de Nemours Company, OEM, working on-site at the Fenton, Missouri location of Chrysler Group, LLC, Manufacturing Division, St. Louis North Plant.
The amended notice applicable to TA-W-73,591A is hereby issued as follows:
All workers of Chrysler Group, LLC, Manufacturing Division, St. Louis Plant North, including on-site leased workers from American Food, G4S Wackenhut, C R Associates, Syncreon, Robinson Solutions, and DuPont Performance Coatings, a wholly owned subsidiary of E.I. DuPont de Nemours Company, OEM, Fenton, Missouri, who became totally or partially separated from employment on or after February 25, 2009, through June 2, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on May 18, 2010, applicable to workers of BlueScope Buildings North America, Laurinburg, North Carolina. The notice was published in the
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to prefabricated metal building components.
New information shows that some workers separated from employment at BlueScope Buildings North America had their wages reported through a separate unemployment insurance (UI) tax account under the name Buttler Manufacturing Company, a division of BlueScope Buildings North America.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by a shift in the production of prefabricated metal building components to Mexico.
The amended notice applicable to TA-W-73,758 is hereby issued as follows:
All workers of BlueScope Buildings North America, including workers whose unemployment insurance (UI) wages are reported through Buttler Manufacturing Company, Laurinburg, North Carolina, who became totally or partially separated from employment on or after March 19, 2009, through May 18, 2012, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the Federal Register under section 202(f)(3); or
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions,
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 2, 2010.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 2, 2010.
Copies of these petitions may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail, to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or to
On February 9, 2010, the U.S. Court of International Trade (USCIT) remanded to the U.S. Department of Labor (Department) for further review,
On December 17, 2008, former workers of Weather Shield Manufacturing, Inc. (subject firm) filed a petition for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) on behalf of workers of Weather Shield Manufacturing, Inc., Corporate Office, Medford, Wisconsin (subject facility).
The initial investigation revealed that, during the period under investigation, the workers at the subject facility (subject worker group) supported the production of doors and/or windows by providing administrative support functions to various subject firm manufacturing facilities and that there had been a significant number or proportion of workers at the subject facility that were totally or partially separated from employment. However, it was determined that imports of articles like or directly competitive with those produced by the subject firm did not contribute importantly to worker separations at the subject facility and that the subject firm did not shift production to a foreign country. A survey of a sample of the subject firm's declining domestic customers revealed negligible imports of products like or directly competitive with those produced by workers at the subject firm.
The Department issued a negative determination regarding the subject worker group's eligibility to apply for TAA and ATAA on April 29, 2009. The Department's Notice of Determination was published in the
By application dated May 26, 2009, the petitioning workers requested administrative reconsideration of the Department's negative determination. To support the claim that the subject worker group was import impacted, the petitioners provided additional information regarding the products manufactured at the subject firm and the worker separations occurring throughout all subject firm locations. The petitioners also provided information pertaining to a competitor of the subject firm whose workers had been certified eligible to apply for TAA.
The Department issued a Notice of Affirmative Determination Regarding Application for Reconsideration on June 2, 2009. The Department's Notice was published in the
During the reconsideration investigation, the Department obtained additional information from the subject firm regarding the petitioners' claims. The Department also surveyed additional declining customers regarding their purchases of articles like or directly competitive with those produced at the subject firm. The reconsideration investigation did not reveal information sufficient to reverse the initial negative determination.
Based on the findings of the reconsideration investigation, the Department concluded that customer imports of articles like or directly competitive with those produced by workers at the subject firm did not contribute importantly to worker separations. The Department issued a Notice of Negative Determination on Reconsideration on July 14, 2009. The Notice was published in the
The petitioners thereupon filed a complaint to the USCIT. In the complaint to the USCIT, dated January 19, 2010, the Plaintiffs alleged that workers at the subject facility were impacted by increased customer imports of articles like or directly competitive with those produced at the subject firm. The Plaintiffs also requested the Department to investigate all the subject firm locations and product lines manufactured at the production facilities.
On January 19, 2010, Plaintiffs filed a motion to supplement the administrative record before the USCIT. Plaintiffs' motion included additional evidence not considered in Labor's investigation of the subject workers' petition for TAA benefits, including, in particular, information pertaining to competitors of the subject firm whose workers had been certified eligible to apply for TAA and who had overlapping customers with the subject firm. Since a number of these customers had not been contacted in the original investigation, a further review of this information was deemed necessary.
Based on the new information submitted, the Department requested that the USCIT remand the case to the Department to conduct a further investigation. On February 9, 2010, the USCIT granted this request.
For a worker group to be certified for TAA based on increased imports, all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision.
During the remand investigation, the Department obtained information from the subject firm and solicited input from the Plaintiffs. The Department also conducted a more extensive sample customer survey to determine whether or not there were increased customer imports in the relevant period of articles like or directly competitive with doors and/or windows produced at the subject firm and, if so, whether the increased imports contributed importantly to worker group separations.
The expanded sample customer survey conducted during the remand investigation revealed that the surveyed customer purchases from the subject firm declined while imports of doors and/or windows or articles like or directly competitive with those produced at the subject firm increased in the relevant period. The Department surveyed a significant proportion of the subject firm's declining customers regarding import purchases of doors and/or windows in 2007 and 2008, including overlapping customer with competitors identified by petitioners for the first time in their USCIT complaint. Overall, the customers increased import purchases in the period under investigation relative to purchases made from the subject firm.
Based on the findings of the remand investigation, the Department determines that increased imports of articles like or directly competitive with doors and/or windows produced by the subject firm contributed importantly to the subject workers' separation and to the decline in subject firm sales and production.
In accordance with Section 246 the Trade Act of 1974 (26 USC 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the information obtained during the remand investigation, I determine that increased imports of articles like or directly competitive with doors and/or windows produced by the subject firm contributed to the total separation of a significant number or proportion of workers at the subject firm. In accordance with the provisions of the Act, I make the following certification:
All workers of Weather Shield Manufacturing, Inc., Corporate Office, Medford, Wisconsin, who became totally or partially separated from employment on or after December 17, 2007, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
National Aeronautics and Space Administration.
Notice of Intent To Grant Exclusive License.
This notice is issued in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially exclusive license in the United States to practice the inventions described and claimed in U.S. Patent Application No. 09/056,363 and U.S. Patent No. 6,730,498 entitled “Production of Functional Proteins: Balance of Shear Stress and Gravity” to Regenetech, Inc., having its principal place of business in Houston, Texas. The fields of use may be limited to production of biomolecules and growth factors for use in topical applications for cosmetics, topical treatment of burns, scars, stretch marks, acne and joint pain. The patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated partially exclusive license. Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Johnson Space Center, Mail Code AL, 2101 NASA Parkway, Houston, Texas 77058. (281) 244-7148; Fax (281) 483-6939.
Theodore U. Ro, Intellectual Property Attorney, Office of Chief Counsel, NASA Johnson Space Center, Mail Code AL, 2101 NASA Parkway, Houston, Texas 77058. (281) 244-7148; Fax (281) 483-6939. Information about other NASA inventions available for licensing can be found online at
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces an open meeting of the NASA International Space Station Advisory Committee. The purpose of the meeting is to assess NASA and Roscosmos continuing plans to support a six-person crew aboard the International Space Station, including transportation, crew rotation, training, and micro meteoroid and orbital debris shielding.
September 10, 2010, 11-12 p.m. Eastern Daylight Time.
National Aeronautics and Space Administration Headquarters, 300 E Street, SW., Room 7H45, Washington, DC 20546.
Dr. J. Donald Miller, Office of International and Interagency Relations, (202) 358-1527, National Aeronautics and Space Administration, Washington, DC 20546-0001.
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants. This meeting will be open to the public up to the seating capacity of the room. Five seats will be reserved for members of the press. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide a copy of their passport, visa, or green card in addition to providing the following information no less than ten working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, phone); title/position of attendee. Send identifying information to Dr. Miller via e-mail at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council (NAC) Space Operations Committee.
Monday, September 13, 2010,1 p.m.—5 p.m. local time.
Tuesday, September 14, 2010, 8 a.m.-12 p.m. local time.
NASA Johnson Space Center, Houston, TX.
Mr. Jacob Keaton, NAC Space Operations Committee Executive Secretary, National Aeronautics and Space Administration Headquarters, Washington, DC 20546, 202/358-1507,
The agenda for the meeting includes the following topics:
The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Institute of Museum and Library Services, National Foundation for the Arts and the Humanities.
Notice, request for comments, collection of information.
The Institute of Museum and Library Service (“IMLS”) as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). This pre-clearance consultation program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The purpose of this Notice is to solicit comments concerning the continuance of the Public Libraries Survey for Fiscal Years 2011-2013.
A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
IMLS is particularly interested in comments that help the agency to:
• 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,
Send comments to Kim A. Miller, Management Analyst, Office of Policy, Planning, Research, and Communication, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Ms. Miller can be reached by Telephone: 202-653-4762, Fax: 202-653-4600, or by e-mail at
The Institute of Museum and Library Services (IMLS) is an independent Federal grant-making agency and is the primary source of federal support for the Nation's 123,000 libraries and 17,500 museums. IMLS provides a variety of grant programs to assist the Nation's museums and libraries in improving their operations and enhancing their services to the public. IMLS is responsible for identifying national needs for, and trends of, museum and library services funded by IMLS; reporting on the impact and effectiveness of programs conducted with funds made available by IMLS in addressing such needs; and identifying, and disseminating information on, the best practices of such programs. (20 U.S.C. Chapter 72, 20 U.S.C. 9108).
Pursuant to Public Law 107-279, this Public Libraries Survey collects annual descriptive data on the universe of public libraries in the U.S. and the Outlying Areas. Information such as public service hours per year, circulation of library books, number of librarians, population of legal service area, expenditures for library collection, staff salary data, and access to technology,
55 is the number of State Library Administrative Agencies (StLAs) that are responsible for the collection of this information and for reporting it to IMLS. In gathering this information, the StLAs will request that their sub-entities (ex. public libraries in their respective States and Outlying Areas) provide information to the respective StLA. As the number of sub-entities and questions varies from StLA to StLA, it is difficult to assess the exact number of burden hours and costs.
Thursday, September 9, 2010 at 10 a.m. to 11:30 a.m., and continuing, as needed, on weekdays during regular Commission business hours, through Friday, October 1, 2010.
Commission conference room, 901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001.
Closed.
Decision in Docket No. R2010-4, Rate Adjustment due to Extraordinary or Exceptional Circumstances.
Stephen L. Sharfman, General Counsel, Postal Regulatory Commission, at
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 an Open Meeting on August 25, 2010 at 10 a.m., in the Auditorium, Room L-002.
The subject matter of the Open Meeting 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.
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, August 26, 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, August 26, 2010 will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
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.
Securities and Exchange Commission.
Notice to establish systems of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the U.S. Securities and Exchange Commission (“Commission” or “SEC”) gives notice of a proposal to establish the following two new Privacy Act systems of records: “Municipal Advisor Records (SEC-61)” and “Correspondence Files Pertaining to Municipal Advisors; Municipal Advisor Logs (SEC-62)”.
The proposed systems will become effective October 4, 2010 unless further notice is given. The Commission will publish a new notice if the effective date is delayed to review comments or if changes are made based on comments received. To be assured of consideration, comments should be received on or before September 22, 2010.
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, U.S.
Barbara A. Stance, Chief Privacy Officer, Office of Information Technology, 202-551-7209.
The Commission gives notice of the proposed establishment of new systems of records as follows: “Municipal Advisor Records (SEC-61),” which contains records relating to Municipal Advisor applicants, registrants, and their associated or related persons, and “Correspondence Files Pertaining to Municipal Advisors; Municipal Advisor Logs (SEC-62)”, which contains records of correspondence, inquiries, requests, comments or other communications submitted to the Commission or SEC staff relating to Municipal Advisors.
The Commission has submitted a report of the new systems of records to the appropriate Congressional committees and to the Director of the Office of Management and Budget (“OMB”) as required by 5 U.S.C. 552a(r) (Privacy Act of 1974) and guidelines issued by OMB on December 12, 2000 (65 FR 77677).
Accordingly, the Commission is proposing two new systems of records to read as follows:
Municipal Advisor Records.
U.S. Securities and Exchange Commission (“Commission” or “SEC”) 100 F Street, NE., Washington, DC 20549.
This system of records covers applicants for registration or exemption from registration as Municipal Advisors, current and former registrants, and individuals having a relationship with or a transaction with a registrant including: partners, officers, directors, associated persons, control persons, control affiliates, employees, owners, principal shareholders, and other related persons or entities; and their representatives or counsel.
Both electronic and paper records in this system may include: name, business address, residential address (for sole proprietor only), telephone/cellular/facsimile number, e-mail address, Web site or Internet address, IRS employer identification number, IA SEC File Number, Broker Dealer SEC File Number, CRD Number, areas of business, other SEC registrations, SRO memberships, and related information; past and present employment; disciplinary history; business relationships; and similar information relating to the categories of individuals covered by the system. Paper records may include, but are not limited to, application and other forms, records, or documents relating to registration; letters, facsimiles, imaged documents, and other forms of written communication; and related documentation.
Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 975(a), Pub. L. 111-203 (2010); 15 U.S.C. 78a
The records are used by authorized staff to review and process applications for registration or exemption as Municipal Advisors; with respect to the regulation and oversight of registrations and registrants and their associated or related persons as stated in the section relating to Categories of Individuals Covered by the System; to maintain and disclose in accordance with statutory or regulatory provisions records relating to such applications, registrations, registrants, and associated or related persons; and to implement and administer the federal securities laws and rules.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the Commission as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To appropriate agencies, entities, and persons when (a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the SEC has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the SEC or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the SEC's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
2. To other federal, state, local, or foreign law enforcement agencies; securities self-regulatory organizations; and foreign financial regulatory authorities to assist in or coordinate regulatory or law enforcement activities with the SEC.
3. To national securities exchanges and national securities associations that are registered with the SEC, the Municipal Securities Rulemaking Board; the Securities Investor Protection Corporation; the Public Company Accounting Oversight Board; the federal banking authorities, including, but not limited to, the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation; state securities regulatory agencies or organizations; or regulatory authorities of a foreign government in connection with their regulatory or enforcement responsibilities.
4. By SEC personnel for purposes of investigating possible violations of, or to conduct investigations authorized by, the federal securities laws.
5. In any proceeding where the federal securities laws are in issue or in which the Commission, or past or present members of its staff, is a party or otherwise involved in an official capacity.
6. In connection with proceedings by the Commission pursuant to Rule 102(e) of its Rules of Practice, 17 CFR 201.102(e).
7. To a bar association, state accountancy board, or other federal, state, local, or foreign licensing or oversight authority; or professional association or self-regulatory authority to the extent that it performs similar functions (including the Public
8. To a federal, state, local, tribal, foreign, or international agency, if necessary to obtain information relevant to the SEC's decision concerning the hiring or retention of an employee; the issuance of a security clearance; the letting of a contract; or the issuance of a license, grant, or other benefit.
9. To a federal, state, local, tribal, foreign, or international agency in response to its request for information concerning the hiring or retention of an employee; the issuance of a security clearance; the reporting of an investigation of an employee; the letting of a contract; or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
10. To produce summary descriptive statistics and analytical studies, as a data source for management information, in support of the function for which the records are collected and maintained or for related personnel management functions or manpower studies; may also be used to respond to general requests for statistical information (without personal identification of individuals) under the Freedom of Information Act.
11. To any trustee, receiver, master, special counsel, or other individual or entity that is appointed by a court of competent jurisdiction, or as a result of an agreement between the parties in connection with litigation or administrative proceedings involving allegations of violations of the federal securities laws (as defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)) or pursuant to the Commission's Rules of Practice, 17 CFR 201.100-900 or the Commission's Rules of Fair Fund and Disgorgement Plans, 17 CFR 201.1100-1106, or otherwise, where such trustee, receiver, master, special counsel, or other individual or entity is specifically designated to perform particular functions with respect to, or as a result of, the pending action or proceeding or in connection with the administration and enforcement by the Commission of the federal securities laws or the Commission's Rules of Practice or the Rules of Fair Fund and Disgorgement Plans.
12. To any persons during the course of any inquiry, examination, or investigation conducted by the SEC's staff, or in connection with civil litigation, if the staff has reason to believe that the person to whom the record is disclosed may have further information about the matters related therein, and those matters appeared to be relevant at the time to the subject matter of the inquiry.
13. To interns, grantees, experts, contractors, and others who have been engaged by the Commission to assist in the performance of a service related to this system of records and who need access to the records for the purpose of assisting the Commission in the efficient administration of its programs, including by performing clerical, stenographic, or data analysis functions, or by reproduction of records by electronic or other means. Recipients of these records shall be required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
14. In reports published by the Commission pursuant to authority granted in the federal securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), which authority shall include, but not be limited to, section 21(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78u(a).
15. To members of advisory committees that are created by the Commission or by Congress to render advice and recommendations to the Commission or to Congress, to be used solely in connection with their official designated functions.
16. To any person who is or has agreed to be subject to the Commission's Rules of Conduct, 17 CFR 200.735-1 to 200.735-18, and who assists in the investigation by the Commission of possible violations of the federal securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), in the preparation or conduct of enforcement actions brought by the Commission for such violations, or otherwise in connection with the Commission's enforcement or regulatory functions under the federal securities laws.
17. To a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
18. To members of Congress, the press, and the public in response to inquiries relating to particular Registrants and their activities, and other matters under the Commission's jurisdiction.
19. To prepare and publish information relating to violations of the federal securities laws as provided in 15 U.S.C. 78c(a)(47), as amended.
20. To respond to subpoenas in any litigation or other proceeding.
21. To a trustee in bankruptcy.
22. To members of Congress, the General Accountability Office, or others charged with monitoring the work of the Commission or conducting records management inspections.
23. To any governmental agency, governmental or private collection agent, consumer reporting agency or commercial reporting agency, governmental or private employer of a debtor, or any other person, for collection, including collection by administrative offset, federal salary offset, tax refund offset, or administrative wage garnishment, of amounts owed as a result of Commission civil or administrative proceedings.
Records are maintained in electronic and paper format. Electronic records are stored in computerized databases and/or on computer disc. Paper records and records on computer disc are stored in locked file rooms and/or file cabinets.
Records may be retrieved by any of the following: Name, address, receipt date, entity name, registration number, telephone/cellular/facsimile number, email or Internet address, subject matter, or other indexed information.
Records are safeguarded in a secured environment. Buildings where records are stored have security cameras and 24 hour security guard service. The records are kept in limited access areas during duty hours and in locked file cabinets and/or locked offices or file rooms at all other times. Apart from information publicly disclosed pursuant to statutory or regulatory provisions, access is limited to those personnel whose official duties require access. Computerized records are safeguarded through use of access codes and information technology security. Contractors and other recipients providing services to the Commission are contractually obligated to maintain equivalent safeguards.
These records will be maintained until they become inactive, at which time they will be retired or destroyed in accordance with records schedules of the United States Securities and Exchange Commission and as approved by the National Archives and Records Administration.
Assistant Director, Division of Trading and Markets, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-7561.
All requests to determine whether this system of records contains a record pertaining to the requesting individual may be directed to the FOIA/PA Officer, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-5100.
Persons wishing to obtain information on the procedures for gaining access to or contesting the contents of these records may contact the FOIA/PA Officer, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-5100.
See Record Access Procedures above.
Information collected is received primarily from applicants for registration or exemption from registration, current and former registrants, and partners, officers, directors, associated persons, control persons, control affiliates, employees, owners, principal shareholders, other related persons or entities, members of the public, and their representatives or counsel, via form, correspondence, or other written or verbal forms of communication, including without limitation telephone calls, emails and other forms of electronic communication, letters, or facsimiles to the Commission and SEC staff.
None.
Correspondence Files Pertaining to Municipal Advisors; Municipal Advisor Logs.
U.S. Securities and Exchange Commission (“Commission” or “SEC”) 100 F Street, NE., Washington, DC 20549.
Persons applying for registration or exemption from registration as a Municipal Advisor, persons currently or formerly registered with the Commission as a Municipal Advisor, and their partners, officers, directors, associated persons, control persons, control affiliates, employees, owners, principal shareholders, other related persons, and their representatives or counsel; and representatives of regulated entities and their counsel, members of the public, representatives of other governmental agencies or Congress, and others who submit correspondence, inquiries, information, comments, or other forms of communication to the Commission or SEC staff relating to Municipal Advisors.
Both electronic and paper records in this system may include information concerning an individual's activities, transactions, and disciplinary history as or pertaining to, or relationships with, a Municipal Advisor; the name of the correspondent or inquirer/requester/commenter/communicant or their representative; the name, residential and/or business address, telephone/cellular/facsimile number, and email or Internet address of the correspondent or entity; the subject of the correspondence, inquiry/request/comment or communication; the date of the correspondence, inquiry/request/comment or communication; and the Commission or SEC staff response provided, or other disposition, on a formal or informal basis. Paper records may include, but are not limited to, letters, facsimiles, imaged documents, other written forms of communication, and related documentation.
Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 975(a), Public Law 111-203 (2010); 15 U.S.C. 78a
The records are used by authorized SEC staff to track, process, respond to, and maintain documentation of correspondence, inquiries/requests/comments, communications, and related information from members of the public, including industry representatives, counsel, and others, relating to Municipal Advisors; to document Commission or SEC staff responses on a formal or informal basis.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the Commission as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To appropriate agencies, entities, and persons when (a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the SEC has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the SEC or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the SEC's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
2. To other federal, state, local, or foreign law enforcement agencies; securities self-regulatory organizations; and foreign financial regulatory authorities to assist in or coordinate regulatory or law enforcement activities with the SEC.
3. To national securities exchanges and national securities associations that are registered with the SEC, the Municipal Securities Rulemaking Board; the Securities Investor Protection Corporation; the Public Company Accounting Oversight Board; the federal banking authorities, including, but not limited to, the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation; state securities regulatory agencies or organizations; or regulatory authorities of a foreign government in connection with their regulatory or enforcement responsibilities.
4. By SEC personnel for purposes of investigating possible violations of, or to conduct investigations authorized by, the federal securities laws.
5. In any proceeding where the federal securities laws are in issue or in which the Commission, or past or present members of its staff, is a party or otherwise involved in an official capacity.
6. In connection with proceedings by the Commission pursuant to Rule 102(e) of its Rules of Practice, 17 CFR 201.102(e).
7. To a bar association, state accountancy board, or other federal, state, local, or foreign licensing or oversight authority; or professional association or self-regulatory authority to the extent that it performs similar functions (including the Public
8. To a federal, state, local, tribal, foreign, or international agency, if necessary to obtain information relevant to the SEC's decision concerning the hiring or retention of an employee; the issuance of a security clearance; the letting of a contract; or the issuance of a license, grant, or other benefit.
9. To a federal, state, local, tribal, foreign, or international agency in response to its request for information concerning the hiring or retention of an employee; the issuance of a security clearance; the reporting of an investigation of an employee; the letting of a contract; or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
10. To produce summary descriptive statistics and analytical studies, as a data source for management information, in support of the function for which the records are collected and maintained or for related personnel management functions or manpower studies; may also be used to respond to general requests for statistical information (without personal identification of individuals) under the Freedom of Information Act.
11. To any trustee, receiver, master, special counsel, or other individual or entity that is appointed by a court of competent jurisdiction, or as a result of an agreement between the parties in connection with litigation or administrative proceedings involving allegations of violations of the federal securities laws (as defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)) or pursuant to the Commission's Rules of Practice, 17 CFR 201.100-900 or the Commission's Rules of Fair Fund and Disgorgement Plans, 17 CFR 201.1100-1106, or otherwise, where such trustee, receiver, master, special counsel, or other individual or entity is specifically designated to perform particular functions with respect to, or as a result of, the pending action or proceeding or in connection with the administration and enforcement by the Commission of the federal securities laws or the Commission's Rules of Practice or the Rules of Fair Fund and Disgorgement Plans.
12. To any persons during the course of any inquiry, examination, or investigation conducted by the SEC's staff, or in connection with civil litigation, if the staff has reason to believe that the person to whom the record is disclosed may have further information about the matters related therein, and those matters appeared to be relevant at the time to the subject matter of the inquiry.
13. To interns, grantees, experts, contractors, and others who have been engaged by the Commission to assist in the performance of a service related to this system of records and who need access to the records for the purpose of assisting the Commission in the efficient administration of its programs, including by performing clerical, stenographic, or data analysis functions, or by reproduction of records by electronic or other means. Recipients of these records shall be required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
14. In reports published by the Commission pursuant to authority granted in the federal securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), which authority shall include, but not be limited to, section 21(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78u(a).
15. To members of advisory committees that are created by the Commission or by Congress to render advice and recommendations to the Commission or to Congress, to be used solely in connection with their official designated functions.
16. To any person who is or has agreed to be subject to the Commission's Rules of Conduct, 17 CFR 200.735-1 to 200.735-18, and who assists in the investigation by the Commission of possible violations of the federal securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), in the preparation or conduct of enforcement actions brought by the Commission for such violations, or otherwise in connection with the Commission's enforcement or regulatory functions under the federal securities laws.
17. To a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
18. To members of Congress, the press, and the public in response to inquiries relating to particular Registrants and their activities, and other matters under the Commission's jurisdiction.
19. To prepare and publish information relating to violations of the federal securities laws as provided in 15 U.S.C. 78c(a)(47), as amended.
20. To respond to subpoenas in any litigation or other proceeding.
21. To a trustee in bankruptcy.
22. To members of Congress, the General Accountability Office, or others charged with monitoring the work of the Commission or conducting records management inspections.
23. To any governmental agency, governmental or private collection agent, consumer reporting agency or commercial reporting agency, governmental or private employer of a debtor, or any other person, for collection, including collection by administrative offset, federal salary offset, tax refund offset, or administrative wage garnishment, of amounts owed as a result of Commission civil or administrative proceedings.
Records are maintained in electronic and paper format. Electronic records are stored in computerized databases and/or on computer disc. Paper records and records on computer disc are stored in locked file rooms and/or file cabinets.
Records may be retrieved by any of the following: name, receipt date, entity name, registration number, telephone/cellular/facsimile number, email or Internet address, subject matter, or other indexed information.
Records are safeguarded in a secured environment. Buildings where records are stored have security cameras and 24 hour security guard service. The records are kept in limited access areas during duty hours and in locked file cabinets and/or locked offices or file rooms at all other times. Access is limited to those personnel whose official duties require access. Computerized records are safeguarded through use of access codes and information technology security. Contractors and other recipients providing services to the Commission are contractually obligated to maintain equivalent safeguards.
These records will be maintained until they become inactive, at which time they will be retired or destroyed in accordance with records schedules of the United States Securities and Exchange Commission and as approved by the National Archives and Records Administration.
Assistant Director, Division of Trading and Markets, U.S. Securities
All requests to determine whether this system of records contains a record pertaining to the requesting individual may be directed to the FOIA/PA Officer, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-5100.
Persons wishing to obtain information on the procedures for gaining access to or contesting the contents of these records may contact the FOIA/PA Officer, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-5100.
See Record Access Procedures above.
Information collected is received from individuals primarily through correspondence or other written or verbal forms of communication, including without limitation telephone calls, emails and other forms of electronic communication, letters, or facsimiles to the Commission and SEC staff.
None.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is proposing to delete Rule 4770 in its entirety from the NASDAQ rulebook and to also eliminate a reference to Rule 4770 from Rule 4751(f)(13). The text of the proposed rule change is below. Proposed new language is
The following definitions apply to the Rule 4600 and 4750 Series for the trading of securities listed on Nasdaq or a national securities exchange other than Nasdaq.
(a)—(e) No change.
(f) The term “Order Type” shall mean the unique processing prescribed for designated orders that are eligible for entry into the System, and shall include:
(1)—(12) No change.
(13) “Collared Orders” are all Unpriced Orders except: (1) Market On Open Orders as defined in Rule 4752; (2) Market On Close Orders as defined in Rule 4754;
(g)—(i) No change.
(a) Definitions. For the purposes of this rule the term:
(1) “Nasdaq Reference Price Cross” shall mean the process for executing orders at a predetermined reference price at a randomly selected point in time during a five-second trading window beginning at 10:45 a.m., 12:45 p.m. and 2:45 p.m. Eastern Time during the regular hours session and at 4:30 p.m. during the after hours session.
(2) “Nasdaq Reference Price Cross eligible securities” shall mean Nasdaq-listed securities and securities listed on the New York Stock Exchange, the American Stock Exchange or a regional exchange.
(3) (A) “Reference Price Cross Order” or “RPC” shall mean a market or limit order to buy or sell in Nasdaq Reference Price eligible securities that may be executed only during a Nasdaq Reference Price Cross. RPC orders shall not be displayed and must be designated with a time-in-force value to participate either:
(i) in the next scheduled regular hours cross with unexecuted shares being immediately canceled back to the market participant after that cross (NXT);
(ii) in all remaining crosses during the trading day with unexecuted shares being immediately canceled back to the market participant after the final regular hours cross (REG); or
(iii) in all remaining crosses in the current day with unexecuted shares immediately canceled back to the market participant after the after hours cross (ALX).
(B) Starting at 7:30 a.m. Eastern Time until the time of the last after hours session Reference Price Cross, participants may enter, cancel or correct RPC orders, but such orders shall not be available for execution until the next eligible Reference Price Cross. RPC orders must be entered in round lots with a minimum size of one round lot and may designate a minimum acceptable execution quantity. All RPC orders must be available for automatic execution.
(b) Processing of Nasdaq Reference Price Cross.
(1) Each Nasdaq Reference Price Cross shall occur during the regular hours session or the after hours session window commencing at such times as may be designated by Nasdaq upon prior notice to market participants.
(2) Nasdaq Reference Price Crosses that occur during the regular hours session shall be executed at the midpoint of the national best bid and offer, trade reported without identifying the contra party, and disseminated via the consolidated tape.
(3) Nasdaq Reference Price Crosses that occur during the after hours session shall execute at the Nasdaq Official Closing Price for Nasdaq-listed securities or at the official closing price of the primary market for securities listed on the New York Stock Exchange, the American Stock Exchange or a regional exchange, shall be trade reported without identifying the contra party, and disseminated via the consolidated tape.
(4) RPC orders will be allocated on a pro-rata basis, such that shares will be allocated pro-rata in round lots to eligible orders based on the original size of the order. If additional shares remain after the initial pro-rata allocation, those shares will continue to be allocated pro-rata to eligible orders until a number of round lots remain that is less than the number of eligible orders. Any remaining shares will be allocated to the order which has designated the smallest minimum acceptable execution quantity. If more than one such order exists, any remaining shares will be allocated to the oldest eligible order. If the allocation to an eligible order would be less than the minimum acceptable execution quantity for that order, the order shall not be eligible for execution in that cross.
(5) If the reference price described in subparagraph (3) above is outside the benchmarks established by Nasdaq by a threshold amount at the time an after hours cross is scheduled to occur, the Nasdaq Reference Price Cross shall not occur for that security. Nasdaq management shall set and modify such benchmarks and thresholds from time to time upon prior notice to market participants.
(6) If the national best bid and offer is crossed at the time of a Reference Price Cross during the regular hours session, the cross shall be delayed for up to five minutes beyond the time the Reference Price Cross was scheduled to occur and shall execute at the midpoint of the national best bid and offer when the quote becomes uncrossed. In the event the quote remains crossed beyond five minutes after the time of the scheduled Reference Price Cross, the cross will not occur and unexecuted NXT orders shall be returned to market participants.
(7) If the national best bid and offer is locked at the time of a Reference Price Cross during the regular hours session, the cross shall execute at the lock price.
(8) If trading in a security is halted for regulatory or other reasons at the time a cross is scheduled to occur, the cross will not occur and all unexecuted NXT orders shall be returned to market participants.]
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, NASDAQ included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below, and is set forth in Sections A, B, and C below.
NASDAQ is proposing to eliminate Rule 4770 in its entirety. Rule 4770 sets forth the rules applicable to the Nasdaq Crossing Network. The Commission approved the Nasdaq Crossing Network on July 5, 2006.
NASDAQ believes the proposed rule change is consistent with the provisions of Section 6 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, as amended.
Written comments were neither solicited nor received.
The proposed rule change is effective upon filing pursuant to Section 19(b)(3)(A) of the Act and paragraph (f)(6) of Rule 19b-4 thereunder, in that the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) 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; provided the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.
NASDAQ believes that the proposed rule change will eliminate a little-used crossing process from NASDAQ's rules, which, because of the low number of participants, does not benefit the price-discovery process and overall market confidence in any material manner. NASDAQ will remove Rule 4770 from its rules effective September 13, 2010.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
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”)
NASDAQ is proposing a rule change to amend Rule 4751 to modify the restriction on routing of Directed Orders to a facility of an exchange that is an affiliate of NASDAQ. 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. The text of these statements may be examined at the places specified in Item III below, and is set forth in Sections A, B, and C below.
The NASDAQ OMX Group, Inc. (“NASDAQ OMX”), a Delaware corporation, owns three U.S. registered securities exchanges—NASDAQ, NASDAQ OMX PHLX, Inc. (“PHLX”) and NASDAQ OMX BX, Inc. (“BX”). In addition, NASDAQ OMX currently indirectly owns Nasdaq Execution Services, LLC (“NES”), a registered broker-dealer and a member of PHLX. Thus, NES is an affiliate of each of NASDAQ, PHLX and BX.
PHLX has proposed to launch NASDAQ OMX PSX (“PSX”)
NES is the approved outbound routing facility of NASDAQ for cash equities, providing outbound routing from NASDAQ to other market centers. NES does not provide inbound routing to NASDAQ. The acquisition of NES by NASDAQ OMX was approved by the Commission in 2004 and 2005
The Commission has approved NES's affiliation with PHLX subject to the conditions that: (1) NES remains a facility of NASDAQ; (2) use of NES's routing function by NASDAQ members continues to be optional; (3) NES does not provide routing of orders to PHLX or any trading facilities thereof, unless such orders first attempt to access any liquidity on the NASDAQ book; and (4) for purposes of Commission Rule 17d-1, the designated examining authority of NES is a self-regulatory organization unaffiliated with NASDAQ.
NASDAQ is proposing that, upon the resumption of cash equity trading by PHLX, NES, in its operation as a facility of NASDAQ, be permitted to route all orders, including Directed Orders, to PSX without checking the NASDAQ book prior to routing. Directed Orders are orders that route directly to other exchanges on an immediate-or-cancel basis without first checking the NASDAQ book for liquidity.
The Commission has previously noted concerns about potential informational advantages and conflicts of interest between an exchange's self-regulatory obligations and its commercial interest when the exchange is affiliated with one of its members.
In connection with the proposed launch of PSX, PHLX has proposed a new rule and made certain undertakings intended to manage the flow of confidential and proprietary information between NES and PHLX and to minimize potential conflicts of interest.
The NASDAQ OMX Group, Inc., which owns Nasdaq Execution Services, LLC and the Exchange, shall establish and maintain procedures and internal controls reasonably designed to ensure that Nasdaq Execution Services, LLC does not develop or implement changes to its system on the basis of non-public information regarding planned changes to the Exchange's systems, obtained as a result of its affiliation with the Exchange, until such information is available generally to similarly situated exchange members in connection with the provision of inbound routing to the Exchange.
Pursuant to the new rule, PHLX has proposed to allow PSX to receive inbound routed orders for a twelve-month pilot period.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within the 60-day period beginning on the date of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 1, 2010, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Wilshire Micro-Cap ETF (the “Fund”)
The Fund seeks investment results that correspond generally to the performance, before fees and expenses, of the Wilshire US Micro-Cap Index
The Exchange represents that: (i) Except for Commentaries .01(a)(A)(1)
Detailed descriptions of the Fund, the Index, procedures for creating and redeeming Shares, transaction fees and expenses, dividends, distributions, taxes, risks, and reports to be distributed to beneficial owners of the Shares can be found in the Registration Statement or on the Web site for the Fund (
After careful review, the Commission finds that the Exchange's proposal to list and trade the Shares is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
NYSE Arca Equities Rule 5.2(j)(3) permits the Exchange to consider qualifying Units for listing and trading pursuant to Rule 19b-4(e) under the Act. Commentary .01(a)(A) of Rule 5.2(j)(3) sets forth the generic listing requirements applicable to Units based on U.S. indexes or portfolios.
The Commission believes that the listing and trading of the Shares is consistent with the Act. The Shares currently satisfy all but two of the generic listing standards under the rule, and the Commission believes that the composition of the Index, despite failing to satisfy the requirements of Commentaries .01(a)(A)(1) and .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3), does not raise any regulatory concerns. The capitalization criterion of Commentary .01(a)(A)(1), together with the liquidity requirement applicable to the Index components, are designed to prevent fraudulent or manipulative acts.
In addition, the Commission notes that it has not received any comments regarding the proposed rule change.
For the forgoing reasons, the Commission believes that the Exchange's proposal to list and trade the Shares is consistent with the Act. This order is based on the Exchange's representations.
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 MSRB is filing with the Commission a proposed rule change to establish a subscription to the information collected by the MSRB's Short-term Obligation Rate Transparency (“SHORT”) System. The MSRB has requested that the proposed rule change be made effective on September 30, 2010.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The SHORT System is a facility of the MSRB for the collection and dissemination of information about securities bearing interest at short-term rates. Currently, these securities consist of Auction Rate Securities (“ARS”) and Variable Rate Demand Obligations (“VRDOs”). The proposed rule change consists of a proposal to establish a subscription to the information collected by the SHORT System. The data stream subscription would be provided through a Web service and would be made available for an annual fee of $10,000.
Information disseminated from the SHORT System also is posted to the MSRB's Electronic Municipal Market Access (EMMA) Web portal pursuant to the EMMA short-term obligation rate transparency service. Such information would be made available to subscribers simultaneously with the availability of such information to the EMMA Web portal. The subscription service would make the information collected by the SHORT System available to market participants for re-dissemination and for use in creating value-added products and services. Such re-dissemination and third-party use would provide market participants, including investors and the general public, additional avenues for obtaining the information collected by the SHORT System and would make additional tools available for making well-informed investment decisions.
Data elements with respect to the SHORT subscription service that would be provided through the data stream would be set forth in the SHORT System Subscriber Manual posted on the MSRB Web site. The SHORT System Subscriber Manual would provide a complete, up-to-date listing of all data elements made available through the SHORT subscription service, including any additions, deletions or modifications to disseminated data elements, detailed definitions of each data element, specific data format information, and information about technical data elements to support transmission and data-integrity processes between the SHORT System and subscribers.
Subscriptions would be provided through computer-to-computer data streams utilizing XML files for data. Appropriate schemas and other technical specifications for accessing the Web services through which the data stream will be provided would be set forth in the SHORT System Subscriber Manual posted on the MSRB Web site.
The MSRB would make the SHORT subscription service available on an equal and non-discriminatory basis. Subscribers would be subject to all of the terms of the subscription agreement to be entered into between the MSRB and each subscriber, including proprietary rights of third parties in information provided by such third parties that is made available through the subscription. The MSRB would not be responsible for the content of the information submitted by submitters that is distributed to subscribers of the SHORT subscription service.
The MSRB has adopted the proposed rule change pursuant to Section 15B(b)(2)(C) of the Act,
The MSRB believes that the proposed rule change is consistent with the Act. The SHORT subscription service would serve as an additional mechanism by which the MSRB works toward removing impediments to and helping to perfect the mechanisms of a free and open market in municipal securities. The subscription service would make the information collected by the SHORT System available to market participants for re-dissemination and for use in creating value-added products and services. Such re-dissemination and third-party use would provide market participants, including investors and the general public, additional avenues for obtaining the information collected by the SHORT System and would make additional tools available for making well-informed investment decisions. Broad access to the information collected by the SHORT System, in addition to the public access through the EMMA Web portal, should further assist in preventing fraudulent and manipulative acts and practices by improving the opportunity for public investors to access material information about Auction Rate Securities and Variable Rate Demand Obligations.
Furthermore, broader re-dissemination and third-party use of the information collected by the SHORT System should promote a more fair and efficient municipal securities market in which transactions are effected on the basis of material information available to all parties to such transactions, which should allow for fairer pricing of transactions based on a more complete understanding of the terms of the securities (including any changes thereto).
The MSRB does not believe the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change would make the information collected by the SHORT System available to all persons on an equal and non-discriminatory basis. The information provided through the subscription service would be available to all subscribers simultaneously with the availability of the information through the EMMA Web portal. In addition to making the information available for free on the EMMA Web portal to all members of the public, the MSRB would make the information collected by the SHORT System available by subscription on an equal and non-discriminatory basis without imposing restrictions on subscribers from, or imposing additional charges on subscribers for, re-disseminating such information or otherwise adding value-added services and products based on
Written comments were neither solicited nor received on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• 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 June 4, 2010, The Depository Trust Company (“DTC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-DTC-2010-09 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
DTC is modifying certain provisions of its Settlement Services Guide (“Guide”) in connection with concurrent rule changes being made by the National Securities Clearing Corporation (“NSCC”) concerning Automated Customer Account Transfer Service (“ACATS”) transfers processed through the Continuous Net Settlement (“CNS”) system.
NSCC's ACATS system enables members to effect automated transfers of customer accounts among themselves.
An NSCC Member to which a customer's securities account is to be transferred through ACATS (“Receiving Member”) initiates the transfer process by submitting a request to NSCC. For the transfer to be processed, the request must be accepted by the NSCC Member from which the customer's securities are being transferred (“Delivering Member”). After a Delivering Member accepts a customer account transfer request and all other preconditions of NSCC's rules for processing ACATS transfer are met, all CNS-eligible securities in the customer's account, except securities that the Receiving Member notifies NSCC should not be transferred, are entered into NSCC's CNS accounting
DTC is modifying its Guide in several ways to clarify that securities moving through NSCC's ACATS system are not subject to a lien by DTC when they are debited from a delivering Participant's DTC account or when they are credited to a receiving Participant's DTC account.
DTC is modifying the CNS section of the Guide to clarify that when a Participant holds securities in its account in a no-lien location
Because Minimum Amount Securities are not subject to any lien or other claim by DTC, such securities are not counted as part of the Participant's Collateral Monitor. A receiving Participant can designate such securities as “Net Additions”.
DTC intends to implement these changes during the third quarter of 2010 and will advise Participants of the specific implementation date through DTC Important Notices.
The Commission finds that the proposed rule change is consistent with the requirements of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On June 4, 2010, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2010-05 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
NSCC's Automated Customer Account Transfer Service (“ACATS”) system enables Members to effect automated transfers of customer accounts among themselves.
NSCC is making changes to its ACATS system in connection with a
Through ACATS, an NSCC Member to which a customer's securities account is to be transferred (“Receiving Member”) submits a Transfer Initiation Request to initiate the account transfer process. NSCC causes all CNS-eligible items in that customer account to enter NSCC's CNS accounting operation on the day before settlement date unless the Receiving Member notifies NSCC that certain items should be withheld from CNS processing.
Ordinary CNS items enter the system at contract value, but ACATS items enter CNS unvalued. This reflects the nature of the ACATS CNS items as “free” transfers. To incentivize deliveries, ACATS items are marked-to-the-market on the morning of settlement date using their full CNS value as of the prior day's closing price. Consequently, the Delivering Member's CNS projection report shows a short securities position, and its CNS cash reconciliation report shows a cash debit for the “full value” mark. Conversely, the Receiving Member's projection report shows a long securities position, and its cash reconciliation report shows a cash credit equal to the “full value” mark. If the Delivering Member fulfills its ACATS delivery obligation, then its short position is cancelled, and the cash debit for the mark is offset by a cash credit. Likewise, upon receipt of the securities by the Receiving Member, the Receiving Member's long position is offset, and the cash credit for the mark is offset by the cash debit. The net result is a “free” transfer of securities because no money is paid by either the Delivering Member or Receiving Member.
For transactions processed through CNS, NSCC normally becomes the counter party to the transaction and guarantees settlement.
ACATS transfers settled through CNS are fungible with all other CNS activity. The CNS system does not distinguish between ACATS transactions and other transactions, which means that CNS ACATS receives and delivers are netted with guaranteed settling trades in the same securities. However, NSCC will now begin tracking ACATS receive and deliver obligations in CNS, and CNS allocations will be applied to ACATS receive and deliver obligations for a Member in a security before satisfying another obligation in the same security. At the end of each processing day, CNS ACATS fails will continue to be marked to the full-market value and netted with all other CNS obligations under NSCC's Rules.
In the event of a Member failure, NSCC will use this automated tracking capability to differentiate between completed and uncompleted CNS ACATS transactions. NSCC will therefore be able to reverse uncompleted ACATS transfers of a failing Member while allowing assets associated with completed ACATS transfers to remain with the Receiving Member. NSCC believes this will help maximize CNS-related transfers of customer accounts to new firms.
An ACATS transfer of a failing Member will be deemed uncompleted if the failing Member is a Delivering Member and it has failed to deliver to CNS all or a portion of the securities associated with the ACATS transfer. If the failing Member is a Receiving Member and it has failed to receive all or a portion of the securities associated with the ACATS transfer from CNS, then the transfer will likewise be deemed uncompleted. In either case, if the Delivering Member makes a partial delivery of securities to CNS then the transfer will be deemed completed for the amount of securities received from CNS by the Receiving Member to the extent that amount does not exceed the amount delivered to CNS by the Delivering Member. The transfer will be deemed uncompleted as to any remaining securities beyond that amount, and only the uncompleted portion of the transfer will be subject to reversal. Transfers will also be deemed uncompleted when the failing Member is the Delivering Member and it has a flat or overall long CNS position or when the failing member is the Receiving Member and it has a flat or overall short CNS position.
In the event a Delivering Member and Receiving Member fail on the same settlement day and have an ACATS transfer obligation between them, any transfer deemed uncompleted for the Delivering Member will also be deemed uncompleted for the Receiving Member. NSCC will notify the affected Members of the details associated with the assets subject to the reversal, and the affected Members will have to reestablish customer positions accordingly.
To facilitate the compliance of Members with their securities possession and control requirements of securities subject to ACATS transfers processed through CNS, NSCC will modify its Rules to clarify that it does not maintain a lien over ACATS assets delivered to a Receiving Member through CNS.
To provide for the modifications to ACATS described in this order, NSCC
Section 7 of Rule 18 provides that NSCC maintains a lien on all property placed in its possession by a Member as security for any and all liabilities of that Member to NSCC. An exception to this rule is where such a lien would be prohibited under Commission Rules 8c-1 and 15c2-1. NSCC will modify the section to clarify that it does not maintain a lien on ACATS assets that have been delivered to a Receiving Member through CNS.
NSCC will amend Rule 50 to clarify that NSCC may reverse uncompleted ACATS obligations when either the Delivering or Receiving Member has failed to meet its settlement obligation to NSCC. In addition, this Rule will be revised to note that in the event of such a reversal of uncompleted CNS ACATS obligations, NSCC will make files available to each Member to show each open security position due to settle that day that is subject to the reversal as well as such other information as NSCC may deem advisable. NSCC will also make a technical correction to clarify that ACATS transactions enter the CNS Accounting Operation on the day before Settlement Date (SD-1) rather than the day after Trade Date (T+1).
NSCC will modify Procedure VII to provide for the tracking of customer transfers by stating that deliveries of a particular security through CNS will be used to satisfy a Member's ACATS receive and deliver obligations before being used to satisfy another obligation, such as a trade-related obligation of that Member. In addition, the modified language will indicate that this designation will be provided to the Member's Designated Depository to facilitate its processing of the item.
NSCC intends to implement these changes during the third quarter of 2010 and will advise Members of the implementation date through issuance of NSCC Important Notices. NSCC has agreed to provide Commission staff with updates on at least a quarterly basis on the progress related to industry discussions for processing enhancements for non-CNS ACAT transfers.
The Commission finds that the proposed rule change is consistent with the requirements of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (USTR) is providing notice that on July 30, 2010, pursuant to the Labor Chapter (Chapter 16) of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), the United States requested consultations with the Government of Guatemala to discuss Guatemala's apparent failure to meet its obligation under Article 16.2.1(a) to effectively enforce its labor laws. The consultations request may be found at
Although USTR will accept any comments received during the course of the consultations, comments should be submitted on or before September 22, 2010 to be assured of timely consideration by USTR.
Public comments should be submitted electronically to
Carlos Quintana, Special Counsel for Trade and Labor, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395-9439.
On July 30, 2010, the United States requested consultations with the Government of Guatemala to discuss issues and matters related to Guatemala's obligations under Article 16.2.1(a) of the CAFTA-DR, as well as under Chapter Sixteen of the CAFTA-DR more broadly. Article 16.2.1(a) requires that “[a] Party shall not fail to effectively enforce its labor
In its request for consultations, the United States notes that the Government of Guatemala appears to be failing to meet its obligations under Article 16.2.1(a) with respect to effective enforcement of Guatemalan labor laws related to the right of association, the right to organize and bargain collectively, and acceptable conditions of work. Based on an extensive examination of Guatemala's labor laws, collection of factual evidence, and analysis of Guatemala's obligations under Article 16.2.1(a), the United States identified a significant number of failures by Guatemala to enforce its labor laws, constituting a sustained or recurring course of action or inaction. Failures include: (1) Ministry of Labor failures to investigate alleged labor law violations; (2) Ministry of Labor failures to take enforcement action once the Ministry identified a labor law violation, and (3) Court failures to enforce Labor Court orders in cases involving labor law violations.
Interested persons are invited to submit written comments concerning the issues that will be raised in consultations. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at (202) 395-3640. A non-confidential summary of the confidential information must be submitted to
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
USTR will maintain a docket on this matter accessible to the public. The public file will include non-confidential comments received by USTR from the public with respect to this matter.
Comments will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except confidential business information exempt from public inspection in accordance with 15 CFR 2006.15 or information determined by USTR to be confidential in accordance with 19 U.S.C. 2155(g)(2). Comments open to public inspection may be viewed on the
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of receipt of petition for temporary exemption from certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
In accordance with the procedures in 49 CFR part 555, Wheego Electric Cars, Inc., has petitioned the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard.
This notice of receipt of an application for temporary exemption is published in accordance with statutory provisions. NHTSA has not made any judgment on the merits of the application.
You should submit your comments not later than September 22, 2010.
David Jasinski, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building 4th Floor, Room W41-213, Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
We invite you to submit comments on the application described above. You may submit comments identified by docket number at the heading of this notice by any of the following methods:
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In 2000, NHTSA upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The advanced air bag requirements were a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of air bags. This plan also included an extensive consumer education program to encourage the placement of children in rear seats.
The new requirements were phased in beginning with the 2004 model year. Small volume manufacturers were not subject to the advanced air bag requirements until September 1, 2006.
In recent years, NHTSA has addressed a number of petitions for exemption from the advanced air bag requirements of FMVSS No. 208. The majority of these requests have come from small manufacturers which have petitioned on the basis of substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. NHTSA has granted a number of these petitions, usually in situations where the manufacturer is supplying standard air bags in lieu of advanced air bags.
The agency has carefully tracked occupant fatalities resulting from air bag deployment. Our data indicate that the agency's efforts in the area of consumer education and manufacturers' providing depowered air bags were successful in reducing air bag fatalities even before advanced air bag requirements were implemented.
As always, we are concerned about the potential safety implication of any temporary exemption granted by this agency. In the present case, we are addressing a petition for a temporary exemption from the advanced air bag requirements submitted by a manufacturer of a small electric car.
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR part 555, Wheego Electric Cars, Inc. (Wheego) has submitted a petition (dated May 31, 2010) asking the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. Wheego requested the exemption for a period of three years.
The National Traffic and Motor Vehicle Safety Act, codified as 49 U.S.C. Chapter 301, provides the Secretary of Transportation authority to exempt, on a temporary basis and under specified circumstances, motor vehicles from a motor vehicle safety standard or bumper standard. This authority is set forth at 49 U.S.C. 30113. The Secretary has delegated the authority for this section to NHTSA.
NHTSA established part 555,
A petitioner must provide specified information in submitting a petition for exemption. These requirements are specified in 49 CFR 555.5, and include a number of items. Foremost among them are that the petitioner must set forth the basis of the application under § 555.6, and the reasons why the exemption would be in the public interest and consistent with the objectives of 49 U.S.C. Chapter 301.
A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do not state that a manufacturer has substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
Finally, while 49 U.S.C. 30113(b) states that exemptions from a Safety Act standard are to be granted on a “temporary basis,”
Wheego submitted a petition for exemption from certain requirements of FMVSS No. 208,
The basis for Wheego's application is substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. According to the petition, Wheego is a privately held company incorporated in the State of Delaware, with headquarters in Atlanta, Georgia. Its total motor vehicle production during the 12 months preceding the filing of the petition was 308 vehicles. Wheego indicated that all of these vehicles were all-electric Wheego Whip LSVs (low speed vehicles). In order for a vehicle to qualify as a low speed vehicle under FMVSS No. 500, Low Speed Vehicles, its top speed must not exceed 25 miles per hour.
Wheego states that the LiFe is based on a high strength steel unibody chassis made by Shijiazhuan ShuangHuan Automobile Co. (ShuangHuan) in China. ShuangHuan manufactures a passenger car (called the “Noble”) with the chassis and an internal combustion engine for sale in China, Australia, Greece, and other parts of the world outside the United States. Wheego states that, by purchasing and using an existing chassis, it was able to avoid the high cost of developing and manufacturing a brand new vehicle design. Wheego also states that ShuangHuan has developed dual standard air bags for the chassis, but not an advanced air bag system.
Wheego contends that granting an exemption would be in the public interest. Wheego intends the LiFe to be “one of the first affordable electric cars available in the United States.” Wheego states that electric vehicles have several benefits including reducing the nation's reliance on foreign oil and reducing greenhouse gas and other emissions. Wheego also contends that, allowing it to enter the market now would contribute to the development of electric vehicles in general by helping to evaluate the market and performance of electric vehicles with real world experience. Wheego also cites employment opportunities as a benefit.
Wheego intends to produce only a limited number of LiFes in the first three years of production, which it contends would limit the overall impact on motor vehicle safety. Wheego projects selling 550 LiFes in 2010, 1,200 in 2011, 2,400 in 2012, and 5,000 in 2013. Wheego states that the primary purpose of the LiFe will be as a commuter vehicle because it will have a limited range compared to that of gasoline powered vehicles. The LiFe will have a projected range of 100 miles and will require a minimum of 5 hours to regain a 50 percent charge. Because of the small sales volume and limited range, Wheego states that the number of hours the LiFe will be on roads will be lower compared to a gasoline powered vehicle, thereby reducing the likelihood of a crash.
Wheego contends that compliance with the advanced air bag requirements would cause substantial economic hardship and that Wheego has tried to comply with the standard in good faith. Wheego states that it cannot acquire an off-the-shelf advanced air bag system for the LiFe because an advanced air bag system has never been developed for the chassis used in the LiFe. Wheego states that it does not have the technical or financial resources to develop such a system independently and would have to cancel the development of a passenger car and terminate its operations if it does not obtain the requested exemption.
In October 2009, Wheego engaged J.K. Technologies in Baltimore, Maryland, for help with testing and certification requirements of the FMVSSs. Also in October 2009, Wheego approached TASS Engineering Services and Bosch for help in developing an advanced air bag system for the LiFe. Based upon this consultation, Wheego estimates that an advanced air bag system would cost $3 million and would take 18 months to test and implement. Wheego intends to spend $1 million in each of 2011, 2012, and 2013 in an effort to develop a system that will comply with the advanced air bag requirements. Wheego states that based on its projected revenues, by the end of the third year of an exemption, Wheego should be able to build cars with advanced air bags at no additional cost.
One issue raised by Wheego's petition is whether ShuangHuan might also be considered a manufacturer of the vehicle, given the relationship between Wheego and ShuangHuan. As indicated above, pursuant to 49 U.S.C. 30113, in order to be eligible for exemption, a manufacturer must not have produced more than 10,000 vehicles in the previous year. While Wheego by itself would meet this requirement, NHTSA must consider whether ShuangHuan could also be considered a manufacturer of the LiFe.
If ShuangHuan were also considered to be a manufacturer, there would be issues of whether we should consider one or both companies with respect to
Wheego uses the chassis of the ShuangHuan Noble for its vehicle. However, we have no knowledge of the modifications Wheego makes to the vehicles other than to install an electric powertrain in the vehicle. We have little knowledge of whether Wheego makes changes to the design of the ShuangHuan Noble to bring it into compliance with U.S. standards or whether ShuangHuan is making the modifications. Wheego states that it has spent the majority of its time and resources developing the LiFe's safety features, including the seat belt requirements. However, Wheego also states that the standard air bags have been developed by ShuangHuan.
We have found articles on Wheego's Web site stating that Wheego and ShuangHuan are entering into a “partnership” to produce electric vehicles. Wheego's Web site also states that ShuangHuan would manufacture an electric vehicle similar to the LiFe, called the E-Noble, to sell outside of the United States.
Due to the nature of the LiFe and the relationship between ShuangHuan and Wheego, NHTSA will closely examine whether Wheego is eligible for a financial hardship exemption for this vehicle. NHTSA specifically requests comments on this issue.
Upon receiving a petition, NHTSA conducts an initial review of the petition with respect to whether the petition is complete and whether the petitioner appears to be eligible to apply for the requested petition. The agency has tentatively concluded that the petition is complete. The agency has not made any judgment on the eligibility of the petitioner or the merits of the application, and is placing a non-confidential copy of the petition in the docket.
We are providing a 30-day comment period. After considering public comments and other available information, we will publish a notice of final action on the application in the
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel TARA VANA.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2010-0074 at
Submit comments on or before September 22, 2010.
Comments should refer to docket number MARAD-2010-0074. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel TARA VANA is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel EXPEDITION.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2010-0073 at
Submit comments on or before September 22, 2010.
Comments should refer to docket number MARAD-2010-0073. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel EXPEDITION is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
By Order of the Maritime Administrator.
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before September 22, 2010 to be assured of consideration.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 3 newly-designated entities whose property and interests in property are blocked pursuant to Executive Order 13382 of June 28, 2005, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.”
The designation by the Director of OFAC of the 3 entities identified in this notice pursuant to Executive Order 13382 is effective on August 13, 2010.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220,
This document and additional information concerning OFAC are available from OFAC's Web site (
On June 28, 2005, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in the Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On August 13, 2010, the Director of OFAC, in consultation with the Departments of State, Justice, and other relevant agencies, designated three entities whose property and interests in property are blocked pursuant to Executive Order 13382.
The list of additional designees is as follows:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1041-ES, Estimated Income Tax for Estates and Trusts.
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning the Customer Satisfaction Survey.
Written comments should be received on or before October 16, 2010, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Judi Owens, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, or
Requests for additional information should be directed to Judi Owens, Bureau of the Public Debt, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, (304) 480-8150.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning the sale and issue of Marketable Book-Entry securities.
Written comments should be received on or before October 16, 2010, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Judi Owens, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, or
Requests for additional information should be directed to Judi Owens, Bureau of the Public Debt, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, (304) 480-8150.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning the Direct Deposit Sign Up Form.
Written comments should be received on or before October 16, 2010, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Judi Owens, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, or
Requests for additional information or copies of the form and instructions should be directed to Judi Owens, Bureau of the Public Debt, 200 Third Street, A4-A, Parkersburg, WV 26106-5318, (304) 480-8150.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2004-59, Plan Amendments Following Election of Alternative Deficit Reduction Contribution.
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code.
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-97-91 and PS-101-90 (TD 8448), Enhanced Oil Recovery Credit (Section 1.43-3(a)(3) and 1.43-3(b)(3)).
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger, (202) 927-9368, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-4-89 (TD 8580), Disposition of an Interest in a Nuclear Power Plant (Sec. 1.468A-3).
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Joel Goldberger at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG-106012-98 (TD 8936), Definition of Contribution in Aid of Construction Under Section 118(c)(§ 1.118-2).
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Fields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for copies of the regulation should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, INTL-79-91(T.D. 8573), Information Returns Required of United States Persons With Respect To Certain Foreign Corporations (§§ 1.6035-1, 1.6038-2 and 1.6046-1).
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Joel Goldberger, at (202) 927-9368, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The burden for the collection of information is reflected in the burden for Form 5471, Information Return of U.S. Persons with Respect to Certain Foreign Corporations.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-102-88 (T.D. 8612), Income, Gift and Estate Tax (20.2056A-3, 20.2056A-4, and 20.2056A-10).
Written comments should be received on or before October 22, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927-9368, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
(a) Eligibility for access to classified information by SLTPS personnel shall be determined by a sponsoring agency. The level of access granted shall not exceed the Secret level, unless the sponsoring agency determines on a case-by-case basis that the applicant has a demonstrated and foreseeable need for access to Top Secret, Special Access Program, or Sensitive Compartmented Information.
(b) Upon the execution of a non-disclosure agreement prescribed by the Information Security Oversight Office or the Director of National Intelligence, and absent disqualifying conduct as determined by the clearance granting official, a duly elected or appointed Governor of a State or territory, or an official who has succeeded to that office under applicable law, may be granted access to classified information without a background investigation in accordance with the implementing directive for this order. This authorization of access may not be further delegated by the Governor to any other person.
(c) All clearances granted to SLTPS personnel, as well as accreditations granted to SLTPS facilities without a waiver, shall be accepted reciprocally by all agencies and SLTPS entities.
(d) Physical custody of classified information by State, local, and tribal (SLT) entities shall be limited to Secret information unless the location
(e) State, local, and tribal facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with established standards, in accordance with Executive Order 13526 and the implementing directive for this order, by the Department of Homeland Security or another agency that has entered into an agreement with the Department of Homeland Security to perform such inspection, accreditation, and monitoring.
(f) Private sector facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with standards established pursuant to Executive Order 12829, as amended, by the Department of Defense or the cognizant security agency under Executive Order 12829, as amended.
(g) Access to information systems that store, process, or transmit classified information shall be enforced by the rules established by the agency that controls the system and consistent with approved dissemination and handling markings applied by originators, separate from and in addition to criteria for determining eligibility for access to classified information. Access to information within restricted portals shall be based on criteria applied by the agency that controls the portal and consistent with approved dissemination and handling markings applied by originators.
(h) The National Industrial Security Program established in Executive Order 12829, as amended, shall govern the access to and safeguarding of classified information that is released to contractors, licensees, and grantees of SLT entities.
(i) All access eligibility determinations and facility security accreditations granted prior to the date of this order that do not meet the standards set forth in this order or its implementing directive shall be reconciled with those standards within a reasonable period.
(j) Pursuant to section 4.1(i)(3) of Executive Order 13526, documents created prior to the effective date of Executive Order 13526 shall not be re-disseminated to other entities without the consent of the originating agency. An agency head or senior agency official may waive this requirement for specific information that originated within that agency.
(b) Members of the Committee shall serve without compensation for their work on the Committee, except that any representatives of SLTPS entities may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707).
(c) The Information Security Oversight Office shall provide staff support to the Committee.
(d) Insofar as the Federal Advisory Committee Act, as amended (5 App. U.S.C.)(the “Act”) may apply to this order, any functions of the President under that Act, except that of reporting to the Congress, which are applicable to the Committee, shall be performed by the Administrator of General Services in accordance with guidelines and procedures established by the General Services Administration.
(b) The Secretary of Defense, or the cognizant security agency under Executive Order 12829, as amended, shall provide program management, oversight, inspection, accreditation, and monitoring of all private sector facilities that have access to classified information.
(c) The Director of National Intelligence may inspect and monitor SLTPS programs and facilities that involve access to information regarding intelligence sources, methods, and activities.
(d) Heads of agencies that sponsor SLTPS personnel and facilities for access to and storage of classified information under section 1.3(a) of this order shall:
(a) “Access” means the ability or opportunity to gain knowledge of classified information.
(b) “Agency” means any “Executive agency” as defined in 5 U.S.C. 105; any military department as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into possession of classified information.
(c) “Classified National Security Information” or “classified information” means information that has been determined pursuant to Executive Order 13526, or any predecessor or successor order, to require protection against unauthorized disclosure, and is marked to indicate its classified status when in documentary form.
(d) “Information” means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.
(e) “Intelligence activities” means all activities that elements of the Intelligence Community are authorized to conduct pursuant to law or Executive Order 12333, as amended, or a successor order.
(f) “Local” entities refers to “(A) a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; and (B) a rural community, unincorporated town or village, or other public entity” as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(11)).
(g) “Private sector” means persons outside government who are critically involved in ensuring that public and private preparedness and response efforts are integrated as part of the Nation's Critical Infrastructure or Key Resources (CIKR), including:
(h) “Restricted portal” means a protected community of interest or similar area housed within an information system and to which access is controlled by a host agency different from the agency that controls the information system.
(i) “Sponsoring Agency” means an agency that recommends access to or possession of classified information by SLTPS personnel.
(j) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possession of the United States, as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(15)).
(k) “State, local, and tribal personnel” means any of the following persons:
(l) “Tribe” means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe as defined in the Federally Recognized Tribe List Act of 1994 (25 U.S.C. 479a(2)).
(m) “United States” when used in a geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States and any waters within the territorial jurisdiction of the United States.
(b) Nothing in this order shall be construed to supersede or change the authorities of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
(c) Nothing in this order shall limit the authority of an agency head, or the agency head's designee, to authorize in an emergency and when necessary to respond to an imminent threat to life or in defense of the homeland, in accordance with section 4.2(b) of Executive Order 13526, the disclosure of classified information to an individual or individuals who are otherwise not eligible for access in accordance with the provisions of Executive Order 12968.
(d) Consistent with section 892(a)(4) of the Homeland Security Act of 2002 (6 U.S.C. 482(a)(4)), nothing in this order shall be interpreted as changing the requirements and authorities to protect sources and methods.
(e) Nothing in this order shall supersede measures established under the authority of law or Executive Order to protect the security and integrity of specific activities and associations that are in direct support of intelligence operations.
(f) Pursuant to section 892(e) of the Homeland Security Act of 2002 (6 U.S.C. 482(e)), all information provided to an SLTPS entity from an agency shall remain under the control of the Federal Government. Any State or local law authorizing or requiring disclosure shall not apply to such information.
(g) Nothing in this order limits the protection afforded any classified information by other provisions of law. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(h) Nothing in this order shall be construed to obligate action or otherwise affect functions by the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(i) This order shall be implemented subject to the availability of appropriations and consistent with procedures approved by the Attorney General pursuant to Executive Order 12333, as amended.
(a) support executive departments and agencies in efforts to enhance civilian control and stable constitutional government in Pakistan, to promote a more capable, accountable, and effective government in Afghanistan that serves the Afghan people and eventually can function, especially regarding internal security, with limited international support, and to stimulate an economy that will provide licit opportunity for the people of Pakistan and Afghanistan;
(b) assume the functions assigned to the Afghanistan Support Office (ASO) as of the date of this order; and
(c) perform such other functions related to the specific project set forth in section 2 as the Secretary of State (Secretary) may assign.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The PASO shall terminate at the end of the maximum period permitted by section 3161(a)(1) of title 5, United States Code, unless sooner terminated by the Secretary.
(a) Deputy Director;
(b) Associate Director, Legislative, Intergovernmental, and Public Affairs;
(c) Associate Director, Management and Administration;
(d) Associate Director, Community Supervision Services;
(e) Associate Director, Community Justice Programs;
(f) General Counsel;
(g) Chief Information Officer, Information Technology; and
(h) Associate Director, Human Resource Management.
(a) No individual who is serving in an office listed in section 1 in an acting capacity, by virtue of so serving, shall act as Director pursuant to this memorandum.
(b) No individual listed in section 1 shall act as Director unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.
(c) Notwithstanding the provisions of this memorandum, the President retains the discretion, to the extent permitted by law, to depart from this memorandum in designating an acting Director.
Office of the Chief Financial Officer, Department of Education (Department).
Notice of proposed rulemaking.
The Secretary proposes to reissue the Department of Education Acquisition Regulation (EDAR) in order to update it to accurately implement the current Federal Acquisition Regulation (FAR) and Department policies.
We must receive your comments on or before September 22, 2010.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.
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The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at
Nicole Evans. Telephone: (202) 245-6172 or via Internet:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities may obtain this document in an accessible format (
We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 7137, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under
The EDAR was last updated in 1987. In the years since then, the FAR has changed substantially. These changes caused a need for the Department to update the EDAR so that it correctly implements the FAR and reflects Department policy.
We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.
Generally, these proposed regulations are issued under the authority of 5 U.S.C. 301, which authorizes the heads of agencies to issue regulations governing the agency, and 20 U.S.C. 1018a, which authorizes procurement flexibility for the performance based organization (PBO), the Office of Federal Student Aid (FSA), for the delivery of Federal student financial assistance. We use the term PBO or FSA when referring to FSA in this preamble.
Proposed subparagraph (c) would add an explanation that when using non-appropriated funds the Department will follow the FAR and EDAR to the maximum extent practicable.
We are proposing to revise 3401.105-3 (Copies) to reflect the current method for obtaining copies of this regulation.
We are also proposing to revise 3401.3 (Agency acquisition regulations) to add two paragraphs addressing policy regarding the agency's supplementation of the FAR and explaining how the EDAR is published and codified.
Proposed changes to 3401.4 (Deviations) would make the Senior Procurement Executive (SPE) the approving official for individual deviations to the FAR and EDAR (3401.403), and the Chief Acquisition
We are further proposing to revise 3401.601 (General) to explain the current delegation of contracting authority in the Department.
Proposed 3401.602-3 (Ratification of unauthorized commitments) would outline the Department's policy and procedures on ratifying unauthorized commitments.
Proposed 3401.670 (Nomination and appointment of contracting officer's representatives (CORs)) would add information on nominating and appointing contracting officer's representatives (CORs). Proposed 3401.670-3 provides for Contracting Officers to insert a clause concerning CORs in all solicitations and contracts for which a COR will be (or is) appointed.
Proposed 3402.101-70 (Abbreviations and acronyms) would add twelve abbreviations and acronyms relevant to the EDAR.
The current EDAR specifies that the approving official for contracts with government employees or organizations controlled by them is the Deputy Under Secretary for Management.
We are also proposing to add requirements to 3405.270 (Notices to perform market surveys) to require the contracting officer to include additional information in notices of proposed contract actions when anticipating a sole source contract.
Proposed 3406.3 (Other than full and open competition) would add new 3406.302-5 (Authorized or required by statute) stating that the PBO can award noncompetitive awards as part of its modular contracting authority.
Proposed 3406.5 (Competition advocates) would identify the Department's Competition Advocate.
Proposed 3409.401 (Applicability) would indicate that this subsection does not apply to non-procurement debarment and suspension.
Proposed 3409.403 (Definitions) would designate the Senior Procurement Executive as the Department's debarring official and suspending official.
The proposed changes to 3409.406-3 (Procedures) would provide additional detail regarding the steps involved in the debarment process.
Proposed 3409.407-3 (Procedures) would provide similar, additional detail on the steps involved in the suspension process.
We are proposing to revise 3409.506 (Procedures) to give the HCA flexibility to terminate or not terminate contracts in cases of conflict of interest, and designate the HCA, rather than the Senior Procurement Executive, as the authorized reviewer and decision maker in such matters.
We are proposing to add 3409.507 (Solicitation provision and contract clause), to add prescriptions requiring contracting officers to include the provision in 3452.209-70 (Conflict of interest certification) and the clause at 3452.209-71 (Conflict of interest) in all solicitations and contracts, respectively, for services above the simplified acquisition threshold. We are proposing to add 3409.570 (Certification at or below the simplified acquisition threshold), which describes the conflict of interest certification that contractors make when entering into a contract with the Department at or below the simplified acquisition threshold.
Proposed 3412.302 (Tailoring of provisions and clauses for the acquisition of commercial items) would identify the HCA as the person who is authorized to approve waivers allowing COs to tailor provisions and clauses for the acquisition of commercial items.
Proposed 3413.003 (Policy) would explain the PBO's authority to use simplified acquisition procedures for commercial items without regard to the dollar or timeframe limitations in FAR 13.5 and explains the PBO's authority to use simplified acquisition procedures for competitively awarded noncommercial items contracts up to $1,000,000 when the procurement is a small business set-aside.
Proposed 3413.303 would allow use of blanket purchase agreements for commercial items up to the threshold of the test program for certain commercial items in FAR 13.500(a).
Removal of 3415.4 (Solicitation and receipt of proposals and quotations) would eliminate the prescriptive language for an order of precedence clause (3452.215-33).
Proposed 3415.302-70 (Two-phase source selection) would implement the PBO's authority to use a two-phase process to solicit offers and select a source for award.
We are proposing to revise 3415.606 (Agency procedures) to add an HCA-designee as a possible point of contact
Removal of 3415.9 (Profit) would eliminate the requirement for contracting officers to use a certain framework when developing prenegotiation profit objectives.
Proposed 3416.470 (Award-term contracting) would establish policy and procedures for using this type of incentive contracting.
We are proposing to remove 3416.7 (Agreements), which in 3416.701 had provided the prescriptive language for the clause at 3452.216-71 (Negotiated Overhead Rates—Fixed) and in 3416.702 had addressed negotiated overhead rates for Basic Agreements.
Proposed 3417.204 (Contracts) would provide that the Department may enter into contracts that exceed the five-year limitation specified in FAR 17.204(e), subject to approval by the HCA for individual contracts or the SPE for classes of contracts.
Proposed 3417.207 (Exercise of options) would add paragraph (f)(2) to explain that the government can accept price reductions offered by contractors at any time during performance of a contract, and that these reductions are not renegotiations if they were not requested by the government.
We propose to add 3417.5 (Interagency acquisitions under the Economy Act), which would address interagency acquisitions procured by the PBO under section 1018a(j).
Proposed 3417.70 (Modular contracting) would detail the PBO's authority to perform successive procurements for systems.
Proposed 3419.502-4 (Methods of conducting set-asides) would allow the PBO to procure noncommercial services using simplified acquisition procedures if the procurement does not exceed $1,000,000, is conducted as a small business set-aside, the price charged for supplies associated with the services procured is expected to be less than 20 percent of the total contract price, and the contract is not awarded on a sole-source basis and is not for construction. We are proposing to remove 3419.7 (Subcontracting with Small Business and Small Disadvantaged Business Concerns) and 3419.8 (Contracting with the Small Business Administration (The 8(a) Program).
The proposed removal of 3419.7 would eliminate requirements that are redundant with current FAR requirements. EDAR 3419.705-2 (Determining the need for a subcontracting plan) includes instructions to the contracting officer on determining the dollar threshold for requirement of a subcontracting plan. The FAR adequately addresses this issue in 19.705-2 (Determining the need for a subcontracting plan). EDAR 3419.708 (Solicitation provisions and contract clauses) currently requires the contracting officer to include in solicitations that include clause 52.219-9 a notification that advises prospective offerors that subcontracting plans may be requested from all concerns determined to be in the competitive range. However, the FAR notifies offerors of the requirements for submitting subcontracting plans in the clauses requiring submission of the plans (52.219-9, Small business subcontracting plan, and its alternates I and II).
The proposed removal of 3419.8 would eliminate this subpart that implemented FAR 19.8, which has changed so significantly as to make 3419.8 irrelevant. Section 3419.801 currently refers to a section of the FAR (19.801) that is no longer in use. Section 3419.870 currently details a source selection procedure no longer relevant due to the detailed source selection procedures in the updated FAR 19.8.
We also propose to add 3424.203 (Policy) to state the Department's policy on Freedom of Information Act requests and to provide prescriptive language for clause 3452.224-70, (Release of information under the Freedom of Information Act).
Proposed 3427.409(c) would provide the prescriptive language for clause 3452.227-72 (Use and non-disclosure agreement) and proposed 3427.409(d) would provide the prescriptive language for clause 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends).
As previously discussed, we are proposing to move the prescription for use of the clause at 3452.208-72 (Paperwork reduction) to 3408.871.
The proposed addition of 3432.705-2 and removal of current 3432.704 and 3432.771 reorganizes and updates the information for incrementally funded contracts. The current EDAR section on Limitation of cost or funds (3432.704) also contains requirements for contractors to follow during performance of incrementally funded contracts. Requirements of this type should be communicated to contractors in contract clauses, not in the body of the regulation. Therefore, we are proposing to include these requirements in clause 3452.232-70 (Limitation of cost or funds) instead of in the current section of the EDAR (3432.704).
The proposed removal of 3432.770 would eliminate a redundant prohibition on using ED funds in lobbying. The restrictions in FAR Part 31 already prohibit contractors from spending Government funds on these activities.
We propose changing the number of 3437.271 (Services of consultants clause) to 3437.270, because that number would be available if the current 3437.270 is removed. We propose changing the prescription in 3437.270 (Services of consultants clause) to exclude FSA from the requirements of the clause.
Finally, we propose adding 3437.670 (Contract type) which would state that award-term contracting can be used in performance-based contracts and orders, if approved by the HCA.
The proposed change to the prescription for use of the clause at 3452.237-70 (Services of consultants) is intended to implement section 1018a(c).
The proposed new subsection on contract type is intended to authorize the use of award-term contracting. This change is necessary because although the current EDAR does not address this subject, award-term contracting is allowed under the FAR and used across the government. This change to the EDAR would clarify that the Department allows and intends for COs to use this procurement flexibility.
We are proposing to add 3439.702 (Department security requirements), to require the contracting officer to include the Notice to offerors of Department security requirements (3452.239-71) provision and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information.
Finally, we are proposing the addition of 3439.703 (Federal desktop core configuration (FDCC) compatibility), which would require the contracting officer to include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration. This clause requires software used on FDCC computers to be FDCC-compatible.
We are also proposing to remove 3442.7001 (Withholding of contract payments clause) and to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002. We propose no change to 3442.71, Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities.
We are proposing to remove 3442.7001 (Withholding of contract payments clause) because the language in this section allows the Department to withhold contract payments if any report required to be submitted by the contractor is overdue, or if the contractor fails to perform or deliver work or services as required by the contract. The Department's ability to withhold payment for non-performance is established in existing FAR clauses, based on the specific contract type and arrangement, and does not need to be repeated in the EDAR.
We are proposing to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002, to use the number that would be available if the current
The new prescription would require the contracting officer to insert a clause substantially the same as the Key personnel clause “in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated personnel is to take place by the contractor.” This change in prescription would allow greater discretion in the use of this clause.
The proposed Definitions—Department of Education clause at 3452.202-1 would be revised to remove the specific definitions in the current clause (“Secretary”, “Head of the Agency”, “contracting officer”, “Contracting Officer's Technical Representative”, “Department or ED”, and “subcontract”, and, instead, reference the FAR definitions at 2.101 and the EDAR definitions at 3402.101.
We are proposing renumbering the Paperwork Reduction Act clause from 3452.227-71 to 3452.208-72.
We are proposing a new Conflict of interest certification provision in 3452.209-70, which would require offerors to certify that they have identified actual or potential conflicts of interest.
We are proposing a new Conflict of interest clause at 3452.209-71, which would provide for potential criminal penalties for false certification regarding conflict of interest.
We are proposing to remove the Order of precedence clause at 3452.215-33, and instead use FAR clause 52.215-8 (Order of precedence—uniform contract format).
We are proposing to remove the Negotiated overhead rates—Fixed clause at 3452.216-71, which specifies procedures and policy for applying indirect rates to the contract. Applying indirect rates is adequately addressed in the FAR. We are proposing to add the Award-Term clause at 3452.216-71, which would provide information on the duration of an award-term contract, require an award-term plan, and provide guidance on making award determinations and on remedies available to contractors in award-term situations.
We are adding the Release of information under the Freedom of Information Act clause 3452.224-70, which would advise contractors of potential releases of information pursuant to the Freedom of Information Act.
The proposed Notice about research activities involving human subjects provision in 3452.224-71 and the proposed Research activities involving human subjects clause at 3452.224-72, would address the requirements found in 34 CFR part 97.
We are proposing to add the Use and non-disclosure agreement clause at 3452.227-72, which would protect contractor data from unauthorized disclosure by requiring the intended recipient to sign a use and non-disclosure agreement before receiving any proprietary data, technical data, or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure. We are proposing to remove the outdated Prohibition against the use of ED funds to influence legislation or appropriations clause at 3452.232-70.
The proposed Limitation of cost or funds clause at 3452.232-70 would provide the format and content of information to be provided by the contractor in cases of cost overruns.
We are proposing to revise the Incremental funding clause at 3452.232-71 by removing paragraph (b) of this clause, which had indicated that “the Limitation of Cost clause in FAR 52.232-20 shall supersede the Limitation of Funds clause in the event the contract becomes fully funded.” The Limitation of cost clause is not prescribed for inclusion in an incrementally funded contract, so this paragraph is unnecessary. We are proposing to remove the Method of payment clause at 3452.232-72, which indicates that payment under the contract will be made either by check or by wire transfer, because the Department no longer makes payments in this manner.
The proposed amendment to paragraph (b) of the Services of consultants clause at 3452.237-70 would raise the default daily rate for consultants where contracting officer approval is required to an amount greater than $800.
We are proposing to add the Observance of administrative closures clause at 3452.237-71 to clarify the Department's policy on whether contractor work is required when the Government is closed. We are proposing to add the Internet protocol version 6 (IPv6) clause at 3452.239-70 to incorporate the Department's requirement for compliance with this protocol.
We are proposing to add the Notice to offerors of Department security requirements provision in 3452.239-71 and the Department security requirements clause at 3452.239-72 to incorporate the Department's updated security requirements.
We are proposing to add the Federal desktop core configuration (FDCC) compatibility clause at 3452.239-73 clause to incorporate the Department's requirement for compatibility with the FDCC.
We are proposing to change the prescription reference for the Litigation and claims clause at 3452.242-70.
We are proposing to reword and change the prescription reference for the Notice to the government of delays clause at 3452.242-71.
We are proposing to leave unchanged the Accessibility of meetings, conferences, and seminars to persons with disabilities clause at 3452.242-73.
We are proposing to amend the Key personnel clause at 3452.243-70, to provide for a listing of the labor category and name of key personnel to be listed in the contract.
We are proposing to amend the Foreign travel clause at 3452.247-70 to add travel to Puerto Rico, the U.S. Virgin Islands, and other U.S. territories as instances of foreign travel.
Under Executive Order 12866, the Secretary must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or local programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is not significant under section 3(f) of the Executive order.
This notice has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this proposed regulatory action.
The potential costs associated with this proposed regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the EDAR effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this proposed regulatory action, we have determined that the benefits of the proposed regulatory action justify the costs.
We have determined, also, that this proposed regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
Under the Regulatory Flexibility Act (5 U.S.C. 601,
The rule would update the EDAR; it would not directly regulate any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
These proposed regulations do not contain any information collection requirements.
The EDAR is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
In accordance with section 441 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
You can view this document, as well as all other documents of this Department published in the
The official version of this document is the document published in the
Government procurement.
For the reasons discussed in the preamble, the Secretary proposes to amend title 48 of the Code of Federal Regulations by revising chapter 34 to read as follows:
5 U.S.C. 301 and 20 U.S.C. 1018a.
The Federal Acquisition Regulation System brings together, in title 48 of the Code of Federal Regulations, the acquisition regulations applicable to all executive agencies of the Federal government. This part establishes a system of Department of Education (Department) acquisition regulations, referred to as the EDAR, for the codification and publication of policies and procedures of the Department that implement and supplement the Federal Acquisition Regulation (FAR).
(a) The FAR and the EDAR apply to all Department contracts, as defined in FAR Part 2, except where expressly excluded.
(b) 20 U.S.C. 1018a provides the PBO with procurement authority and flexibility associated with sections (a)-(l) of the statute.
(c) For non-appropriated fund contracts, the FAR and EDAR will be followed to the maximum extent practicable, excluding provisions determined by the contracting officer, with the advice of counsel, not to apply to contracts funded with non-appropriated funds. Adherence to a process similar to those required by or best practices suggested by the FAR will not confer court jurisdiction concerning non-appropriated funds that does not otherwise exist.
(c)(5)
Copies of the EDAR in the
(a)(1) Subject to the authorities in FAR 1.301(c) and other statutory authority, the Secretary of Education (Secretary) or delegate may issue or authorize the issuance of the EDAR. It implements or supplements the FAR and incorporates, together with the FAR, Department policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between the Agency, including its suborganizations, and contractors or prospective contractors. The Head of Contracting Activity (HCA) for FSA may issue supplementary guidelines applicable to FSA.
(a) The EDAR is issued as chapter 34 of title 48 of the CFR.
(1) The FAR numbering illustrations at
(2) The EDAR numbering system corresponds with the FAR numbering system. An EDAR citation will include the prefix “34” prior to its corresponding FAR part citation; e.g., FAR 25.108-2 would have corresponding EDAR text numbered as EDAR 3425.108-2.
(3) Supplementary material for which there is no counterpart in the FAR will be codified with a suffix beginning with “70” or, in cases of successive sections and subsections, will be numbered in the 70 series (i.e., 71-79). These supplementing sections and subsections will appear to the closest corresponding FAR citation; e.g., FAR 16.4 (Incentive Contracts) may be augmented in the EDAR by citing EDAR 3416.470 (Award Term) and FAR 16.403 (Fixed-price incentive contracts) may be augmented in the EDAR by citing EDAR 3416.403-
For example:
(c)
FSA—Federal Student Aid.
(a) The EDAR is issued for Department acquisition guidance in accordance with the policies stated in FAR 1.301. The EDAR is subject to the same review procedures within the Department as other regulations of the Department.
A deviation from the EDAR has the same meaning as a deviation from the FAR.
An individual deviation from the FAR or the EDAR must be approved by the Senior Procurement Executive (SPE).
A class deviation from the FAR or the EDAR must be approved by the Chief Acquisition Officer (CAO).
Unless the Secretary approves an exception, the Department issues the EDAR, including any amendments to the EDAR, in accordance with the procedures for public participation in 5 U.S.C. 553. Comments on proposed Department notices of proposed rulemaking may be made at
(a) Contracting authority is vested in the Secretary. The Secretary has delegated this authority to the Chief Acquisition Officer (CAO). The Secretary has also delegated contracting authority to the Senior Procurement Executive (SPE), giving the SPE broad authority to perform functions dealing with the management direction of the entire Department's procurement system, including implementation of its unique procurement policies, regulations, and standards. Limitations to the extent of this authority and successive delegations are set forth in the respective memorandums of delegations.
(a)
(b)
(1) The HCA or Chief of the Contracting Office may, or may not, later ratify unauthorized commitments made by individuals without contracting authority or by contracting officers acting in excess of the limits of their delegated authority. Law and Regulation requires that only individuals acting within the scope of their authority make acquisitions. Within the Department, that authority vests solely with the Contracting Officer. Acquisitions made by other than authorized personnel are matters of serious misconduct. The employee may be held legally and personally liable for the unauthorized commitment.
(2) Ratifications do not require concurrence from legal counsel.
(3) The person who made the unauthorized commitment must prepare the request for approval that must be submitted through the person's manager to the approving official.
(4) The Chief of the Contracting Office may review and sign or reject ratification requests up to $25,000.
(5) All other ratification requests must be reviewed and signed or rejected by the HCA.
(a) Program offices must nominate personnel for consideration of COR appointment in accordance with the Department's COR Policy Guide.
(b) The contracting officer must determine what, if any, duties will be delegated to a COR.
(c) The contracting officer may appoint as many CORs as is deemed necessary to support efficient contract administration.
(d) Only individuals with a written delegation of authority from a contracting officer may act in any capacity as a representative of that contracting officer, including any alternate, assistant, or back-up duties to the COR.
(e) For all contracts in which an information technology system exists, the System Security Officer for that system will perform all responsibilities necessary for contractor access to the system.
COR appointments must be in accordance with the Department's COR Program Guide.
Contracting Officers must insert a clause substantially the same as the clause at 3452.201-70 (Contracting Officer's Representative (COR)), in all solicitations and contracts for which a COR will be (or is) appointed.
5 U.S.C. 301 and 20 U.S.C. 1018a.
As used in this chapter—
The Contracting Officer must insert the clause at 3452.202-1 (Definitions—Department of Education) in all solicitations and contracts in which the clause at FAR 52.202-1 is required.
5 U.S.C. 301.
The Department's regulations on standards of conduct and conflicts of interest are in 34 CFR part 73, Standards of Conduct.
(a) Suspected violations of the Gratuities clause at FAR 52.203-3 must be reported to the HCA in writing detailing the circumstances.
(b) The HCA evaluates the report with the assistance of the Designated Agency Ethics Officer. If the HCA determines that a violation may have occurred, the HCA refers the report to the SPE for disposition.
Any Departmental personnel who have evidence of a suspected antitrust violation in an acquisition must—
(1) Report that evidence through the HCA to the Office of the General Counsel for referral to the Attorney General; and
(2) Provide a copy of that evidence to the SPE.
Any Departmental personnel who suspect or have evidence of attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or other violation of the Covenant Against Contingent Fees, must report the matter promptly in accordance with the procedures in 3403.203.
Exceptions under FAR 3.601 must be approved by the HCA.
5 U.S.C. 301 and 20 U.S.C. 1018a.
(a)(15) FSA—Issuance of a synopsis is not required when the firm to be solicited has previously provided a module for the system under a contract that contained cost, schedule, and performance goals and the contractor met those goals.
(c) FSA—Notwithstanding other provisions of the FAR, a bid or proposal due date of less than 30 days is permitted after issuance of a synopsis for acquisitions for noncommercial items. However, if time permits, a bid or proposal due date that affords potential offerors reasonable time to respond and fosters quality submissions should be established.
(g)
(c) FSA—In Phase One of a Two-Phase Source Selection as described in 3415.302-70, the contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include only the following:
(1) Notification that the procurement will be conducted using the specific procedures included in 3415.302-70.
(2) A general notice of the scope or purpose of the procurement that provides sufficient information for sources to make informed business decisions regarding whether to participate in the procurement.
(3) A description of the basis on which potential sources are to be selected to submit offers in the second phase.
(4) A description of the information that is to be required to be submitted if the request for information is made separate from the notice.
(5) Any other information that the contracting officer deems is appropriate.
(h) FSA—When modular contracting authority is being utilized, the notice must invite comments and support if it is believed that modular contracting is not suited for the requirement being procured.
(a) If a sole source contract is anticipated, the issuance of a notice of a proposed contract action that is detailed enough to permit the submission of meaningful responses and the subsequent evaluation of the responses by the Federal government constitutes an acceptable market survey.
(b) The notice must include—
(1) A clear statement of the supplies or services to be procured;
(2) Any capabilities or experience required of a contractor and any other factor relevant to those requirements;
(3) A statement that all responsible sources submitting a proposal, bid, or quotation must be considered;
(4) Name, business address, and phone number of the Contracting Officer; and
(5) Justification for a sole source and the identity of that source.
Authority to approve publication of paid advertisement in newspapers is delegated to the HCA.
5 U.S.C. 301; 41 U.S.C. 418(a) and (b); and 20 U.S.C. 1018a.
(b) FSA—This part does not apply to proposed contracts and contracts awarded based on other than full and open competition when the conditions for successive systems modules set forth in EDAR 3417.70, Modular Contracting, are utilized.
(a)
(1) Citations: 20 U.S.C. 1018a.
(2) Noncompetitive awards of successive modules for systems are permitted when the conditions set forth in EDAR 3417.70 are met.
The Competition Advocate for the Department is the Deputy Director, Contracts and Acquisitions Management.
5 U.S.C. 301, unless otherwise noted.
The contracting officer must insert the clause at 3452.208-71 (Printing) in all solicitations and contracts other than purchase orders.
The Contracting Officer must insert the clause at 3452.208-72 (Paperwork Reduction Act) in all solicitations and contracts in which the contractor will develop forms or documents for public use.
5 U.S.C. 301.
This subpart implements FAR subpart 9.4 by detailing policies and procedures governing the debarment and suspension of organizations and individuals from participating in ED contracts and subcontracts.
This subpart applies to all procurement debarment and suspension actions initiated by ED. This subpart does not apply to nonprocurement debarment and suspension.
The SPE is designated as the “debarring official” and “suspending official” as defined in FAR 9.403 and is designated as the agency official authorized to make the decisions required in FAR 9.406 and FAR 9.407.
(b)
(1) Contractors proposed for debarment may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. The contractor must submit additional information within 30 days of receipt of the notice of proposal to debar, as described in FAR 9.406-3(c).
(2) In actions not based upon a conviction or civil judgment, if the contractor's submission in opposition raises a genuine dispute over facts material to the proposed debarment, the contractor may request a fact-finding conference. If the Debarring Official determines that there is a genuine dispute of material fact, the Debarring Official will conduct fact-finding and base the decision in accordance with FAR 9.406-3(b)(2) and (d)-(f).
(b)
(1) Contractors suspended in accordance with FAR 9.407 may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension. The contractor must submit this information and argument within 30 days of receipt of the notice of suspension, as described in FAR 9.407-3(c).
(2) In actions not based upon an indictment, if the contractor's submission in opposition raises a genuine dispute over facts material to the suspension an dif no determination has been made, on the basis of Department of Justice advice, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, the contractor may request a fact-finding conference. The Suspending Official will conduct fact-finding and base the decision in accordance with FAR 9.407-3(b)(2) and (d)-(e).
This subpart applies to all ED contracts except contracts with other Federal agencies. However, this subpart applies to contracts with the Small Business Administration (SBA) under the 8(a) program.
The HCA is designated as the official who may waive any general rule or procedure of FAR Subpart 9.5 or of this subpart.
(a) If the effects of a potential or actual conflict of interest cannot be avoided, neutralized, or mitigated before award, the prospective contractor is not eligible for that award. If a potential or actual conflict of interest is identified after award and the effects cannot be avoided, neutralized, or mitigated, ED will terminate the contract unless the HCA deems continued performance to be in the best interest of the Federal government.
(b) The HCA is designated as the official to conduct reviews and make final decisions under FAR 9.506(b) and (c).
The contracting officer must insert the provision in 3452.209-70 (Conflict of interest certification) in all solicitations for services above the simplified acquisition threshold.
The contracting officer must insert the clause at 3452.209-71 (Conflict of interest) in all contracts for services above the simplified acquisition threshold. The clause is applicable to each order for services over the simplified acquisition threshold under task order contracts.
By accepting any contract, including orders against any Schedule or Government-wide Acquisition Contract (GWAC), with the Department at or below the simplified acquisition threshold:
(a) The contractor warrants that, to the best of the contractor's knowledge and belief, there are no relevant facts or circumstances that would give rise to an organizational conflict of interest, as defined in FAR Subpart 2.1, or that the Contractor has disclosed all such relevant information.
(b) The contractor agrees that if an actual or potential organizational conflict of interest is discovered after award, the contractor will make an immediate full disclosure in writing to the contracting officer. This disclosure must include a description of actions that the contractor has taken or proposes to take, after consultation with the contracting officer, to avoid, mitigate, or neutralize the actual or potential conflict.
(c) The contractor agrees that:
(1) The Government may terminate this contract for convenience, in whole or in part, if such termination is necessary to avoid an organizational conflict of interest.
(2) The Government may terminate this contract for default or pursue other remedies permitted by law or this contract if the contractor was aware or should have been aware of a potential organizational conflict of interest prior to award, or discovers or should have discovered an actual or potential conflict after award, and does not disclose, or misrepresents, relevant information to the contracting officer regarding the conflict.
(d) The contractor further agrees to insert provisions that substantially conform to the language of this section, including this paragraph (d), in any subcontract or consultant agreement hereunder.
5 U.S.C. 301 and 20 U.S.C. 1018a.
As specified in 3413.003, simplified acquisition procedures for commercial items may be used without regard to any dollar or timeframe limitations described in FAR 13.5 when acquired by the FSA and used for its purposes.
The HCA is authorized to approve waivers in accordance with FAR 12.302(c). The approved waiver may be either for an individual contract or for a class of contracts for the specific item. The approved waiver and supporting documentation must be incorporated into the contract file.
5 U.S.C. 301 and 20 U.S.C. 1018a.
(c)(1)(iii) FSA—FSA may use simplified acquisition procedures for commercial items without regard to any dollar or timeframe limitations described in FAR 13.5.
(iv) FSA—FSA may use simplified acquisition procedures for non-commercial items up to $1,000,000 when the acquisition is set aside for small businesses, pursuant to EDAR 3419.502.
(b) Individual purchases under blanket purchase agreements for commercial items may exceed the simplified acquisition threshold but shall not exceed the threshold for the test program for certain commercial items, in FAR 13.500(a).
5 U.S.C. 301.
Authority is delegated to the HCA to make determinations under FAR 14.407-3(a)-(d).
5 U.S.C. 301 and 20 U.S.C. 1018a.
(a) The Freedom of Information Act (FOIA), 5 U.S.C. 552, may require ED to release data contained in an offeror's proposal even if the offeror has identified the data as restricted in accordance with the provision in FAR 52.215-1(e). The solicitation provision in 3452.215-70 (Release of restricted data) informs offerors that ED is required to consider release of restricted data under FOIA and Executive Order 12600.
(b) The contracting officer must insert the provision in 3452.215-70, in all solicitations that include a reference to FAR 52.215-1 (Instructions to Offerors—Competitive Acquisitions).
(a) FSA—May utilize a two-phase process to solicit offers and select a source for award. The contracting officer can choose to use this optional method of solicitation when deemed beneficial to the FSA in meeting its needs as a PBO.
(b)
(1) The contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include limited information as specified in EDAR 3405.207.
(2)
(3)
(c)
(1) The contracting officer must conduct the second phase of the source selection consistent with FAR 15.2 and 15.3, except as provided by EDAR 3405.207.
(2) Only sources selected in the first phase will be eligible to participate in the second phase.
(d) Each unsolicited proposal must contain the following certification:
This is to certify, to the best of my knowledge and belief, that—
a. This proposal has not been prepared under Federal government supervision;
b. The methods and approaches stated in the proposal were developed by this offeror;
c. Any contact with employees of the Department of Education has been within the limits of appropriate advance guidance set forth in FAR 15.604; and
d. No prior commitments were received from departmental employees regarding acceptance of this proposal.
(b)(1) The HCA or designee is the contact point to coordinate the receipt, control, and handling of unsolicited proposals.
(2) Offerors must direct unsolicited proposals to the HCA.
5 U.S.C. 301 and 20 U.S.C. 1018a.
(b)
(a) If the clause in FAR 52.216-7 (Allowable Cost and Payment) is used in a contract with a hospital, the contracting officer must modify the clause by deleting the words “Subpart 31.2 of the Federal Acquisition Regulation (FAR)” from paragraph (a) and substituting “34 CFR part 74, Appendix E.”
(b) The contracting officer must insert the clause at 3452.216-70 (Additional cost principles) in all solicitations of and resultant cost-reimbursement contracts with nonprofit organizations other than educational institutions, hospitals, or organizations listed in Attachment C to Office of Management and Budget Circular A-122.
(b) Award-term contracting may be used for performance-based contracts or task orders. See EDAR 3416.470 for the definition of award-term contracting and implementation guidelines.
(a)
(b)
(c)
(d)
(e)
(1) Award periods may be earned during the base period of performance and each option period, except the last option period. Award-term periods may not be earned during the final option year of any contract.
(2) Award-term periods may not exceed twelve months.
(3) The potential award-term periods will be priced, evaluated, and considered in the initial contract selection process.
(f)
(1) An award term is contingent upon a continuing need for the supplies or services and the availability of funds. Award terms may be cancelled prior to the start of the period of performance at no cost to the Federal government if there is not a continued need or available funding.
(2) The extension or reduction of the contract term is affected by a unilateral contract modification.
(3) Award-term periods occur after the period for which the award term was granted. Award-term periods effectively move option periods to later contract performance periods.
(4) Contractors have the right to decline the award of an award-term period. A contractor loses its ability to earn additional award terms if an earned Award-Term Period is declined.
(5) Changes to the contract award-term plan must be mutually agreed upon.
(g)
If the HCA is to sign a letter contract as the contracting officer, the SPE signs the written determination under FAR 16.603-3.
31 U.S.C. 1535 and 20 U.S.C. 1018a.
(e) Except as otherwise provided by law, contract periods that exceed the five-year limitation specified in FAR 17.204(e) must be approved by—
(1) The HCA for individual contracts; or
(2) The SPE for classes of contracts.
If a contract provision allows an option to be exercised within a specified timeframe after funds become available, it must also specify that the date on which funds “become available” is the actual date funds become available to the contracting officer for obligation.
(f)(2) The Federal government may accept price reductions offered by contractors at any time during contract performance. Acceptance of price reductions offered by contractors will not be considered renegotiations as identified in this subpart if they were not initiated or requested by the Federal government.
No other Federal department or agency may purchase property or services under contracts established or administered by FSA unless the purchase is approved by SPE for the requesting Agency.
(a) FSA—FSA may incrementally conduct successive procurements of modules of overall systems. Each module must be useful in its own right or useful in combination with the earlier procurement modules. Successive modules may be procured on a sole source basis under the following circumstances:
(1) Competitive procedures are used for awarding the contract for the first system module; and
(2) The solicitation for the first module included the following:
(i) A general description of the entire system that was sufficient to provide potential offerors with reasonable notice of the general scope of future modules;
(ii) Other sufficient information to enable offerors to make informed business decisions to submit offers for the first module; and
(iii) A statement that procedures, i.e., the sole source awarding of follow-on modules, could be used for the subsequent awards.
5 U.S.C. 301 and 20 U.S.C. 1018a.
The Office of Small and Disadvantaged Business Utilization (OSDBU), Office of the Deputy Secretary, is responsible for facilitating the implementation of the Small Business Act, as described in FAR 19.201. The OSDBU develops rules, policy, procedures, and guidelines for the effective administration of ED's small business program.
(a) Simplified acquisition procedures as described in FAR Part 13 for the procurement of noncommercial services for FSA requirements may be used under the following circumstances:
(1) The procurement does not exceed $1,000,000;
(2) The procurement is conducted as a small business set-aside pursuant to section 15(a) of the Small Business Act;
(3) The price charged for supplies associated with the services are expected to be less than 20 percent of the total contract price;
(4) The procurement is competitive; and
(5) The procurement is not for construction.
5 U.S.C. 301; 41 U.S.C. 418b (a) and (b).
Consistent with 29 CFR 4.145, Extended term contracts, the five-year limitation set forth in the Service Contract Act of 1965, as amended (Service Contact Act), applies to each period of the contract individually, not the cumulative period of base and option periods. Accordingly, no contract subject to the Service Contract Act issued by the Department of Education will have a base period or option period that exceeds five years.
5 U.S.C. 301.
(a) If the Privacy Act of 1974 (Privacy Act) applies to a contract, the contracting officer must specify in the contract the disposition to be made of the system or systems of records upon completion of performance. For example, the contract may require the contractor to completely destroy the records, to remove personal identifiers, to turn the records over to ED, or to keep the records but take certain measures to keep the records confidential and protect the individual's privacy.
(b) If a notice of the system of records has not been published in the
(1) Award the contract, authorizing performance only of those portions not subject to the Privacy Act; and
(2) After the notice is published and effective, authorize performance of the remainder of the contract.
In this subsection, “Research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. (34 CFR 97.102(d)) Research is considered to involve human subjects when a researcher obtains information about a living individual through intervention or interaction with the individual or obtains personally identifiable private information about an individual. Some categories of research are exempt under the regulations, and the exemptions are in 34 CFR part 97.
(a) Insert the provision in 3452.224-71 (Notice about research activities involving human subjects) in any solicitation where a resultant contract will include, or is likely to include, research activities involving human subjects covered under 34 CFR part 97.
(b) Insert the clause at 3452.224-72 (Research activities involving human subjects) in any solicitation that includes the provision in 3452.224-71 (Notice about research activities involving human subjects) and in any resultant contract.
The Department's regulations implementing the Freedom of Information Act, 5 U.S.C. 552, are in 34 CFR part 5.
(a) [Reserved]
(b) The Department's policy is to release all information incorporated into a contract and documents that result from the performance of a contract to the public under the Freedom of Information Act. The release or withholding of documents requested will be made on a case-by-case basis. Contracting officers must advise offerors and prospective contractors of the possibility that their submissions may be released under the Freedom of Information Act, not withstanding any restrictions that are included at the time of proposal submission. A clause substantially the same as the clause at 3452.224-70 (Release of information under the Freedom of Information Act) must be included in all solicitations and contracts.
5 U.S.C. 301.
The HCA approves determinations under FAR 25.103(b)(2)(i).
5 U.S.C. 301.
(a) The contracting officer must insert the clause at 3452.227-70 (Publication and publicity) in all solicitations and contracts other than purchase orders.
(b) The contracting officer must insert the clause at 3452.227-71 (Advertising of awards) in all solicitations and contracts other than purchase orders.
(c) The contracting officer must insert the clause at 3452.227-72 (Use and non-disclosure agreement) in all contracts over the simplified acquisition threshold, and in contracts under the simplified acquisition threshold, as appropriate.
(d) The contracting officer must insert the clause at 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends) in all contracts of third party vendors who require access to government-furnished information including other contractors' technical data, proprietary information, or software.
5 U.S.C. 301.
The contracting officer must insert the clause at 3452.228-70 (Required insurance) in all solicitations and resultant cost-reimbursement contracts.
5 U.S.C. 301.
The HCA is delegated the authority to make determinations under FAR 32.402(c)(1)(iii). This authority may not be redelegated.
The HCA is designated as the official who may authorize advance payments without interest under FAR 32.407(d).
(a) The contracting officer must insert the clause at 3452.232-70 (Limitation of cost or funds) in all solicitations and contracts where a Limitation of cost or Limitation of funds clause is utilized.
(b) The contracting officer must insert the provision in 3452.232-71 (Incremental funding) in a solicitation if a cost-reimbursement contract using incremental funding is contemplated.
5 U.S.C. 301.
(f)(3) The contracting officer's HCA must approve the justification or determination to continue performance.
5 U.S.C. 301 and 20 U.S.C. 1018a.
If a service contract requires one or more end items of supply, FAR Subpart 37.1 and this subpart apply only to the required services.
The contracting officer must insert the clause at 3452.237-71 (Observance of administrative closures) in all solicitations and contracts for services.
The contracting officer must insert the clause at 3452.237-70 (Services of consultants) in all solicitations and resultant cost-reimbursement contracts that do not provide services to FSA.
Award-term contracting may be used for performance-based contracts and task orders that provide opportunities for significant improvements and benefits to the Department. Use of award-term contracting must be approved in advance by the HCA.
5 U.S.C. 301 and 20 U.S.C. 1018a.
The contracting officer must insert the clause at 3452.239-70 (Internet Protocol version 6 (IPv6)) in all solicitations and resulting contracts for hardware and software.
The contracting officer must include the solicitation provision in 3452.239-71 (Notice to offerors of Department security requirements) and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information.
The contracting officer must include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration.
5 U.S.C. 301.
The contracting officer must insert the clause at 3452.242-70 (Litigation and claims) in all solicitations and resultant cost-reimbursement contracts.
The contracting officer must insert the clause at 3452.242-71 (Notice to the government of delays) in all solicitations and contracts other than purchase orders.
(a) It is the policy of ED that all meetings, conferences, and seminars be accessible to persons with disabilities.
(b) The contracting officer must insert the clause at 3452.242-73 (Accessibility of meetings, conferences, and seminars to persons with disabilities) in all solicitations and contracts.
5 U.S.C. 301.
The contracting officer must insert a clause substantially the same as 3452.243-70 (Key personnel) in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated key personnel is to take place by the contractor.
5 U.S.C. 301.
Requests by, or for the benefit of, foreign governments or international organizations to use ED production and research property must be approved by the HCA. The HCA must determine the amount of cost to be recovered or rental charged, if any, based on the facts and circumstances of each case.
5 U.S.C. 301.
The contracting officer must insert the clause at 3452.247-70 (Foreign travel) in all solicitations and resultant cost-reimbursement contracts.
5 U.S.C. 301.
As prescribed in 3401.670-3, insert a clause substantially the same as:
(a) The Contracting Officer's Representative (COR) is responsible for the technical aspects of the project, technical liaison with the contractor, and any other responsibilities that are specified in the contract. These responsibilities include inspecting all deliverables, including reports, and recommending acceptance or rejection to the contracting officer.
(b) The COR is not authorized to make any commitments or otherwise obligate the Government or authorize any changes that affect the contract price, terms, or conditions. Any contractor requests for changes shall be submitted in writing directly to the contracting officer or through the COR. No such changes shall be made without the written authorization of the contracting officer.
(c) The COR's name and contact information:
(d) The COR may be changed by the Government at any time, but notification of the change, including the name and address of the successor COR, will be provided to the contractor by the contracting officer in writing.
As prescribed in 3402.201, insert the following clause in solicitations and contracts in which the clause at FAR 52.202-1 is required.
(a) The definitions at FAR 2.101 are appended with those contained in Education Department Acquisition Regulations (EDAR) 3402.101.
(b) The EDAR is available via the Internet at
As prescribed in 3408.870, insert the following clause in all solicitations and contracts other than purchase orders:
Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, any printing (as that term is defined in Title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract; except that performance involving the duplication of fewer than 5,000 units of any one page, or fewer than 25,000 units in the aggregate of multiple pages, shall not be deemed to be printing. A unit is defined as one side of one sheet, one color only (with black counting as a color), with a maximum image size of 10
As prescribed in 3408.871, insert the following clause in all relevant solicitations and contracts:
(a) The Paperwork Reduction Act of 1980 (Pub. L. 96-511) applies to contractors that collect information for use or disclosure by the Federal Government. If the contractor will collect information requiring answers to identical questions from 10 or more people, no plan, questionnaire, interview guide, or other similar device for collecting information may be used without first obtaining clearance from the Chief Acquisition Officer (CAO) or the CAO's designee within the Department of Education (ED) and the Office of Management and Budget (OMB). Contractors and Contracting Officers' Representatives shall be guided by the provisions of 5 CFR part 1320, Controlling Paperwork Burdens on the Public, and should seek the advice of the Department's Paperwork Clearance Officer to determine the procedures for acquiring CAO and OMB clearance.
(b) The contractor shall obtain the required clearances through the Contracting Officer's Representative before expending any funds or making public contacts for the collection of information described in paragraph (a) of this clause. The authority to expend funds and proceed with the collection shall be in writing by the contracting officer. The contractor must plan at least 120 days for CAO and OMB clearance. Excessive delay caused by the Government that arises out of causes beyond the control and without the fault or negligence of the contractor will be considered in accordance with the Excusable Delays or Default clause of this contract.
As prescribed in 3409.507-1, insert the following provision in all solicitations anticipated to result in contract actions for services above the simplified acquisition threshold:
(a)(1) The contractor, subcontractor, employee, or consultant, by signing the form in this clause, certifies that, to the best of their knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational or personal conflict of interest, (see FAR Subpart 9.5 for organizational conflicts of interest) (or apparent conflict of interest), for the organization or any of its staff, and that the contractor, subcontractor, employee, or consultant has disclosed all such relevant
(i)
(ii)
(iii)
(A) Financial interests or reasonably foreseeable financial interests in or in connection with products, property, or services that may be purchased by an educational agency, a person, organization, or institution in the course of implementing any program administered by the Department;
(B) Significant connections to teaching methodologies or approaches that might require or encourage the use of specific products, property, or services; or
(C) Significant identification with pedagogical or philosophical viewpoints that might require or encourage the use of a specific curriculum, specific products, property, or services.
(2) Offerors must provide the disclosure described above on any actual or potential conflict of interest (or apparent conflict of interest) regardless of their opinion that such a conflict or potential conflict (or apparent conflict of interest) would not impair their objectivity.
(3) In a case in which an actual or potential conflict (or apparent conflict of interest) is disclosed, the Department will take appropriate actions to eliminate or address the actual or potential conflict, including but not limited to mitigating or neutralizing the conflict, when appropriate, through such means as ensuring a balance of views, disclosure with the appropriate disclaimers, or by restricting or modifying the work to be performed to avoid or reduce the conflict. In this clause, the term “potential conflict” means reasonably foreseeable conflict of interest.
(b) The contractor, subcontractor, employee, or consultant agrees that if “impaired objectivity”, or an actual or potential conflict of interest (or apparent conflict of interest) is discovered after the award is made, it will make a full disclosure in writing to the contracting officer. This disclosure shall include a description of actions that the contractor has taken or proposes to take to avoid, mitigate, or neutralize the actual or potential conflict (or apparent conflict of interest).
(c)
(d) In cases where remedies short of termination have been applied, the contractor, subcontractor, employee, or consultant agrees to eliminate the organizational conflict of interest, or mitigate it to the satisfaction of the contracting officer.
(e) The contractor further agrees to insert in any subcontract or consultant agreement hereunder, provisions that conform substantially to the language of this clause, including specific mention of potential remedies and this paragraph (e).
(f)
As prescribed in 3409.507-2, insert the following clause in all contracts for services above the simplified acquisition threshold:
(a)(1) The contractor, subcontractor, employee, or consultant, has certified that, to the best of their knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational or personal conflict of interest, (see FAR Subpart 9.5 for organizational conflicts of interest), (or apparent conflict of interest) for the organization or any of its staff, and that the contractor, subcontractor, employee, or consultant has disclosed all such relevant information if such a conflict of interest appears to exist to a reasonable person with knowledge of the relevant facts (or if such a person would question the impartiality of the contractor, subcontractor, employee, or consultant). Conflicts may arise in the following situations:
(i)
(ii)
(iii)
(A) Financial interests or reasonably foreseeable financial interests in or in connection with products, property, or services that may be purchased by an educational agency, a person, organization, or institution in the course of implementing any program administered by the Department;
(B) Significant connections to teaching methodologies that might require or encourage the use of specific products, property, or services; or
(C) Significant identification with pedagogical or philosophical viewpoints that might require or encourage the use of a specific curriculum, specific products, property, or services.
(2) Offerors must provide the disclosure described above on any actual or potential
(3) In a case in which an actual or potential conflict (or apparent conflict of interest) is disclosed, the Department will take appropriate actions to eliminate or address the actual or potential conflict (or apparent conflict of interest), including but not limited to mitigating or neutralizing the conflict, when appropriate, through such means as ensuring a balance of views, disclosure with the appropriate disclaimers, or by restricting or modifying the work to be performed to avoid or reduce the conflict. In this clause, the term “potential conflict” means reasonably foreseeable conflict of interest.
(b) The contractor, subcontractor, employee, or consultant agrees that if “impaired objectivity”, or an actual or potential conflict of interest (or apparent conflict of interest) is discovered after the award is made, it will make a full disclosure in writing to the contracting officer. This disclosure shall include a description of actions that the contractor has taken or proposes to take, after consultation with the contracting officer, to avoid, mitigate, or neutralize the actual or potential conflict (or apparent conflict of interest).
(c)
(d) In cases where remedies short of termination have been applied, the contractor, subcontractor, employee, or consultant agrees to eliminate the organizational conflict of interest, or mitigate it to the satisfaction of the Contracting Officer.
(e) The contractor further agrees to insert in any subcontract or consultant agreement hereunder, provisions that conform substantially to the language of this clause, including specific mention of potential remedies and this paragraph (e).
As prescribed in 3415.209, insert the following provision in solicitations:
(a) Offerors are hereby put on notice that regardless of their use of the legend set forth in FAR 52.215-1(e), Restriction on Disclosure and Use of Data, the Government may be required to release certain data contained in the proposal in response to a request for the data under the Freedom of Information Act (FOIA). The Government's determination to withhold or disclose a record will be based upon the particular circumstance involving the data in question and whether the data may be exempted from disclosure under FOIA. In accordance with Executive Order 12600 and to the extent permitted by law, the Government will notify the offeror before it releases restricted data.
(b) By submitting a proposal or quotation in response to this solicitation:
(1) The offeror acknowledges that the Department may not be able to withhold nor deny access to data requested pursuant to FOIA and that the Government's FOIA officials shall make that determination;
(2) The offeror agrees that the Government is not liable for disclosure if the Department has determined that disclosure is required by FOIA;
(3) The offeror acknowledges that proposals not resulting in a contract remain subject to FOIA; and
(4) The offeror agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any purpose, including the release of the information pursuant to requests under FOIA.
(c) Offerors are cautioned that the Government reserves the right to reject any proposal submitted with:
(1) A restrictive legend or statement differing in substance from the one required by the solicitation provision in FAR 52.215-1(e), Restriction on Disclosure and Use of Data, or
(2) A statement taking exceptions to the terms of paragraphs (a) or (b) of this provision.
Insert the following clause in solicitations and contracts as prescribed in 3416.307(b):
(a)
(b)
As prescribed in 3416.470, insert a clause substantially the same as the following in all solicitations and contracts where an award-term arrangement is anticipated:
(a) The initial [insert initial contract term] contract term or ordering period may be extended or reduced on the basis of contractor performance, resulting in a contract term or an ordering period lasting at least [insert minimum contract term] years from the date of contract award, to a maximum of [insert maximum contract term] years after the date of contract award.
(b) The contractor's performance will be measured against stated standards by the performance monitors, who will report their findings to the Award Term Determining Official (or Board).
(c) Bilateral changes may be made to the award-term plan at any time. If agreement cannot be made within 60 days, the Government reserves the right to make unilateral changes prior to the start of an award-term period.
(d) The contractor will submit a brief written self-evaluation of its performance within X days after the end of the evaluation period. The self-evaluation report shall not exceed seven pages, and it may be considered in the Award Term Review Board's (ATRB's) (or Term Determining Official's) evaluation of the contractor's performance during this period.
(e) The contract term or ordering period may be unilaterally modified to reflect the ATRB's decision. If the contract term or ordering period has one year remaining, the operation of the contract award-term feature will cease and the contract term or ordering period will not extend beyond the maximum term stated in the contract.
(f) Award terms that have not begun may be cancelled (rather than terminated), should the need for the items or services no longer exists. No equitable adjustments to the contract price are applicable, as this is not the same procedure as a termination for convenience.
(g) The decisions made by the ATRB or Term Determining Official may be made
As prescribed in 3424.203, insert the following clause in solicitations and contracts.
By entering into a contract with the Department of Education, the contractor, without regard to proprietary markings, approves the release of the entire contract and all related modifications and task orders including, but not limited to:
(1) Unit prices, including labor rates;
(2) Statements of Work/Performance Work Statements generated by the contractor;
(3) Performance requirements, including incentives, performance standards, quality levels, and service level agreements;
(4) Reports, deliverables, and work products delivered in performance of the contract (including quality of service, performance against requirements/standards/service level agreements);
(5) Any and all information, data, software, and related documentation first provided under the contract;
(6) Proposals or portions of proposals incorporated by reference; and
(7) Other terms and conditions.
As prescribed in 3424.170, insert the following provision in any solicitation where a resultant contract will include, or is likely to include, research activities involving human subjects covered under 34 CFR part 97:
(a)
(b)
(2) The regulations define a
(i) Information about a living person by—
(A) Manipulating that person's environment, as might occur when a new instructional technique is tested; or
(B) Communicating or interacting with the individual, as occurs with surveys and interviews; or
(ii) Private information about a living person in such a way that the information can be linked to that individual (the identity of the subject is or may be readily determined by the investigator or associated with the information). Private information includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information that has been provided for specific purposes by an individual and that an individual can reasonably expect will not be made public (for example, a school health record).
(c)
(d)
(1) The exemption at 34 CFR 97.101(b)(2) does not apply to activities involving—
(i) Survey or interview procedures involving children as subjects; or
(ii) Observations of public behavior of children in which the investigator or investigators will participate in the activities being observed.
(2) The exemption at 34 CFR 97.101(b)(2) continues to apply, unmodified by 34 CFR 97.401(b), to—
(i) Educational tests; and
(ii) Observations of public behavior in which the investigator or investigators will not participate in the activities being observed.
(e)
(1) For exempt research activities involving human subjects, the offeror should identify the exemption(s) that applies and provide sufficient information to allow the Department to determine that the designated exemption(s) is appropriate. Normally, the narrative on the exemption(s) can be provided in one paragraph.
(2) For nonexempt research activities involving human subjects, the offeror must cover the following seven points in the information it provides to the Department:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(3) If a reasonable potential exists that a need to conduct research involving human subjects may be identified after award of the
(f)
(2) The contracting officer reserves the right to require that the offeror have or apply for the assurance and provide documentation of IRB approval of the research prior to award.
(g) (1) The regulations, and related information on the protection of human research subjects, can be found on the Department's protection of human subjects in research Web site:
(2) Offerors may also contact the following office to obtain information about the regulations for the protection of human subjects and related policies and guidelines:
As prescribed in 3424.170, insert the following clause in any contract that includes research activities involving human subjects covered under 34 CFR part 97:
(a) In accordance with Department of Education regulations on the protection of human subjects in research, title 34, Code of Federal Regulations, part 97 (“the regulations”), the contractor, any subcontractors, and any other entities engaged in covered (nonexempt) research activities are required to establish and maintain procedures for the protection of human subjects. The definitions in 34 CFR 97.102 apply to this clause. As used in this clause,
(b) If ED determines that proposed research activities involving human subjects are covered (i.e., not exempt under the regulations), the contracting officer or contacting officer's designee will require the contractor to apply for the Federal Wide Assurance from the Office for Human Research Protections, U.S. Department of Health and Human Services, if the contractor does not already have one on file. The contracting officer will also require that the contractor obtain and send to the Department documentation of Institutional Review Board (IRB) review and approval of the research.
(c) In accordance with 34 CFR part 97, all subcontractors and any legally separate entity (neither owned nor operated by the contractor) that will be engaged in covered research activities under or related to this contract shall be required to comply with the requirements for assurances and IRB approvals. The contractor must include the substance of this clause, including paragraph (c) of this clause, in all subcontracts, and must notify any other entities engaged in the covered research activities of their responsibility to comply with the regulations.
(d) Under no condition shall the contractor conduct, or allow to be conducted, any covered research activity involving human subjects prior to the Department's receipt of the certification that the research has been reviewed and approved by the IRB. (34 CFR 97.103(f)). No covered research involving human subjects shall be initiated under this contract until the contractor has provided the contracting officer (or the contracting officer's designee) a properly completed certification form certifying IRB review and approval of the research activity, and the contracting officer or designee has received the certification. This restriction applies to the activities of each participating entity.
(e) In accordance with 34 CFR 97.109(e), an IRB must conduct continuing reviews of covered research activities at intervals appropriate to the degree of risk, but not less than once a year. Covered research activities that are expected to last one year or more are therefore subject to review by an IRB at least once a year.
(1) For each covered activity under this contract that requires continuing review, the contractor shall submit an annual written representation to the contracting officer (or the contracting officer's designee) stating whether covered research activities have been reviewed and approved by an IRB within the previous 12 months. The contractor may use the form titled “Protection of Human Subjects: Assurance Identification/Certification/Declaration of Exemption” for this representation. For multi-institutional projects, the contractor shall provide this information on its behalf and on behalf of any other entity engaged in covered research activities for which continuing IRB reviews are required.
(2) If the IRB disapproves, suspends, terminates, or requires modification of any covered research activities under this contract, the contractor shall immediately notify the contracting officer in writing of the IRB's action.
(f) The contractor shall bear full responsibility for performing as safely as is feasible all activities under this contract involving the use of human subjects and for complying with all applicable regulations and requirements concerning human subjects. No one (neither the contractor, nor any subcontractor, agent, or employee of the contractor, nor any other person or organization, institution, or group of any kind whatsoever) involved in the performance of such activities shall be deemed to constitute an agent or employee of the Department of Education or of the Federal government with respect to such activities. The contractor agrees to discharge its obligations, duties, and undertakings and the work pursuant thereto, whether requiring professional judgment or otherwise, as an independent contractor without imputing liability on the part of the Government for the acts of the contractor and its employees.
(g) Upon discovery of any noncompliance with any of the requirements or standards stated in paragraphs (b) and (c) of this clause, the contractor shall immediately correct the deficiency. If at any time during performance of this contract, the contracting officer determines, in consultation with the Protection of Human Subjects Coordinator, Office of the Chief Financial Officer, or the sponsoring office, that the contractor is not in compliance with any of the requirements or standards stated in paragraphs (b) and (c) of this clause, the contracting officer may immediately suspend, in whole or in part, work and further payments under this contract until the contractor corrects such noncompliance. Notice of the suspension may be communicated by telephone and confirmed in writing.
(h) The Government may terminate this contract, in full or in part, for failure to fully comply with any regulation or requirement related to human subjects involved in research. Such termination may be in lieu of or in addition to suspension of work or payment. Nothing herein shall be construed to limit the Government's right to terminate the contract for failure to fully comply with such requirements.
(i) The regulations, and related information on the protection of human research subjects, can be found on the Department's protection of human subjects in research Web site:
As prescribed in 3427.409, insert the following clause in all solicitations and contracts other than purchase orders:
(a) Unless otherwise specified in this contract, the contractor is encouraged to publish and otherwise promote the results of its work under this contract. A copy of each article or work submitted by the contractor for publication shall be promptly sent to the contracting officer's representative. The contractor shall also inform the representative when the article or work is published and furnish a copy in the published form.
(b) The contractor shall acknowledge the support of the Department of Education in publicizing the work under this contract in
“This project has been funded at least in part with Federal funds from the U.S. Department of Education under contract number [Insert number]. The content of this publication does not necessarily reflect the views or policies of the U.S. Department of Education nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”
As prescribed in 3427.409, insert the following clause in all solicitations and contracts other than purchase orders:
The contractor agrees not to refer to awards issued by, or products or services delivered to, the Department of Education in commercial advertising in such a manner as to state or imply that the product or service provided is endorsed by the Federal government or is considered by the Federal government to be superior to other products or services.
As prescribed in 3427.409, insert the following clause in all contracts over the simplified acquisition threshold, and in contracts under the simplified acquisition threshold as appropriate:
(a) Except as provided in paragraph (b) of this clause, proprietary data, technical data, or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure may not be provided to third parties unless the intended recipient completes and signs the use and non-disclosure agreement in paragraph (c) of this clause prior to release or disclosure of the data.
(1) The specific conditions under which an intended recipient will be authorized to use, modify, reproduce, release, perform, display, or disclose proprietary data or technical data subject to limited rights, or computer software subject to restricted rights must be stipulated in an attachment to the use and non-disclosure agreement.
(2) For an intended release, disclosure, or authorized use of proprietary data, technical data, or computer software subject to special license rights, modify paragraph (c)(1)(iv) of this clause to enter the conditions, consistent with the license requirements, governing the recipient's obligations regarding use, modification, reproduction, release, performance, display, or disclosure of the data or software.
(b) The requirement for use and non-disclosure agreements does not apply to Government contractors that require access to a third party's data or software for the performance of a Government contract that contains the 3452.227-73 clause, Limitations on the use or disclosure of Government-furnished information marked with restrictive legends.
(c) The prescribed use and non-disclosure agreement is:
The undersigned,
(1) The recipient shall—
(i) Use, modify, reproduce, release, perform, display, or disclose data marked with Small Business Innovative Research (SBIR) data rights legends only for government purposes and shall not do so for any commercial purpose. The recipient shall not release, perform, display, or disclose these data, without the express written permission of the contractor whose name appears in the restrictive legend (the contractor), to any person other than its subcontractors or suppliers, or prospective subcontractors or suppliers, who require these data to submit offers for, or perform, contracts with the recipient. The recipient shall require its subcontractors or suppliers, or prospective subcontractors or suppliers, to sign a use and non-disclosure agreement prior to disclosing or releasing these data to such persons. Such an agreement must be consistent with the terms of this agreement.
(ii) Use, modify, reproduce, release, perform, display, or disclose proprietary data or technical data marked with limited rights legends only as specified in the attachment to this agreement. Release, performance, display, or disclosure to other persons is not authorized unless specified in the attachment to this agreement or expressly permitted in writing by the contractor.
(iii) Use computer software marked with restricted rights legends only in performance of contract number
(iv) Use, modify, reproduce, release, perform, display, or disclose data marked with special license rights legends [To be completed by the contracting officer. See paragraph (a)(2) of this clause. Omit if none of the data requested is marked with special license rights legends].
(2) The recipient agrees to adopt or establish operating procedures and physical security measures designed to protect these data from inadvertent release or disclosure to unauthorized third parties.
(3) The recipient agrees to accept these data “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligation the Government may have regarding data specified in a contract for the performance of that contract.
(4) The recipient may enter into any agreement directly with the contractor with respect to the use, modification, reproduction, release, performance, display, or disclosure of these data.
(5) The recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of data received from the Government with restrictive legends by the recipient or any person to whom the recipient has released or disclosed the data.
(6) The recipient is executing this agreement for the benefit of the contractor. The contractor is a third party beneficiary of this agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the recipient or any other person to whom the recipient has released or disclosed the data, to seek damages from any breach of this agreement, or to otherwise enforce this agreement.
(7) The recipient agrees to destroy these data, and all copies of the data in its possession, no later than 30 days after the date shown in paragraph (8) of this agreement, to have all persons to whom it released the data do so by that date, and to notify the contractor that the data have been destroyed.
(8) This agreement shall be effective for the period commencing with the recipient's execution of this agreement and ending upon
[Insert business name.]
[Have representative sign.]
[Insert date.]
[Insert name and title.]
As prescribed in 3427.409, insert the following clause in all contracts of third party vendors who require access to Government-furnished information including other contractors' technical data, proprietary information, or
(a) For contracts under which data are to be produced, furnished, or acquired, the terms
(b) Proprietary data, technical data, or computer software provided to the contractor as Government-furnished information (GFI) under this contract may be subject to restrictions on use, modification, reproduction, release, performance, display, or further disclosure.
(1)
(2)
(3)
(c) Indemnification and creation of third party beneficiary rights.
(1) The contractor agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of proprietary data, technical data, or computer software received from the Government with restrictive legends by the contractor or any person to whom the contractor has released or disclosed such data or software.
(2) The contractor agrees that the party whose name appears on the restrictive legend, in addition to any other rights it may have, is a third party beneficiary who has the right of direct action against the contractor, or any person to whom the contractor has released or disclosed such data or software, for the unauthorized duplication, release, or disclosure of proprietary data, technical data, or computer software subject to restrictive legends.
As prescribed in 3428.311-2, insert the following clause in all solicitations and resultant cost-reimbursement contracts:
(a) The contractor shall procure and maintain such insurance as required by law or regulation, including but not limited to the requirements of FAR Subpart 28.3. Prior written approval of the contracting officer shall be required with respect to any insurance policy, the premiums for which the contractor proposes to treat as a direct cost under this contract, and with respect to any proposed qualified program of self-insurance. The terms of any other insurance policy shall be submitted to the contracting officer for approval upon request.
(b) Unless otherwise authorized in writing by the contracting officer, the contractor shall not procure or maintain for its own protection any insurance covering loss or destruction of, or damage to, Government property.
The following clause shall be inserted in all contracts that include a limitation of cost or limitation of funds clause in accordance with 3432.705-2:
(a) Under the circumstances in FAR 32.704(a)(1), the contractor shall submit the following information in writing to the contracting officer:
(1) Name and address of the contractor.
(2) Contract number and expiration date.
(3) Contract items and amounts that will exceed the estimated cost of the contract or the limit of the funds allotted.
(4) The elements of cost that changed from the original estimate (for example: labor, material, travel, overhead), furnished in the following order:
(i) Original estimate.
(ii) Costs incurred to date.
(iii) Estimated cost to completion.
(iv) Revised estimate.
(v) Amount of adjustment.
(5) The factors responsible for the increase.
(6) The latest date by which funds must be available to the contractor to avoid delays in performance, work stoppage, or other impairments.
(b) A fixed fee provided in a contract may not be changed if a cost overrun is funded. Changes in a fixed fee may be made only to reflect changes in the scope of work that justify an increase or decrease in the fee.
As prescribed in 3432.705-2, insert the following provision in solicitations if a cost-reimbursement contract using incremental funding is contemplated:
Sufficient funds are not presently available to cover the total cost of the complete project described in this solicitation. However, it is the Government's intention to negotiate and award a contract using the incremental funding concepts described in the clause titled “Limitation of Funds” in FAR 52.232-22. Under that clause, which will be included in the resultant contract, initial funds will be obligated under the contract to cover an estimated base performance period. Additional funds are intended to be allotted to the contract by contract modification, up to and including the full estimated cost of the entire period of performance. This intent notwithstanding, the Government will not be obligated to reimburse the contractor for costs incurred in excess of the periodic allotments, nor will the contractor be obligated to perform in excess of the amount allotted.
As prescribed in 3437.270, insert the following clause in all solicitations and resultant cost-reimbursement contracts that do not provide services to FSA:
Except as otherwise expressly provided elsewhere in this contract, and notwithstanding the provisions of the clause of the contract entitled “Subcontracts” (FAR 52.244-2), the prior written approval of the contracting officer shall be required—
(a) If any employee of the contractor is to be paid as a “consultant” under this contract; and
(b) (1) For the utilization of the services of any consultant under this contract exceeding the daily rate set forth elsewhere in this contract or, if no amount is set forth, $800, exclusive of travel costs, or if the services of any consultant under this contract will exceed 10 days in any calendar year.
(2) If that contracting officer's approval is required, the contractor shall obtain and furnish to the contracting officer information concerning the need for the consultant services and the reasonableness of the fee to be paid, including, but not limited to, whether fees to be paid to any consultant exceed the lowest fee charged by the consultant to others for performing consultant services of a similar nature.
As prescribed in 3437.170, insert the following clause in all solicitations and service contracts:
(a) The contract schedule identifies all Federal holidays that are observed under this contract. Contractor performance is required under this contract at all other times, and compensated absences are not extended due to administrative closures of Government facilities and operations due to inclement weather, Presidential decree, or other administrative issuances where Government personnel receive early dismissal instructions.
(b) In cases of contract performance at a Government facility when the facility is closed, the vendor may arrange for performance to continue during the closure at the contractor's site, if appropriate.
As prescribed in 3439.701, insert the following clause:
(a) Any system hardware, software, firmware, or networked component (voice, video, or data) developed, procured, or acquired in support or performance of this contract shall be capable of transmitting, receiving, processing, forwarding, and storing digital information across system boundaries utilizing system packets that are formatted in accordance with commercial standards of Internet protocol (IP) version 6 (IPv6) as set forth in Internet Engineering Task Force (IETF) Request for Comments (RFC) 2460 and associated IPv6-related IETF RFC standards. In addition, this system shall maintain interoperability with IPv4 systems and provide at least the same level of performance and reliability capabilities of IPv4 products.
(b) Specifically, any new IP product or system developed, acquired, or produced must—
(1) Interoperate with both IPv6 and IPv4 systems and products; and
(2) Have available contractor/vendor IPv6 technical support for development and implementation and fielded product management.
(c) Any exceptions to the use of IPv6 require the agency's CIO to give advance, written approval.
As prescribed in 3439.702, include the following provision in solicitations when the offeror's employees would have access to Department-controlled facilities or space, or when the work (wherever located) would involve the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information:
(a) The offeror and any of its future subcontractors will have to comply with Department security policy requirements as set forth in the “Bidder's Security Package: Security Requirements for Contractors Doing Business with the Department of Education” at:
(b) All contractor employees must undergo personnel security screening if they will be employed for 30 days or more, in accordance with Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings,” available at:
(c) The offeror shall indicate the following employee positions it anticipates to employ in performance of this contract and their proposed risk levels based on the guidance provided in Appendix I of Departmental Directive OM:5-101:
High Risk (HR): [Specify HR positions.].
Moderate Risk (MR): [Specify MR positions.].
Low Risk (LR): [Specify LR positions.].
(d) In the event the Department disagrees with a proposed risk level assignment, the issue shall be subject to negotiation. However, if no agreement is reached, the Department's risk level assignment shall be used. The type of screening and the timing of the screening will depend upon the nature of the contractor position, the type of data to be accessed, and the type of information technology (IT) system access required. Personnel security screenings will be commensurate with the risk and magnitude of harm the individual could cause.
As prescribed in 3439.702, include the following clause in contracts when the contractor's employees will have access to Department-controlled facilities or space, or when the work (wherever located) would involve the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information:
(a) The contractor and its subcontractors shall comply with Department security policy requirements as set forth in the “Bidder's Security Package: Security Requirements for Contractors Doing Business with the Department of Education” at
(b) The following are the contractor employee positions required under this contract and their designated risk levels:
High Risk (HR): [Specify HR positions.]
Moderate Risk (MR): [Specify MR positions.]
Low Risk (LR): [Specify LR positions.]
(c) All contractor employees must undergo personnel security screening if they will be employed for 30 days or more, in accordance with Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings.” The type of screening and the timing of the screening will depend upon the nature of the contractor position, the type of data to be accessed, and the type of information technology (IT) system access required. Personnel security screenings will be commensurate with the risk and magnitude of harm the individual could cause.
(d) The contractor shall—
(1) Ensure that all non-U.S. citizen contractor employees are lawful permanent residents of the United States or have appropriate work authorization documents as required by the Department of Homeland Security, Bureau of Immigration and Appeals, to work in the United States.
(2) Ensure that no employees are assigned to high risk designated positions prior to a completed preliminary screening.
(3) Submit all required personnel security forms to the contracting officer's representative (COR) within 24 hours of an assignment to a Department contract and ensure that the forms are complete.
(4) Ensure that no contractor employee is placed in a higher risk position than that for which he or she was previously approved, without the approval of the Contracting Officer or his or her representative, the Department personnel security officer, and the computer security officer.
(5) Ensure that all contractor employees occupying high-risk designated positions submit forms for reinvestigation every five years for the duration of the contract or if there is a break in service to a Department contract of 365 days or more.
(6) Report to the COR all instances of individuals seeking to obtain unauthorized access to any departmental IT system, or sensitive but unclassified and/or Privacy Act protected information.
(7) Report to the COR any information that raises an issue as to whether a contractor employee's eligibility for continued employment or access to Department IT systems, or sensitive but unclassified and/or Privacy Act protected information, promotes the efficiency of the service or violates the public trust.
(8) Withdraw from consideration under the contract any employee receiving an unfavorable adjudication determination.
(9) Officially notify each contractor employee if he or she will no longer work on a Department contract.
(10) Abide by the requirements in Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings.”
(e) Further information including definitions of terms used in this clause and a list of required investigative forms for each risk designation are contained in Departmental Directive OM:5-101, “Contractor Employee Personnel Security
(f) Failure to comply with the contractor personnel security requirements may result in a termination of the contract for default.
As prescribed in 3439.703, insert the following clause in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration:
(a) (1) The provider of information technology shall certify applications are fully functional and operate correctly as intended on systems using the Federal desktop core configuration (FDCC). This includes Internet Explorer 7 configured to operate on Windows XP and Windows Vista (in Protected Mode on Vista).
(2) For the Windows XP settings, see:
(b) The standard installation, operation, maintenance, update, or patching of software shall not alter the configuration settings from the approved FDCC configuration. The information technology should also use the Windows Installer Service for installation to the default “program files” directory and should be able to silently install and uninstall.
(c) Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.
As prescribed in 3442.7001, insert the following clause in all solicitations and resultant cost-reimbursement contracts:
(a) The contractor shall give the contracting officer immediate notice in writing of—
(1) Any legal action, filed against the contractor arising out of the performance of this contract, including any proceeding before any administrative agency or court of law, and also including, but not limited to, the performance of any subcontract hereunder; and
(2) Any claim against the contractor for cost that is allowable under the “allowable cost and payment” clause.
(b) Except as otherwise directed by the contracting officer, the contractor shall immediately furnish the contracting officer copies of all pertinent papers received under that action or claim.
(c) If required by the contracting officer, the contractor shall—
(1) Effect an assignment and subrogation in favor of the Government of all the contractor's rights and claims (except those against the Government) arising out of the action or claim against the contractor; and
(2) Authorize the Government to settle or defend the action or claim and to represent the contractor in, or to take charge of, the action.
(d) If the settlement or defense of an action or claim is undertaken by the Government, the contractor shall furnish all reasonable required assistance. However, if an action against the contractor is not covered by a policy of insurance, the contractor shall notify the contracting officer and proceed with the defense of the action in good faith.
(e) To the extent not in conflict with any applicable policy of insurance, the contractor may, with the contracting officer's approval, settle any such action or claim.
(f)(1) The Government shall not be liable for the expense of defending any action or for any costs resulting from the loss thereof to the extent that the contractor would have been compensated by insurance that was required by law, regulation, contract clause, or other written direction of the contracting officer, but that the contractor failed to secure through its own fault or negligence.
(2) In any event, unless otherwise expressly provided in this contract, the contractor shall not be reimbursed or indemnified by the Government for any cost or expense of liability that the contractor may incur or be subject to by reason of any loss, injury, or damage, to the person or to real or personal property of any third parties as may arise from the performance of this contract.
As prescribed in 3442.7002, insert the following clause in all solicitations and contracts other than purchase orders:
The contractor shall notify the contracting officer of any actual or potential situation, including but not limited to labor disputes, that delays or threatens to delay the timely performance of work under this contract. The contractor shall immediately give written notice thereof, including all relevant information.
As prescribed in 3442.7101(b), insert the following clause in all solicitations and contracts:
The contractor shall assure that any meeting, conference, or seminar held pursuant to the contract will meet all applicable standards for accessibility to persons with disabilities pursuant to section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) and any implementing regulations of the Department.
As prescribed in 3443.107, insert a clause substantially the same as the following in all solicitations and resultant cost-reimbursement contracts:
(a) The personnel designated as key personnel in this contract are considered to be essential to the work being performed hereunder. Prior to diverting any of the specified individuals to other programs, or otherwise substituting any other personnel for specified personnel, the contractor shall notify the contracting officer reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the contract effort. No diversion or substitution shall be made by the contractor without written consent of the contracting officer; provided, that the contracting officer may ratify a diversion or substitution in writing and that ratification shall constitute the consent of the contracting officer required by this clause. The contract shall be modified to reflect the addition or deletion of key personnel.
(b) The following personnel have been identified as Key Personnel in the performance of this contract:
As prescribed in 3447.701, insert the following clause in all solicitations and resultant cost-reimbursement contracts:
Foreign travel shall not be undertaken without the prior written approval of the contracting officer. As used in this clause,
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Final rule.
This rule conforms HUD's Federal Housing Administration multifamily mortgage insurance regulations to a provision in Title VIII of the Housing and Economic Recovery Act of 2008 that prohibits a requirement that tax credit sales proceeds be placed into escrow, at the time of initial endorsement, for assurance of project completion and to pay the initial service charge, carrying charges, and legal and organizational expenses incident to the construction of the project. This rule does not prohibit HUD from requiring escrows of funds for other purposes, such as for working capital. The rule also makes other changes to reduce burdens on the use of tax credits.
Iris Agubuzo, Project Manager, Policy Division, Office of Multifamily Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 6158, Washington, DC 20410-8000, telephone number 202-402-2662 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
On October 9, 2009, HUD published a proposed rule (74 FR 52354) implementing section 2834(c) of the Housing and Economic Development Act of 2008, Public Law 110-289 (approved July 30, 2008) (HERA), codified at 12 U.S.C. 1715s, which prohibits HUD from requiring the escrowing of tax credit proceeds to assure project completion. This statutory provision changes HUD's practice of requiring a substantial portion of the low-income housing tax credit equity under 26 U.S.C. 42 to be placed in escrow for potential future use over the life of the project at the time of initial endorsement. This requirement has had an inhibiting effect on the building of new low-income housing tax credit projects, and often required the use of bridge loans until the escrowed proceeds were released. A full discussion of section 2834(c) of HERA, the tax credit programs related to this rule, and the proposed rule can be found in the proposed rule at 74 FR 52354-52355.
The public comment period for this rule closed on December 8, 2009. HUD received one comment during the public comment period, from a trade association involved with the mortgage industry, which was supportive of the rule. This comment may be viewed at
This final rule conforms 24 CFR 200.54 to section 2834(c) of HERA, codified as 12 U.S.C. 1715s. This final rule prohibits HUD from requiring the escrowing of equity from the sales of tax credits. In addition, the rule extends the same treatment to historic and New Markets Tax Credits so that the escrow requirement is eliminated when equity is provided from these types of tax credits. Finally, proceeds from New Markets Tax Credits are added to 24 CFR 200.54(c) as a type of funding that need not be fully disbursed prior to the disbursement of the mortgage proceeds, where approved by the Federal Housing Commissioner.
This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), this final rule was reviewed before publication, and the undersigned certifies that this rule does not have a significant economic impact on a substantial number of small entities. There are no anticompetitive discriminatory aspects of the rule with regard to small entities, and there are no unusual procedures that need to be complied with by small entities. This rule will allow mortgagors to retain more of their tax credit proceeds and, in many cases, relieve them of the need to take out a costly bridge loan to pay the costs for assurance of completion. Therefore, this rule, in conformance with statutory mandate, removes a costly regulatory requirement and does not impose any substantial economic impact on small entities. Therefore, the undersigned certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities, and that an initial regulatory flexibility analysis is not required.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the executive order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This final rule does not impose any Federal mandates on any State, local, or tribal government, or on the private sector, within the meaning of UMRA.
Administrative practice and procedure, Government contracts, Organization and functions (Government agencies).
The Catalog of Federal Domestic Assistance (CFDA) program numbers for
12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).
(a) Except as provided in paragraph (d) of this section, the mortgagor shall deposit with the mortgagee cash deemed by the Commissioner to be sufficient, when added to the proceeds of the insured mortgage, to assure completion of the project and to pay the initial service charge, carrying charges, and legal and organizational expenses incident to the construction of the project. The Commissioner may accept a lesser cash deposit or an alternative to a cash deposit in accordance with terms and conditions established by the Commissioner, where the required funding is to be provided by a grant or loan from a Federal, State, or local government agency or instrumentality.
(b) An agreement acceptable to the Commissioner shall require that funds provided by the mortgagor under requirements of this section must be disbursed in full for project work, material, and incidental charges and expenses before disbursement of any mortgage proceeds, except:
(c) Low-income housing tax credit syndication proceeds, historic tax-credit syndication proceeds, New Markets Tax Credits proceeds, or funds provided by a grant or loan from a Federal, State, or local governmental agency or instrumentality under requirements of this section need not be fully disbursed before the disbursement of mortgage proceeds, where approved by the Commissioner in accordance with terms, conditions, and standards established by the Commissioner;
(d) In the case of a mortgage insured under any provision of this title executed in connection with the purchase, construction, rehabilitation, or refinancing of a multifamily tax credit project, the Commissioner may not require:
(1) The escrowing of equity provided by Low-Income Housing Tax Credits for the project pursuant to Title 26, section 42 of the Internal Revenue Code of 1986;
(2) The escrowing of equity provided by historic rehabilitation tax credits, New Markets Tax Credits, or any other form of security, such as a letter of credit.