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Committee for Purchase From People Who Are Blind or Severely Disabled
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Presidential Documents
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Fiscal Service
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Food and Nutrition Service, USDA.
Final rule.
This rule finalizes changes to eligibility determinations for free and reduced price school meals to implement nondiscretionary provisions of the Child Nutrition and WIC Reauthorization Act of 2004. This rule also finalizes the following changes set forth in the interim rule published on November 13, 2007 (72 FR 63785)—addition of a statutory definition of “local educational agency,” specification that a family only has to submit one application for all children in the household as long as they attend schools in the same local educational agency, and requirements to enhance descriptive materials distributed to families. This rule finalizes requirements for electronically-submitted applications, electronic signatures, and use and disclosure standards for such applications. This rule also finalizes year-long eligibility for free or reduced price school meals, unless the household chooses to decline a level of benefits. These changes are intended to provide children with increased access to the school nutrition programs by simplifying the certification process, streamlining program operations, and improving program management.
Julie Brewer, Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service (FNS) at (703) 305-2590.
Public Law 108-265, the Child Nutrition and WIC Reauthorization Act of 2004, enacted June 30, 2004, amended the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1751
In response to the statutorily imposed effective dates established by sections 501 and 502 of Public Law 108-265, the Department of Agriculture (USDA) issued memoranda to implement some of the provisions regulatorily codified in this final rule. For a list of memoranda, see the interim rule published by FNS on November 13, 2007 (72 FR 63785). All memoranda are located on the FNS Web site at
This rule finalizes modifications made by Public Law 108-265 that necessitated changes to the existing regulatory procedures relating to application and certification for free and reduced price meal benefits. This rule also finalizes definitions and other technical changes to 7 CFR Part 210 (National School Lunch Program), 7 CFR part 215 (Special Milk Program for Children), 7 CFR part 220 (School Breakfast Program), 7 CFR part 235 (State Administrative Expense Funds) and 7 CFR part 245 (Determining Eligibility for Free and Reduced Meals and Free Milk in Schools) to increase consistency in application and certification requirements among these regulatory divisions.
In addition, this rule finalizes changes to the definitions sections of 7 CFR 215.2, 220.2, 235.2, and 245.2, including removing primary designations and alphabetizing the definitions, and finalizing a definition for “Nonprofit.”
For details, see the interim rule published by FNS on November 13, 2007 (72 FR 63785). This rule finalizes changes to the regulations in 7 CFR parts 210, 215, 220, 235 and 245 to reflect the changes mandated by Public Law 108-265.
The 180-day comment period for the interim rule began November 13, 2007 and ended May 12, 2008. FNS received 26 comments on the interim rule: 17 comments from advocacy group officials, seven from individuals, one from a school food service association, and one from a State agency. The comments addressed the following areas:
The interim rule stated that the school meals programs application must be clear and simple in design. The rule added language reflecting the statutory requirement that any communication with households regarding certification be understandable, and to the maximum extent practicable, provided in a language that parents and guardians can understand (§ 245.6 (a)(2)).
Advocacy groups and individuals emphasized the need for local educational agencies (LEAs) to provide information to parents and guardians at a low literacy level (5-6th grade was suggested), and in the primary languages represented in the school district (including providing oral translations, as needed).
Currently, FNS promotes understandable communication with families by providing LEAs with prototype application materials on our
FNS also provides translations of the prototype application materials on our Web site in 33 languages (available at:
On a national level, commenters asked USDA to specify what is expected of LEAs to comply with the requirements of the statutory provision to provide “understandable” communication, and emphasized the need to monitor compliance at the State and local levels.
In addition to providing prototype application materials on our Web site, FNS ensures that States and LEAs develop ways to provide assistance in completing applications when there are language or literacy barriers. FNS Instruction 113-1 (November 8, 2005),
FNS is taking steps to help LEAs identify the languages in which NSLP application materials are needed. The NSLP prototype application was translated into 33 languages and released together with an ISpeak form. These resources will help LEAs identify households' primary languages and readily provide application materials. Schools are required by the Department of Education to collect information on the primary languages spoken in student households through the Home Language Survey. FNS will promote providing NSLP application materials to households in the languages schools determine using information collected via the Home Language Survey.
In addition, FNS developed a strategic plan to improve program access for populations with limited English proficiency (LEP). FNS convened a “Tiger Team” to assess program applications and identify LEP-related barriers. FNS intends for these efforts to result in improved resources and guidance available to State and local authorities responsible for administering the Child Nutrition Programs, including the NSLP, SBP, and SMP.
Commenters also expressed the need for consistent policies across FNS programs, specifically recommending that Child Nutrition Programs adopt SNAP's policies regarding limited English proficiency. SNAP reimburses States for 50% of administrative expenses; Child Nutrition Programs do not have comparable resources for administrative expenses. As such, State burdens in achieving full parity with SNAP administrative policies would be very costly in many circumstances.
In considering national requirements for translation services, FNS must balance the administrative burden placed on State agencies and LEAs with the impact on households. That said, on a national level FNS will issue additional guidance to establish its expectations and assist LEAs in communicating with student households, including a short explanation of the recent provisions that remove participation barriers and encouraging both the use of the application translations and utilization of existing translation resources.
In light of limited LEA resources, FNS will also continue to develop ready-to-use communication resources, informed by periodically reviewing the languages in which the application packet is available, identifying unmet needs, and making translations available in additional languages as necessary. FNS is committed to providing all eligible children access to free and reduced-price school meals. Consequently, FNS expects LEAs to use the resources provided and take appropriate measures to ensure that language and communication are not barriers to program participation.
The interim rule stated that the NSLA requires year long eligibility, which is effective through the current school year and up to 30 days into the subsequent school year. The interim rule, at § 245.6(a)(4), also includes a provision that allows LEAs the option of accepting the eligibility determination from the student's old school district without incurring liability for the accuracy of the initial determination.
Advocacy groups commented that, ideally, full year eligibility requires a system to transfer a child's status from one LEA to another, even across state lines. These commenters asked USDA to require LEAs to provide materials to each student newly enrolled during the school year and process the new application quickly. They also suggested that LEAs should conduct direct certification on each new student to determine if s/he is a member of a household receiving assistance benefits or is otherwise categorically eligible.
Currently, LEAs are encouraged, to the maximum extent practicable, to transfer/receive information about a child's eligibility for free or reduced price meals. In order to avoid placing an undue burden on districts where the costs of compliance would outweigh the benefits, the final rule does not make
The interim rule stated that year-long eligibility does not apply when a household is given temporary approval, a determination made by the LEA when a household's need for assistance appears to be short-term, such as when a household experiences a temporary reduction in income. A suggested time period for temporary approvals was 45 days unless otherwise stipulated by the State agency. At the end of temporary approval, determining officials re-evaluate the household's situation. The provision on temporary approval was included in the interim rule at § 245.6(c)(3)(iii).
Advocacy groups stated that there is no statutory authority to permit temporary approvals due to the new requirement for year-long eligibility, and noted that the statutory exemptions for year-long eligibility do not address temporary approvals. The school food service association echoed that anything less than year-long approval is not warranted.
After careful reconsideration, we agree that the requirement for year-long eligibility negates the use of temporary approvals. Temporary approvals were used to safeguard Federal benefits in situations where the need for assistance appeared to be short-term. In lieu of temporary approvals, in situations where a LEA is concerned about the accuracy of application information, we highly encourage the LEA to conduct “verification for cause.” Therefore, this final rule removes the paragraph on temporary approvals, § 245.6 (c)(3)(iii). We will also update our guidance to reflect this change. We will address the use of verification for cause in a separate rulemaking.
Per Section 106 of Public Law 108-265, the interim rule stated that year-long eligibility is valid for the full school year and for a period not to exceed the first 30 operating days following the first operating day at the beginning of the school year, or until the new eligibility determination is made, whichever comes first. USDA used the long-standing permissive carry-over authority of current § 245.6(c) as the basis for this new requirement.
Advocacy groups requested that USDA clarify that siblings of previously eligible children may receive benefits when they start school, and encouraged USDA to address ways that LEAs should identify siblings.
The provision concerning newly enrolled siblings receiving benefits is currently only included in our guidance materials. LEAs can claim and be reimbursed for free and reduced price meals or free milk served to new children in an LEA from households with children who were approved for benefits the previous year. The
In addition, a State agency found ambiguity in the wording “* * * a period not to exceed * * *” in § 245.6(c)(2) and suggested the omission of those words. We agree with the State agency, and omitted the ambiguous language from the final rule.
With the exception of incorrect eligibility determinations, a household's initial eligibility determination remains valid for the entire school year and up to 30 operating days into the next school year, unless a new application is submitted. Households are no longer required to report changes in income or household size or loss of SNAP (formerly the Food Stamp Program) or Temporary Assistance for Needy Families benefits. (Please note that current regulations refer to the Food Stamp Program. Regulatory references to the Food Stamp Program will be updated in future rulemaking to reflect the Program's name change.) However, households may voluntarily report changes, and may apply for benefits any time during the school year.
Advocacy groups were pleased that the interim rule states that a household must be given the option to decline a reduction of benefits if it reports a change in income or household size during the school year. Commenters also requested that the regulations prohibit reducing benefits using information from a source other than the household (
Due to year-long eligibility, the final rule specifies that benefits may only be reduced during the school year if a household voluntarily makes a written request for benefit reduction, for example, by submitting a new application or other documentation. The final rule clarifies that benefits cannot be reduced by new information received through other sources without the consent of the household. This is consistent with guidance materials which are very specific about how to handle changes reported during the school year, especially as they relate to households' ability to decline a reduction in benefits.
The interim rule also defined “local educational agency” and “nonprofit,” provided for electronically-submitted applications, addressed electronic signatures, and established use and disclosure standards for such applications. Commenters did not recommend any changes to these provisions; therefore, USDA is adopting these changes as set forth in the interim rule.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be significant and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866.
This rule modifies and finalizes interim regulations published in November 2007 to carry out nondiscretionary provisions of the 2004 Child Nutrition and WIC Reauthorization Act. The rule implements provisions intended to facilitate the certification of children for free and reduced price school meals and free milk. These provisions are meant to benefit children eligible for school meal benefits as well as program administrators responsible for the certification process.
The rule finalizes provisions that mandate or provide for year-long eligibility, single applications for most households, extension of eligibility for newly enrolled siblings of most eligible students, electronic applications, the transfer of eligibility across schools and districts, and clarity in written communication between applicant households and school officials. These provisions will benefit eligible children who may have been denied benefits for at least part of the school year under previous program rules. Several of these provisions, particularly greater use of household applications and electronic applications, and the promotion of transferred eligibility across districts, promise long-term benefits to program administrators as well.
Although the rule promotes the certification of eligible children for school meals benefits, at least one of its most significant provisions, year-long certifications, serves to affirm what had previously occurred in practice. To the extent that these provisions increase the number of children certified for free or reduced price school meals or free milk, the cost of federal reimbursements will increase. Other provisions, such as those encouraging electronic applications and the transfer of eligibility across districts, may require short-term investment by LEAs. Overall, the costs of the rule are expected to be small.
This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). It has been certified that this rule will not have a significant economic impact on a substantial number of small entities. Households applying for free or reduced price school meals for their children are affected, as they are no longer required to complete and submit an application for each child. Local educational agencies are also affected because there are fewer applications to process and there will be potential for more economically beneficial centralized systems.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, FNS must generally prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires USDA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The NSLP, Special Milk Program, SBP, and State Administrative Expense Funds are listed in the Catalog of Federal Domestic Assistance under Nos. 10.555, 10.556, 10.553 and 10.560, respectively. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V, and final rule related notice at 48 FR 29114, June 24, 1983, these programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Because these programs are federally funded programs administered at the State level, FNS headquarters and regional office staff have ongoing formal and informal discussions with State and local officials regarding operational issues. This arrangement allows State and local agencies to provide feedback that forms the basis for any discretionary decisions made in this and other rules.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. FNS has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose or direct compliance costs on State and local governments. Therefore, under section 6(b) of the Executive Order, a federalism summary impact statement is not required.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the
FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on children on the basis of age, race, color, national origin, sex, or disability. A careful review of the rule's intent and
USDA will undertake, within 6 months after this rule becomes effective, a series of Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities and individuals. These sessions will establish a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.
We are unaware of any current Tribal laws that could be in conflict with the final rule. We request that commenters address any concerns in this regard in their responses.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain any new information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995. Information collections associated with this rule have been approved under following OMB control numbers 0584-0005, 0584-0006, 0584-0012, 0584-0026 and 0584-0067.
FNS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes.
Civil rights, Food assistance programs, Grant programs-education, Grant programs-health, Infants and children, Milk, Reporting and recordkeeping requirements, School breakfast and lunch programs.
Accordingly, the interim rule amending 7 CFR parts 210, 215, 220, 235 and 245, published at 72 FR 63785 on November 13, 2007, is adopted as a final rule with the following changes:
42 U.S.C. 1752, 1758, 1759a, 1772, 1773, and 1779.
The revisions and additions read as follows:
(a) * * *
(1)
(9) * * * Applicants must attest to changes in information as specified in this paragraph (b), if changes are voluntarily reported in writing during the eligibility period.
(c) * * * (1)
(2)
(3)
(ii) Households must attest to changes in information as specified in § 245.3(a)(9). In addition, benefits cannot be reduced by information received through other sources without the written consent of the household, except for information received through verification.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises Class E airspace at Nuiqsut, AK, to accommodate the amendment of two standard instrument approach procedures at the Nuiqsut Airport. The FAA is taking this action to enhance safety and management of Instrument Flight Rules (IFR) operations at the Nuiqsut Airport. The action also adjusts the coordinates for the Nuiqsut Airport.
Effective 0901 UTC, December 15, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Martha Dunn, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587;
On Wednesday, August 10, 2011, the FAA published a notice of proposed rulemaking (NPRM) in the
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received, but the FAA determined that the 1200 ft transition airspace overlies Control 1485L and that airspace should have been excluded from the rule. This action corrects that error. The FAA also noted that the coordinates published for the Nuiqsut Airport were outdated and they are corrected in this action.
Class E5 airspace designated as 700 and 1200 foot transition areas are published in FAA Order 7400.9V,
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revising Class E airspace at the Nuiqsut Airport, Nuiqsut, AK, to accommodate the amendment of a two standard instrument approach procedures. The Class E airspace provides adequate controlled airspace extending upward from 700 and 1,200 feet above the surface is necessary for the safety and management of IFR operations at the airport. The action also revises the geographic coordinates for the Nuiqsut Airport to be in concert with the FAA's aeronautical database.
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. Because this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule 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 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Nuiqsut Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
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 700 feet above the surface within a 6.4-mile radius of the Nuiqsut Airport, AK and that airspace extending upward from 1,200 feet above the surface within a 73-mile radius of the Nuiqsut Airport, AK, excluding that airspace which overlies Control 1485L.
Bureau of the Public Debt, Fiscal Service, Treasury.
Final rule.
Treasury is discontinuing the over-the-counter sales of definitive (paper) savings bonds. This includes sales through financial institutions and mail-in orders. The elimination of definitive savings bond issuances will reduce program costs, enhance customer service, and minimize environmental impact.
You can download this Final Rule at the following Internet addresses:
Elisha Whipkey, Director, Division of Program Administration, Office of Retail Securities, Bureau of the Public Debt, at (304) 480-6319 or
David Copenhaver, Senior Attorney, Ann Fowler, Attorney-Adviser, Dean Adams, Assistant Chief Counsel, Edward Gronseth, Deputy Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, at (304) 480-8692 or
United States Savings Bonds are non-marketable Treasury securities which have been sold continuously since March 1935. Savings bonds were introduced as a means of encouraging broad public participation in government financing by making Treasury securities available in small denominations specially tailored to the small investor. Savings bonds continue to be an important savings and investment tool for individuals, and Treasury is committed to offering savings bonds to the public as efficiently as possible.
Treasury made savings bonds available in electronic (book-entry) form through the TreasuryDirect® system in 2002, and savings bonds will continue to be available electronically. However, the issuance of paper (definitive) savings bonds will be discontinued as of January 1, 2012. The elimination of definitive savings bond issuances will reduce program costs, enhance customer service, and minimize environmental impact.
Although no new paper savings bonds will be issued after the effective date, this change does not impact the ability to hold or redeem existing paper bonds. Individuals will also be able to obtain paper Series I savings bonds with their tax refunds through Internal Revenue Service Form 8888.
Bonds, Federal Reserve System, Government Securities.
Bonds, Federal Reserve System, Government Securities.
Bonds, Federal Reserve System, Government Securities.
Bonds, Federal Reserve System, Government Securities.
Accordingly, for the reasons set out in the preamble, 31 CFR Chapter II, Subchapter B, is amended as follows:
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105.
Series EE savings bonds are issued in book-entry form. Effective January 1, 2012, Treasury discontinued the issuance of definitive Series EE savings bonds.
Prior to January 1, 2012, we issued definitive Series EE savings bonds in denominations of $50, $75, $100, $200, $500, $1000, $5000, and $10,000. The purchase price was one-half the amount of the denomination.
The issue date of a definitive bond is the first day of the month in which an authorized issuing agent received payment of the issue price.
* * * If the bond was purchased as a gift or award and the owner's TIN is not known, the TIN of the purchaser must be included in the registration of the bond.
Effective January 1, 2012, Treasury discontinued the over-the-counter sale of definitive Series EE savings bonds.
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105, 3125.
(a)
(c)
Definitive Series EE bonds were issued at a discount. * * *
(a) Reissue of a bond may be made only under the conditions specified in these regulations, and only at:
(1) A Federal Reserve Bank or Branch, or
(2) The Bureau of the Public Debt.
(b) Reissue will not be made if the request is received less than one full calendar month before the final maturity date of a bond. The request, however, will be effective to establish ownership as though the requested reissue had been made. We reserve the right to reissue savings bonds in book-entry form only.
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105.
Series I savings bonds are issued in book-entry form. Effective January 1, 2012, Treasury discontinued the issuance of definitive Series I savings bonds.
Prior to January 1, 2012, definitive Series I savings bonds were issued in denominations of $50, $75, $100, $200, $500, $1,000, $5,000, and $10,000. These definitive bonds were sold at par; that is, the purchase price was the same as the denomination (face value).
The issue date of a definitive bond is the first day of the month in which an authorized issuing agent received payment of the issue price.
* * * If the bond was purchased as a gift or award and the owner's TIN is not known, the TIN of the purchaser must be included in the registration of the bond.
Effective January 1, 2012, Treasury discontinued the over-the-counter sale of definitive Series I savings bonds.
5 U.S.C. 301; 12 U.S.C. 391; 31 U.S.C. 3105.
(a)
(c)
* * * We reserve the right to reissue savings bonds in book-entry form only.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; emergency action.
This final rule increases catch limits in the Northeast skate fishery for the remainder of the 2011 fishing year. The increases are supported by the latest scientific information that shows significant increases in the abundance of skates, and are intended to provide a significant economic opportunity while still protecting skates from overfishing.
Effective November 28, 2011, through April 30, 2012.
A supplemental environmental assessment (EA) was prepared for this action. The supplemental EA describes the action and provides a thorough analysis of the impacts of the proposed measures and other alternatives that were considered. Copies of the supplemental EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also available online at
Tobey Curtis, Fishery Policy Analyst, (978) 281-9273;
The New England Fishery Management Council (Council) manages skate fisheries in the northeastern U.S. through the Northeast Skate Complex Fishery Management Plan (Skate FMP). Seven skate species are managed under the Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and rosette. The Council's Scientific and Statistical Committee reviews the best available information on the status of skate populations, and makes recommendations on acceptable biological catch (ABC) for the skate complex (all seven species). This
In June 2011, after 2011 measures had been set for the skate fishery in Amendment 3 to the Skate FMP, the Scientific and Statistical Committee gave the Council a new recommended ABC for the skate complex totaling 50,435 mt. This new ABC justifies raising skate catch limits for the rest of the 2011 fishing season to allow the fishery to harvest more skates and have a longer fishing season, which should increase the likelihood of achieving optimum yield in this fishery. This increase will help avoid the economic impacts associated with possibly closing the skate fisheries, and preserve a significant economic opportunity that otherwise might be foregone. In light of this new ABC, the Council requested that NMFS implement the revised catch limits through an emergency action for the remainder of the 2011 fishing year. The Council will be using the new ABC as the basis for setting quotas and other measures for the 2012 and 2013 fishing years.
NMFS has determined that there is adequate justification to implement the increase in skate catch limits through an emergency action as provided for in section 305(c) of the Magnuson-Stevens Act (16 U.S.C. 1855(c)) as more fully described below in the Classification section. The preamble to the proposed rule describes the recent history of the Skate FMP, including the implementation of Amendment 3 (which implemented annual catch limits and accountability measures for the 2010 and 2011 fishing years) and Framework 1 (which adjusted possession limits in the skate wing fishery to lengthen the fishing season), and the method in which catch limits are calculated based on the ABC recommendation (76 FR 53872, August 30, 2011).
Based on the new ABC recommendation, this emergency action implements the following changes to the skate fishery for the rest of the 2011 fishing year:
1. The skate ABC and annual catch limit are increased from 41,080 mt to 50,435 mt;
2. The annual catch target is increased from 30,810 mt to 37,826 mt; and
3. The total allowable landings (i.e., quota) is increased from 13,848 mt to 21,561 mt. The skate wing fishery is allocated 66.5 percent of the quota (14,338 mt) and the skate bait fishery is allocated 33.5 percent of the quota (7,223 mt).
Skate possession limits are unchanged by this action. Until further notice, the skate wing possession limit for vessels using a day-at-sea will remain at 4,100 lb (1,860 kg) per trip (wing weight), and the skate bait possession limit will remain at 20,000 lb (9,072 kg) whole weight per trip for vessels carrying a Skate Bait Letter of Authorization.
On August 30, 2011 (76 FR 53872), NMFS published a proposed rule soliciting public comment on the proposed increase in skate catch limits. NMFS received three comments on the proposed rule, all from non-governmental organizations opposing the proposed measures. This section summarizes the principal comments contained in the comment letters, and NMFS's response to those comments.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Skate FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. NMFS has determined that the new assessment of the status of the skate complex, and the significantly higher ABC recommendation, justifies the emergency in-season adjustment requested by the Council. NMFS reviewed the Council's request for temporary emergency rulemaking with respect to section 305(c) of the Magnuson-Stevens Act and NMFS policy guidance for the use of emergency rules (62 FR 44421, August 21, 1997) and determined that the Council's request meets both the criteria and justifications for invoking the emergency rulemaking provisions of the Magnuson-Stevens Act. Specifically, the SSC revision of its previously recommended ABC was a recent and unforeseen event. Without this action there would be a serious management problem in the fishery, because it would result in unnecessary closures and economic impacts that are not supported by the best available science. This emergency rulemaking is justified because increasing the FY 2011 skate complex ABC, ACL, ACT, and TALs, relieves restrictions imposed by the previous, lower catch levels. This will assist in preventing significant direct economic loss for fishery participants and associated industries that otherwise would be subject to lower commercial harvest levels, and will preserve a significant economic opportunity that would otherwise be foregone.
The Office of Management and Budget has determined that this rule is not significant for the purposes of Executive Order 12866.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, relevant analyses contained in the action and its supplemental EA and a summary of the analyses completed to support the action in this rule. A copy of the analyses done in the action and supplemental EA is available from NMFS (see
Three comments were received on the proposed rule. For a summary of the comments, and NMFS's responses to them, see the Comments and Responses section above. None of the comments raised issues or concerns related to the IRFA, and no changes were made to the rule as a result of the comments.
The increase in the skate catch limits would impact vessels that hold Federal open access commercial skate permits that participate in the skate fishery. For the purposes of this analysis, each permitted vessel is treated as a single small entity and is determined to be a small entity under the guidelines established by the Small Business Administration. All of these entities are considered small businesses by the Small Business Administration because they have annual receipts not totaling more than $4 million. Therefore, there are no differential impacts between large and small entities from this action. According to the Framework 1 final rule and FRFA (76 FR 28328, May 17, 2011), as of December 31, 2010, there is a maximum of 2,607 small fishing entities that may be affected by this action (the number of skate permit holders). However, during the 2010 fishing year, only 503 vessels landed skates for the wing market, and only 56 landed skates for the bait market.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.
The purpose of this action is to increase the skate ABC and associated catch limits in order to increase landings, thereby extending the duration of the fishing season and helping to prevent the negative economic impacts that would be associated with an early closure of the directed skate fisheries. NMFS considered one alternative (No Action Alternative) to the preferred alternative implemented by this rule. Under the No Action Alternative, the skate catch limit would remain at 41,080 mt. This alternative was rejected because it does not represent the best available scientific information, and would likely result in negative economic impacts as compared to the preferred alternative. Compared to the other alternative considered, this action is expected to better maximize profitability for the skate fishery by allowing higher levels of landings for the duration of the 2011 fishing year while still being consistent with requirements of the Magnuson-Stevens Act and other applicable law. Therefore, the economic impacts resulting from this action as compared to the No Action Alternative are positive, since the action would provide additional fishing opportunity for vessels participating in the skate fishery for the 2011 fishing year.
The action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the revised catch limits is approximately $9.0 million, compared to $5.8 million if this action were not implemented. Due to the implications of closing the directed skate fisheries early in the fishing year, the higher catch limits associated with this action will result in additional revenue if fishing is prolonged. According to analyses in Framework 1, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g., groundfish, monkfish). Therefore, relative to total fishing revenues, catch limits of other species would be expected to have more significant economic impacts than revenues derived from skates alone. However, as skate prices have begun increasing in recent years, more vessels are deriving a greater proportion of their income from skates.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of permits for the skate fishery. The guide and this final rule will be available upon request, and posted on the Northeast Regional Office's Web site at
16 U.S.C. 1801
Rural Housing Service, Rural Business-Cooperative Services, Rural Utilities Service, Farm Service Agency, USDA.
Proposed rule.
The United States Department of Agricultural (USDA), Rural Housing Service (RHS) proposes a change to its Single Family Housing Guaranteed Loan Program (SFHGLP) regulation. The proposed action is taken to implement authorities granted the Secretary of the USDA, in Sec. 102 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212, July 29, 2010) to collect from the lender an annual fee not to exceed 0.5 percent of the outstanding principal balance of the loan for the life of the loan. The intent of the annual fee is to make the SFHGLP subsidy neutral when used in conjunction with the one-time guarantee fee, thus eliminating the need for taxpayer support of the program. For Fiscal Year (FY) 2012, an annual fee of 0.3 percent of the outstanding principal balance will be required in order that the SFHGLP may maintain subsidy neutrality. Beginning with all loans obligated on or after October 1, 2011, RHS proposes to charge an annual fee of 0.3 percent of the outstanding principal balance of the loan for the life of the loan.
Written or email comments on the proposed rule must be received on or before December 27, 2011.
You may submit comments on this proposed rule by any one of the following methods:
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All written comments will be available for public inspection during regular work hours at the 300 7th Street, SW., 7th Floor address listed above.
Cathy Glover, Senior Loan Specialist, Single Family Housing Guaranteed Loan Division, USDA Rural Development, Room 2250, STOP 0784, 1400 Independence Ave., SW., Washington, DC 20250,
This proposed rule has been determined to be not significant by the Office of Management and Budget (OMB) under Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under this program, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This rule is not retroactive. It will not affect agreements entered into prior to the effective date of the rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 must be exhausted.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.
This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of the Agency that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, neither an Environmental Assessment nor an Environmental Impact Statement is required.
The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601
This program/activity is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. (See the Notice related to 7 CFR part 3015, subpart V, at 48 FR 29112, June 24, 1983; 49 FR 22675, May 31, 1984; 50 FR 14088, April 10, 1985).
This program is listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).
The information collection and record keeping requirements contained in this regulation have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Rural Housing Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
As a result of Public Law 111-212, “Supplemental Appropriations Act, 2010,” enacted on July 29, 2010, Section 502 (h)(8) of the Housing Act of 1949 (42 U.S.C. 1472 (h) (8)), was amended to read as follows: “(8) Fees.—Notwithstanding paragraph (14) (D), with respect to a guaranteed loan issued or modified under this subsection, the Secretary may collect from the lender—“(A) at the time of issuance of the guarantee or modification, a fee not to exceed 3.5 percent of the principal obligation of the loan; and “(B) an annual fee not to exceed 0.5 percent of the outstanding principal balance of the loan for the life of the loan.”
The annual fee provision is applicable to purchase and refinance loan transactions. The intent of the annual fee is to make the SFHGLP subsidy neutral, thus eliminating the need for taxpayer support of the program. RHS has determined that in order for the SFHGLP to maintain subsidy neutrality, beginning with loans obligated on or after October 1, 2011, an annual fee of 0.3 percent will be charged on the outstanding principal balance of the loan for the life of the loan.
RHS currently collects an upfront guarantee fee of 3.5 percent for purchase loans, and 1 percent for refinance loan transactions. The lender collects the upfront guarantee fee from the borrower at the time of loan closing. The borrower either pays the upfront guarantee fee from personal funds, or the fee may be included in the guaranteed loan amount. The proposed annual fee of 0.3 percent will be collected in addition to the upfront guarantee fee.
RHS operational systems currently do not accommodate the annual fee provision. RHS will take steps necessary to enhance the operational systems in the coming months so that an annual fee of 0.3 percent may be collected on all loans obligated on or after October 1, 2011. RHS is aware that lenders will need time to enhance their systems, and intends to work closely with lenders and service bureaus to ensure they can support the proposed annual fee requirement in the shortest possible timeframe. Supporting documentations for servicers as well as training materials for loan originators and servicers will be developed by RHS prior to implementation of the annual fee.
RHS proposes to structure the annual fee as follows:
(1) Determining the Annual Fee: The annual fee will be calculated based on the guaranteed loan amount and on the average annual scheduled unpaid principal balance for the life of the loan. The fee will be calculated when the loan is made and every 12 months thereafter, until the loan is paid in full or no longer outstanding and the guarantee is cancelled or expired. For example, to determine the annual fee for a $100,000 loan (guaranteed amount), 6% interest rate, 30 year term, calculate as follows:
a.
b.
c.
(2) Annual Fee Billing
a. Lenders will be billed retroactively for a 12 month period, commencing on the first anniversary of the loan and each anniversary thereafter. For example, if the loan closes on November 1, 2011, the lender will be billed for the initial fee on December 1, 2012.
b. The annual fee payment will be due to RHS by the 15th calendar day after each anniversary of the loan. Using the example above, the initial annual fee will be due to RHS by no later than December 15, 2012.
c. If the fee is not paid by the due date, RHS will assess a late fee of 4 percent of the billed amount on the 16th calendar day after the bill is due. If the annual fee for a loan is still unpaid after 30 days, RHS may assess additional late fees on the delinquent fee amount.
d. Although, RHS will collect the fee annually, lenders may establish an escrow account to collect the fee from the borrower on a monthly basis.
(3) The Annual Fee will be collected through Pay.Gov as follows:
a. Fully web-based for lenders with 3,000 or less loans; and
b. An overnight matching batch process for lenders with greater than 3,000 loans.
Home improvement, Loan programs—Housing and community development, Mortgage insurance, Mortgages, Rural areas.
For the reason stated in the preamble, Chapter XVIII, Title 7 of the Code of Federal Regulations is proposed to be amended as follows:
(1) The authority citation for part 1980 continues to read as follows:
5 U.S.C. 301 and 7 U.S.C. 1989. Subpart E also issued under 7 U.S.C. 1932(a).
(2) Section 1980.323 is revised to read as follows:
The Lender will pay an up-front guarantee fee, and will also be charged an annual fee. The amount of the up-front guarantee fee and annual fee will be calculated based on the figure identified in exhibit K of subpart A of part 1810 of this chapter (RD Instruction 440.1, available in any Rural Development office). The nonrefundable fees may be passed on to the borrower.
(a)
(b)
U.S. Customs and Border Protection, DHS.
Notice of proposed rulemaking.
This notice of proposed rulemaking proposes to create a border crossing in Big Bend National Park to be called Boquillas. The Boquillas crossing would be situated between Presidio and Del Rio, Texas. U.S. Customs and Border Protection (CBP) and the National Park Service plan to partner on the construction of a joint use facility in Big Bend National Park where the border crossing would operate. This NPRM proposes to designate the Boquillas border crossing as a “Customs station” for customs purposes and a Class B port of entry for immigration purposes.
This NPRM also proposes to update the description of a Class B port of entry to reflect current border crossing documentation requirements.
Comments must be received on or before December 27, 2011.
You may submit comments identified by
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Colleen Manaher, CBP Office of Field Operations, telephone (202) 344-3003.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this notice of proposed rulemaking. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposal. Comments that will provide the most assistance to CBP will reference a specific portion of the proposal, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
The term “port of entry” is used in the Code of Federal Regulations (CFR) in title 19 for customs purposes and in title 8 for immigration purposes. Concerning customs purposes, CBP operates Customs ports of entry,
This notice of proposed rulemaking (NPRM) proposes to establish a border crossing in Big Bend National Park where U.S. citizens and certain aliens would be able to cross into the United States. Before 2002, a border crossing, called Boquillas, was open in the national park. The new border crossing would be located at the site of the historic crossing and would also be called the Boquillas border crossing. This NPRM proposes to designate the Boquillas border crossing as a Class B port of entry and a “Customs station” under the supervisory port of entry of Presidio, Texas. Presidio, Texas is a
Sixty-five years ago, the Presidents of the United States and Mexico corresponded about creating Big Bend National Park in the United States, wherein they envisioned the conservation of the shared ecosystems on both sides of the Rio Grande. Mexico later established the Cañon de Santa Elena and Maderas del Carmen protected areas in Chihuahua and Coahuila, which are adjacent to Big Bend. In 1935, the U.S. Congress authorized Big Bend National Park to preserve and protect a representative area of the Chihuahuan Desert along the Rio Grande for the benefit and enjoyment of present and future generations. The park, formally established in June 1944, encompasses more than 800,000 acres in southwest Texas. The Rio Grande runs through the park and forms part of the international boundary between Mexico and the United States. The park includes rich biological and geological diversity, cultural history, recreational resources, and outstanding opportunities for binational protection of our shared natural and cultural heritage.
Prior to 2002, visitors to the park could cross the Rio Grande to eat, buy goods, and experience the villages near the border, such as Boquillas, Mexico. In May 2002, following September 11, 2001 (9/11), the Boquillas crossing was closed until appropriate security measures could be implemented. Since 2002, there has been no authorized international crossing point within Big Bend National Park. The nearest border crossing currently is located in the port of entry of Presidio, Texas, located approximately 100 miles west. Due to the current situation, park staff and visitors of Big Bend National Park who wish to travel to the protected areas of Mexico directly across from the park must drive several hours to depart and reenter the United States through the nearest port of entry at Presidio, Texas.
On May 19, 2010, President Obama and President Calderón issued a joint statement pledging both countries' commitment to protecting wild lands on opposite sides of the Rio Grande, noting the long history of bilateral cooperation in the conservation of natural and cultural resources. The Presidents recognized that the Big Bend National Park and Rio Grande Wild and Scenic River in the United States, along with the Protected Areas of Maderas del Carmen, Cañon de Santa Elena, Ocampo, and Río Bravo del Norte in Mexico, together comprise one of the largest and most significant ecological systems in North America. To preserve this region of extraordinary biological diversity, they expressed their support for the U.S. Department of the Interior and the Secretariat of Environment and Natural Resources of Mexico to work through appropriate national processes to recognize and designate Big Bend-Río Bravo as a natural area of binational interest. The Presidents noted that increased cooperation in these protected areas would restrict development and enhance security in the region and within this fragile desert ecosystem. The joint Presidential statement encourages an increased level of cooperation between the two countries.
Based on this joint Presidential statement, on January 6, 2011, the Commissioner of CBP announced that CBP plans to re-establish a border crossing at Boquillas. The ability to enter the United States from within the protected areas would foster the Presidents' goals by supporting visitor access to these unique areas.
This NPRM proposes to create a border crossing in Big Bend National Park where U.S. citizens and certain aliens with proper documentation would be able to enter the United States from Mexico. The Boquillas border crossing would fill the void of a long stretch of border between Presidio and Del Rio, Texas where there is currently no authorized international border crossing and would facilitate travel within the Big Bend-Río Bravo region. This NPRM proposes to designate the Boquillas border crossing as a “Customs station” for customs purposes and a Class B port of entry for immigration purposes. Under this NPRM, CBP is also proposing to update the description of a Class B port of entry to reflect current border crossing document requirements. The Boquillas border crossing would fit within the proposed new description of a Class B port of entry.
Big Bend National Park is one of the most biologically diverse regions in the world and represents an area of binational interest. A border crossing would support park rangers and scientists on both sides of the border and aid in the joint protection of shared wildlife such as black bear and cougars. The partnership with Mexico would add to the cooperative environment that has developed for the protection of wildlife and encourage travel to this biologically diverse region.
The National Park Service (NPS) within the U.S. Department of the Interior is working with CBP on the proposed border crossing. Efforts to establish this new border crossing were set in motion by discussions between the White House, the U.S. Department of the Interior, and the Department of Homeland Security. CBP and NPS plan to collaborate on the construction of a joint use facility in Big Bend National Park where the border crossing will operate. NPS would provide the needed land and would construct the facility. NPS also would provide parking, an access trail, and a landing point for the cross-border boats. Additionally, NPS has prepared an environmental analysis, as required by the National Environmental Policy Act (NEPA), to determine the impact the new facility will have on the environment.
The new facility would include the infrastructure necessary to operate a border crossing, functioning as a “Customs station” and a Class B immigration port of entry. The facility would also accommodate the NPS functions that support the ability to manage visitor use of the border crossing, and would provide public restrooms, an information lobby, and a waiting area. NPS plans to provide staffing for visitor contact during normal park operational hours.
The proposed Boquillas border crossing would be a “Customs station” under the supervisory port of entry of Presidio, Texas, which is a Customs port of entry. 19 CFR 101.3. The site of the border crossing would be in the southeast portion of Big Bend National Park, approximately one mile northeast of Rio Grande Village. The site is adjacent to the Rio Grande just outside of the floodplain and would be accessible from Boquillas Canyon Road, a paved road leading from Rio Grande Village to the Boquillas Canyon Trailhead. CBP Border Patrol agents and NPS law enforcement currently work onsite within the Big Bend National Park boundaries and would provide a law enforcement presence and response as needed. The border crossing would only be open during daylight hours.
The Boquillas border crossing would allow U.S. citizens and certain aliens with appropriate lawful documentation to enter the United States from Mexico. We anticipate that park visitors, park
CBP intends to use a combination of staffing and technology solutions to operate the border crossing. Remote technology would assist CBP in maintaining security and verifying the identity of those entering the United States, while also ensuring that they possess proper documentation to do so. Kiosks electronically connected to the El Paso port of entry would enable CBP officers in El Paso to remotely process travelers at the Boquillas border crossing.
The Boquillas border crossing would service only pedestrians visiting Big Bend National Park and Mexican Protected Areas—not import business. Therefore, CBP will not process cargo, commercial entries, or vehicles at Boquillas. Persons using the Boquillas border crossing would only be permitted to bring limited merchandise into the United States; CBP would only process items exempt from duties and taxes under 19 CFR 10.151. This provision generally covers importations that do not exceed $200 in value.
The current description of a Class B port of entry in 8 CFR 100.4(a) refers to aliens admissible without documents under documentary waivers found in 8 CFR part 212. These waivers, however, were generally eliminated by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law No. 108-458, § 7209, 118 Stat. 3638, 3823, as amended.
Pursuant to IRTPA, DHS and the Department of State (DOS) issued two rules implementing the Western Hemisphere Travel Initiative (WHTI), which require U.S. citizens and nonimmigrant aliens from Bermuda, Canada, and Mexico to present certain documents when entering the United States from within the Western Hemisphere.
Prior to the implementation of WHTI, nationals of Bermuda and Canada, and certain nationals of Mexico, were exempt from documentary requirements if entering the United States from within the Western Hemisphere. The WHTI final rules amended the relevant sections of the regulations (in parts 212 and 235) to provide that these travelers are no longer admissible without documents and must present a document compliant with WHTI when seeking to enter the United States.
As a result of the changes implemented by WHTI, the description of Class B ports of entry in 8 CFR 100.4(a) is now outdated. CBP regulations currently describe Class B ports as follows:
Class B means that the port is a designated Port-of-Entry for aliens who at the time of applying for admission are lawfully in possession of valid Permanent Resident Cards or valid non-resident aliens' border-crossing identification cards or
The aliens who were previously admissible without documents pursuant to 8 CFR part 212 were nonimmigrant aliens who were nationals of Bermuda or Canada or certain nationals of Mexico. In general, these persons must now comply with WHTI documentary requirements as set forth in parts 212 and 235. Thus, this NPRM proposes amending the description of a Class B port of entry to delete the outdated phrase “are admissible without documents under the documentary waivers contained in part 212 of this chapter” and replace it with language that is more precise and consistent with WHTI requirements.
The WHTI rules did not remove the exemption from documentary requirements for International Boundary and Water Commission (IBWC) workers.
The proposed Class B description is set forth below:
Class B means that the port is a designated Port-of-Entry for aliens who at the time of applying for admission are exempt from document requirements by section 212.1(c)(5) of this chapter or who are lawfully in possession of valid Permanent Resident Cards, and nonimmigrant aliens who are citizens of Canada or Bermuda or nationals of Mexico and who at the time of applying for admission are lawfully in possession of all valid documents required for admission as set forth in section 212.1(a) and (c) and 235.1(d) and (e) of this chapter and are admissible without further arrival documentation or immigration processing.
The proposed Class B description includes other technical and clarifying revisions that will make the regulation easier for the public to understand. Specifically, one change under the proposed description would remove reference to “valid non-resident aliens' border-crossing cards” from the Class B description. This reference would be redundant if included in the new description because border-crossing cards are one of the acceptable WHTI compliant documents listed in section 212.1(c). Therefore, it is unnecessary to specify border-crossing cards in the Class B description. Moreover, CBP will continue to accept these border-crossing cards at Class B ports of entry under the new description.
Another change under the proposed Class B description expressly would permit Mexican nationals in lawful possession of valid WHTI-compliant documents, including border-crossing
Finally, CBP notes that while Class A ports are designated for all aliens and designed to provide full processing at the border, Class B ports are designed for processing a more limited segment of those aliens entering the United States. Class B ports generally provide limited functions and are not now and were not previously intended to provide full service processing, including issuing documents (such as a Form I-94) at the border. Therefore, the proposed description includes language to clarify that the aliens listed in the Class B description must be admissible without further arrival documentation or immigration processing.
If the proposed opening of the Boquillas border crossing is adopted, the list of ports of entry in 8 CFR 100.4(a) and the list of “Customs stations” in 19 CFR 101.4(c) will be amended to reflect this change.
These changes are proposed pursuant to 5 U.S.C. 301, 6 U.S.C. 112, 203 and 211, 8 U.S.C. 1103, 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458), and 19 U.S.C. 1, 58b, 66 and 1624.
Executive Order 12866, as amended by Executive Order 13563, requires Federal agencies to assess the costs and benefits of regulatory actions as a means to improve regulatory decision making. This NPRM is not an “economically significant” rulemaking action under Executive Order 12866, because it will not result in the expenditure of more than $100 million in any one year. This NPRM, however, is a significant regulatory action under Executive Order 12866; therefore, the Office of Management and Budget has reviewed this regulation.
The opening of the Boquillas border crossing will entail constructing a small inspection facility and installing hardware that meets the technical specifications for land ports of entry. NPS will construct a building large enough to house both a small visitor center and the CBP inspection station. This construction is to be funded entirely by NPS and is expected to cost $2.1 million,
NPS anticipates that 15,000 to 20,000 people will use the Boquillas border crossing in the first year.
In addition to opening a new border crossing at Boquillas, this NPRM would revise the definition of a Class B port to make the admissibility documents allowed at a Class B port consistent with WHTI. The costs and benefits of obtaining WHTI-compliant documents were included in the Final Rule establishing WHTI.
This section examines the impact of the NPRM on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 603), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).
This NPRM does not directly impact small entities because individuals will be affected by the NPRM and individuals are not considered small entities. Thus, we believe that this NPRM will likely not have a significant economic impact on a substantial number of small entities. We welcome any comments regarding this assessment. If we do not receive any comments with information that shows this NPRM would have a significant economic impact on a substantial number of small entities, we will certify that this NPRM will not have a significant economic impact on a substantial number of small entities at the final rule stage.
The NPRM will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this NPRM does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
DHS and CBP, in consultation with NPS within the Department of Interior, have been reviewing the potential environmental and other impacts of this
NPS prepared an environmental assessment (EA) that examines the effects on the natural and human environment associated with the proposed construction and operation of a visitor station and establishment of a Class B port of entry on the Rio Grande between the United States and Mexico within Big Bend National Park. The NPS EA encompasses all components of the Boquillas border crossing, including CBP operations of the port of entry. On April 29, 2011, NPS posted a notice of availability of the EA on NPS's Planning, Environment and Public Comment (PEPC) Web site at
In accordance with NEPA, CBP has carefully reviewed the EA developed by NPS and has determined that it accurately considers all potential impacts of the project; therefore, CBP intends to adopt the EA developed by NPS and issue a FONSI. CBP has posted the EA prepared by NPS and a Draft FONSI on the CBP Web site at
The signing authority for this document falls under 19 CFR 0.2(a) because the establishment of this Customs station is not within the bounds of those regulations for which the Secretary of the Treasury has retained sole authority. Accordingly, this notice of proposed rulemaking may be signed by the Secretary of Homeland Security (or her delegate).
Organization and functions (Government agencies).
Customs duties and inspection, Harbors, Organization and functions (Government agencies), Seals and insignia, Vessels.
For the reasons stated in the preamble, we propose to amend 8 CFR part 100 and 19 CFR part 101 as set forth below.
1. Revise the authority citation for part 100 to read as follows:
8 U.S.C. 1103; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); 8 CFR part 2.
2. Amend § 100.4(a) as follows:
a. Revise the fifth sentence of § 100.4(a) as set forth below.
b. Under the heading “District No. 15—El Paso, Texas,” add the subheading, “
(a) * * * Class B means that the port is a designated Port-of-Entry for aliens who at the time of applying for admission are exempt from document requirements by § 212.1(c)(5) of this chapter or who are lawfully in possession of valid Permanent Resident Cards, and nonimmigrant aliens who are citizens of Canada or Bermuda or nationals of Mexico and who at the time of applying for admission are lawfully in possession of all valid documents required for admission as set forth in §§ 212.1(a) and (c) and 235.1(d) and (e) of this chapter and are admissible without further arrival documentation or immigration processing. * * *
3. The general authority citation for part 101, and the sectional authority citation for §§ 101.3 and 101.4, continue to read as follows:
5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1623, 1624, 1646a.
Section 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
4. In § 101.4(c), under the state of Texas, add “Boquillas” in alphabetical order to the Customs station column and add “Presidio.” to the corresponding Supervisory port of entry column.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace at Altus Air Force Base (AFB), OK. Procedural changes implemented to enhance safety for aircraft operating in the vicinity of Altus/Quartz Mountain Regional Airport, Altus, OK, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at Altus AFB.
0901 UTC. Comments must be received on or before December 12, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2011-0630/Airspace Docket No. 11-ASW-8, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321-7716.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0630/Airspace Docket No. 11-ASW-8.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), part 71 by modifying Class D airspace at Altus AFB, Altus, OK. Airspace reconfiguration is necessary due to procedural changes implemented to enhance safety for aircraft operating in the vicinity of Altus/Quartz Mountain Regional Airport. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed 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. 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 U.S. Code. Subtitle 1, 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 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 would modify controlled airspace at Altus AFB, OK.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011, is amended as follows:
That airspace extending upward from the surface to and including 3,900 feet MSL within a 6-mile radius of Altus AFB, and within 2 miles each side of the Altus AFB ILS 17R Localizer north course extending from the 6-mile radius to 7.6 miles north of the airport, and excluding that airspace below 2,500 feet MSL west of long. 99°18′52″ W. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E Airspace at Rockingham, NC, as the Roscoe Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures have been developed at Richmond County Airport. This action also would update the airport's geographic coordinates and note the name change to Richmond County Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, Comments must be received on or before December 12, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001;
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-1146; Airspace Docket No. 11-ASO-36) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-1146; Airspace Docket No. 11-ASO-36.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface to support new standard instrument approach procedures developed at Richmond County Airport, Rockingham, NC. Airspace reconfiguration is necessary due to the decommissioning of the Roscoe NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport. The geographic coordinates for Richmond County Airport also would be adjusted to coincide with the FAA's aeronautical database. Also, the airport name would be changed from Rockingham-Hamlet Airport to Richmond County Airport.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would 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 proposed 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 airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Richmond County Airport, Rockingham, NC.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of the Richmond County Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Portsmouth, OH. Decommissioning of the Portsmouth non-directional beacon (NDB) at the Greater Portsmouth Regional Airport, Portsmouth, OH, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before December 12, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2011-0850/Airspace Docket No. 11-AGL-17, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0850/Airspace Docket No. 11-AGL-17.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at Greater Portsmouth Regional Airport, Portsmouth, OH. Airspace reconfiguration is necessary due to the decommissioning of the Portsmouth NDB and cancellation of the NDB approach. Geographical coordinates would also be updated to coincide with the FAA's aeronautical database. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed 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. 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
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Greater Portsmouth Regional Airport, and within a 6-mile radius of the Point in Space serving Southern Ohio Medical Center Helipad.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Rugby, ND. Decommissioning of the Rugby non-directional beacon (NDB) at Rugby Municipal Airport, Rugby, ND, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at Rugby Municipal Airport.
0901 UTC. Comments must be received on or before December 12, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2011-0433/Airspace Docket No. 11-AGL-12, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321-7716.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0433/Airspace Docket No. 11-AGL-12.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at Rugby Municipal Airport, Rugby, ND. Airspace reconfiguration is necessary due to the decommissioning of the Rugby NDB and the cancellation of the NDB approach. Controlled airspace is necessary for the safety and
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed 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. 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 U.S. Code. Subtitle 1, 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 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 would modify controlled airspace at Rugby Municipal Airport, Rugby, ND.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Rugby Municipal Airport; and that airspace extending upward from 1,200 feet above the surface within a 13-mile radius of the Rugby Municipal Airport and within 8.1 miles north and 4.2 miles south of the 115° bearing from the airport extending from the 13-mile radius to 16.1 miles east of the airport, and within 8.5 miles south and 3.8 miles north of the 314° bearing from the airport extending from the 13-mile radius to 16.1 miles northwest of the airport, excluding that airspace within the Minot, ND, and Rolla, ND, Class E airspace areas, and excluding all Federal Airways.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Inverness, FL, to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures at Inverness Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before December 12, 2011.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001; Telephone: 1-(800) 647-5527; Fax: (202) 493-2251. You must identify the Docket Number FAA-2011-0540; Airspace Docket No. 11-ASO-20, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0540; Airspace Docket No. 11-ASO-20) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0540; Airspace Docket No. 11-ASO-20.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Inverness, FL, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for Inverness Airport. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would 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 proposed 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 airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Inverness Airport, Inverness, FL.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Inverness Airport.
Bureau of Economic Analysis, Commerce.
Notice of proposed rulemaking.
This proposed rule would amend the regulations of the Bureau of Economic Analysis, Department of Commerce (BEA) to add new entities that would be required to report information on the BE-150, Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions. Specifically, this rule would expand the covered entities to include companies that operate personal identification number (PIN)-based debit networks. As proposed, PIN-based debit network companies would be required to report on cross-border transactions between (1) U.S. cardholders traveling abroad and foreign businesses and (2) foreign cardholders traveling in the United States and U.S. businesses. BEA is proposing this change to improve the identification of cross-border travel transactions. BEA also proposes to change the survey title from Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions to Quarterly Survey of Payment Card and Bank Card Transactions Related to International Travel to reflect this change to the regulations. In addition, BEA proposes to make certain changes to the data collected on the BE-150 form to collect them in greater detail. If these changes are approved, the BE-150 survey would be conducted on a quarterly basis beginning with the first quarter of 2012.
Comments on this proposed rule will receive consideration if submitted in writing on or before 5 p.m. December 27, 2011.
You may submit comments by any of the following methods:
•
•
•
•
•
Please include in your comment a reference to RIN 0691-AA79 in the subject line.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in the proposed rule should be sent both to BEA, through any of the methods listed above, and to the Office of Management and Budget, O.I.R.A., Paperwork Reduction Project, Attention PRA Desk Officer for BEA, via email at
Chris Emond, Chief, Special Surveys Branch, Balance of Payments Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; email
This proposed rule would amend BEA's regulations at 15 CFR 801.9 to expand the types of entities that are required to submit information on BE-150, Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions to include companies that operate personal identification number (PIN)-based debit networks. To reflect this change to the regulations, BEA also proposes to change the title of the form from Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions to Quarterly Survey of Payment Card and Bank Card Transactions Related to International Travel. In addition, BEA revises the BE-150 survey form to collect certain data in greater detail.
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 comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
BEA proposes to amend 15 CFR 801.9(c)(7) to require companies that operate personal identification number (PIN)-based debit networks to submit information on BE-150, Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions. If this change is adopted, PIN-based debit network companies would be required to submit information on cross-border transactions between (1) U.S. cardholders traveling abroad and foreign businesses and (2) foreign cardholders traveling in the United States and U.S. businesses. The survey as proposed would be mandatory for all PIN-based debit network companies as it is for the U.S. credit card companies that are currently required to complete the survey. The PIN-based debit network companies have been added to the list of required reporters to close a gap in the coverage of international travel transactions. BEA also proposes to change the title of the form from Quarterly Survey of Cross-Border Credit, Debit, and Charge Card Transactions to Quarterly Survey of Payment Card and Bank Card Transactions Related to International Travel to reflect this change.
In addition, BEA proposes to make certain changes to the information collected on the BE-150 form. As proposed, the BE-150 would collect the same information as the current BE-150, but in greater detail. The proposed survey would distinguish between transactions when the bank or payment card is present at the point of sale and when the bank or payment card is not present at the point of sale. This change would improve the identification of cross-border travel transactions. In addition, the survey would disaggregate transactions by spending category by type of card—personal card versus government, business or corporate card. This change would provide the detail necessary for BEA to publish U.S. international travel statistics in accordance with international economic accounting guidelines.
The BE-150 survey proposed in this rule would be conducted by BEA on a quarterly basis, beginning with transactions for the first quarter of 2012, under the authority provided in the International Investment and Trade in Services Survey Act (Pub. L. 94-472. 90 Stat. 2059, 22 U.S.C. 3101-3108), hereinafter, “the Act.” The proposed BE-150 survey would be mandatory for both U.S. credit card and PIN-based debit network companies. If this rule is implemented, BEA would begin sending the survey to potential respondents in March of 2012; responses would be due by May 15, 2012.
The proposed BE-150 survey data will be used by BEA to estimate the travel component of the U.S. International Transactions Accounts (ITAs). In constructing the estimates, these data will be used in conjunction with data BEA collected separately from U.S. and foreign travelers on the Survey of International Travel Expenditures about the methods these travelers used to pay for their international travel, such as credit, debit, and charge card purchases, cash withdrawals, currency brought from home, and travelers' checks.
BEA maintains a continuing dialogue with respondents and with data users, including its own internal users, to ensure that, as far as possible, the required data serve their intended purposes and are available from the existing records, that instructions are clear, and that unreasonable burdens are not imposed. In reaching decisions on what questions to include in the survey, BEA considered the Government's need for the data, the burden imposed on respondents, the quality of the likely responses (for example, whether the data are available on respondents' books), and BEA's experience in previous annual and quarterly surveys.
The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, would conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), hereinafter, “the Act.” Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information related to international investment and trade in services and publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical
In section 3 of Executive Order 11961, as amended by Executive Orders 12318 and 12518, the President delegated the responsibilities under the Act for performing functions concerning international trade in services to the Secretary of Commerce, who has redelegated them to BEA.
The survey would provide a basis for compiling the travel account of the United States international transactions accounts. In constructing the estimates, these data would be used in conjunction with data BEA collected separately from U.S. and foreign travelers on the Survey of International Travel Expenditures on the methods these travelers used to pay for international travel expenditures. With the two data sources, BEA would be able to estimate total expenditures by foreign travelers in the United States (U.S. exports) and total expenditures by U.S. travelers abroad (U.S. imports) by country and region.
This proposed rule has been determined to be not significant for purposes of E.O. 12866.
This proposed rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The requirement will be submitted to OMB as a request for a new collection of information.
Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget Control Number.
The BE-150 quarterly survey, as proposed, is expected to result in the filing of reports from six respondents on a quarterly basis, or 24 reports annually. The respondent burden for this collection of information would vary from one respondent to another, but is estimated to average 16 hours per response (64 hours annually), including time for reviewing the instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus, the total respondent burden for the BE-150 survey is estimated at 384 hours.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in the proposed rule should be sent to both BEA and OMB following the instructions given in the
The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. A description of the changes proposed by this rule are described in the preamble and are not repeated here.
BEA estimates that this rule would not have an impact on any small entities as the BE-150 survey would be mandatory for only those U.S. credit card companies that operate networks used to clear and settle credit card transactions between issuing banks and acquiring banks, and PIN-based debit network companies. BEA estimates that there are only six companies that would be subject to this rule. Of the six companies, none is considered to be a small entity under the Small Business Administration's Table of Small Business Size Standards. All six companies are corporations that exceed the maximum annual revenue threshold to be considered a small entity. Because no small businesses are subject to reporting, the Chief Counsel for Regulation certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.
International transactions, Economic statistics, Foreign trade, Penalties, Reporting and recordkeeping requirements, Travel expenses, Cross-Border transactions, Credit card, and Debit card.
For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 801, as follows:
1. The authority citation for 15 CFR Part 801 continues to read as follows:
5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; and E.O. 11961, 3 CFR, 1977 Comp., p. 86, as amended by E.O. 12318, 3 CFR, 1981 Comp., p. 173, and E.O. 12518, 3 CFR, 1985 Comp., p. 348.
2. Amend § 801.9 by adding paragraph (c)(7):
(c) Quarterly surveys. * * *
(7) BE-150, Quarterly Survey of Payment Card and Bank Card Transactions Related to International Travel:
(i) A BE-150, Quarterly Survey of Payment Card and Bank Card Transactions Related to International Travel will be conducted covering the first quarter of the 2012 calendar year and every quarter thereafter.
(A)
(B)
(ii) [Reserved]
Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Notice of proposed rulemaking.
This document proposes to amend provisions in Customs and Border Protection (CPB) regulations to increase the informal entry limit from $2,000 to $2,500. Section 662 of the Customs Modernization provisions of the North American Free Trade Agreement Implementation Act raised the statutory limit by which the Secretary of the Treasury is authorized to prescribe rules and regulations for the declaration and entry of, among other things, imported merchandise when the aggregate value of the shipment does not exceed an amount specified, but not greater than $2,500. The current limit of $2000 was established in 1998 and while that dollar amount has been unchanged, inflation over the intervening years has reduced the value of that amount in real terms. Consequently, CBP proposes to raise the current informal entry amount to its maximum statutory limit in response to inflation that has occurred and thereby to reduce the administrative burden on importers and other entry filers. Moreover, CBP proposes to remove the language requiring formal entry for certain articles, because with the elimination of absolute quotas under the Agreement on Textiles and Clothing, CBP no longer needs to require formal entries for these articles. This document also makes non-substantive editorial and nomenclature changes.
Comments must be received on or before December 27, 2011.
You may submit comments, identified by USCBP docket number, by
•
•
Cynthia F. Whittenburg, Trade Facilitation and Administration Division, Office of International Trade, Customs and Border Protection, (202) 863-6512.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. Customs and Border Protection also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. If appropriate to a specific comment, the commenter should reference the specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
All merchandise imported into the customs territory of the United States is subject to entry and clearance procedures. Section 484(a), Tariff Act of 1930, as amended (19 U.S.C. 1484(a)), provides that the “importer of record” or his authorized agent shall: (1) Make entry for imported merchandise by filing such documentation or information as is necessary to enable CBP to determine whether the merchandise may be released from CBP custody; and (2) complete the entry by filing with CBP the declared value, classification and rate of duty applicable to the merchandise and such other documentation or other information as is necessary to enable CBP to properly assess duties on the merchandise and collect accurate statistics with respect to the merchandise and determine whether any other applicable requirement of law is met. Part 142 of the Code of Federal Regulations (19 CFR part 142) implements section 484 of the Tariff Act, as amended, and prescribes procedures applicable to most CBP entry transactions. These procedures are referred to as formal entry procedures and generally involve the completion and filing of one or more CBP forms (such as CBP Form 7501, Entry/Entry Summary, which contains detailed information regarding the import transaction), or their electronic equivalent, as well as the filing of commercial documents pertaining to the transaction. As originally enacted, section 498, Tariff Act of 1930, as amended (subsequently codified at 19 U.S.C. 1498), authorized the Secretary of the Treasury to prescribe rules and regulations for the declaration and entry of, among other things, imported merchandise when the aggregate value of the shipment did not exceed an amount specified, but not greater than $250. Regulations implementing this aspect of section 498 of the Tariff Act, as amended, are contained in Subpart C of part 143 of the CFR (19 CFR part 143) which is entitled “Informal Entry.” Section 662 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, Dec. 8, 1993) amended section 498 by increasing to $2,500 the maximum dollar amount that the Secretary could prescribe by regulation for purposes of the declaration and entry of merchandise.
In 1998, in accordance with 19 U.S.C. 1498, as amended, CBP raised the informal entry limit to $2,000. Currently, part 143 of title 19 of the CFR (19 CFR part 143) still reflects the $2,000 informal entry limit. In this document CBP proposes to increase the informal entry amount to its statutory maximum limit of $2,500 in response to inflation. The informal entry procedures set forth in subpart C of part 143 are less burdensome than the formal entry procedures prescribed in part 142 of the regulations. By increasing the limit by $500, CBP believes that this proposed change will reduce the overall administrative burden on importers and
However, 19 CFR 143.22, provides that CBP may require a formal consumption or appraisement entry for any merchandise if deemed necessary for: (a) Import admissibility enforcement purposes, (b) revenue protection, or (c) the efficient conduct of Customs business.
CBP also proposes to remove language stating that formal entry is required for certain “articles valued in excess of $250” that are classified in specified parts of the Harmonized Tariff Schedule of the United States (HTSUS). We propose to remove this language because CBP no longer needs to require formal entries for these articles due to the elimination of absolute quotas and visa requirements for textile articles.
Consequently, CBP proposes to remove paragraph (a) of section 102.24 of title 19 of the CFR, which requires the use of a formal entry and visa or export license for certain shipments of textile or apparel products due to the elimination of quotas formerly established under the Agreement on Textiles and Clothing.
This document also proposes to amend section 143.21(c) of the CBP regulations to correct an erroneous cross-reference.
This document proposes to increase the informal entry limit by amending title 19 of the CFR part 143, which establishes the informal entry limit, and parts 10, 24, 123, 128, 141, 145, and 148, which reflect the current informal entry limit. Specifically, this document proposes to replace any references made to “$2,000”, when pertaining to the informal entry limit, with “$2,500”.
To eliminate the language stating that formal entry is required for “articles valued in excess of $250” that are classified in certain parts of the Harmonized Tariff Schedule of the United States (HTSUS), CBP proposes to amend title 19 of the CFR parts 141, 143, and 148.
CBP also proposes to remove paragraph (a) of section 102.24 of title 19 of the CFR due to the elimination of visa programs for textile and apparel imports.
CBP further proposes to amend section 143.21(c) of title 19 of the CFR to correct an erroneous cross-reference.
In addition, this document proposes non-substantive amendments to the CFR to reflect nomenclature changes effected by the transfer of the agency to the Department of Homeland Security and other minor grammatical and editorial edits.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. CBP has prepared the following analysis to help inform stakeholders of the potential impacts of this proposed rule.
CBP requires importers to submit a completed CBP Form 7501 or its electronic equivalent with each entry of merchandise for consumption. Merchandise valued over $2,000 requires a formal entry—a surety bond is required and the importer may take possession of the merchandise before duties and taxes are assessed. Currently, merchandise valued below $2,000 may be entered informally, with no bond requirement and duties and taxes are assessed immediately, but may require a formal entry at a Port Director's discretion. If finalized, this regulation will increase the ceiling for which merchandise may qualify for an informal entry from $2,000 to $2,500.
Unless exempt under a free trade agreement and in addition to any duty or tax owed, merchandise requiring a formal entry is subject to a 0.21 percent ad valorem merchandise processing fee, which may be no greater than $485 and no less than $25. Any merchandise currently requiring a formal entry with a value of $2,000 to $2,500 is subject to the minimum $25 merchandise processing fee. Entries considered informal entries as a result of the change in the threshold would now be subject to only a $2 merchandise processing fee (assuming they are filed electronically). In FY 2009, CBP processed 476,081 formal entries that were not subject to free trade agreements and were subject to the $25 merchandise processing fee that were valued between $2,000 and $2,500. Consequently, raising the informal entry limited to $2,500 would result in a loss of approximately $12 million in revenues if the $25 merchandise processing fee were not collected for these entries (476,081 × $25 = $11.9 million). Revenues would now be approximately $1 million (476,081 × $2 = $0.95 million), thus the net loss in fees collected would be approximately $11 million ($12 million −$1 million).
This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 603), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).
The proposed regulation, if finalized, will increase the ceiling for informal entries from $2,000 to $2,500. Given the available data, we are not able to estimate the number of small entities potentially affected by this regulation because we are not able to discern whether these informal entries were made by an individual (who would not be considered a small business) or a commercial entity. However, given the number of informal entries filed in FY 2009, the number of entities affected is believed to be significant.
Our analysis, however, demonstrates that this regulation would create a benefit through cost savings to filers of approximately $11 million a year. Thus, to the extent that this rule affects small entities, these entities would experience a small cost savings on a per-transaction basis. The total cost savings per entity would be based on its annual transaction levels. Conversely, brokers may be indirectly affected by this rule if they provide services to affected importers. Again, indirect impacts are driven by the number of transactions. CBP believes that this rule will not have a significant economic impact on a substantial number of small entities. However, CBP welcomes any comments regarding this assessment.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collection of information on the Entry Summary and Informal Entry are approved by OMB under collection 1651-0022.
Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer of the Department of Homeland Security, Customs and Border Protection, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Trade and Commercial Regulations Branch, Office of International Trade, U.S Customs and Border Protection, 799 9th Street NW., (Mint Annex), Washington, DC 20229-1179. Comments should be submitted within the time frame that comments are due regarding the substance of the proposal.
This proposed regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of his delegate) to approve regulations related to certain customs revenue functions.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements, Taxes.
Canada, Customs duties and inspection, Imports, Mexico, Reporting and recordkeeping requirements, Trade agreements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements, Taxes.
For the reasons set forth in the preamble, parts 10, 24, 102, 123, 128, 141, 143, 145, and 148 of title 19 of the CFR (19 CFR parts 10, 24, 102, 123, 128, 141, 143, 145, and 148) are proposed to be amended as set forth below.
1. The general authority citation for part 10 continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.
2. In § 10.1:
a. Introductory paragraph (a) is amended by removing the word “shall” and adding in its place the word “must”, and by removing the sum “$2,000” and adding in its place the sum “$2,500”;
b. Paragraph (a)(1) is amended by removing the first two numerals of the year “19___” and adding in its place the numerals “20___”;
c. Paragraph (a)(2) is amended by removing the word “shall” and adding in its place the word “must”;
d. Paragraph (b) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
e. Paragraph (e) is amended by removing the word “shall” and adding in its place the word “will”;
f. Paragraph (f) is amended by removing the word “shall” each place that it appears and adding in its place the word “must”;
g. Paragraph (g)(1) is amended by:
i. Removing the word “Customs” each place that it appears and adding in its place the term “CBP”;
ii. Removing the word “shall” the first time that it appears and adding in its place the word “must”; and
iii. Removing the word “shall” in the last sentence and adding in its place the word “will”;
h. Paragraph (g)(2) is amended by removing the word “shall” and adding in its place the word “must”, and by removing the word “Customs” and adding in its place the term “CBP”;
i. Paragraph (g)(3) is amended by removing the word “Customs” and adding in its place the term “CBP”, and removing the word “shall” and adding in its place the word “will”;
j. Paragraph (h)(1) is amended by removing the word “Customs” each place that it appears and adding in its place the term “CBP”, and removing the word “shall” each place that it appears and adding in its place the word “must”;
k. Paragraph (h)(2) is amended by removing the word “shall” and adding in its place the word “will”, and by removing the word “Customs” and adding in its place the term “CBP”;
l. Paragraph (h)(3) is amended by removing the word “Customs” each place that it appears and adding in its place the term “CBP”, and removing the word “shall” and adding in its place the word “must”;
m. Introductory paragraph (h)(4) is amended by removing the word “shall” and adding in its place the word “must”;
n. Paragraph (h)(5) is amended by removing the word “Customs” and adding in its place the term “CBP”, and removing the word “shall” and adding in its place the word “will”;
o. Paragraph (h)(5)(i) is amended by removing the word “Customs” each place that it appears and adding in its place the term “CBP”, and by removing the word “shall” each place that it appears and adding in its place the word “must”; and
p. Paragraph (j)(2) is amended by removing the word “Customs” each place that it appears and adding in its place the term “CBP”, and by removing the word “shall” each place that it appears and adding in its place the word “must”.
3. The general authority citations for part 24 is revised and the specific authority citation for § 24.23 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
Section 24.23 also issued under 19 U.S.C. 3332;
4. In § 24.23:
a. The introductory paragraph (a)(4) is amended by removing the word “shall” and adding in its place the word “must”;
b. Paragraph (b)(1)(i)(A) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
c. Paragraph (b)(1)(i)(B) is amended by removing the word “shall” each place that it appears and adding in its place the word “must”;
d. Paragraph (b)(1)(ii) is amended by removing the word “shall” each place that it appears and adding in its place the word “will”;
e. Paragraph (b)(3) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
f. Paragraph (b)(4) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
g. Paragraph (c)(1) is amended by removing the word “shall” and adding in its place the word “will”;
h. Paragraph (c)(2)(i) and (ii) are amended by removing the word “shall” and adding in its place the word “will”;
i. Paragraph (c)(3) is amended by removing the word “shall” each place that it appears and adding in its place the word “will”;
j. Paragraph (c)(4) is amended by removing the word “shall” and adding in its place the word “will”;
k. Paragraph (c)(5) is amended by:
i. Removing the word “shall” and adding in its place the word “will”;
ii. Removing the word “Custons” and adding in its place the word “Customs”;
l. Paragraph (d)(1) is amended by:
i. Removing the word “Customs” and adding in its place the term “CBP”; and
ii. Removing the word “shall” and adding in its place the word “must”;
m. Paragraph (d)(2) is amended by:
i. Removing the word “shall” in the first sentence and adding in its place the word “must”;
ii. Removing the word “Customs” and adding in its place the term “CBP”; and
iii. Removing the word “shall” in the last sentence and adding in its place the word “will”;
n. Paragraph (e)(1) is amended by removing the word “Customs”, in its heading and in its text, each place that it appears and adding in its place the word “customs”, and by removing the word “shall” each place that it appears and adding in its place the word “will”; and
o. Paragraph (e)(2) is amended by removing the word “shall” and adding in its place the word “will”, and by removing the word “Customs” and adding in its place the word “customs”.
5. The general authority citation for part 102 continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 3314, 3592.
6. Section 102.24 is amended by removing paragraph (a), the paragraph designation “(b)”, and the paragraph (b) subject heading.
7. The general authority citation for part 123 and the specific authority citations for § 123.4 continue to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1431, 1433, 1436, 1448, 1624, 2071 note.
Section 123.4 also issued under 19 U.S.C. 1484, 1498;
8. In § 123.4:
a. The introductory paragraph is amended by removing the word “shall” and adding in its place the word “must”, and by removing the word “Customs” and adding in its place the term “CBP”;
b. Paragraph (a) is amended by removing the word “Customs” and adding in its place the term “CBP”;
c. Paragraph (b) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”, and removing the word “Customs” each place that it appears and adding in its place the term “CBP”;
d. Paragraph (c) is amended by removing the word “Customs” and adding in its place the term “CBP”; and
e. Paragraph (d) is amended by removing the word “Customs” and adding in its place the term “CBP”, and removing the word “shall” and adding in its place the word “must”.
9. In § 123.92:
a. Paragraph (b)(2)(i) is amended by removing the words “Customs Form (CF)” and adding in its place the term “CBP Form”;
b. Paragraph (b)(2)(ii) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”, and by removing the term “CF” and adding in its place the words “CBP Form”;
c. Paragraph (b)(2)(iii) is amended by removing the term “CF” and adding in its place the words “CBP Form”; and
d. Paragraph (c)(2) is amended by removing the term “Customs” and adding in its place the word “customs”.
10. The general authority citation for part 128 continues to read as follows:
19 U.S.C. 58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1321, 1484, 1498, 1551, 1555, 1556, 1565, 1624.
11. In § 128.24:
a. Paragraph (a) is amended by removing the sum “$2,000” each place that it appears and adding in its place the sum “$2,500”;
b. Paragraph (b) is amended by removing the word “Customs” and adding in its place the term “CBP”, and by removing the word “shall” and adding in its place the word “must”;
c. Paragraph (c) is amended by removing the word “Customs” each place that it appears and adding in its place the term “CBP”, and by removing the word “shall” each place that it appears and adding in its place the word “must”;
d. Paragraph (d) is amended by removing the word “Customs” and adding in its place the term “CBP”; and
e. Paragraph (e) is amended by removing, in the text, the word “shall” and adding in its place the word “will”.
12. The general authority citation for part 141 is revised to read as follows:
19 U.S.C. 66, 1448, 1484, 1498, 1624.
13. In § 141.82:
a. Paragraphs (b) and (c) are amended by removing the word “shall” each place that it appears and adding in its place the word “must”; and
b. Paragraph (d) is amended by:
i. Removing the sum “$2,000” and adding in its place the sum “$2,500”;
ii. Removing the words “Sections VII, VIII, XI, and XII; Chapter 94; and”; and
iii. Adding the symbol ”)” after the word “States”.
14. The general authority citation for part 143 is revised to read as follows:
19 U.S.C. 66, 1321, 1414, 1481, 1484, 1498, 1624, 1641.
15. In § 143.21:
a. Paragraphs (a) and (b) are amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
b. Paragraph (a) is further amended by removing the words “Sections VII, VIII, XI, and XII; Chapter 94 and”;
c. Paragraph (c) is amended by:
i. Removing the sum “$2,000” and adding in its place the sum “$2,500”;
ii. Removing the citation “§ 141.51” and adding in its place the citation “§ 141.52”; and
iii. Removing the words “subheadings from Sections VII, VIII, XI, and XII; or in Chapter 94 and”;
d. Paragraphs (f) and (g) are amended by removing the sum “$2,000” and adding in its place the sum “$2,500”;
e. Paragraph (j) is amended by removing the word “Customs” and adding in its place the term “CBP”;
16. Section 143.22 is amended by removing the word “Customs” and adding in its place the word “customs”, and by removing the sum “$2,000” and adding in its place the sum “$2,500”.
17. In § 143.23:
a. The introductory paragraph is amended by removing the word “shall” and adding in its place the word “must”, and by removing the word “Customs” each time it appears and adding in its place the term “CBP”;
b. Paragraphs (b) and (c) are amended by removing the word “Customs” and adding in its place the term “CBP”;
c. Paragraph (d) is amended by:
i. Removing the sum “$2,000” and adding in its place the sum “$2,500”;
ii. Removing the word “Customs” and adding in its place the term “CBP”; and
iii. Removing the words “Sections VII, VIII, XI, and XII; Chapter 94; and”;
d. Paragraph (e) is amended by removing the word “can” and adding in its place the word “may”;
e. Paragraphs (f), (g), and (h) are amended by removing the word “Customs” each time it appears and adding in its place the term “CBP”; and
f. Paragraph (i) is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”.
18. In § 143.26:
a. Paragraph (a) is amended by removing, in its heading and in its text, the sum “$2,000” each place that it appears and adding in its place the sum “$2,500”; and
b. Paragraph (b) is amended by removing the space between “appropriatel” and “y” to read “appropriately”, and by removing the word “Customs” and adding in its place the word “customs”.
19. The general authority citation for part 145 and the specific authority citations for §§ 145.4, 145.12, 145.31, 145.35, 145.41 continue to read as follows:
19 U.S.C. 66, 1202 (General Notice 3(i), Harmonized Tariff Schedule of the United States), 1624.
Section 145.4 also issued under 18 U.S.C. 545, 19 U.S.C. 1618;
Section 145.12 also issued under 19 U.S.C. 1315, 1484, 1498;
Section 145.31 also issued under 19 U.S.C. 1321;
Section 145.35 through 145.38, 145.41, also issued under 19 U.S.C. 1498;
20. In § 145.4:
a. Paragraph (a) is amended by removing the word “Customs” the first time it appears and adding in its place the term “CBP”, and by removing the word “Customs” the second time it appears and adding in its place the word “customs”; and
b. Paragraph (c) is amended by:
i. Removing the sum “$2,000” and adding in its place the sum “$2,500”;
ii. Removing the word “Customs” and adding in its place the term “CBP”; and
iii. Removing the word “shall” and adding in its place the word “must”.
21. In § 145.12:
a. Paragraph (a)(2) is amended by removing the word “shall” and adding in its place the word “will”, and by removing the sum “$2,000” and adding in its place the sum “$2,500”;
b. Paragraph (a)(3) is amended by:
i. Removing the sum “$2,000” each place that it appears and adding in its place the sum “$2,500”;
ii. Removing the word “Customs” the first time that it appears and adding in its place the term “CBP”;
iii. Removing the word “Customs” the second time that it appears and adding in its place the word “customs”; and
iv. Removing the words “shall not” and adding in its place the word “cannot”;
c. Paragraph (a)(4) is amended by:
i. Removing the word “shall” in the first and second sentence and adding in its place the word “will”;
ii. Removing the word “shall” in the last sentence and adding in its place the word “must”; and
iii. Removing the word “Customs” and adding in its place the term “CBP”, and adding the word, “customs” before the word, “station”;
d. Paragraph (b)(1) is amended by:
i. Removing the word “Customs” each place that it appears and adding in its place the term “CBP”;
ii. Removing the word “shall” each place that it appears and adding in its place the word “will”;
iii. Removing the sum “$2,000” and adding in its place the sum “$2,500”; and
iv. Removing the word “shall” and adding in its place the word “will”;
e. Paragraph (b)(2) is amended by removing the word “shall” and adding in its place the word “will”, and by removing the word “Customs” and adding in its place the term “CBP”;
f. Paragraph (c) is amended by:
i. Removing, in its heading and in its text, the sum “$2,000” and adding in its place the sum $2,500”;
ii. Removing the word “Customs” each place that it appears in the first sentence and adding in its place the term “CBP”;
iii. Removing the words “Customs treatment” in the third sentence and adding in its place the words “customs treatment”;
iv. Removing the words “Customs office” and adding in its place the words “CBP office”; and
v. Removing the word “shall” each place that it appears and adding in its place the term “will”;
g. Paragraph (e)(1) is amended by removing the word “Customs” in each place that it appears and adding in its place the term “CBP”, and by removing the word “shall” and adding in its place the word “will”; and
h. Paragraph (e)(2) is amended by:
i. Removing the words “Customs Form” each place that it appears, in its heading and its text, and adding in its place the words “CBP Form”;
ii. Removing the words “Customs officer” and adding in its place the words “CBP officer”;
iii. Removing the words “Customs purposes” and adding in its place the words “customs purposes”;
iv. Removing the word “shall” in the first sentence and adding in its place the word “must”; and
v. Removing the word “shall” in the second sentence and adding in its place the word “will”.
22. Section 145.31 is amended by removing the word “shall” and adding in its place the word “will”.
23. Section 145.35 is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”.
24. Section 145.41 is amended by removing the sum “$2,000” and adding in its place the sum “$2,500”.
25. The general authority citation for part 148 is revised and the specific authority citations for § 148.51 and 148.64 continue to read as follows:
19 U.S.C. 66, 1496, 1498, 1624. The provisions of this part, except for subpart C, are also issued under 19 U.S.C. 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States).
Sections 148.43, 148.51, 148.63, 148.64, 148.74 also issued under 19 U.S.C. 1321;
26. In § 148.23:
a. Paragraph (c)(1) is amended by removing, in its heading and in its text, the sum “$2,000” and adding in its place the sum “$2,500”;
b. Paragraph (c)(1) is further amended by removing, in the text, the words “Sections VII, VIII, XI, and XII; Chapter 94; and”;
c. Paragraph (c)(2) is amended by removing, in its heading and in its text, the sum “$2,000” and adding in its place the sum “$2,500”; and
d. Paragraph (c)(2) is further amended by removing the words “Sections VII, VIII, XI, and XII; Chapter 94; and”.
27. Section 148.54(b) is amended by removing the sum “$250” and replacing it with the sum“$2,500”.
Office of Postsecondary Education, Department of Education.
Notice of establishment of negotiated rulemaking committee.
We announce our intention to establish a negotiated rulemaking committee to prepare proposed regulations governing the student loan programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA). The committee will include representatives of organizations or groups with interests that are significantly affected by the topics proposed for negotiation. We request nominations for individual negotiators who represent key stakeholder constituencies for the issues to be negotiated to serve on the committee and we set a schedule for committee meetings.
We must receive your nominations for negotiators to serve on the committee on or before November 28, 2011. The dates, times, and locations of the committee meetings are set out in the
Please send your nominations for negotiators to Wendy Macias, U.S. Department of Education, 1990 K Street, NW., room 8017, Washington, DC 20006, or by fax at (202) 502-7874. You may also email your nominations to
For information about the content of this notice, including information about the negotiated rulemaking process or the nomination submission process, contact: Wendy Macias, U.S. Department of Education, 1990 K Street, NW., room 8017, Washington, DC 20006.
For general information about the negotiated rulemaking process, see
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free at 1-800-877-8339.
On May 5, 2011, we published a notice in the
We list the topics the committee is likely to address under
We intend to select negotiators for the committee who represent the interests significantly affected by the topics proposed for negotiations. In so doing, we will follow the requirement in Section 492(b)(1) of the HEA that the individuals selected must have demonstrated expertise or experience in the relevant subjects under negotiation. We will also select individual negotiators who reflect the diversity
The committee may create subgroups on particular topics that may involve additional individuals who are not members of the committee. Individuals who are not selected as members of the committee will be able to attend the meetings, have access to the individuals representing their constituencies, and participate in informal working groups on various issues between the meetings. The committee meetings will be open to the public.
The Department has identified the following constituencies as having interests that are significantly affected by the topics proposed for negotiations. The Department plans to seat as negotiators individuals from organizations or groups representing these constituencies:
• Students.
• Legal assistance organizations that represent students.
• Consumer advocacy organizations.
• Financial aid administrators at postsecondary institutions.
• Business officers and bursars at postsecondary institutions.
• Admissions officers at postsecondary institutions.
• Institutional third-party servicers who perform functions related to the title IV programs (including collection agencies).
• State higher education executive officers.
• State attorneys general and other appropriate State officials.
• Business and industry.
• Institutions of higher education eligible to receive Federal assistance under title III, Parts A, B, and F and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA.
• Two-year public institutions of higher education.
• Four-year public institutions of higher education.
• Private, non-profit institutions of higher education.
• Private, for-profit institutions of higher education.
• Guaranty agencies and guaranty agency servicers (including collection agencies).
• Lenders, secondary markets, and loan servicers.
• Regional accrediting agencies.
• National accrediting agencies.
• Specialized accrediting agencies.
• State approval agencies.
• State student grant agencies.
• State agencies addressing secondary education.
The goal of the committee is to develop proposed regulations that reflect a final consensus of the committee. Consensus means that there is no dissent by any member of the negotiating committee, including the committee member representing the Department. An individual selected as a negotiator will be expected to represent the interests of their organization or group. If consensus is reached, all members of the organization or group represented by a negotiator are bound by the consensus and are prohibited from commenting negatively on the resulting proposed regulations. The Department will not consider any such negative comments that are submitted by members of such an organization or group.
Nominations should include:
• The name of the nominee, the organization or group the nominee represents, and a description of the interests that the nominee represents.
• Evidence of the nominee's expertise or experience in the subject, or subjects, to be negotiated.
• Evidence of support from individuals or groups of the constituency that the nominee will represent.
• The nominee's commitment that he or she will actively participate in good faith in the development of the proposed regulations.
• The nominee's contact information, including address, phone number, fax number, and email address.
For a better understanding of the negotiated rulemaking process, nominees should review
Nominees will be notified whether or not they have been selected as negotiators as soon as the Department's review process is completed.
The topics the committee is likely to address, for each of the three loan programs unless otherwise indicated, are as follows:
• Loan discharges based on total and permanent disability.
• Single application process.
• Borrower notification of denial.
• Post-discharge monitoring of employment earnings.
• Repeal of unnecessary regulations in the FFEL Program due to statutory changes and incorporation and modification of corresponding requirements in the Direct Loan Program regulations.
• Modifications to the Income-Based Repayment (IBR) Plan and the Income Contingent Repayment (ICR) Plan in the Direct Loan and FFEL Programs.
• New borrower notification for annual IBR evaluation.
• Annual income verification.
• Borrower repayment after leaving IBR.
• Closed school loan discharge 90-day eligibility period for borrowers.
• Loan rehabilitation in the Direct Loan and FFEL Programs.
• Reasonable and affordable payment standard.
• Treatment of borrowers subject to administrative wage garnishment.
• Deadline for FFEL lender 60-day delinquent borrower repayment disclosure.
• Satisfactory repayment arrangements for defaulted borrowers.
• Forbearance.
• Borrowers under Department of Defense repayment plans.
• Process for defaulted borrowers.
• Participation rate index appeal for one-year cohort default rates.
• Perkins Loan only issues, including
• Economic hardship deferment debt-to-income provision.
• Graduate fellowship deferment eligibility.
• Social security number requirement for loan assignment.
• Cancellation rate progression across cancellation categories.
• School enrollment status reporting requirements.
• Minimum loan period for transfer students in non-term programs and certain non-standard term programs.
These topics are tentative. Topics may be added or removed as the process continues.
The committee will meet for three sessions on the following dates:
All sessions will begin at 12 p.m. on Monday and end at 12 p.m. on Friday.
The meetings will be held at the U.S. Department of Education at: 1990 K Street, NW., Eighth Floor Conference Center, Washington, DC 20006.
You may also access documents of the Department published in the
20 U.S.C. 1098a.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Missouri State Implementation Plan (SIP) relating to regulation of Greenhouse Gases (GHGs) under Missouri's Prevention of Significant Deterioration (PSD) program, and to two New Source Review (NSR) revisions. The GHG-related SIP revisions incorporate the GHG emission thresholds established in EPA's “PSD and Title V Greenhouse Gas Tailoring Final Rule,” which EPA issued by notice dated June 3, 2010. These revisions were submitted by the Missouri Department of Natural Resources (MDNR) to EPA in a letter dated August 8, 2011. The NSR revisions are to the Construction Permits Required Rule and the Emissions Banking and Trading Rule and are intended to address changes to the Federal NSR regulations, which were promulgated by EPA on December 31, 2002. These revisions were submitted by MDNR to EPA in a letter dated November 30, 2009. EPA is proposing to approve the GHG and NSR revisions because the Agency has made the preliminary determination that these SIP revisions, already adopted by Missouri as final effective rules, are in accordance with the Clean Air Act (CAA or Act) and EPA regulations regarding PSD permitting for GHGs and NSR.
Comments must be received on or before November 28, 2011.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2011-0825, by one of the following methods:
1.
2.
3.
4.
5.
For information regarding the GHG portion of the Missouri SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch, Air and Waste Management Division, U.S. Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr. Gonzalez's telephone number is (913) 551-7041;
Throughout this document “we,” “us,” or “our” refer to EPA.
In a letter dated August 8, 2011, MDNR submitted a request to EPA to approve revisions to the State's SIP and Title V program to incorporate recent rule amendments adopted by the Missouri Air Conservation Commission. These adopted rules became effective in the Missouri Code of State Regulations on August 30, 2011. These amendments establish thresholds for GHG emissions in Missouri's PSD and Title V regulations at the same emissions thresholds and in the same time-frames as those specified by EPA in the “PSD and Title V Greenhouse Gas Tailoring; Final Rule” (75 FR 31514), hereafter referred to as the “Tailoring Rule,” ensuring that smaller GHG sources emitting less than these thresholds will not be subject to permitting requirements for GHGs that they emit. The amendments to the SIP clarify the applicable thresholds in the Missouri SIP, address the flaw discussed in the “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans Final Rule,” 75 FR 82536 (December 30, 2010) (the “PSD SIP Narrowing Rule”), and incorporate state rule changes adopted at the state level into the Federally approved SIP. In today's notice, pursuant to section 110 of the CAA, EPA is proposing to approve these revisions into the Missouri SIP.
This section briefly summarizes EPA's recent GHG-related actions that provide the background for today's proposed actions. More detailed discussion of the background is found in the preambles for those actions. In particular, the background is contained in what we called the PSD SIP Narrowing Rule,
EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's proposed action on the Missouri SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,
PSD is implemented through the SIP system. In December 2010, EPA promulgated several rules to implement the new GHG PSD SIP program. Recognizing that some states had approved SIP PSD programs that did not apply PSD to GHGs, EPA issued a SIP Call and, for some of these states, a Federal Implementation Plan (FIP).
On July 27, 2010, Missouri submitted a letter to EPA, in accordance with a request to all states from EPA in the proposed Tailoring Rule, with confirmation that the State of Missouri has the authority to regulate GHGs in its PSD program. The letter also confirmed Missouri's intent to amend its air quality rules for the PSD program for GHGs to match the thresholds set in the Tailoring Rule. See the docket for this proposed rulemaking for a copy of Missouri's letter.
In the PSD SIP Narrowing Rule, published on December 30, 2010, EPA withdrew its approval of Missouri's SIP (among other SIPs) to the extent that the SIP applies PSD permitting requirements to GHG emissions from sources emitting at levels below those set in the Tailoring Rule.
The basis for this proposed SIP revision is that limiting PSD applicability to GHG sources with the higher thresholds in the Tailoring Rule is consistent with the SIP provisions that require assurances of adequate resources, and thereby addresses the flaw in the SIP that led to the PSD SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E) includes as a requirement for SIP approval that states provide “necessary assurances that the State * * * will have adequate personnel [and] funding * * * to carry out such [SIP].” In the Tailoring Rule, EPA established higher thresholds for PSD applicability to GHG-emitting sources, in part, because the states generally did not have adequate resources to apply PSD to GHG-emitting sources below the Tailoring Rule thresholds,
In a letter dated August 8, 2011, MDNR submitted a revision of its regulations to EPA for processing and approval into the SIP. This SIP revision puts in place the GHG emission thresholds for PSD applicability set forth in EPA's Tailoring Rule. EPA's approval of Missouri's GHG-related SIP revision will incorporate the revisions of the Missouri regulations into the Federally-approved SIP. Doing so will clarify the applicable thresholds in the Missouri SIP.
The State of Missouri's August 8, 2011, proposed SIP revision establishes thresholds for determining which stationary sources and modification projects become subject to permitting requirements for GHG emissions under Missouri's PSD program. Specifically, Missouri's August 8, 2011, proposed SIP revision includes changes—which are already effective—to Missouri's Code of State Regulations (CSR), revising rule 10 CSR 10-6.060(8)(A) to incorporate by reference all of the revisions to the Federal PSD rules at 40 CFR 52.21 published in the Tailoring Rule.
Missouri is currently a SIP-approved State for the PSD program, and has previously incorporated some elements of EPA's 2002 NSR reform revisions for PSD into its SIP.
Pursuant to section 110 of the CAA, EPA is proposing to approve Missouri's August 8, 2011 revisions to the Missouri SIP, relating to PSD requirements for GHG-emitting sources. Specifically, Missouri's August 8, 2011, proposed SIP revision establishes appropriate emissions thresholds for determining PSD applicability to new and modified GHG-emitting sources in accordance with EPA's Tailoring Rule. EPA has made the preliminary determination that this SIP revision is approvable because it is in accordance with the CAA and EPA regulations regarding PSD permitting for GHGs.
If EPA approves Missouri's changes to its air quality regulations to incorporate appropriate thresholds for GHG permitting applicability into Missouri's SIP, then section 52.1323(n) of 40 CFR part 52, as included in EPA's PSD SIP Narrowing Rule—which codifies EPA's limiting its approval of Missouri's PSD SIP to not cover the applicability of PSD to GHG-emitting sources below the Tailoring Rule thresholds—is no longer necessary. In today's proposed action, EPA is also proposing to amend section 52.1323(n) of 40 CFR part 52 to remove this unnecessary regulatory language.
In this rulemaking, we are also proposing to approve MDNR's request to include as a revision to Missouri's SIP, amendments to rule 10 CSR 10-6.060 “Construction Permit Required” and 10 CSR 10-6.410 “Emission Banking and Trading.” These rules were adopted by the Missouri Air Conservation Commission on March 26, 2009, and became effective under state law on July 30, 2009. The rules were submitted to EPA for inclusion into the Missouri SIP in a letter dated November 30, 2009. The submission included comments on the rules made during the State's
On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the CAA's PSD and Nonattainment NSR programs (“Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR); Baseline Emissions Determination, Actual-to-Future-Actual Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control Projects”). On November 7, 2003 (68 FR 63021), EPA published a notice of final action on the reconsideration of the December 31, 2002, final rule changes. In that November 7, 2003, final action, EPA added the definition of “replacement unit,” and clarified an issue regarding PALs. The December 31, 2002, and the November 7, 2003, final actions are collectively referred to as the “2002 NSR Reform Rules.”
In brief, the 2002 NSR Reform Rules made changes to five areas of the NSR programs (concerning both PSD and nonattainment NSR).
After the 2002 NSR Reform Rules were finalized and effective, industry, state, and environmental petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court) issued a decision on the challenges to the 2002 NSR Reform Rules.
On February 25, 2005, Missouri submitted a request to include EPA's 2002 NSR Reform Rules in attainment and unclassifiable areas in to the SIP, and EPA approved these revisions through a final rule published on June 27, 2006 (71 FR 36486).
Missouri's SIP submittals consist of several amendments to rule 10 CSR 10-6.060 and one amendment to 10 CSR 10-6.410 that became State-effective on July 30, 2009. Copies of the Missouri revised NSR rules can be obtained from the Docket, as discussed in the
The amendments to 10 CSR 10-6.060 implement EPA's 2002 New Source Review Reform rules in nonattainment areas. These rule amendments create consistency between the attainment and nonattainment area permitting programs in Missouri in three areas: Baseline emissions determinations, actual-to-projected actual emissions calculation methodology, and PALs. The amendment to 10 CSR 10-6.410 will remove a reference to Clean Unit projects. As discussed previously, these provisions were vacated by the DC Circuit Court of Appeals in the New York case in 2005.
EPA's evaluation of Missouri's NSR Reform-related SIP submittal included a line-by-line comparison of the proposed revisions with the Federal requirements. As a general matter, state agencies may meet the requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with different but equivalent regulations.
After evaluation of Missouri's proposed SIP revision, EPA has determined that the revised rule language at 10 CSR 10-6.060(7) (Nonattainment Area Permits) is substantially similar to the language in the equivalent Federal regulation (
EPA is proposing to approve Missouri's changes to its regulations 10 CSR 10-6.060 and 10 CSR 10-6.410, as submitted by Missouri on November 30, 2009, for inclusion in the Missouri SIP. EPA has made the preliminary determination that this SIP revision is approvable because it is in accordance with the CAA and EPA regulations
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k), 7661a(d); 40 CFR 52.02(a); 40 CFR 70.1(c). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves the State's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the State's law. For that reason, the proposed approvals of Missouri's revision to its SIP:
• Are not “significant regulatory actions” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and are therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP program is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; extension of the public comment period.
The EPA is announcing that the period for providing public comments on the August 23, 2011 proposed rule titled, “Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews,” is being extended to November 30, 2011.
Submit your comments, identified by Docket ID Number EPA-HQ-OAR-2010-0505, by one of the following methods:
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•
Mr. Bruce Moore, Fuels and Incineration Group (E143-05), Sector Policies and Programs Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711;
The EPA has received numerous requests for extending the public comment period for this proposed rule. Based on the information provided in the requests, the EPA has determined that an extension of 30 days is appropriate. Accordingly, the public comment period will now end on November 30, 2011. Note that, on August 23, 2011, the EPA published in the
The EPA has established the official public docket No. EPA-HQ-OAR-2010-0505. The EPA has also developed Web sites for the proposed rulemaking at the addresses given above.
Federal Emergency Management Agency, DHS.
Proposed rule.
Comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this proposed rule is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.
Comments are to be submitted on or before January 26, 2012.
The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community is available for inspection at the community's map repository. The respective addresses are listed in the table below.
You may submit comments, identified by Docket No. FEMA-B-1226, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Federal Communications Commission.
Proposed rule; extension of reply comment period.
In this document, the Commission extends the deadline for filing reply comments on the Commission's Notice of Proposed Rulemaking (NPRM) in this proceeding, which was published in the
The reply comment period for the proposed rule published September 28, 2011 (76 FR 59963) is extended. Submit reply comments on or before November 1, 2011.
You may submit reply comments, identified by MB Docket No. 11-154, by any of the following methods:
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•
•
•
For detailed instructions on submitting comments and additional information on the rulemaking process, see the
Diana Sokolow, Policy Division, Media Bureau, at (202) 418-2120, or email at
This is a summary of the Commission's Order in MB Docket No. 11-154, DA 11-1766, adopted and released on October 21, 2011, which extends the reply comment filing deadline established in the NPRM published under FCC No. 11-138 at 76 FR 59963, September 28, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
1. The NPRM in this proceeding established a comment deadline of October 18, 2011 and a reply comment deadline of October 28, 2011. On October 19, 2011, the National Association of Broadcasters (NAB) requested that the reply comment deadline be extended by one week, due to the volume of substantive material filed in the initial comments and the groundbreaking nature of the issues considered in the proceeding. We grant NAB's request in part.
2. As set forth in Section 1.46(a) of the Commission's Rules, 47 CFR 1.46(a), the Commission's policy is that extensions of time shall not be routinely granted. Given the importance of the issues in this proceeding and in the interest of encouraging thoughtful consideration of these issues, however, we believe that granting in part NAB's request is necessary to facilitate the development of a full record. Due to the Commission's statutory deadline in this proceeding, we find that the requested one week extension is too long, and instead we grant a four day extension of the reply comment deadline.
Pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Sections 0.61, 0.283, and 1.46 of the Commission's rules, 47 CFR 0.61, 0.283, and 1.46, the Motion for Extension of Time filed by NAB is granted in part, and the deadline to file reply comments in this proceeding is extended to November 1, 2011.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice of meeting.
DoD is hosting a public meeting to initiate a dialogue with industry and Government agencies regarding the proposed rule for the safeguarding of unclassified information.
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Comments received generally will be posted without change to
Mr. Julian E. Thrash, telephone (703) 602-0310.
The DFARS does not presently address the safeguarding of unclassified DoD information within industry, nor does it address cyber intrusion reporting for that information. DoD published an Advance Notice of Proposed Rulemaking, and notice of public meeting in the
(1) Company or organization name;
(2) Names and email addresses of persons attending;
(3) Last four digits of social security number for each attendee (non-Federal employees only); and
(4) Identify presenter if desiring to speak (limited to a 10-minute presentation per company or organization).
Government procurement.
Notice of public meeting.
Notice is hereby given of a public meeting of the Committee on Rulemaking of the Assembly of the Administrative Conference of the United States. The meeting will provide an opportunity for the committee to consider outlines and research plans for two upcoming projects regarding midnight rules and regulatory analysis, respectively. Complete details regarding the committee meeting, the contours of the new projects, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found in the “About” section of the Conference's Web site, at
Comments may be submitted by email to
The meeting will be held at 1120 20th Street, NW., Suite 706 South, Washington, DC 20036.
Emily Schleicher Bremer, Designated Federal Officer, Administrative Conference of the United States, 1120 20th Street, NW., Suite 706 South, Washington, DC 20036; Telephone (202) 480-2080.
The Committee on Rulemaking will meet to hear two consultants present their outlines and research plans for two new projects. These projects are the Midnight Rules Project, for which Professor Jack Beermann is the consultant, and the Regulatory Analysis Project, for which Curtis Copeland is the consultant. The Midnight Rules project will examine issues raised by rules promulgated near the end of a presidential administration. The Regulatory Analysis project will examine the numerous analyses (
Monday, November 14 from 10 a.m. to 12 p.m.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The full StormReady recognition is not appropriate for all entities, yet they should still be recognized for their efforts in preparing for hazardous weather. To this end, the National Weather Service has created the StormReady Supporter Program and is the revision to this information collection. StormReady Supporter is a voluntary program offered to provide guidance and incentive to entities, such as local hospitals or businesses, who wish to improve their respective hazardous weather preparations. Entities will use the application to apply for a one-time StormReady Supporter recognition. The government will use the application form to determine whether an entity has met the guidelines for a StormReady Supporter recognition.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Import Administration, International Trade Administration, Department of Commerce.
On May 13, 2011, the U.S. Trade Representative (“USTR”) instructed the Department of Commerce (“Department”) to issue a determination not inconsistent with the World Trade Organization's decision in
David Layton or Yasmin Nair, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
On July 20, 2011, the Department informed interested parties that it was initiating a proceeding under section 129 of the Uruguay Round Agreements Act (“URAA”) to implement the findings of the World Trade Organization (“WTO”) dispute settlement panel in
The Department invited interested parties to comment on the Preliminary Results. After receiving comments and rebuttal comments from the interested parties, the Department issued its final results for the section 129 determination on October 4, 2011.
In its October 24, 2011 letter, USTR notified the Department that, consistent with section 129(b)(3) of the URAA, consultations with the Department and the appropriate congressional committees with respect to the October 4, 2011 determination have been completed. Thus, USTR directed the Department to implement this determination, in accordance with section 129(b)(4) of the URAA.
Section 129 of the URAA governs the nature and effect of determinations issued by the Department to implement findings by WTO dispute settlement panels and the Appellate Body. Specifically, section 129(b)(2) of the URAA provides that, “notwithstanding any provision of the Tariff Act of 1930,” within 180 days of a written request from the USTR, the Department shall issue a determination that would render its actions not inconsistent with an adverse finding of a WTO panel or the Appellate Body report.
The issues raised in the case and rebuttal briefs submitted by interested parties to this proceeding are addressed in the Issues and Decision Memorandum dated October 4, 2011, which is hereby adopted by this notice. A list of the issues raised is attached to this notice as Appendix I. The Issues and Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). Access to IA ACCESS is available in the Central Records Unit (CRU), room 7046 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at
The recalculated margins, unchanged from the Preliminary Results, are as follows:
• The margin for Ehwa Diamond Industrial Co., Ltd. decreases from 8.80 percent to zero.
• The margin for Shinhan Diamond Industrial Co. decreases from 16.88 percent to zero.
• The margin for Hyosung Diamond Industrial Co. decreases from 6.43 percent to zero.
• Because the changes to the margin calculations result in no margins for the three mandatory respondents, the All Others rate decreases from 11.10 percent to zero.
As a result of the recalculations, all of the dumping margins are now zero. Accordingly, the Department is now
We will instruct U.S. Customs and Border Protection to liquidate, without regard to antidumping duties, all entries of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after October 24, 2011 (the effective date), and to discontinue collection of cash deposits of antidumping duties.
This determination is issued and published in accordance with section 129(c)(2)(A) of the URAA.
Issues raised in the Issues and Decision Memorandum.
Comment 1: Whether the Department of Commerce has the authority to revoke the antidumping duty order.
Comment 2: Whether the Department should reset the cash deposit rates to zero in lieu of revocation.
Import Administration, International Trade Administration, Department Commerce.
On July 1, 2011, the Department of Commerce (“the Department”) initiated the third sunset reviews of the antidumping duty orders on certain circular welded carbon steel pipes and tubes from India, Thailand, and Turkey, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). On the basis of a notice of intent to participate and adequate substantive responses filed on behalf of the domestic interested parties and inadequate response from respondent interested parties, the Department has conducted expedited sunset reviews of these antidumping duty orders. As a result of these sunset reviews, the Department finds that revocation of the antidumping duty orders would likely lead to continuation or recurrence of dumping at the level indicated in the “Final Results of Reviews” section of this notice.
Dennis McClure, Antidumping/Countervailing Duty Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
Pursuant to section 736 of the Act, the Department published in the
On July 1, 2011, the Department published a notice of initiation of the third sunset reviews of the antidumping duty orders on certain circular welded carbon steel pipes and tubes from India, Thailand, and Turkey, pursuant to section 751(c) of the Act.
For each of these sunset reviews, the Department received notice of intent to participate from Allied Tube and Conduit, JMC Steel Group, Leavitt Tube, Northwest Pipe Company, TMK IPSCO Tubulars, U.S. Steel Corporation, and Western Tube and Conduit, (collectively, “the domestic interested parties”) within the deadline specified in 19 CFR 351.218(d)(1)(i). In addition, Wheatland Tube Company (“Wheatland”) filed an entry of appearance and also requested recognition as a domestic interested party. The domestic interested parties claim interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise.
On July 4, 2011, the Government of Turkey filed an entry of appearance as an interested party for the Turkish proceeding. On July 5, 2011, the Government of Turkey requested the Department to extend the 30-day deadline for filing its substantive response as specified in 19 CFR 351.218(d)(3)(i). On July 7, 2011, Saha Thai Steel Pipe (Public) Company, Ltd. (“Saha Thai”), a Thai producer and exporter, entered an appearance as a respondent interested party. On August 10, 2011, the Department extended the deadline to file a substantive response until August 10, 2011.
On July 29, August 1, and 10, 2011, we received complete substantive responses from the domestic interested parties within the extended deadline established by the Department. Wheatland Tube Company did not file a substantive response. Saha Thai did not file a substantive response. On August 9, 2011, the Government of Turkey submitted a substantive response within the extended deadline.
Based on these circumstances, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department has conducted expedited sunset reviews of these antidumping duty orders.
All issues raised in these cases are addressed in the Issues and Decision Memorandum for the Final Results of Expedited Five-Year (Sunset) Reviews of the Antidumping Duty Orders on Certain Circular Welded Carbon Steel Pipes and Tubes from India, Thailand, and Turkey from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration (“Decision Memo”), dated concurrent with this final notice, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
We determine that revocation of the antidumping duty orders on certain circular welded carbon steel pipes and tubes from India, Thailand, and Turkey would likely lead to continuation or recurrence of dumping at the following weighted-average percentage margins:
This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305.
Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A-53, A-120, or A-135.
The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS).
Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.
The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A-53, A-120, or A-135.
The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS).
Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.
The products covered by this order include circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, or galvanized, painted), or end finish (plain end, beveled end, threaded and coupled). Those pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioner units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing, and for protection of electrical wiring, such as conduit shells.
The scope is not limited to standard pipe and fence tubing, or those types of mechanical and structural pipe that are used in standard pipe applications. All carbon steel pipes and tubes within the physical description outlined above are included in the scope of this order, except for line pipe, oil country tubular goods, boiler tubing, cold-drawn or cold-rolled mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished rigid conduit.
Imports of these products are currently classifiable under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) continues to determine that steel wire garment hangers (“garment hangers”) exported by Angang Clothes Rack Manufacture Co., Ltd. (“Angang”) and Quyky Yanglei International Co., Ltd. (“Quyky”) are circumventing the antidumping duty order
Irene Gorelik, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
On May 10, 2011, the Department published in the
On June 13, 2011, Petitioner
The merchandise that is subject to the order is steel wire garment hangers, fabricated from carbon steel wire, whether or not galvanized or painted, whether or not coated with latex or epoxy or similar gripping materials, and/or whether or not fashioned with paper covers or capes (with or without printing) and/or nonslip features such as saddles or tubes. These products may also be referred to by a commercial designation, such as shirt, suit, strut, caped, or latex (industrial) hangers. Specifically excluded from the scope of the order are wooden, plastic, and other garment hangers that are not made of steel wire. Also excluded from the scope of the order are chrome-plated steel wire garment hangers with a diameter of 3.4 mm or greater. The products subject to the order are currently classified under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7326.20.0020, 7323.99.9060 and 7323.99.9080.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
The products covered by this inquiry are garment hangers, as described in the “Scope of the Antidumping Duty Order” section above, that are exported from the Socialist Republic of Vietnam (“Vietnam”), but manufactured from
While we acknowledge that Angang has repeatedly stated on the record that it also self-produces garment hangers from steel wire rod,
All issues raised in the post-preliminary comments by parties in this proceeding are addressed in the “Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, re: Steel Wire Garment Hangers from the People's Republic of China: Issues and Decision Memorandum for the Final Determination of the Anti-Circumvention Inquiry” (“Decision Memorandum”), dated concurrently with notice and hereby adopted by this notice.
A list of the issues which the parties raised and to which the Department responds in the Decision Memorandum is attached to this notice as Appendix I. The Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available in the Central Records Unit, room 7046 of the main Department of Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at
For the final determination, we continue to rely on the statutory criteria that we considered in making our
Section 776(a) of the Act requires the Department to rely on facts otherwise available if necessary information is not available on the record or an interested party or any other person: (A) withholds information requested by the Department; (B) fails to provide requested information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding; or (D) provides requested information, but the information cannot be verified as provided in section 782(i) of the Act.
As we stated in the
Section 781 of the Act addresses circumvention of antidumping or countervailing duty orders. With respect to merchandise assembled or completed in a third country, section 781(b)(1) of the Act provides that if: (A) The merchandise imported into the United States is of the same class or kind as any merchandise produced in a foreign country that is the subject of an antidumping duty order; (B) before importation into the United States, such imported merchandise is completed or assembled in a third country from merchandise which is subject to such an order or is produced in the foreign country with respect to which such order applies; (C) the process of assembly or completion in a third country is minor or insignificant; (D) the value of the merchandise produced in the foreign country to which the antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States; and (E) the Department determines that action is appropriate to prevent evasion of an order, then the Department, after taking into account any advice provided by the United States International Trade Commission, under section 781(e) of the Act, may include such imported merchandise within the scope of an order at any time an order is in effect.
In determining whether the process of assembly or completion in a third country is minor or insignificant under section 781(b)(1)(C) of the Act, section 781(b)(2) of the Act directs the Department to consider: (A) The level of investment in the third country; (B) the level of research and development in the third country; (C) the nature of the production process in the third country; (D) the extent of production facilities in the third country; and (E) whether the value of processing performed in the third country represents a small proportion of the value of the merchandise imported into the United States. However, none of these five factors, by itself, is controlling on the Department's determination of whether the process of assembly or completion in a third country is minor or insignificant.
Further, another step in the circumvention inquiry asks the Department, under section 781(b)(1)(D) of the Act, to discern whether the value of the merchandise produced in the foreign country to which an antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States. The Department must answer affirmatively to find circumvention.
Finally, section 781(b)(3) of the Act sets forth the factors to consider in determining whether to include merchandise assembled or completed in a third country in an antidumping duty order. Specifically, the Department shall take into account such factors as: (A) the pattern of trade, including sourcing patterns; (B) Whether the manufacturer or exporter of the merchandise is affiliated with the person who, in the third country, uses the merchandise to complete or assemble the merchandise which is subsequently imported into the United States; and (C) whether imports of the merchandise into the third country have increased after the initiation of the investigation which resulted in the issuance of an order.
In making a final determination in accordance with the criteria enumerated in section 781(b) of the Act as outlined above,
We considered all of the comments submitted by Angang and Petitioner, and find that, pursuant to section 781(b) of the Act, exports to the United States of garment hangers produced by Angang using PRC-origin, semi-finished hangers constitute circumvention of the
As we stated in the
Pursuant to section 781(b)(1)(C) of the Act, we preliminarily determined that the record evidence of this proceeding supported a finding that the process or completion of the PRC-origin, semi-finished hangers to finished garment hangers in Vietnam is minor or insignificant.
Therefore, we preliminarily found that, pursuant to sections 781(b)(2)(A)-(E) of the Act, Angang's processing operation to convert PRC-origin, semi-finished hangers into finished garment hangers in Vietnam is minor or insignificant.
Under section 781(b)(1)(D) of the Act, the value of the merchandise produced in the foreign country to which an antidumping duty order applies must be a significant portion of the total value of the merchandise exported to the United States in order to find circumvention. As discussed above, we found that the production process in the PRC manufactures the main inputs, that all the direct materials are sourced from the PRC, and that there exists only limited production processes in Vietnam, thereby evincing that a great majority of the value of the finished merchandise is based on the PRC-production of the semi-finished hangers and the other direct materials which are applied to those PRC-origin, semi-finished hangers in Vietnam.
As previously noted, section 781(b)(3) of the Act instructs the Department to consider, in determining whether to include merchandise assembled or completed in a foreign country within the scope of an order, such factors as: pattern of trade, including sourcing patterns; affiliations between manufacturers or exporters of merchandise in the country subject to the order and the person who uses the merchandise to assemble or complete in the third country the merchandise that is exported to the United States; and whether imports into the third country of the merchandise described in section 781(b)(1)(B) of the Act have increased after the initiation of the investigation.
We preliminarily determined that: (1) The data related to patterns of trade in this case show that PRC exports have decreased significantly whereas Vietnamese exports have increased exponentially since the initiation of the less than fair value (“LTFV”) investigation; (2) Angang maintained an affiliation with two PRC companies;
With respect to Quyky, we preliminarily found that Quyky circumvented the
Further, with respect to Angang, we preliminarily found that Angang has circumvented the
The record evidence continues to support an affirmative finding of circumvention in accordance with section 781(b)(1) and (2) of the Act. Moreover, we continue to find the factors required by section 781(b)(3) of
In accordance with section 733(d) of the Act, the Department will continue to direct CBP to suspend liquidation and to require a cash deposit of estimated duties, at the PRC-wide rate of 187.25 percent, on all unliquidated entries of garment hangers produced and/or exported by Angang and Quyky that were entered, or withdrawn from warehouse, for consumption on or after July 16, 2010, the date of initiation of the anti-circumvention inquiry.
In comments to the Department, Angang asked the Department (1) to revisit its determination to suspend liquidation of all of Angang's entries and (2) to allow certifications for Angang's future entries. Angang has provided conflicting statements on whether it could segregate PRC-origin, semi-finished hangers from the self-produced, semi-finished hangers in Vietnam,
As stated above, if requested, should the Department conduct an administrative review in the future, and determine in the context of that review that either Quyky or Angang have not produced for export garment hangers using PRC-origin, semi-finished hangers, the Department will consider a changed circumstances review pursuant to section 751(b) of the Act to determine if the continued suspension of all garment hangers produced by Quyky or Angang is warranted.
This notice serves as the only reminder to parties subject to the administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This final affirmative circumvention determination is published in accordance with section 781(b) of the Act and 19 CFR 351.225(h).
Import Administration, International Trade Administration, Department of Commerce.
On August 1, 2011 the Department of Commerce (Department) initiated the third five-year (sunset) reviews of the antidumping duty orders on certain circular welded non-alloy steel pipe from Brazil, Mexico, the Republic of Korea, and Taiwan; and certain circular welded carbon steel pipes and tubes from Taiwan, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). The Department has conducted expedited (120-day) sunset reviews of these antidumping duty orders pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2). As a result of these reviews, the Department finds that revocation of the antidumping duty orders would likely lead to a continuation or recurrence of dumping, at the levels indicated in the “Final Results of Sunset Reviews” section of this notice,
Steve Bezirganian, Deborah Scott or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
On August 1, 2011, the Department published in the
The Department received a notice of intent to participate from the following
The Department received adequate substantive responses to the
As a result, pursuant to 19 CFR 351.218(e)(1)(ii)(C)(2), the Department determined that it would conduct expedited (120-day) sunset reviews of the antidumping duty orders and notified the U.S. International Trade Commission.
The products covered by the orders are circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low pressure conveyance of water, steam, natural gas, and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses, and generally meets ASTM A-53 specifications. Standard pipe may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for farming and support members for reconstruction or load bearing purposes in the construction, shipbuilding, trucking, farm equipment, and related industries. Unfinished conduit pipe is also included in the orders.
All carbon steel pipes and tubes within the physical description outlined above are included within the scope of the orders, except line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. Standard pipe that is dual or triple certified/stenciled that enters the U.S. as line pipe of a kind used for oil or gas pipelines is also not included in the orders.
Imports of the products covered by the orders are currently classifiable under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 73.06.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the orders is dispositive.
The products covered by the order are (1) circular welded non-alloy steel pipes and tubes, of circular cross section over 114.3 millimeters (4.5 inches), but not over 406.4 millimeters (16 inches) in outside diameter, with a wall thickness of 1.65 millimeters (0.065 inches) or more, regardless of surface finish (black, galvanized, or painted), or end-finish (plain end, beveled end, threaded, or threaded and coupled); and (2) circular welded non-alloy steel pipes and tubes, of circular cross-section less than 406.4 millimeters (16 inches), with a wall thickness of less than 1.65 millimeters (0.065 inches), regardless of surface finish (black, galvanized, or painted) or end-finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkling systems, and other related uses, and generally meet ASTM A-53 specifications. Standard pipe may also be used for light load-bearing applications, such as for fence-tubing and as structural pipe tubing used for framing and support members for construction, or load-bearing purposes in the construction, shipbuilding, trucking, farm-equipment, and related industries. Unfinished conduit pipe is also included in the order.
All carbon steel pipes and tubes within the physical description outlined above are included within the scope of the order, except line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. Standard pipe that is dual or triple certified/stenciled that enters the U.S. as line pipe of a kind or used for oil and gas pipelines is also not included in the scope of the order.
Imports of the products covered by the order are currently classifiable under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings, 7306.30.10.00, 7306.30.50.85, 7306.30.50.90.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
The products covered by the order are certain circular welded carbon steel pipes and tubes from Taiwan, which are defined as: welded carbon steel pipes and tubes, of circular cross section, with walls not thinner than 0.065 inch, and 0.375 inch or more but not over 4.5 inches in outside diameter, currently classified under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, and 7306.30.50.55. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by the order is dispositive.
All issues raised in these reviews are addressed in the “Issues and Decision Memorandum for the Final Results of Expedited Five-Year (Sunset) Reviews of the Antidumping Duty Orders on Certain Circular Welded Non-Alloy Steel Pipe from Brazil, Mexico, the Republic of Korea, and Taiwan; and Certain Circular Welded Carbon Steel Pipes and Tubes from Taiwan,” from Gary Taverman, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration (Decision Memorandum), which is hereby adopted by, and issued concurrently with, this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the orders were revoked.
We determine that revocation of the antidumping duty orders on certain circular welded non-alloy steel pipes from Brazil, Mexico, the Republic of Korea, and Taiwan; and certain circular welded carbon steel pipes and tubes from Taiwan would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage margins:
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On August 8, 2011, the Department of Commerce (“Department”) published the
Steven Hampton or Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
As noted above, on August 8, 2011, the Department published in the
The products covered by the order are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Steel products included in the scope of the order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is 2 percent or less, by weight; and, (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of the order unless otherwise excluded. The following products, for example, are outside or specifically excluded from the scope of the order:
• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including, e.g., American Society for Testing and Materials (“ASTM”) specifications A543, A387, A514, A517, A506).
• Society of Automotive Engineers (“SAE”)/American Iron & Steel Institute (“AISI”) grades of series 2300 and higher.
• Ball bearing steels, as defined in the HTSUS.
• Tool steels, as defined in the HTSUS.
• Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
• ASTM specifications A710 and A736.
• USS abrasion-resistant steels (USS AR 400, USS AR 500). All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).
• Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS.
The merchandise subject to the order is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel flat products covered by the order, including: vacuum degassed fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.
Based on its analysis of the record information, the Department preliminarily determined that the merchandise in the Customs and Border Protection (“CBP”) data and the entry documentation on the record was not subject to the scope of the antidumping duty order on hot-rolled carbon steel flat products from the PRC.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of 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 order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Tariff Act of 1930, as amended and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting the second administrative review of steel wire garment hangers from the People's Republic of China (“PRC”) for the period October 1, 2009, through September 30, 2010. The Department has preliminarily determined that sales have been made below normal value (“NV”) by the respondent. If these preliminary results are adopted in our final results of this review, the Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise during the period of review (“POR”). Interested parties are invited to comment on these preliminary results.
Bob Palmer, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
The Department received a timely request from Petitioner
On December 23, 2010, Petitioner withdrew its request for an administrative review of 87 companies out of the 102 companies under review. On March 18, 2011, the Department published a notice of rescission in the
On May 19, 2011, the Department published a notice in the
Section 777A(c)(1) of the Tariff Act of 1930, as amended (“the Act”), directs the Department to calculate individual dumping margins for each known exporter or producer of the subject merchandise.
On December 6, 2010, the Department released CBP data for entries of subject merchandise during the POR under administrative protective order (“APO”) to all interested parties having an APO as of five days after publication of the
On January 21, 2011, the Department issued the respondent selection memorandum after assessing its resources and determining that it could only reasonably examine two exporters subject to this review. Pursuant to section 777A(c)(2)(B) of the Act, the Department selected Shanghai Wells Hanger Co., Ltd. (“Shanghai Wells) and Jiaxing Boyi Medical Device Co. (“Jiaxing Boyi”) as mandatory respondents.
On February 24, 2011, we selected an additional mandatory respondent, Shaoxing Liangbao Metal Manufactured Co., Ltd. (“Shaoxing Liangbao”) as a replacement for Jiaxing Boyi.
On March 28, 2011, as a replacement for Shaoxing Liangbao, we selected another additional mandatory respondent, Pu Jiang County Command Metal Products Co., Ltd. (“Command Metal Products”).
On April 29, 2011, we selected an additional two mandatory respondents, Shaoxing Guochao Metal Products Co., Ltd. (“Guochao Metal Products”) and Yiwu Ao-Si Metal Products Co., Ltd. (“Yiwu”) as replacements for Command Metal Products.
On June 13, 2011, we selected Shaoxing Meideli Metal Hanger Co., Ltd. (“Meideli”), the sole remaining company in the CBP entry data that had not been selected by the Department for individual examination.
The POR is October 1, 2009, to September 30, 2010.
The merchandise that is subject to the order is steel wire garment hangers, fabricated from carbon steel wire, whether or not galvanized or painted, whether or not coated with latex or epoxy or similar gripping materials, and/or whether or not fashioned with paper covers or capes (with or without printing) and/or nonslip features such as saddles or tubes. These products may also be referred to by a commercial designation, such as shirt, suit, strut, caped, or latex (industrial) hangers. Specifically excluded from the scope of the order are wooden, plastic, and other garment hangers that are not made of steel wire. Also excluded from the scope of the order are chrome-plated steel wire garment hangers with a diameter of 3.4 mm or greater. The products subject to the order are currently classified under U.S. Harmonized Tariff Schedule (“HTSUS”) subheadings 7326.20.0020, 7323.99.9060, and 7323.99.9080.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
On January 28 2011, the Department received a separate rate certification from Zhongbao indicating that it had made one U.S. sale during the POR.
The Department has considered Petitioner's comments and Zhongbao's submissions and determined to accept Zhongbao's no shipment certification. Zhongbao's no shipment certification, although untimely, relates to its timely separate rate certification and to its inability to obtain entry documentation from its unaffiliated importer for the sale and entry Zhongbao believed was made during the POR. In addition, the CBP data on the record does not contradict Zhongbao's claims. Further, the record indicates that Zhongbao has attempted to cooperate with the Department's requests for information to the best of its abilities. Additionally, we intend to refer this matter to CBP to investigate whether this entry was entered properly.
On January 28 2011, the Department received a separate rate certification from Shunji which indicated that it had made one U.S. sale during the POR.
Additionally, between January 28, 2011, and May 26, 2011, the following companies filed no shipment certifications indicating that they did not export subject merchandise to the United States during the POR: Ningbo Dasheng Hanger Ind. Co., Ltd.; Shangyu Baoxiang Metal Manufactured Co., Ltd.; Shaoxing Andrew Metal Manufactured; Shaoxing Gangyuan Metal Manufacture; Shaoxing Tongzhou Metal Manufactured Co., Ltd.; and Zhejiang Lucky Cloud Hanger Co., Ltd. In order to examine these claims, we sent an inquiry to CBP requesting that if any CBP office had any information contrary to the no shipments claims, to alert the Department within ten days of receiving our inquiry. CBP received our inquiries on February 23, 2011, and April 29, 2011. We have not received a response from CBP with regard to our inquiries which indicates that CBP did not have information that was contrary to the claims.
Therefore, pursuant to 19 CFR 351.213(d)(3), we preliminarily determine that the above companies made no shipments of subject merchandise during the POR. Consequently, we preliminary determine that none of the above-named companies had shipments of subject merchandise to the United States during the POR, and we are preliminarily rescinding the review with respect to the above-named companies.
On February 25, 2011, the Department sent interested parties a letter inviting comments on surrogate country selection and information regarding valuing factors of production (“FOPs”). On April 4, 2011, Petitioner filed comments on surrogate country selection, stating India and Thailand may be appropriate surrogates if their data is publicly available, reliable and contemporaneous. On May 4, 2010, the Department received information to value FOPs from Petitioner. Petitioner provided surrogate values (“SV”) from sources in India and Thailand.
When the Department investigates imports from an NME country and available information does not permit the Department to determine NV pursuant to section 773(a) of the Act, then, pursuant to sections 773(c)(1) and 773(c)(4) of the Act, the Department bases NV on an NME producer's FOPs, to the extent possible, in one or more market-economy countries that (1) Are at a level of economic development comparable to that of the NME country, and (2) are significant producers of comparable merchandise. Regarding the “level of economic development,” the Department relied on per capita gross national income (“GNI”) data to measure economic comparability.
The Department has determined that India is the appropriate surrogate country for use in this review. The Department based its decision on the following facts: (1) India is at a level of economic development comparable to that of the PRC; (2) India is a significant producer of comparable merchandise; and (3) India provides the best opportunity to use quality, publicly available data to value the FOPs. Although Petitioner provided SV data for both Thailand and India, India's data is the best available data on the record for selection as the primary surrogate country, because the record contains Indian SV data for all FOPs used by Shanghai Wells. Therefore, we have selected India as the surrogate country and, accordingly, have calculated NV using Indian prices to value the respondent's FOPs, when available and
In every proceeding conducted by the Department involving the PRC, we have treated it as an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination that a country is an NME shall remain in effect until revoked by the Department. None of the parties to this proceeding have contested such treatment. Accordingly, the Department calculated NV in accordance with section 773(c) of the Act, which applies to NME countries.
In NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate.
The Department analyzes each entity's export independence under a test first articulated in
The Department received a complete response to the Section A portion of the NME questionnaire from Shanghai Wells, which contained information pertaining to the companies' eligibility for a separate rate. As noted above, Jiaxing Boyi, Shaoxing Liangbao, Command Metal Products, Guochao Metal Products, Yiwu, and Meideli, have terminated participation in this administrative review. Therefore, these six companies have failed to demonstrate their eligibility for a separate rate.
Shanghai Wells reported that it is a wholly foreign-owned entity.
Sections 776(a)(1) and 776(a)(2) of the Act provide that, if necessary information is not available on the record, or if an interested party (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, then the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party “promptly after receiving a request from {the Department} * * * for information, notifies {the Department} * * * that such party is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information,” the Department may modify the requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, then the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not decline to consider information deemed “deficient” under section 782(d) if (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the Department; and (5) the information can be used without undue difficulties.
However, section 776(b) of the Act states that if the Department finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information, the Department “in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
As stated in the “Respondent Selection” section above, the Department issued the NME questionnaire to Jiaxing Boyi, Shaoxing Liangbao, Command Metal Products, and Meideli and did not receive a request for an extension of time or a response to Sections A, C or D of the Department's questionnaire on the established deadlines. Additionally, as stated above, counsel to Guochao Metal Products and Yiwu filed a letter stating that they would not participate as mandatory respondents in this administrative review. Therefore, the Department finds it appropriate to rely on the facts otherwise available in order to determine a margin for Jiaxing Boyi, Shaoxing Liangbao, Command Metal Products, Meideli, Guochao Metal Products and Yiwu for purposes of these preliminary results, pursuant to section 776(a)(2) of the Act.
As stated above, section 776(b) of the Act provides that, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available. As a result of these six companies' decision to terminate participation in this review, the Department will not grant these six companies a separate rate and considers them part of the PRC-wide entity.
The Department finds that the PRC-wide entity, including Jiaxing Boyi, Shaoxing Liangbao, Command Metal Products, Meideli, Guochao Metal Products, and Yiwu withheld requested information, failed to provide information in a timely manner and in the form requested, and significantly impeded this proceeding. Moreover, by refusing to answer the Department's questionnaire, these six companies failed to cooperate to the best of their ability. Therefore, the Department must rely on adverse facts otherwise available in order to determine a margin for the PRC-wide entity, pursuant to sections 776(a)(2)(A), (B), (C) and 776(b) of the Act.
As previously stated, the Department may rely on information derived from any of the following sources in deciding which facts to use as AFA: (1) The petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, secondary information on which it relies as facts available. The SAA defines secondary information as “information derived from the petition that gave rise to the investigation or review, the final determination concerning subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
In this case, the Department selected the highest rate assigned in any segment of this proceeding (
As the 187.25 percent rate is both reliable and relevant, the Department determines that it has probative value. Accordingly, the Department determines that the calculated rate of 187.25 percent, which is the current PRC-wide rate, is in accord with the requirement of section 776(c) of the Act that secondary information be corroborated to the extent practicable (
The Wells Group reported the invoice date as the date of sale because they claim that, for their U.S. sales of subject merchandise made during the POR, the material terms of sale were established based on the invoice date. The Department preliminarily determines that the invoice date is the most appropriate date to use as the Wells Group date of sale in accordance with 19 CFR 351.401(i) and the Department's long-standing practice of determining the date of sale.
To determine whether sales of steel wire garment hangers to the United States by the Wells Group were made at less than NV, the Department compared either export price (“EP”) or constructed export price (“CEP”) to NV, as described in the “U.S. Price” and “Normal Value” sections below.
In accordance with section 772(a) of the Act, the Department calculated EP for a portion of sales to the United States for the Wells Group because the first sale to an unaffiliated party was made before the date of importation and the use of CEP was not otherwise warranted. The Department calculated EP based on the sales price to unaffiliated purchasers in the United States. In accordance with section 772(c)(2)(A) of the Act, as appropriate, the Department deducted from the sales price certain foreign inland freight, brokerage and handling (“B&H”), and international movement costs. Because the inland freight and B&H services were either provided by a NME vendor or paid for using a NME currency, the Department based the deduction of these charges on surrogate values.
For some of the Wells Group's sales, the Department based U.S. price on CEP in accordance with section 772(b) of the Act, because sales were made on behalf of the Chinese-based company by a U.S. affiliate to unaffiliated purchasers in the United States. For these sales, the Department based CEP on prices to the first unaffiliated purchaser in the United States. Where appropriate, the Department made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling adjustments, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, the Department also deducted those selling expenses associated with economic activities occurring in the United States. The Department deducted, where appropriate, commissions, inventory carrying costs, interest revenue, credit expenses, warranty expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by PRC service providers or paid for in renminbi, the Department valued these services using SVs (
Section 773(c)(1) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Further, pursuant to section 773(c)(1) of the Act, the valuation of an NME respondent's FOPs shall be based on the best available information regarding the value of such factors in an ME country or countries considered to be appropriate by the Department. The Department bases NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
The Department used Indian import statistics to value the raw material and packing material inputs that the Wells Group used to produce the subject merchandise during the POR, except where listed below. With respect to the SVs based on Indian import statistics, in according with the Omnibus Trade and Competitiveness Act of 1988 (“OTCA”) and long-standing agency practice, the Department has disregarded prices that the Department has reason to believe or suspect may be subsidized.
In accordance with section 773(c)(1) of the Act, for subject merchandise produced by the Wells Group, the Department calculated NV based on the FOPs reported by the Wells Group for the POR. The Department used data from the Indian import statistics and other publicly available Indian sources in order to calculate SVs for the Wells Group's FOPs (direct materials, energy, and packing materials) and certain movement expenses. To calculate NV, the Department multiplied the reported per-unit factor quantities by publicly available Indian SVs (except as noted below). Because the statute is silent concerning what constitutes the “best available information” for a particular SV, the courts have recognized that on this topic the Department enjoys “broad discretion to determine the best available information for an antidumping review.”
In this case, the Department adjusted the SVs as necessary to ensure a fair calculation of the production costs. First, the Department made adjustments to the SVs for exchange rates and taxes, and converted all applicable items to measurement on a per kg basis. Second, the Department adjusted input prices by including freight costs to render them delivered prices. Specifically, to accord with the decision of the Federal Circuit in
The Department valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled Electricity Tariff & Duty and Average Rates of Electricity Supply in India, dated March 2008. These electricity rates represent actual country-wide, publicly available information on tax-exclusive electricity rates charged to small, medium, and large industries in India. We did not inflate or otherwise alter this value because utility rates remain contemporaneous with the POR, as indicated by the effective dates listed for each of the rates provided.
The Department valued water using publicly available data from the Maharashtra Industrial Development Corporation (
As previously stated, the Department values FOPs in NME cases using the best available information for such factors in a ME country or countries considered appropriate by the administering authority. In so doing, the
Previously, to value the respondent's cost of labor, the Department used regression-based wages that captured the worldwide relationship between per capita Gross National Income (“GNI”) and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3). However, on May 14, 2010, the Federal Circuit in
In these preliminary results, the Department calculated the labor input using the Labor method described in
As stated above, the Department used Indian ILO data reported under Chapter 6A of Yearbook, which reflects all costs related to labor, including wages, benefits, housing, training, etc. Because the financial statements used to calculate the surrogate financial ratios include itemized detail of indirect labor costs, the Department made adjustments to the surrogate financial ratios.
The Department valued truck freight expenses using an Indian per-unit average rate calculated from publicly available data on the following Web site:
To value B&H, the Department used a price list of export procedures necessary to export a standardized cargo of goods in India. The price list is publicly available and compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India as published in
To value factory overhead, selling, general, and administrative (“SG&A”) expenses, and profit, the Department is using the 2009-2010 audited financial statement of Sterling Tools Ltd. (“Sterling”), which is an Indian fastener manufacturer.
Petitioner placed on the record five financial statements for consideration: Three financial statements from Indian companies, Lakshmi Precision Screws Ltd. (“Lakshmi”), Sterling, and Usha Martin Ltd. (“Usha Martin”), and two from Thai companies, Kato Spring (Thailand) Co. Ltd. (“Kato”), and Capital Engineering Network Public Company Limited (“Capital Engineering”).
With regard to Sterling, we note that we have previously disregarded Sterling's financial statement because it apparently indicated a raw material consumption quantity and value which did not include steel wire rod.
Therefore, the Department has used Sterling's 2009-2010 financial statement
In its questionnaire responses and sales databases, the Wells Group reported certain expenses incurred, and corresponding revenues earned, related to the transportation or movement of the subject merchandise sales during the POR. For a full discussion of the adjustments to the gross unit price,
The Department made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
The Department preliminarily determines that the following weighted-average dumping margins exist:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent-from-the-record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1).
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. In accordance with 19 CFR 351.212(b)(1), we calculated exporter/importer (or customer)-specific assessment rates for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculated importer (or customer)-specific
Where we do not have entered values for all U.S. sales, we calculated a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to each importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer).
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
International Trade Administration, DOC.
Notice of Federal Advisory Committee Meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The teleconference meeting is scheduled for Wednesday, November 16, 2011, at 3 p.m. Eastern Standard Time (EST). Please register by 5 p.m. EST on Thursday, November 10, 2011 to listen in on the teleconference meeting.
The meeting will take place via teleconference. For logistical reasons, all participants are required to register in advance by the date specified above. Please contact Mr. Todd DeLelle at the contact information below to register and obtain call-in information.
Mr. Todd DeLelle, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 4053, 1401 Constitution Avenue NW., Washington, DC 20230.
The meeting will take place from 3 p.m. to 4 p.m. EST. This meeting is open to the public. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. Minutes will be available within 30 days of this meeting.
The teleconference will be accessible to people with disabilities. Please specify any requests for reasonable accommodation when registering to participate in the teleconference. Last minute requests will be accepted, but may be impossible to fill.
No time will be available for oral comments from members of the public during this meeting. As noted above, any member of the public may submit pertinent written comments concerning the Committee's affairs at any time before or after the meeting. Comments may be submitted to Mr. Todd DeLelle at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5 p.m. Eastern Standard Time on Thursday, November 10, 2011, to ensure transmission to the Committee prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting.
National Ocean Service, NOAA, Department of Commerce.
Notice of open meeting.
Notice is hereby given of a meeting of the Marine Protected Areas Federal Advisory Committee (Committee) in New Orleans, Louisiana.
The meeting will be held Tuesday, November 15, 2011, from 8:30 a.m. to 5:45 p.m., and Thursday, November 17, from 8:30 a.m. to 4:30 p.m. These times and the agenda topics described below are subject to change. Refer to the Web page listed below for the most up-to-date meeting agenda.
The meeting will be held at the Ritz Carlton Hotel, 921 Canal Street, New Orleans, 70112.
Kara Yeager, Designated Federal Officer, MPA FAC, National Marine Protected Areas Center, 1305 East West Highway, Silver Spring, Maryland 20910. (Phone: (301) 713-3100 x162, Fax: (301) 713-3110); email:
The Committee, composed of external, knowledgeable representatives of stakeholder groups, was established by the Department of Commerce (DOC) to provide advice to the Secretaries of Commerce and the Interior on implementation of Section 4 of Executive Order 13158, which calls for the development of a National System of MPAs. The National System aims to strengthen existing MPAs and MPA programs through national and regional coordination, capacity building, science and analysis. The meeting is open to the public, and public comment will be accepted from 4:30 p.m. to 5:30 p.m. on Tuesday, November 15, 2011. In general, each individual or group will be limited to a total time of five (5) minutes. If members of the public wish to submit written statements, they
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Catch Share Panel of the Caribbean Fishery Management Council will hold a public meeting to discuss the issues contained in the enclosed agenda.
Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577; telephone: (787) 766-5926.
The Catch Share Panel of the Caribbean Fishery Management Council will hold a public meeting to discuss the following agenda items:
The meeting is physically accessible to people with disabilities. Simultaneous interpretation will be provided (English-Spanish). For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577, telephone: (787) 766-5926, at least 5 days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products and service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and to delete products previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Patricia Briscoe,
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and service proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and service are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for deletion from the Procurement List.
The following products are proposed for deletion from the Procurement List:
The Committee for the Implementation of Textile Agreements (CITA).
Amending the 12-Month Cap on Duty and Quota Free Benefits.
Richard Stetson, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 3103 of the Trade Act of 2002, Pub. L. 107-210; Presidential Proclamation 7616 of October 31, 2002, 67 FR 67283 (November 5, 2002); Executive Order 13277, 67 FR 70305 (November 19, 2002); and the Office of the United States Trade Representative's Notice of Authority and Further Assignment of Functions, 67 FR 71606 (November 25, 2002).
Section 3103 of the Trade Act of 2002 amended the Andean Trade Preference Act (ATPA) to provide for duty and quota-free treatment for certain textile and apparel articles imported from designated Andean Trade Promotion and Drug Eradication Act (ATPDEA) beneficiary countries. Section 204(b)(3)(B)(iii) of the amended ATPA provides duty- and quota-free treatment for certain apparel articles assembled in ATPDEA beneficiary countries from regional fabric and components, subject to quantitative limitation. More specifically, this provision applies to apparel articles sewn or otherwise assembled in one or more ATPDEA beneficiary countries from fabrics or from fabric components formed or from components knit-to-shape, in one or more ATPDEA beneficiary countries, from yarns wholly formed in the United States or one or more ATPDEA beneficiary countries (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 and 5603 of the Harmonized Tariff Schedule (HTS) and are formed in one or more ATPDEA beneficiary countries). Such apparel articles may also contain certain other eligible fabrics, fabric components, or components knit-to-shape.
Title VII of the Tax Relief and Health Care Act (TRHCA) of 2006, Public Law 107-432, extended the expiration of the ATPA to June 30, 2007. See Section 7002(a) of the TRHCA 2006. H.R. 1830, 110th Cong. (2007), further extended the expiration of the ATPA to February 29, 2008. H.R. 5264, 110th Cong. (2008), further extended the expiration of the ATPA to December 31, 2008. H.R. 7222, 110th Cong. (2008), further extended the expiration of the ATPA to December 31, 2009. H.R. 4284, 111th Cong. (2009), further extended the expiration of the ATPA to December 31, 2010. H.R. 6517, 111th Cong. (2010), further extended the expiration of the ATPA to February 12, 2011. H.R. 3078, 112th Cong. (2011), further extended the expiration of the ATPA to July 31, 2013.
The purpose of this notice is to extend the period of the quantitative limitation for preferential tariff treatment under the regional fabric provision for imports of qualifying apparel articles from Colombia and Ecuador through September 30, 2012. For the period beginning on October 1, 2011 and extending through September 30, 2012 the aggregate quantity of imports eligible for preferential treatment under the regional fabric provision is 1,341,021,673 square meters equivalent. Apparel articles entered in excess of this quantity will be subject to otherwise applicable tariffs.
This quantity is calculated using the aggregate square meter equivalents of all apparel articles imported into the United States, derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (ATC), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC.
Committee for the Implementation of Textile Agreements (CITA).
Amending the 12-Month Cap on Duty and Quota Free Benefits.
Richard Stetson, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 3103 of the Trade Act of 2002, Pub. L. 107-210; Presidential Proclamation 7616 of October 31, 2002, 67 FR 67283 (November 5, 2002); Executive Order 13277, 67 FR 70305 (November 19, 2002); and the Office of the United States Trade Representative's Notice of Authority and Further Assignment of Functions, 67 FR 71606 (November 25, 2002).
Section 3103 of the Trade Act of 2002 amended the Andean Trade Preference Act (ATPA) to provide for duty- and quota-free treatment for certain textile and apparel articles imported from designated Andean Trade Promotion and Drug Eradication Act (ATPDEA) beneficiary countries. Section 204(b)(3)(B)(iii) of the amended ATPA provides duty- and quota-free treatment for certain apparel articles assembled in ATPDEA beneficiary countries from regional fabric and components, subject to quantitative limitation. More specifically, this provision applies to apparel articles sewn or otherwise assembled in one or more ATPDEA beneficiary countries from fabrics or from fabric components formed or from components knit-to-shape, in one or more ATPDEA beneficiary countries, from yarns wholly formed in the United States or one or more ATPDEA beneficiary countries (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 and 5603 of the Harmonized Tariff Schedule (HTS) and are formed in one or more ATPDEA beneficiary countries). Such apparel articles may also contain certain other eligible fabrics, fabric components, or components knit-to-shape.
Title VII of the Tax Relief and Health Care Act (TRHCA) of 2006, Public Law 107-432, extended the expiration of the ATPA to June 30, 2007. See Section 7002(a) of the TRHCA 2006. H.R. 1830, 110th Cong. (2007), further extended the expiration of the ATPA to February 29, 2008. H.R. 5264, 110th Cong. (2008), further extended the expiration of the ATPA to December 31, 2008. H.R. 7222, 110th Cong. (2008), further extended the expiration of the ATPA to December 31, 2009. H.R. 4284, 111th Cong. (2009), further extended the expiration of the ATPA to December 31, 2010. H.R. 6517, 111th Cong. (2010), further extended the expiration of the ATPA to February 12, 2011. H.R. 3078, 112th Cong. (2011), further extended the expiration of the ATPA to July 31, 2013.
The purpose of this notice is to extend the period of the quantitative limitation for preferential tariff treatment under the regional fabric provision for imports of qualifying apparel articles from Colombia and Ecuador through September 30, 2011. For the period beginning on October 1, 2010 and extending through September 30, 2011 the aggregate quantity of imports eligible for preferential treatment under the regional fabric provision is 1,238,203,339 square meters equivalent. Apparel articles entered in excess of this quantity will be subject to otherwise applicable tariffs.
This quantity is calculated using the aggregate square meter equivalents of all apparel articles imported into the United States, derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (ATC), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC.
10 a.m., Friday, November 4, 2011.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
10 a.m., Friday November 18, 2011.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
10 a.m., Friday November 11, 2011.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Office of the Secretary, Department of Defense (DoD).
Notice to Amend a System of Records.
The Office of the Secretary of Defense is proposing to amend a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The changes will be effective on November 28, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Mandatory Declassification Review Files (October 14, 2010, 75 FR 63160).
Delete entry and replace with “Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.”
Delete entry and replace with “Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.
Written requests should include the individual's name and address of the individual at the time the record would have been created.”
Mandatory Declassification Review Files.
Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.
Individuals who request Mandatory Declassification Review (MDR) or appeal a Mandatory Declassification Review determination. These include DoD, Executive Branch Agencies, public or contractors.
Name, address, and organization of person making MDR request or appeal, identification of records requested, dates and summaries of action taken.
E.O. 13526, Classified National Security Information; DoD Instruction 5200.01, DoD Information Security Program and Protection of Sensitive Compartmented Information.
To process requests and/or appeals from individuals for the mandatory review of classified documents for the purposes of releasing declassified material to the public; and to provide a research resource of historical data on release of records to ensure consistency in subsequent actions. Data developed from this system is used for the annual reported required by the applicable Executive Order(s) governing classified National Security Information. This data also serves management needs, by providing information about the number of requests; the type or category of records required; and the average processing time.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of OSD's compilation of systems of records notices apply to this system.
Paper records in file folders and electronic storage media.
Retrieved by name of requester and other pertinent information, such as organization or address, subject material describing the MDR item (including date), MDR request number using computer indices, referring agency, or any combination of fields.
Paper records are maintained in Defense Security vault, with all physical security requirements to ensure the protection of special compartmented information. Within the vault, the paper files are stored in security containers with access limited to officials having a need-to-know based on their assigned duties. Computer systems require
Files that grant access to records are held in current status for two years after the end of the calendar year in which created, then destroyed. Files pertaining to denials of requests are destroyed 5 years after final determination. Appeals are retained for 3 years after final determination.
Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to Chief, Records and Declassification Division, Executive Services Directorate, 4800 Mark Center Drive, Suite 02F09, Alexandria, VA 20350-3200.
Written requests should include the individual's name and address of the individual at the time the record would have been created.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Office of the Secretary of Defense/Joint Staff, Freedom of Information Act Requester Service Center, Office of Freedom of Information, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should include the name and number of this system of records notice along with the individual's name and address of the individual at the time the record would have been created and be signed.
The Office of the Secretary of Defense rules for accessing records, for contesting contents and appealing initial agency determinations are published in Office of the Secretary of Defense Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
The individual.
None.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Idaho National Laboratory. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, November 14, 2011; 8 a.m.-5: p.m.
Opportunities for public participation will be from 11:45 a.m. to 12 p.m. and from 2:15 p.m. to 2:30 p.m.
These times are subject to change; please contact the Federal Coordinator (below) for confirmation of times prior to the meeting.
Hilton Garden Inn, 700 Lindsay Boulevard, Idaho Falls, Idaho 83402.
Robert L. Pence, Federal Coordinator, Department of Energy, Idaho Operations Office, 1955 Fremont Avenue, MS-1203, Idaho Falls, Idaho 83415. Phone (208) 526-6518; Fax (208) 526-8789 or
• Recent Public Involvement and Outreach
• Advanced Mixed Waste Treatment Project (AMWTP) Contract
• Idaho Cleanup Project (ICP) Contract Extension
• Idaho-EM Funding
• Status of Greater-Than-Class C Draft Environmental Impact Statement
• Fiscal Year 2012 Planning
• Accelerated Retrieval Project Status
• Tribal Agreements
• Calcine and Sodium Bearing Waste Status
• Remote-Handled Low-Level Waste Disposal Project Environmental Assessment
Minutes: Minutes will be available by writing or calling Robert L. Pence, Federal Coordinator, at the address and phone number listed above. Minutes will also be available at the following Web site:
U.S. Department of Energy.
Notice.
As required by the Privacy Act of 1974, 5 U.S.C. 552a, and the Office of Management and Budget (OMB) Circular A-130, the Department of Energy (DOE) is publishing notice of a proposed amendment to an existing system of records. DOE proposes to amend the system of records DOE-43 “Personnel Security Files.” This notice will create a new routine use to permit the disclosure of certain information to federal agencies for studies and analyses in support of evaluating and improving the effectiveness and efficiency of the agencies' investigative and adjudicative methodologies.
The proposed amendment to this existing system of records will become effective without further notice on
Written comments should be directed to Mr. James L. Packett, Field Assistance Program Manager, Office of Departmental Personnel Security (HS-53), Office of Health, Safety and Security, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585.
Mr. James L. Packett, Field Assistance Program Manager, Office of Departmental Personnel Security (HS-53), Office of Health, Safety and Security, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, (202) 586-3249 or Isiah Smith, Deputy Assistant General Counsel for Administrative Litigation and Information Law (GC-77), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-1522.
This notice proposes one amendment to DOE-43 Personnel Security Files. This amendment creates a new Routine Use # 9, which will permit DOE to disclose to the Department of Defense (DOD) and other Federal agencies certain Privacy Act information contained in an employee's personnel security file (PSF). DOE will analyze the information in the PSFs and use the results to decide whether to adopt DOD's Case Adjudication Tracking System (CATS).
The CATS is an electronic adjudicative case management and tracking system developed jointly by the U.S. Army Central Clearance Facility (CCF) and the Department of Defense Business Transformation Agency (BTA). Sharing the aforementioned files with DOD would permit the DOE to evaluate whether the CATS provides accurate analyses. If so, it may be more efficient to replace DOE's manual system for evaluating the information the Department gathers during Personnel Security Investigations (PSIs). Because the CATS analyses are potentially more efficient in analyzing data, the DOE may adopt the electronic adjudication system for personnel security investigations for all future PSF analyses.
DOE is submitting the report required by OMB Circular A-130 concurrently with the publication of this notice. The text of this notice contains information required by the Privacy Act, 5 U.S.C. 552a(e)(4).
Personnel Security Files.
Unclassified.
U.S. Department of Energy, Headquarters, 1000 Independence Avenue SW., Washington, DC 20585. U.S. Department of Energy, NNSA Service Center Albuquerque, P.O. Box 5400, Albuquerque, NM 87185-5400. U.S. Department of Energy, NNSA Naval Reactors Field Office, Pittsburgh Naval Reactors, P.O. Box 109, West Mifflin, PA 15122-0109. U.S. Department of Energy, NNSA Naval Reactors Field Office, Schenectady Naval Reactors, P.O. Box 1069, Schenectady, NY 12301. U.S. Department of Energy, Office of Science, Chicago Office, 9800 South Cass Avenue, Argonne, IL 60439. U.S. Department of Energy, Idaho Operations Office, 1955 Fremont Avenue, Idaho Falls, ID 83415. U.S. Department of Energy, NNSA Nevada Site Office, P.O. Box 98518, Las Vegas, NV 89193-8518. U.S. Department of Energy, Office of Science, Oak Ridge Office, P.O. Box 2001, Oak Ridge, TN 37831. U.S. Department of Energy, Richland Operations Office, P.O. Box 550, Richland, WA 99352. U.S. Department of Energy, Savannah River Operations Office, P.O. Box A, Aiken, SC 29801.
Applicants for DOE including National Nuclear Security Administration (NNSA) employment; DOE employees including assignees and detailees, agents and consultants with the DOE, DOE contractors and subcontractors, and DOE access permittees processed for DOE access authorizations for access to classified matter or special nuclear materials; other Federal agency contractor and subcontractor applicants for employment, and their employees, detailees, agents, and consultants processed for DOE access authorizations; and other individuals processed for DOE access authorizations as determined by the Secretary.
Name, date and place of birth, social security number, citizenship status, grade, organization, employer(s), initial investigation and reinvestigation history; and access authorization history; the formal request(s) and justification(s) for access authorization processing; security forms, fingerprint cards, and acknowledgments completed by the individual for both the initial investigation and reinvestigation; results of pre-employment checks (if required); request(s) and approval(s) for issuance of a security badge(s); report of investigation provided by an agency which has previously conducted an investigation of the individual for employment or security clearance purposes; approvals for classified visits; photographs; security infraction reports; security termination statement(s), foreign travel document; letters of interrogatory, personnel security interview transcripts or summaries, and/or audio tapes of the interviews, and evaluations of the interviews; reports of hospitalization or treatment for a mental condition or substance abuse, including information provided by an Employee Assistance Program provider; reports of DOE-sponsored mental evaluations conducted by competent medical authorities; reports of security violations; public record information to include law enforcement, financial, divorce, bankruptcy, name change and other court information or reports and copies of information appearing in the media; security advisory letters; information concerning citizenship status, foreign contacts, and spouse and/or individual(s) with whom the individual resides; administrative review processing data; justifications for participation in sensitive DOE activities and/or for Sensitive Compartmented Information access approval; results of required testing for participation in sensitive DOE activities; documents concerning Interim Access Authorization processing or processing under Section 145b of the Atomic Energy Act of 1954, as amended; written evaluations of reported derogatory information; credit check results; copies of correspondence to and from the individual concerning the items above and copies of inter- and intra-agency correspondence concerning the items above; and any other material relevant to the individual's DOE access authorization or special authorization eligibility or processing and, for DOE employees, suitability for Federal employment.
42 U.S.C. 7101
Records are retrieved by name and/or assigned DOE file number (alphanumeric code).
For those records described in
1. A record from this system may be disclosed as a routine use to competent medical authority who, under a formal agreement for payment of services with the local DOE personnel security element, conducts evaluations under Title 10, Code of Federal Regulations, Part 710, to determine whether an individual has an illness or mental condition of a nature which causes, or may cause, a significant defect in judgment or reliability, or is alcohol dependent or suffering from alcohol abuse.
2. A record from the system may be disclosed as a routine use to a federal, state, or local agency to obtain information relevant to a Departmental decision concerning the hiring or of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit. The Department must deem such disclosure to be compatible with the purpose for which the Department collected the information.
3. A record from this system may be disclosed to a federal agency to facilitate the requesting agency's decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter. The Department must deem such disclosure to be compatible with the purpose for which the Department collected the information.
4. A record from the system may be disclosed as a routine use to the appropriate local, state or federal agency when records alone or in conjunction with other information, indicates a violation or potential violation of law whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program pursuant thereto.
5. A record from this system of records may be disclosed to a member of Congress submitting a request involving the constituent when the constituent has requested assistance from the member with respect to the subject matter of the record. The member of Congress must provide a copy of the constituent's request for assistance.
6. A record from this system of records may be disclosed to foreign governments or international organizations in accordance with treaties, international conventions, or executive agreements.
7. A record from the system may be disclosed as a routine use to DOE contractors in performance of their contracts, and their officers and employees who have a need for the record in the performance of their duties. Those provided information under this routine use are subject to the same limitations applicable to Department officers and employees under the Privacy Act.
8. A record from this system may be disclosed as a routine use when (1) it is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department 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 integrity if this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
9. A record from this system may be disclosed to a federal agency for studies and analyses in support of evaluating and improving the effectiveness and efficiency of the investigative and adjudicative methodologies. The findings of any such studies or analyses shall not be released to the general public until all personal identifiers such as name, social security number, and date and place of birth have been deleted from them.
A record may be stored as paper records, microfiche, and electronic media.
Records are retrieved by name and/or assigned DOE file number (alphanumeric code).
Paper records are maintained in locked cabinets and desks. Electronic records are controlled through established DOE computer center procedures (personnel screening and physical security), and they are password protected. Access is limited to those whose official duties require access to the records.
Records retention and disposal authorities are contained in the National Archives and Records Administration (NARA) General Records Schedule and DOE record schedules that have been approved by NARA.
Headquarters: Director, Office of Security Operations, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. Field Offices: The Security Officers of the “System Locations” listed above are the system managers for their respective portions of this system.
In accordance with the DOE regulation implementing the Privacy Act, at Title 10, Code of Federal Regulations, Part 1008, a request by an individual to determine if a system of records contains information about him/her should be directed to the U.S. Department of Energy, Headquarters, Privacy Act Officer, or the Privacy Act Officer at the appropriate address identified above under “System Locations.” For records maintained by Laboratories or Field Site Offices, the request should be directed to the Privacy Act Officer for the site that has jurisdiction over the “System Location” as listed in the
Same as Notification Procedures above. Records are generally kept at locations where the work is performed. In accordance with DOE's Privacy Act regulation, proper identification is required before a request is processed.
Same as Notification Procedures above.
Documents completed and/or furnished by subject; Department of Energy; Office of Personnel Management; Federal Bureau of Investigation; Defense Security Service; medical professionals; and confidential sources.
This system is exempt under subsection (k)(1), (k)(2), and (k)(5) of the Privacy Act to the extent that information within the System meets the criteria of those subsections of the Act. Such information has been exempted from the provisions of subsections (c)(3), (d), and (e)(1) of the Act. See the Department's Privacy Act regulation at Title 10, Code of Federal Regulations, Part 1008.
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission or FERC) has submitted the information collection described below to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission issued a Notice in the
Comments on the collection of information are due by November 28, 2011.
Address comments on the collection of information to the Office of Management and Budget, Office of Information and Regulatory Affairs,
A copy of the comments should also be sent to the Federal Energy Regulatory Commission and should refer to Docket No. IC11-549-001. Comments may be filed either electronically or in paper format. Those persons filing electronically do not need to make a paper filing. Documents filed electronically via the Internet must be prepared in an acceptable filing format and in compliance with the Federal Energy Regulatory Commission submission guidelines. Complete filing instructions and acceptable filing formats are available at
For paper filings, the comments should be submitted to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426, and should refer to Docket No. IC11-549-001.
Users interested in receiving automatic notification of activity in FERC Docket Number IC11-549 may do so through eSubscription at
Ellen Brown may be reached by email at
The information collected under the requirements of
18 CFR 284.13(e) requires each interstate pipeline to file with the Commission a report of storage activity. The Commission adopted the existing semi-annual storage reporting requirements for interstate pipelines in their current form in 1992 as part of Order No. 636, and there have been only minor modifications in the semi-annual storage reporting requirements since that date.
Natural gas production is relatively constant throughout the year, while many uses of natural gas, residential space heating for example, are seasonal. Natural gas storage plays a critical role in balancing the seasonal demand with relatively constant supply, and the data collected in the semi-annual storage report provides important information about natural gas pipelines' ability to affect the prices shippers can obtain from consumers.
Improved storage technology and the increased use of natural gas in industry and electric generation have helped transform the storage market since 1992. There has been a sharp increase in demand for natural gas outside of the traditional winter months. Withdrawals and injections, instead of occurring on a uniform annual schedule based on heating needs, now occur dynamically year-round in response to market forces.
In 18 CFR 284.102(e) the Commission requires interstate pipelines to obtain proper certification in order to ship natural gas on behalf of intrastate pipelines and local distribution
18 CFR 284.123(b) provides that intrastate gas pipeline companies file for Commission approval of rates for services performed in the interstate transportation of gas. An intrastate gas pipeline company may elect to use rates contained in one of its then effective transportation rate schedules on file with an appropriate state regulatory agency for intrastate service comparable to the interstate service OR file proposed rates and supporting information showing the rates are cost based and are fair and equitable. 150 days after the application is filed the rate is deemed to be fair and equitable unless the Commission either extends the time for action, institutes a proceeding or issues an order providing for rates it deems to be fair and equitable.
18 CFR 284.123(e) requires that within 30 days of commencement of new service any intrastate pipeline engaging in the transportation of gas in interstate commerce must file a statement that includes the interstate rates and a description of how the pipeline will engage in the transportation services, including operating conditions. If an intrastate gas pipeline company changes its operations or rates it must amend the statement on file with the Commission. Such amendment is to be filed not later than 30 days after commencement of the change operations or change in rate election.
The Commission's regulations at 18 CFR 284.288 and 284.403 provide that applicable sellers of natural gas adhere to a code of conduct when making gas sales in order to protect the integrity of the market. Related to the code of conduct, the Commission imposes a record retention requirement on applicable sellers to “retain, for a period of five years, all data and information upon which it billed the prices it charged for natural gas it sold pursuant to its market based sales certificate or the prices it reported for use in price indices.” FERC uses these records to monitor the jurisdictional transportation activities and unbundled sales activities of interstate natural gas pipelines and blanket marketing certificate holders.
The record retention period of five years is necessary due to the importance of records related to any investigation of possible wrongdoing and related to assuring compliance with the codes of conduct and the integrity of the market. The requirement is necessary to ensure consistency with the rule prohibiting market manipulation (regulations adopted in Order No. 670, implementing the EPAct 2005 anti-manipulation provisions
Failure to have this information available would mean the Commission is unable to perform its regulatory functions and to monitor and evaluate transactions and operations of interstate pipelines and blanket marketing certificate holders.
In 2006 the Commission amended its regulations to establish criteria for obtaining market-based rates for storage services offered under 18 CFR 284.501-505. First, the Commission modified its market-power analysis to better reflect the competitive alternatives to storage. Second, pursuant to the Energy Policy Act of 2005, the Commission promulgated rules to implement section 4(f) of the Natural Gas Act, to permit underground natural gas storage service providers that are unable to show that they lack market power to negotiate market-based rates in circumstances where market-based rates are in the public interest and necessary to encourage the construction of the storage capacity in the area needing storage services, and where customers are adequately protected. These revisions are intended to facilitate the development of new natural gas storage capacity while protecting customers.
The total estimated annual cost burden to respondents is $339,068 (5,846 hours times $58/hour
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Allegheny Storage Project involving construction and operation of facilities by Dominion Transmission, Incorporated (DTI) in Lewis County, West Virginia; Tioga County, Pennsylvania; Frederick County, Maryland; and Monroe County, Ohio. This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues need to be evaluated in the EA. Please note that the scoping period will close on November 23, 2011.
Comments may be submitted in written form or verbally. Further details on how to submit written comments are provided in the Public Participation section of this notice. In lieu of or in addition to sending written comments, the Commission invites you to attend the public scoping meetings scheduled as follows:
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
DTI plans to construct and operate one new compressor station in both Frederick County, Maryland and Monroe County, Ohio. In addition, DTI plans to replace about 3 miles of pipeline in Tioga County, Pennsylvania and install additional hydration at an existing compressor station in Lewis County, West Virginia. According to DTI, the Allegheny Storage Project would provide a total of 125,000 dekatherms per day of both natural gas storage and transportation service to its customers: Baltimore Gas and Electric, TW Philips, and Washington Gas and
The planned Allegheny Storage Project would consist of the following facilities:
• A new 16,000-horsepower (hp) Myersville Compressor Station, 0.6-mile suction and discharge pipelines, and upgrades at the existing Tuscarora Meter Station in Frederick County, Maryland;
• A new 3,550-hp Mullett Compressor Station, upgrades at the existing Mullett Meter Station, and installation of 0.5-mile suction and discharge pipelines in Monroe County, Ohio;
• Replacement of 1.7 miles of 10- and 12-inch-diameter pipelines and 1.2 miles of 8- and 12-inch-diameter pipelines with 16- and 20-inch-diameter pipelines, respectively, and the installation of ancillary equipment at the Sabinsville Storage Station in Tioga County, Pennsylvania; and
• Installation of additional hydration at the existing Wolf Run Compressor Station in Lewis County, West Virginia.
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb a total of about 58 acres of land. Following construction, about 14.9 acres would be maintained for permanent operation of the project's facilities; the remaining acreage would be restored and allowed to revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Vegetation and wildlife;
• Endangered and threatened species;
• Cultural resources;
• Air quality and noise; and
• Public safety.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA.
Our independent analysis of the issues will be presented in the EA. The EA will be placed in the public record and, depending on the comments received during the scoping process, may be published and distributed to the public. A comment period will be allotted if the EA is published for review. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section beginning on page 5.
With this notice, we are asking agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Offices, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that they will be received in Washington, DC on or before November 23, 2011.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (PF11-9-000) with your submission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the
(2) You may file your comments electronically by using the
(3) You may mail a paper copy of your comments to the Commission at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
Once DTI files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until a formal application for the project is filed with the Commission.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and/or Commission staff may attend the following meetings:
North American Electric Reliability Corporation, Member Representatives Committee and Board of Trustees Meetings.
Westin Buckhead Atlanta, 3391 Peachtree Road, NE., Atlanta, GA 30326.
November 2 (1 p.m.-5 p.m.) and 3 (8 a.m.-1 p.m.), 2011.
Further information regarding these meetings may be found at:
The discussions at the meetings, which are open to the public, may address matters at issue in the following Commission proceedings:
For further information, please contact Jonathan First, (202) 502-8529, or
Environmental Protection Agency (EPA).
Notice of Charter Renewal.
Notice is hereby given that the Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2. The Children's Health Protection Advisory Committee (CHPAC) is a necessary committee which is in the public interest. Accordingly, CHPAC will be renewed for an additional two-year period. The purpose of CHPAC is to provide advice and recommendations to the Administrator of EPA on issues associated with development of regulations, guidance and policies to address children's health risks.
Inquiries may be directed to Martha Berger, Designated Federal Officer, CHPAC, U.S. EPA, OCHP MC 1107A, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EIS are available at:
Revision to FR Notice Published 10/21/2011: Correction to the State from CA to GA.
Environmental Protection Agency (EPA).
Notice of Extension of Comment Period.
The EPA is announcing an extension of the public comment period for its draft non-binding guidance titled, “Guidance for 1-Hour SO
Comments must be received on or before December 2, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-1059, by one of the following methods:
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For questions concerning this action, please contact Larry D. Wallace, Ph.D., U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Policy Division, C504-03, Research Triangle Park, NC 27711, telephone (919) 541-0906, email at
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• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
The purpose of this notice is to extend the public comment period on the EPA's recently posted draft non-binding guidance titled, “Guidance for 1-Hour SO
While the EPA is providing additional time for the public to submit comments on the draft guidance, we are also taking into consideration that there is a need to finalize the guidance as quickly as possible so that states, tribes, and air agencies have the necessary information to begin work on their State Implementation Plans submittals to address 1-hour SO
The draft of the guidance document is available online at
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the provisions of the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held November 16 and 17 at 2660 Woodley Road NW., Washington, DC 20008. The CHPAC advises the Environmental Protection Agency on science, regulations, and other issues relating to children's environmental health.
The CHPAC will meet from 9 a.m. to 5:30 p.m. on November 16 and from 8:30 a.m. to Noon on November 17, 2011.
2660 Woodley Road NW., Washington, DC 20001.
Martha Berger, Office of Children's Health Protection, USEPA, MC 1107T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 564-2191,
The meetings of the CHPAC are open to the public. Preliminary agenda includes finalization of two letters of advice to the Administrator, update on school guidance documents, presentation and discussion on the use of electronic medical records for asthma screening, presentation and discussion on the IOM Sustainability Report and a panel on natural gas extraction. The final agenda will be posted at
Environmental Protection Agency (EPA).
Notice of determination.
Notice is hereby given that, pursuant to Clean Water Act Section 312(f)(3) (33 U.S.C. 1322(f)(3)), the State of New York has determined that the protection and enhancement of the quality of Jamaica Bay (the Bay) in the New York City metropolitan area requires greater environmental protection, and has petitioned the United States Environmental Protection Agency (EPA), Region 2, for a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for those waters, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters.
The New York State Department of Conservation (NYSDEC) on behalf of the New York City Department of Environmental Protection (NYCDEP) has proposed to establish a Vessel Waste No Discharge Zone (NDZ) for the Bay that covers an area of approximately 20,000 acres (17,177 acres of open water and 2,695 acres of upland islands and salt marshes). It is bounded on the west and northwest by Brooklyn, and on the north and northeast by Queens. The northeastern and southeastern corners of the Bay are bordered by Nassau County. The northern shore of the Rockaway Peninsula, a part of Queens, forms the southern boundary. The Bay is connected to the Atlantic Ocean through the Rockaway Inlet and has a tidal range of approximately 5 to 6 feet. The NYSDEC certified the need for greater protection of the water quality. EPA hereby makes a final affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Bay.
EPA published a tentative affirmative determination on August 3, 2011 in the
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Moses Chang (212) 637-3867,
Notice is hereby given that the State of New York (NYS or State) has petitioned the United States Environmental Protection Agency, Region 2, (EPA) pursuant to section 312(f)(3) of Public Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the open waters and tributaries of the Bay, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters. Adequate pumpout facilities are defined as one pumpout station for 300-600 boats under the Clean Vessel Act: Pumpout Station and Dump Station Technical Guidelines (
The Bay is the largest estuarine water body in the New York City metropolitan area and one of the largest coastal wetland ecosystems in New York State. The open waters and tributaries within the Bay provide important natural and recreational resources for boating and recreational activities that contribute significantly to the local and regional economy. In 2005, the Jamaica Bay Watershed Protection Plan (JBWPP) was put into motion by the City Council of New York City under Local Law 71 (LL 71). The objective of LL 71 is to ensure a holistic watershed approach toward restoring and maintaining the water quality and ecological integrity of the Bay. The JBWPP recommends management actions for protecting and improving the health of the Bay, e.g., adoption of appropriate regulations to mitigate the impacts of boat vessel waste discharges.
The Bay is a component of the National Park Service's (NPS) Gateway National Recreation Area (GNRA). A significant portion of the Bay, approximately 9,100 acres, has also been designated by the NPS as the Jamaica Bay Wildlife Refuge and is designated by the New York State Department of State (NYSDOS) as a Significant Coastal Fish and Wildlife Habitat. The diversity of bird species and breeding habitats within the Bay were important factors in these designations. The Jamaica Bay Wildlife Refuge was also the first site to be designated by the National Audubon Society as an “Important Bird Area.” It is clear that the Bay is currently functioning as a regional habitat for many different species of wildlife. In combination with other water quality improvement initiatives, the NDZ designation will further enhance the recreational and ecological benefits of the Bay, potentially attracting more visitors to the Bay.
In order for EPA to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the New York State areas of the Bay, the State must demonstrate that the pumpout-to-vessel ratio does not exceed 1:600.
In its petition, the State described the recreational vessels that use the Bay, and the pumpout facilities that are available for their use. Based on a review of NYS Department of Motor Vehicle boat registrations, site visits to marinas and reviewing high resolution orthoimagery of the Bay, NYCDEP has determined that there are approximately 1,200 to 1,500 boats that utilize the Bay throughout the boating season. This number may include a significant number of transient vessels and not only boats that are permanently moored in the Bay.
The Bay is primarily used for recreational boating with very little commercial traffic. The few commercial vessels that do enter the Bay are primarily sightseeing and fishing vessels which, pursuant to New York City regulations, must use private boat pumpout services to unload sewage within the Bay. Therefore, the boat pumpouts provided by NYCDEP within the Bay are utilized for recreational vessels only.
There are four vessel pumpout facilities available in the Bay. Three of those are land-based pumpout facilities operated by NYCDEP, and the fourth is a 24-foot sewage pumpout vessel operated by New York/New Jersey Baykeeper, that serves vessels docked or anchored throughout the Bay. All four facilities provide the pumpout services free of charge. Given that approximately 1,500 recreational vessels use the Bay, the pumpout-to-vessel ratio for those vessels is 1:375 (i.e., 4 facilities for 1,500 boats). Therefore, the pumpout facilities in the Bay satisfy the Clean Vessel Act criterion of 1 pumpout per 300-600 vessels.
A list of the facilities, phone numbers, locations, hours of operation, water depth and fee is provided as follows:
Centers for Medicare and Medicaid Services, HHS.
Proposed notice.
This proposed notice with comment period acknowledges the receipt of a deeming application from the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF) for recognition as a national accrediting organization for rural health clinics (RHCs) that wish to participate in the Medicare or Medicaid programs. The statute requires that within 60 days of receipt of an organization's complete application, we publish a notice that identifies the national accrediting body making the request, describes the nature of the request, and provides at least a 30-day public comment period.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on November 28, 2011.
In commenting, please refer to file code CMS-2901-PN. Because of staff and resource limitations, we cannot accept comments by facsimile (Fax) transmission.
You may submit comments in one of four ways (no duplicates, please):
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Please allow sufficient time for mailed comments to be received before the close of the comment period.
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a. For delivery in Washington, DC— Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD— Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
L. Tyler Whitaker, (410) 786-5236. Patricia Chmielewski, (410) 786-6899.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-(800) 743-3951.
Under the Medicare program, eligible beneficiaries may receive covered services from an rural health clinic (RHC) provided certain requirements are met. Sections 1861(aa) of the Social Security Act (the Act) establish distinct criteria for facilities seeking designation as RHCs. Regulations concerning provider agreements are at 42 CFR part 489 and those pertaining to activities relating to the survey and certification
Generally, in order to enter into a provider agreement with the Medicare program, an RHC must first be certified by a State survey agency as complying with the conditions or requirements set forth in part 42 CFR part 491, subpart A, of our regulations. Thereafter, the RHC is subject to regular surveys by a State survey agency to determine whether it continues to meet these requirements. There is an alternative, however, to surveys by State agencies.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accrediting organization that all applicable Medicare conditions are met or exceeded, we would deem those provider entities as having met the requirements. Accreditation by an accrediting organization is voluntary and is not required for Medicare participation.
If an accrediting organization is recognized by the Secretary as having standards for accreditation that meet or exceed Medicare requirements, any provider entity accredited by the national accrediting body's approved program would be deemed to meet the Medicare conditions. A national accrediting organization applying for deeming authority under part 488, subpart A must provide us with reasonable assurance that the accrediting organization requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. The regulations at § 488.8(d)(3) require accrediting organizations to reapply for continued deeming authority every 6 years or as we determine.
Section 1865(a)(2) of the Act and our regulations at § 488.8(a) require that our findings concerning review and approval of a national accrediting organization's requirements consider, among other factors, the applying accrediting organization's: requirements for accreditation; survey procedures; resources for conducting required surveys; capacity to furnish information for use in enforcement activities; monitoring procedures for provider entities found not in compliance with the conditions or requirements; and ability to provide us with the necessary data for validation.
Section 1865(a)(3)(A) of the Act further requires that we publish, within 60 days of receipt of an organization's complete application, a notice identifying the national accrediting body making the request, describing the nature of the request, and providing at least a 30-day public comment period. We have 210 days from the receipt of a complete application to publish a notice of approval or denial of the application.
The purpose of this proposed notice is to inform the public of American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF's) request for deeming authority for RHCs. This notice also solicits public comment on whether AAAASF's requirements meet or exceed the Medicare conditions for coverage for RHCs.
AAAASF submitted all the necessary materials to enable us to make a determination concerning its request for approval as a deeming organization for RHCs. This application was determined to be complete on August 29, 2011. Under Section 1865(a)(2) of the Act and our regulations at § 488.8 (Federal review of accrediting organizations), our review and evaluation of the AAAASF would be conducted in accordance with, but not necessarily limited to, the following factors:
• The equivalency of AAAASF's standards for RHCs as compared with CMS' RHC conditions for coverage.
• AAAASF's survey process to determine the following:
Because of the large number of public comments we normally receive on
Upon completion of our evaluation, including evaluation of comments received as a result of this notice, we will publish a final notice in the
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice.
This notice announces two new membership appointments to the Advisory Panel on Ambulatory Payment Classification (APC) Groups (the Panel). The two appointments are for 4-year periods through January 31, 2016. The purpose of the Panel is to review the APC groups and their associated weights, and to advise the Secretary of the Department of Health and Human Services (the Secretary) and the Administrator of the Centers for Medicare & Medicaid Services (the Administrator) concerning the clinical integrity of the APC groups and their weights. The advice provided by the Panel will be considered as CMS prepares its annual updates of the hospital outpatient prospective payment system (OPPS).
Paula Smith, the Designated Federal Officer. CMS, Center for Medicare Mail Stop C4-05-13, 7500 Security Boulevard, Baltimore, MD 21244-1850, Phone (410) 786-4709.
The Secretary is required by section 1833(t)(9)(A) of the Social Security Act (the Act) (42 U.S.C. 1395l(t)(9)(A)) to consult with an expert outside advisory panel on the clinical integrity of the Ambulatory Payment Classification (APC) groups and their associated weights. The Advisory Panel on APC Groups (the Panel) meets up to three times annually. We will consider the technical advice provided by the Panel as we prepare the proposed and final rules to update the outpatient prospective payment system (OPPS) for the next calendar year.
The Panel shall consist of up to 15 representatives of Medicare providers that are subject to the OPPS, plus a Chair. The Secretary or a designee selects the Panel membership based upon either self-nominations or nominations submitted by Medicare providers and other interested organizations. The Panel presently consists of the following members and a Chair: (The asterisk [*] indicates a Panel member whose term expires on September 30, 2011.)
• Edith Hambrick, M.D., J.D., Chair, CMS Medical Officer.
• Ruth L. Bush, M.D., M.P.H.
• Kari S. Cornicelli, C.P.A., FHFMA.
• Dawn L. Francis, M.D., M.H.S.
• Kathleen Graham, R.N., M.S.H.A.
• Patrick A. Grusenmeyer, Sc.D., FACHE.*
• David A. Halsey, M.D.
• Brian D. Kavanagh, M.D., MPH.
• Judith T. Kelly, R.H.I.T., R.H.I.A., C.C.S.
• Scott Manaker, M.D., Ph.D.
• John Marshall, CRA, RCC, CIRCC, RT(R), FAHRA.
• Agatha Nolan, D.Ph., M.S., FASHP.*
• Randall A. Oyer, M.D.
• Daniel J. Pothen, M.S., RHIA, CHPS.
• Gregory Przybylski, M.D.
• Neville B. Sarkari, M.D., FACP.
On March 25, 2011, a notice appeared in the
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This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces the date and location of the third and last in a series of public educational sessions hosted by the Centers for Medicare & Medicaid Services (CMS). This two-day training session is the third and final Accelerated Development Learning Session (ADLS) hosted by CMS to help Accountable Care Organizations (ACOs) deliver better care and reduce costs. We invite all new or existing ACO entities to register a team of senior executives to attend the in-person ADLS. The ADLS will provide executives with the opportunity to learn about core functions of an ACO and ways to build their organization's capacity to succeed as an ACO.
Additional information is available on the registration Web site at
Section 1115A of the Social Security Act (the Act), as added by section 3021 of the Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively, the Affordable Care Act), established the Center for Medicare and Medicaid Innovation (Innovation Center) for the purpose of examining new ways of delivering health care and paying health care providers in ways that can save money for Medicare, Medicaid and CHIP while improving the quality of care for beneficiaries. Through Accelerated Development Learning Sessions (ADLS), the Innovation Center will test whether intensive shared learning activities will expand and improve the capabilities of provider organizations to coordinate the care of a population of Medicare beneficiaries more effectively than organizations that do not participate in the ADLS. Well coordinated care can improve beneficiaries' quality outcomes and reduce the growth of Medicare expenditures.
Completion of the ADLS will not be a factor for selection or participation in a CMS ACO program. It is intended to provide ACOs with the opportunity to learn from their peers about essential ACO functions and various ways to build capacity needed to achieve better care for individuals, better population health, and lower growth in health care expenditures.
The ADLSs were first announced in the May 19, 2011
Each participating team should consist of two to four senior-level leaders (including at least one executive with financial/management responsibility and one with clinical responsibility). Participants are also asked to attend future web based seminars and complete a full ACO implementation plan as part of the broader ADLS initiative to facilitate on-going learning and evaluation.
Registrants need to complete the registration form in order to participate in an ACO ADLS. Potential participants are also strongly encouraged to complete a comprehensive planning tool, which will allow them to take full advantage of the hands-on learning activities during the ADLS. The registration form and comprehensive planning tool are available on the ADLS Web site at
Section 1115A of the Social Security Act.
National Cancer Institute (NCI), Office of Cancer Nanotechnology Research (OCNR), National Institutes of Health (NIH), Department of Health and Human Services (HHS).
Notice.
The Alliance for Nanotechnology in Cancer of the National Cancer Institute (NCI) is initiating a public private industry partnership called TONIC (Translation Of Nanotechnology In Cancer) to promote translational research and development opportunities of nanotechnology-based cancer solutions. An immediate consequence of this effort will be the formation of a consortium involving government and pharmaceutical, and biotechnology companies. This consortium will evaluate promising nanotechnology platforms and facilitate their successful translation from academic research to clinical environment, resulting in safe, timely, effective and novel diagnosis and treatment options for cancer patients.
The purpose of this notice is to inform the community about the Alliance for Nanotechnology in Cancer of NCI's intention to form the consortium and to invite eligible companies (as defined in last paragraph) to participate.
Interested parties should contact Ms. Sonia Calcagno (
Ms. Sonia Calcagno (
A proposed TONIC consortium will operate in parallel with the Alliance program and will bring together individuals from sufficiently capitalized pharmaceutical, biotechnology and
1. Creating a
2. Developing a
3. Developing a robust translational model to move promising opportunities based on nanotechnology from academic research to the clinical environment;
4. Evaluating the most promising technology candidates within existing R&D developments and generating
5. Recognizing and promoting translational efforts at every stage of development through appropriate partnerships among industry, academia, government, and philanthropy.
In addition, these companies should have (1) A corporate structure with centralized operations and, (2) the capability and resources to move along the translational efforts effectively and to provide feedback to the academic researchers on industry technological needs.
Consortia members will be expected to attend regular meetings and participate in the project evaluation funded through TONIC consortium.
The following information must be provided by parties interested in participating in the consortium:
(1) The company profile;
(2) The name and specific function of the company representative for the TONIC consortium; and
(3) A brief rationale and/or statement of intent for participating in the consortium.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to update and reissue an existing Department of Homeland Security system of records titled, “Department of Homeland Security U.S. Coast Guard—014 Military Pay and Personnel System of Records.” This system of records allows the Department of Homeland Security U.S. Coast Guard to collect and maintain records regarding pay and personnel. As a result of a biennial review of this system, records have been updated in the categories of individuals, categories of records, purpose, and routine uses. This updated system will be included in the Department of Homeland Security's inventory of record systems.
Submit comments on or before November 28, 2011. This new system will be effective November 28, 2011.
You may submit comments, identified by docket number DHS-2011-0072 by one of the following methods:
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For general questions please contact: Marilyn Scott-Perez ((202) 475-3515), Privacy Officer, U.S. Coast Guard, 2100 2nd Street SW., Mail Stop 7101, Washington, DC 20593. For privacy issues please contact: Mary Ellen Callahan ((703) 235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Coast Guard (USCG) proposes to update and reissue an existing DHS/USCG system of records titled, “DHS/USCG-014 Military Pay and Personnel System of Records” 73 FR 77743, December 19, 2008. This system of records notice allows the USCG to collect and maintain records regarding pay and personnel. As a result of the biennial review of this system, categories of individuals covered by the system have been updated to include active and reserve service applicants and prospective applicants, civilian personnel, USCG Auxiliary members, USCG exchange employees, and contractor personnel. Records in the categories of records in the system have been updated to include other Health Insurance Portability and Accountability Act (HIPAA) related/protected data, background investigation and security clearance information, government credit card status, data related to information technology (IT) training, and information technology system accounts, roles, and permissions. The purpose category has been updated to include active and reserve service applicants and prospective applicants, and separated military personnel, USCG civilian personnel, USCG Auxiliary members, USCG exchange employees, and USCG contractor personnel in addition to the continuity of operations (COOP)/personnel accountability function. Lastly, routine uses of records maintained in the system, including categories of users and the purposes of such uses have been updated to include relevant insurance companies for the purpose of health and life insurance requests and eligibility and to the Department of Defense (DoD) for the purpose of preparing for and during actual emergencies, exercises or continuity of operations tests for the purpose of responding to emergency situations or to allow emergency service personnel to locate the individual(s).
Consistent with DHS's information sharing mission, information stored in the DHS/USCG-014 Military Pay and Personnel System may be shared with other DHS components, as well as appropriate federal, state, local, tribal, territorial, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice. This updated system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is stored and retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of the DHS/USCG-014 Military Pay and Personnel System of Records.
This system of records contains individually identifiable health information. The HIPAA of 1996 applies to most of such health information. DoD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this new system of records to the Office of Management and Budget and to Congress.
DHS/USCG-014
DHS/USCG-014 Military Pay and Personnel System
Unclassified.
Records are maintained at USCG Headquarters in Washington, DC and field offices.
Categories of individuals covered by this system include active and reserve service applicants and prospective applicants, civilian personnel, active duty, reserve, retired active duty and retired reserve USCG military personnel and their annuitants and dependents, separated military personnel, USCG auxiliary members, USCG exchange workers, and contractor personnel. Also included are active duty and retired National Oceanic and Atmospheric Administration (NOAA) Officers and their annuitants and dependents, as well as Officers of the Commissioned Corps of the U.S. Public Health Service (PHS) and their annuitants and dependents.
Categories of records in this system include:
• Individual's name;
• Social security number;
• Employee identification number;
• Date and place of birth;
• Gender;
• Minority designation and nationality;
• Marital status;
• Limited medical related information to include dates of physical examinations, color blindness, immunizations, weight and body mass index (and compliance to standards);
• Other HIPAA related/protected data;
• Addresses;
• Total current monetary earnings, including overtime, computed to the nearest dollar;
• Number of hours worked;
• Leave accrual rate;
• Leave requests and balances;
• Health and life insurance requests and eligibility;
• Payroll deduction requests;
• Information for the purpose of validating legal requirements for garnishment of wages;
• Salary rate;
• Cash awards;
• Retirement withholdings;
• Background information to include work experience;
• Education records, including: highest level achieved; specialized education or training obtained in and outside of military service; non-traditional education support records; achievement and aptitude test results; academic performance records; correspondence course rate advancement records; military performance records; admissions processing records; grade reporting records; academic status records; and transcript maintenance records;
• Military duty assignments;
• Ranks held;
• Allowances;
• Personnel actions such as promotions, demotions, or separations;
• Record of instances of Uniform Code of Military Justice infractions;
• Performance evaluations;
• Background investigation, and security clearance information;
• Government credit card status;
• Individual's desires for future assignments, training requested, and notations by assignment officers;
• Information for determinations of waivers and remissions of indebtedness to the U.S. government;
• Travel claims, transportation claims, government bills of lading, and applications for shipment of household effects;
• USCG housing records, including: housing surveys, computer data summaries, and correspondence from the individual seeking housing;
• Information regarding IT training, IT system accounts, roles, permissions; and
• Names, dates of birth, addresses, social security numbers, and gender of annuitants and dependents of active duty, reserve, and retired active duty and reserve military members.
5 U.S.C. 301; The Federal Records Act, 44 U.S.C. 3101; 5 U.S.C. 5501-5597; 10 U.S.C. 1043, 1147; 14 U.S.C. 92(I) 92(r), 93(g), 475, 512, 620, 632, 645, 681, 687; 37 U.S.C. 406; 42 U.S.C. 213, 253; 49 CFR 1.45, 1.46.
The purpose of this system is to administer the USCG active duty, reserve, and retired active duty and retired reserve military pay and personnel system. To accomplish personnel accountability for USCG affiliated personnel in a natural or man-made disaster or when directed by the USCG Commandant. The USCG may also collect information about Service members and their dependents and civilian employees and their dependents as well as all personnel
The USCG may also use this accountability data for accountability and assessment reporting exercises. The system is also used to administer USCG civilian personnel formal USCG training course management, security clearance data, competency, and accomplishment data as well as tracking IT training, IT system accounts, roles, and permissions for military, civilian, and contractor personnel. Additionally, the system is used to provide necessary information to the Department of Commerce (DOC) for NOAA Officers and to Department of Health and Human Services (HHS) for Officers of the Commissioned Corps of the U.S. PHS to administer their respective pay and personnel system.
This system of records contains individually identifiable health information. The HIPAA of 1996, applies to most of such health information. DoD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice. Therefore, routine uses outlined below may not apply to such health information.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records of information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including U.S. Attorney Offices, or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. any employee of DHS in his/her official capacity;
3. any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. the U.S. or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To the Department of Treasury (DOT) for the purpose of disbursement of salary, U.S. Savings Bonds, allotments, or travel claim payments.
I. To appropriate insurance agencies/companies for the purpose of health and life insurance requests and eligibility.
J. To the DOC and HHS to administer their respective pay and personnel systems for NOAA Officers and Officers of the Commissioned Corps of the PHS, respectively.
K. To Federal, State, and local government agencies to disclose earnings and tax information, including the Internal Revenue Service (IRS) and the Social Security Administration (SSA).
L. To DoD and Veterans Administration (VA) for determinations of benefit eligibility for military members and their dependents.
M. To DoD for manpower and readiness planning.
N. To the Comptroller General for the purpose of processing waivers and remissions.
O. To an individual's spouse, or person responsible for the care of the individual concerned when the individual to whom the record pertains is mentally incompetent, critically ill, or under other legal disability for the purpose of assuring the individual is receiving benefits or compensation they are entitled to receive.
P. To a requesting government agency, organization, or individual the home address and other relevant information on those individuals who, it is reasonably believed, might have contracted an illness, been exposed to, or suffered from a health hazard while a member of government service.
Q. To other government agencies for the purpose of earnings garnishment.
R. To DoD for the purpose of preparing the Register of Officers and Register of Reserve Officers, which is provided to all USCG officers.
S. To education institutions or training facilities for purposes of enrollment and verification of employee attendance and performance.
T. To DoD for the purpose of preparing for and during actual emergencies, exercises or COOP tests for the purpose of responding to emergency situations or to allow emergency service.
U. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, CD-ROM, and DVD.
Records may be retrieved by name, social security number, or employee identification number.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies as well as those of the USCG. A defense in depth strategy has been employed. Overlapping and complimentary management, operational and technical security controls have been implemented and followed to minimize the risk of compromising the confidentiality or adversely impacting the integrity of the information that is being stored, processed, and/or transmitted. Access to the computer system(s) containing the records in this system is limited to those individuals who have a verified need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
In accordance with General Records Schedule (GRS) 9, Item 1c and 3, travel and transportation of household effects records are temporary and are destroyed seven years after the period covered by account.
In accordance with NC1-26-76-2, item 359 and NC1-26-80-4, item 151, PHS Commissioned Officer Corps staffing and recruiting records are temporary and are transferred to the PHS Commission Personnel Operation Division upon completion of the USCG assignment.
In accordance with NC1-26-76-2, items 559 and 561 and NC1-26-80-4, item 338b, military training and education records are temporary, including training courses and related material, school and training files containing correspondence, reports and related paper on USCG and Navy schools and trainee index cards. These records are destroyed when five years old. In accordance with GRS 2, item 29 b, civilian training education records are destroyed after five years.
In accordance with NC1-26-80-4, items 338b, 338c, 338d and 338e, class folders containing military personal and service history, muster card files, and recruit training record cards are destroyed when one year old.
In accordance with N1-330-04-1, item 1, military personnel system (Official Military Personnel File (OMPF)) records are permanent and folders are transferred to the National Personnel Records Center (NPRC) six months after separation. OMPF records are transferred to NARA 62 years after the date of retirement or separation.
In accordance with NC1-26-76-2, items 583a and 584a and N1-330-04-1, item 1, officer selection and appointment system records, officer candidates and direct commission program application for selected applicants are filed in the OMPF.
In accordance with NC1-26-76-2, item 583b, non-selected officer candidate applicant's records are destroyed six months after deadline dates for class which application is made.
In accordance with NC1-26-79-2, item 584b, non-selected direct commission program applicants records are destroyed one year from date of board by which considered.
In accordance with NC1-26-80-4, item 337b, Officer Candidates School and direct commission officer applicant files containing copies of applications for appointment in the USCG reserve, interviews, reports, and medical examination are destroyed when one year after period covered by account.
In accordance with NC1-26-76-2, item 587, applicant files are destroyed one year after the period covered by account.
In accordance with GAO-SCHED/5/1 and NC1-26-80-4, item 99d, military pay records are destroyed 56 years after the period covered by account.
In accordance with SSIC 7400, item 1 and NC1-26-76-2, items 184 and 99s, military personnel FICA wage credit, federal income tax listings, leave and earnings statements and pay records are microfilmed and retained onsite for four years, then archived at the Federal Record Center, and destroyed 50 years after the period covered by account.
In accordance with GRS 15, item 3, USCG family housing records are temporary and destroyed two years after the period covered by account.
In accordance with GRS 25, item 1a, outside employment of active duty USCG personnel records are temporary and destroyed when three years old or when superseded or obsolete, whichever is later.
Duplicate magnetic copies of the pay and personnel record are retained at an offsite facility for a useful life of seven years.
In accordance with GRS 24, item 61, information regarding IT training, IT system accounts, roles, permissions, Automatic Identification System user access authorization/revocation, and password files are destroyed one year after user account is terminated, password altered, or when no longer needed for investigative or security purposes.
Paper records for waivers and remissions are retained on site and destroyed six years three months after the determination.
In accordance with GRS 2, item 18, paper records to determine legal sufficiency for garnishment are destroyed six years three months after the period covered by account when the member separates from service or garnishment is terminated. Federal employee records are destroyed three years after garnishment is terminated.
Records concerning congressional correspondence are maintained indefinitely because they have been determined to be of historical value.
For active duty military personnel, civilian personnel, and separated personnel of the USCG: Chief, Office of Personnel, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For USCG reserve military personnel and retired USCG reserve military personnel waiting pay at age 60: Chief, Office of Reserve Affairs, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For USCG waivers and remissions: Chief, Personnel Services Division, Office of Military Personnel, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For records used to determine legal sufficiency for garnishment of wages and pay records: Commanding Officer, USCG, Personnel Services Center, 444 SE., Quincy Street, Topeka, KS 66683-3591. For data added to the decentralized data segment the commanding officer, officer-in-charge of the unit handling the military
For active and reserve service applicants and prospective applicants: Commanding Officer, USCG Recruiting Command, STOP 7500, 2300 Wilson Blvd. Suite 500, Arlington, VA 20598-7500.
For retired active USCG military personnel and their annuitants and dependents: Commanding Officer, USCG, Personnel Services Center, 444 SE., Quincy Street, Topeka, KS 66683-3591.
For USCG auxiliary members: Director of Auxiliary, USCG, 2100 2ND ST, SW., STOP 7581, Washington, DC 20593-7581.
For USCG exchange workers: Commandant (G-WPX), USCG Exchange System, CGES & MWR Headquarters, 870 Greenbrier Circle, Greenbrier Tower II, Suite 502, Chesapeake, VA 23320-2681.
For contractor personnel: Commandant (USCG-9), USCG Headquarters, 1900 Half Street, SW., Washington, DC 20593.
For NOAA members: National Oceanic and Atmospheric Administration, Commissioned Personnel Division, 11400 Rockville Pike, Rockville, MD 20852.
For Officers of the Commissioned Corps: U.S. Public Health Service Office of Commissioned Corps Operations, 1100 Wootton Parkway, Suite 100, Rockville, MD 20852.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to: For active duty military personnel of the USCG: Chief, Office of Personnel, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For USCG reserve military personnel and retired USCG reserve military personnel awaiting pay at age 60: Chief, Office of Reserve Affairs, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For USCG waivers and remissions: Chief, Personnel Services Division, Office of Military Personnel, USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001. For records used to determine legal sufficiency for garnishment of wages and pay records: Commanding Officer, USCG, Personnel Services Center, 444 SE., Quincy Street, Topeka, KS 66683-3591. For data added to the decentralized data segment the commanding officer, officer-in-charge of the unit handling the individual's pay and personnel record, or Chief, Administrative Services Division for individuals whose records are handled by USCG Headquarters, 2100 2nd Street, SW., Washington, DC 20593-0001.
For NOAA members: National Oceanic and Atmospheric Administration, Commissioned Personnel Division, 11400 Rockville Pike, Rockville, MD 20852.
For Officers of the Commissioned Corps: U.S. Public Health Service, Office of Commissioned Corps Operations, 1100 Wootton Parkway, Suite 100, Rockville, MD 20852. If an individual believes more than one component maintains Privacy Act records, the individual may submit the request to the Chief Privacy Officer and Chief Freedom of Information Act Officer, Department of Homeland Security, 245 Murray Drive, SW., Building 410, STOP-0655, Washington, DC 20528.
When seeking records about yourself from this system of records or any other USCG system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the USCG may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Individuals, USCG personnel officials, NOAA personnel officials, DoD, PHS personnel officials, previous employers, educational institutions, court records, and test results.
None.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974 and as part of the Department of Homeland Security's biennial review of system of record notices, the Department of Homeland Security proposes to update and reissue a current Department of Homeland Security system of records titled, “Department of Homeland Security/United States Secret Service—003 Non-Criminal Investigation Information System.” As a result of biennial review of this system, records have been updated within the categories of individuals covered in this system and categories of records in this system in order to further define and narrow categories. One routine use was revised to further define the purposes of disclosure, and retention and disposal procedures were updated to reflect current retention practices. The notification procedures were updated to clarify the reason for exemption and the method for access. Additionally, the Department of Homeland Security previously published a Final Rule in the
Written comments must be submitted on or before November 28, 2011.
You may submit comments, identified by docket number DHS-2011-0082, by one of the following methods:
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For general questions please contact: Latita Payne ((202) 406-6370), Privacy Officer, United States Secret Service, 245 Murray Lane SW., Building T-5, Washington, DC 20223. For privacy issues please contact: Mary Ellen Callahan ((703) 235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a and as part the Department of Homeland Security's (DHS) biennial review of system of record notices, DHS/United States Secret Service (USSS) proposes to update and reissue a current DHS system of records titled, DHS/USSS-003 Non-Criminal Investigation Information System of Records. As a result of biennial review of this system, records have been updated within the categories of individuals covered in this system and categories of records in this system in order to further define, narrow, and eliminate duplicative categories. Routine Use H was revised to further define the purposes of disclosure, and retention and disposal procedures were updated to reflect current retention practices. The notification procedures were updated to clarify the reason for exemption and the method for access. This updated system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires that each agency publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.
Department of Homeland Security (DHS)/United States Secret Service (USSS)-003
DHS/USSS—003 Non-Criminal Investigation Information System
Unclassified and Classified.
Records are maintained at the United States Secret Service Headquarters, 950 H St. NW., Washington, DC 20223 and field offices.
• Individuals who are applicants for employment or are currently employed with the USSS or other federal or state entities and have taken a polygraph; and
• Qualified USSS law enforcement officers and qualified USSS retired law enforcement officers who carry concealed firearms.
• Individual's name;
• Social Security number;
• Address;
• Date of birth;
• Case number;
• Polygraph examination reports and files;
• Records containing investigatory material compiled solely for the purpose of determining suitability, eligibility, and/or qualifications for federal civilian employment or access to classified information; and
• Any group of records which have been created by the Law Enforcement Officer Safety Act of 2004, Public Law 108-277, 1, codified at 18 U.S.C. 926 B and C, as amended.
The Homeland Security Act of 2002, Public Law 107-296; 5 U.S.C. 301; Federal Records Act, 44 U.S.C. 3101; 18 U.S.C. 3056; 18 U.S.C. 3056A; 42 U.S.C. 13031; Executive Order 10450; and 6 CFR part 5.
The purpose of this system is to record and maintain files related to applicants for employment or current employees of the USSS or other federal or state entities who have taken a polygraph; and current and retired USSS employees who are qualified to carry a concealed weapon.
In addition to those disclosures generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside the Department of Homeland Security (DHS) as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice or other federal agency conducting litigation or in proceedings before any
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation, and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual who relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To Federal, State, or local government agencies for the purpose of developing a relevant ongoing civil, administrative, or background investigation.
I. To private institutions and individuals for the purpose of confirming and/or determining suitability, eligibility, or qualification for federal civilian employment or access to classified information, and for the purposes of furthering the efforts of the USSS to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations.
J. To another federal agency or to an instrumentality of any government jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency instrumentality.
K. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena from a court of competent jurisdiction.
L. To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the letting of a contract, or the issuance of a license, grant or other benefit when disclosure is appropriate to the proper performance of the official duties of the person making the request.
M. To state and local school boards, private and public schools, daycare facilities, children's camps, and childcare transportation providers, if information concerns one of their employees, or applicants for employment, when such an individual has admitted to the USSS that they viewed, have taken an interest in, or have engaged in prior activity regarding child pornography, the touching of a child for sexual gratification, or child abuse.
N. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Paper and electronic records in this system are stored in secure facilities and/or behind locked doors. Electronic records media, such as magnetic tape, magnetic disk, digital media, and CD-ROM are stored in proper environmental controls.
Records are indexed by name on file at USSS Headquarters, and in field offices and are retrieved through a manual search of index cards and/or through computer search of magnetic media. Access to the physical files is by case number obtained from the name indices.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS and USSS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored, processed, and transmitted. Access to the records in this system is limited to those individuals who have a USSS approved need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Applicant security and background investigation records of retired or separated USSS employees are retained for 20 years after the date of last action. All judicial case records are retained for 30 years from the date of case closure, unless otherwise required to be held permanently for transfer to the National Archives and Records Administration. Non-judicial and non-criminal case files generally are retained for a period of between 5 years and 30 years from the date of case closure, depending upon the nature or subject of the investigation. All other records, the disposition of which is not otherwise specified, are retained until destruction is authorized.
Assistant Director, Human Resources and Training and Assistant Director, Office of Investigation, U.S. Secret Service, 245 Murray Lane SW., Building T-5, Washington, DC 20223.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS/USSS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the USSS FOIA Officer, 245 Murray Drive, SW., Building T-5, Washington, DC 20223. If an individual believes more than one component maintains Privacy Act records concerning him or her, the individual may submit the request to the Chief FOIA Officer, Department of Homeland Security, whose contact information can be found at
When seeking records about yourself from this system of records or any other USSS system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Director, Disclosure and FOIA,
• An explanation of why you believe the Department would have information on you;
• Specify when you believe the records would have been created; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information USSS may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from employees, former employees, and applicants for employment with the USSS; federal, state, and local governmental agencies; court systems; executive entities, both foreign and domestic; educational institutions; private businesses; and members of the general public.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act and the limitations therein, this system is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a (k)(1), (k)(2), (k)(3), (k)(5), and (k)(6), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). In addition, to the extent a record contains information from other exempt systems of records, USSS will rely on the exemptions claimed for those systems.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, and as part of the Department of Homeland Security's biennial review of system of record notices, DHS/United States Secret Service proposes to update and reissue a current Department of Homeland Security system of records titled, “Department of Homeland Security/United States Secret Service—004 Protection Information System of Records.” As a result of biennial review of this system, information has been updated within the categories of individuals covered in this system and categories of records in this system in order to further define and narrow categories. Routine Use I and J were merged for the purpose of narrowing scope and clarifying why information would be shared. The notification procedures were updated to clarify the reason for exemption and the method for access. Additionally, the Department of Homeland Security previously published a Final Rule in the
Written comments must be submitted on or before November 28, 2011.
You may submit comments, identified by docket number DHS-2011-0083, by one of the following methods:
•
•
•
•
•
For general questions please contact: Latita Payne (202) 406-6370), Privacy Officer, United States Secret Service, 245 Murray Lane, SW., Building T-5, Washington, DC 20223. For privacy issues please contact: Mary Ellen Callahan (703) 235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and as part of the Department of Homeland Security's (DHS) biennial review of system of record notices, DHS/United States Secret Service (USSS) proposes to update and reissue a current DHS system of records titled, DHS/USSS-004 Protection Information System of Records. As a result of biennial review of this system, records have been updated within the categories of individuals covered in this system and categories of records in this system in order to further define, narrow, and eliminate duplicative categories. Routine Use I and J were merged for the purpose of narrowing scope and clarification. The notification procedures were updated to clarify the reason for exemption and the method for access. This updated system will be included in DHS's inventory of record systems.
Additionally, DHS previously published a Final Rule in the
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires that each agency publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.
Department of Homeland Security (DHS)/United States Secret Service (USSS)-004
DHS/USSS-004 Protection Information System
Unclassified and Classified.
Records are maintained at the United States Secret Service Headquarters, 950 H St., NW., Washington, DC 20223, other locations in Washington, DC, and field offices.
• Individuals who have been or are currently the subject of a criminal investigation by USSS or another law enforcement agency for the violation of certain criminal statutes relating to the safety of persons or security of properties, facilities, and areas protected by USSS;
• Individuals who are the subjects of investigative records and reports supplied to USSS by Federal, State, and local law enforcement agencies, foreign or domestic, other non-law enforcement governmental agencies, or private institutions and individuals, in conjunction with the protective function of USSS;
• Individuals who are the subjects of non-criminal protective and background investigations by USSS and other law enforcement agencies;
• Individuals who are granted or denied ingress and egress to areas secured by USSS, or to areas in proximity to persons protected by USSS, including but not limited to: invitees; passholders; tradesmen; and law enforcement, maintenance, or service personnel;
• Individuals who are witnesses, protectees, suspects, complainants, informants, defendants, fugitives, released prisoners, and correspondents who have been identified by USSS or from information supplied by other law enforcement agencies, governmental units, private institutions, and members of the general public in connection with USSS performance of its authorized protective functions;
• Individuals who have sought an audience or contact with persons protected by USSS;
• Individuals who have been involved in incidents or events which relate to the protective functions of the USSS; and
• Individuals protected by the USSS.
• Individual's name;
• Address;
• Date of Birth;
• Case number;
• Arrest record;
• Nature and disposition of criminal charges, sentencing, confinement, release, and parole or probation status;
• Records concerning agency activities associated with protectee movements and other protective measures taken on a protectee's behalf;
• Records containing information compiled for the purpose of identifying and evaluating individuals who may constitute a threat to the safety of persons or security of areas protected by the USSS;
• Records containing information compiled for the purpose of a criminal investigation, including reports of informants and investigators, which are associated with an identifiable individual;
• Informant's name and contact information (e.g., address; phone number);
• Records containing reports relative to an individual compiled at various
• Records containing information supplied by other Federal, State, and local law enforcement agencies, foreign or domestic, other non-law enforcement governmental agencies, private institutions and persons concerning individuals who, because of their activities, personality traits, criminal or mental history, or history of social deviancy, may be of interest to the USSS in connection with the performance by that agency of its protective functions; and
• Records containing information compiled for the purpose of background investigations of individuals, including but not limited to, passholders, tradesmen, maintenance or service personnel who have access and/or have been denied access to areas secured by or who may be in proximity to persons protected by USSS.
The Homeland Security Act of 2002, Public Law 107-296; 5 U.S.C. 301; Federal Records Act, 44 U.S.C. 3101; 18 U.S.C. 3056; 18 U.S.C. 3056A and 6 CFR part 5.
The purpose of this system is to assist USSS in protecting its protectees by recording information necessary to implement protective measures and to investigate individuals who may come into proximity with a protectee, including individuals who have been involved in incidents or events which relate to the protective functions of the USSS, and individuals who have sought to make contact with a protectee.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside the Department of Homeland Security (DHS) as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individual who relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate Federal, State, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To the Department of Justice and other Federal, State, and local governmental agencies having a prosecution function for the use of attorneys, magistrates, and judges; and the parole and probation authorities for the purpose of prosecuting, sentencing, and determining the parole and probation status of criminal offenders or suspected criminal offenders; and for civil and other proceedings involving USSS protective functions.
I. To Federal, State, and local governmental agencies, foreign and domestic, for the purposes of developing information on subjects involved in USSS protective investigations and the evaluation of persons considered to be of protective interest and for the purpose of protective functions.
J. To Federal, State, and local governmental agencies, private institutions and private individuals, for the purpose of implementing protective measures.
K. To personnel of Federal, State, and local governmental agencies, foreign and domestic, when reasonably necessary to the exercise of the USSS protective function.
L. To private institutions and private individuals, identifying information pertaining to actual or suspected criminal offenders or other individuals considered to be of protective interest, for the purpose of furthering USSS efforts to evaluate the danger such individuals pose to persons protected by the agency.
M. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena from a court of competent jurisdiction.
N. To an appropriate Federal, State, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or the issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to
O. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Paper and electronic records in this system are stored in secure facilities behind locked doors. Electronic records media, such as magnetic tape, magnetic disk, digital media, and CD ROM are stored in proper environmental controls.
This system is indexed by case number, name, and other identifying data and other case related data, in master and magnetic media indices. Records may be retrieved by any of these indices. Access to the physical files is located at field offices, Headquarters, and other Washington, DC locations.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS and USSS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored, processed, and transmitted. Access to the records in this system is limited to those individuals who have a USSS approved need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Protective intelligence case records, including non-judicial protective intelligence cases, are routinely retained for a period of up to 5 years from the date of last action; or for 10 years from the date of last action if they contain electronic records. All judicial records are retained for a period of 20 years from the date of last action, unless otherwise required to be held permanently for transfer to the National Archives and Records Administration. Files relating to issuance of White House Complex passes for employees of the White House, Secret Service Employees, press representatives accredited at the White House, and other authorized individuals are retained for a period of 8 years from the date the file is closed. Records pertaining to the administration and operations of Secret Service protective program, shift reports, survey files, and special event files are retained for a period of 3 to 5 years from the end of the event. Records pertaining to trip files for domestic travel are retained for 5 years, and trip files for foreign travel are retained for 10 years from the end of the event. Campaign related files are retained for a period of 30 years after the end of the campaign and subsequently transferred to the National Archives and Records Administration.
Assistant Director, Office of Strategic Intelligence and Information; Assistant Director, Office of Technical Development and Mission Support; and Assistant Director, Office of Protective Operations, U.S. Secret Service, 245 Murray Drive SW., Building T-5, Washington, DC 20223.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS/USSS will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the USSS FOIA Officer, Freedom of Information and Privacy Acts Program, 245 Murray Drive, SW., Building T-5, Washington, DC 20223. If an individual believes more than one component maintains Privacy Act records concerning him or her, the individual may submit the request to the DHS FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other USSS system of records your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Director, Disclosure and FOIA,
• An explanation of why you believe the Department would have information on you;
• Specify when you believe the records would have been created; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information USSS may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
The Secretary of Homeland Security has exempted this system from subsections (e)(4)(I) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) and (k)(3); therefore, records sources shall not be disclosed.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act and the limitations therein, this system is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a (k)(1), (k)(2), and (k)(3) this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). In addition, to the extent a record contains information from other exempt Systems of Records,
60-Day Notice of Information Collection Under Review: Form I-914 and Supplements A and B, Application for T Nonimmigrant Status; Application for Immediate Family Member of T-1 Recipient; and Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. OMB Control No. 1615-0099.
The Department of Homeland Security, U.S. Citizenship and Immigration Services will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until December 27, 2011.
During this 60 day period, USCIS will be evaluating whether to revise the Form I-914. Should USCIS decide to revise Form I-914 we will advise the public when we publish the 30-day notice in the
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997, or via email at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020, Telephone number (202) 272-8377.
60-Day Notice of Information Collection Under Review: Form I-129F, Petition for Alien Fiance(e). OMB Control No. 1615-0001.
The Department of Homeland Security, U.S. Citizenship and Immigration Services will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until December 27, 2011.
During this 60-day period, USCIS will be evaluating whether to revise the Form I-129F. Should USCIS decide to revise Form I-129F we will advise the public when we publish the 30-day notice in the
Written comments and suggestions regarding items contained in this notice,
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020, Telephone number (202) 272-8377.
60-Day Notice of Information Collection Under Review: OMB-25, Special Immigrant Visas for Fourth Preference Employment-Based Broadcasters. OMB Control No. 1615-0064.
The Department of Homeland Security, U.S. Citizenship and Immigration Services will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until December 27, 2011.
During this 60 day period, USCIS will be evaluating whether to revise the OMB-25. Should USCIS decide to revise OMB-25 we will advise the public when we publish the 30-day notice in the
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997, or via email at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020, Telephone number (202) 272-8377.
60-Day Notice of Information Collection Under Review: Form I-539, Application to Extend/Change Nonimmigrant Status. OMB Control No. 1615-0003.
The Department of Homeland Security, U.S. Citizenship and Immigration Services will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until December 27, 2011.
During this 60 day period, USCIS will be evaluating whether to revise the Form I-539. Should USCIS decide to revise Form I-539 we will advise the public when we publish the 30-day notice in the
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997, or via email at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020, Telephone number (202) 272-8377.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for
The primary purpose of this collection is to continue current data reporting for Rounds, I, II, and III Empowerment Zones (EZs). HUD previously designated 30 EZs, which required to submit annual reports to HUD based on the progress reported in implementing the EZs' strategic plans. Businesses located in the EZs are eligible for Federal tax incentives to hire local residents and to expand or improve their operations. This is an extension of a currently approved collection.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2506-0148) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; email
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, Room 9120 or the number for the Federal Information Relay Service (1-(800) 877-8339).
Karin Hill, Director, Office of Single Family Program Development, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone (202) 708-2121 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology,
The Paperwork Reduction Act of 1995, 44 U.S.C., chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that certain exceptions to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, exceptions were granted to the Cambridge Housing Authority of Cambridge, MA for the purchase and installation of a Variable Refrigerant Volume (VRV) heat pump system and vent limited gas regulators for the Lyndon B. Johnson Apartments project.
Donald J. LaVoy, Deputy Assistant Secretary for the Office of Field Operations, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4112, Washington, DC 20410-4000, telephone number (202) 402-8500 (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4130, Washington, DC 20410-4000, telephone number (202) 402-8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Section 1605(a) of the Recovery Act provides that none of the funds appropriated or made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on September 19, 2011, upon request of the Cambridge Housing Authority, HUD granted exceptions to applicability of the Buy American requirements with respect to work, using CFRFC grant funds, in connection with the Lyndon B. Johnson Apartments project. The exception was granted by HUD on the basis that the relevant manufactured goods, (a VRV heat pump system and vent limited gas regulators), are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Office of the Chief Information Officer, HUD.
Notification of the Establishment of a New Privacy Act System of Records.
HUD proposes to establish a new record system to add to its inventory of system of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed system of records, identified as HIAMS will be used by HUD's Office of the Chief Procurement Officer, as well as HUD's regional program offices, to store and manage HUD acquisition-related data from acquisition planning through contract completion. The regional offices will have access to HIAMS for the purposes of entering and reading data into the system. The system will consist of data elements about all companies or institutions authorized to do business with HUD as registered vendors within the Central Contractor Registry (CCR), overseen by the General Services Administration.
Interested persons are invited to submit comments regarding this new system of records to the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-3000. Communications should refer to the above docket number and title. FAX comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 8 a.m. and 5 p.m., weekdays at the above address.
Harold Williams, Acting Departmental Privacy Act Officer, Office of the Chief Information Officer, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 2256, Washington, DC 20410, telephone number (202) 402-8087, or the Assistant Chief Procurement Officer, Elie Stowe, Department of Housing and Urban Development, Washington, DC 20410, telephone number (202) 708-0294 or (202) 402-3556. (These are not toll free numbers.) A telecommunication device for hearing- and speech-impaired individuals (TTY) is available at 1-(800) 877-8339 (Federal Information Relay Service).
Title 5 U.S.C. 552a(e)(4) and (11) provides that the public be afforded a 30-day period in which to comment on the new record system. The new system report, as required by 5 U.S.C. 552a(r) of the Privacy Act, was submitted to the Committee on Homeland Security and Governmental Affairs of the United States Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Office of Management and Budget (OMB) Pursuant to Paragraph 4c of Appendix I to OMB Circular No. A-130, Federal Agency Responsibilities for Maintaining Records About Individuals, dated June 25, 1993 (58 FR 36075, July 2, 1993).
5 U.S.C. 552a, 88 Stat. 1896; 42 U.S.C. 3535(d).
HUD Integrated Acquisition Management System (HIAMS).
HUD Information Technology Systems (HITS) Production Data Center located in South Charleston, West Virginia, and the HUD Headquarters, Washington, DC 20410, Intranet General Support System, which is also managed by the HITS contractor.
All companies or institutions doing business with HUD and registered as vendors within the Central Contractor Registry (CCR).
HIAMS will collect and store vendor Taxpayer Identification Numbers (TINs), vendor names, and associated point-of-contacts information: such as names, Social Security numbers when used in lieu of TINs, Dun and Bradstreet Number (DUN) numbers, and other business related data, such as business telephone numbers, email addresses and business addresses.
Businesses that choose to do business with the Department are required by law to provide the information identified herein (31 U.S.C. 7701(c); 31 U.S.C. 3325(d); 26 U.S.C. 6050M; 26 U.S.C. 6041 and 6041A). The vendor Tax ID Number is transmitted from the CCR. CCR registration requires vendors who want to do business with the federal government to supply TINs under 31 U.S.C. 7701(c). Vendor SSNs are supplied under Clause 52.222-8, Payrolls and Basic Records, of the Federal Acquisition Regulations (FAR) in accordance with the Davis Bacon Act.
The Office of the Chief Procurement Officer is implementing the HIAMS as an enterprise-wide, end-to-end acquisition management system. The information in HIAMS will be used by HUD to identify companies or institution doing business with HUD. The information in HIAMS will be shared with HUD financial management systems to: Record contract obligations and facilitate timely payments; meet mandatory reporting requirements (Federal Procurement Data System—Next Generation; and to compile statistics regarding HUD procurement activity. HIAMS will include acquisition and/or procurement-related data from planning through contract completion. The data maintained in HIAMS include budget execution information required to facilitate financial transactions throughout the procurement process (e.g., agency expenditures; invoices; billing dispute resolution documentation; reconciliation documents; service level agreements; distribution of shared expenses; goods acquisition information (which involves the procurement of physical goods, products, and capital assets to be used by the Federal government); and services acquisition information, which involves oversight and/or management of contractors and service providers from the private sector.
1. To HUD contractors, consultants or others, when necessary to perform a function or service related to this system
2. To Federal, State and local entities for the purpose of the regular exchange of business contact information to facilitate collaboration for official contract business.
3. To disclose requirements, and business opportunities through Federal Business Opportunities (FEDBizOpps) and FedConnect. All information posted is non-proprietory and unclassified. HUD uses FedBizOpps and FedConnect, to solicit vendor(s).
4. To appropriate agencies, entities, and persons when:
a. the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
b. the Department 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 HUD 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 HUD's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
All data are stored on the production HIAMS database servers. The data are backed up regularly in accordance with HUD policy. The storage practice for paper-based records includes storage, indirect monitoring, and file expiration. Paper based records do not include electronic downloads. All paper records are stored in a metal Electronic “Lektriever Vertical Carousel” repository. Sign out sheets are used to remove the files from the repository.
Vendor points-of-contacts names, vendor name and address and telephone number, DUN, TIN, and SSN.
Strict access controls are governed for electronic records by the use of a user ID and password that require authentication before access is granted to HIAMS. Paper based records do not include electronic downloads. All paper records are stored in a metal Electronic “Lektriever Vertical Carousel” repository. Sign out sheets are used to remove the files from the repository.
Records retention and disposal are in accordance with FAR Subpart 4.7 for Contractor Records Retention. HIAMS has the ability to store archived data and is defaulted after 7 years. This complies with all federal regulations. The retention periods for contract files and/or procurement files are found in the General Records Schedule issued by the National Archives and Records Administration, Schedule 3, Item 3. The procurement records are held for 6 years and 3 months and destroyed in accordance with the referenced schedule.
Elie Stowe, Assistant Chief Procurement Office for Policy and Systems, HUD, Washington DC 20410.
For information, assistance, or inquiry about the existence of records, contact the Acting Departmental Privacy Act Officer, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410. Written requests must include the full name, Social Security number, date of birth, current address, and telephone number of the individual making the request.
Procedures for the amendment or correction of records, and for applicants who want to appeal initial agency determinations, appear in 24 CFR, Part 16.
(i) In relation to contesting contents of records, the Acting Departmental Privacy Act Officer at HUD, 451 Seventh Street, SW., Room 4178, Washington, DC 20410, and;
(ii) In relation to appeals of initial denials, HUD, Departmental Privacy Appeals Officer, Office of General Counsel, 451 Seventh Street, SW., Washington, DC 20410.
Information contained in this system is obtained from information contained in other government agencies CCR, Federal Procurement Data System—Next Generation (FPDS-NG), Online Representations and Certifications Application (ORCA), Federal Business Opportunities (FedBizOpps), and FedConnect; and/or information already in other HUD financial systems: HUD Central Accounting and Program System, and PeopleSoft HUD Integrated Core Financial System.
None.
Office of the Chief Information Officer, HUD.
Notice of revision of agency's Privacy Act System of Records.
HUD is proposing to revise information published in the
Interested persons are invited to submit comments regarding this notice to the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-3000. Communications should refer to the above docket number and title. A copy of each communication submitted will
Harold Williams, Acting Departmental Privacy Act Officer, Office of the Chief Information Officer, Department of Housing and Urban Development, 451 Seventh Street SW., Room 2256, Washington, DC 20410, telephone number (202) 402-8087 or Mary Jo Sullivan, System Owner, Director, Office of Single Family Program Development, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410, telephone number (202) 708-2121. (These are not toll-free numbers.) Telecommunication device for hearing-and speech-impaired individuals (TTY) is available at (800) 877-8339 (Federal Information Relay Service).
Title 5 U.S.C. 552a(e)(4) and (11) provide that the public be afforded a 30-day period in which to comment on the new system of records, and require published notice of the existence and character of the system of records.
The report was submitted to the Office of Management and Budget (OMB), the Senate Committee on Homeland Security and Governmental Affairs, and the House Committee on Oversight and Government Reform pursuant to paragraph 4c of Appendix 1 to OMB Circular No. A-130, “Federal Responsibilities for Maintaining Records About Individuals,” July 25, 1994 (59 FR 37914).
5 U.S.C. 552a, 88 Stat. 1896; 42 U.S.C. 3535(d).
Single Family Housing Enterprise Data Warehouse (SFHEDW).
The HUD Data Center, Hewlett Packard Facility, South Charleston, West Virginia. HUD staff throughout the United States access SFHEDW through HUD's standard telecommunications network from desktop workstations.
Individuals who have obtained a mortgage insured under HUD/FHA's single family mortgage insurance programs, individuals who assumed such a mortgage, and individuals involved in appraising or underwriting the mortgage.
Automated files contain name, address, date of birth, home address, and social security number; racial/ethnic background, if disclosed, on mortgagors; identifying numbers on individuals involved in processing the loan; and data regarding currently and formerly insured mortgages. The loan data includes underwriting data, such as loan-to-value ratios and credit ratios; original terms, such as mortgage amount, interest rate, term in months; status of the mortgage insurance; and history of payment defaults, if any.
Sec. 203, National Housing Act, Public Law 73-479; 42 U.S.C. 3543, Housing & Community Development Act of 1987.
The SFHEDW is an ongoing, fully operational data warehouse that is the key source of data for anyone who needs Single Family data. It is an integrated data warehouse that contains critical Single Family business data from fourteen (14) sources, mostly from FHA Single Family automated systems. The system allows queries and provides reporting tools to support oversight activities, market and economic assessment, public and stakeholder communication, planning and performance evaluation, policies and guidelines promulgation, monitoring and enforcement.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act other routine uses include:
(a) To the FBI to investigate possible fraud revealed in underwriting, insuring or monitoring.
(b) To Department of Justice for prosecution of fraud revealed in underwriting, insuring or monitoring.
(c) To Federal National Mortgage Association (also known as Fannie Mae), when Fannie Mae is the holder of single-family energy efficient mortgage and Title I home improvement loans, without the use of SSN's.
(d) To appropriate agencies, entities, and persons when:
(1) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
(2) the Department 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 HUD or another agency or entity) that rely upon the compromised information; and
(3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the HUD's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are stored on magnetic tape/disc/drum. Manual files are stored in file cabinets with secured by locks.
Records are retrieved by name, social security number or other identification number, case number, property address, or any other type of stored data.
Automated records are maintained in secured areas. Access is limited to authorized personnel. Manual records are accessed by only those who have a need-to-know. System access is granted by user id and password only.
Computerized records of insured cases are retained for at least 10 years beyond maturity, prepayment, or claim termination, approved under HUD's Record Disposition Schedule 13, Title I Records, Appendix 13.
Mary Jo Sullivan, Deputy Director, Office of Single Family Program Development, HUP, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
For information, assistance, or inquiry about existence of records, contact the Acting Departmental Privacy Act Officer at the appropriate location in accordance with 24 CFR part 16.
The procedures for contesting the contents of records and appealing initial denials appear in 24 CFR Part 16. If additional information or assistance is required, contact:
(i) The Acting Departmental Privacy Act Officer, Department of Housing and Urban Development; 451 Seventh Street, SW., Room 2256, Washington, DC
(ii) The Departmental Privacy Appeals Office, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410 for appeals of initial denials.
Mortgagors, appraisers, mortgagee staff underwriters, and HUD employees—indirectly, immediate sources are the following:
1. A43—Single Family Insurance System (SFIS)
2. A43C—Single Family Insurance Claims System (CLAIMS)
3. A80R—Single Family Premium Collections System—Upfront (SFPCS-U)
4. A80H—Single Family Mortgage Asset Recovery Technology System (SMART)
5. A80S—Single Family Acquired Assets Management System (SAMS)
6. F17—Computerized Home Underwriting Mortgage System (CHUMS)
7. F42D—Single Family Default Monitoring System (SFDMS)
8. F42—Consolidated Single Family Statistical System (CSFSS)
9. F51—Institution Master File (IMF)
10. A80N—SF Mortgage Notes Servicing (SFMNS/IFS)
11. F72—Title I Insurance and Claims System (TIIS)
12. F12—Home Equity Conversion Mortgages (HECM)
13. HMDA data from Federal Reserve Board (FRB)
14. F71A—Generic Debt Management System (GDEBT)
15. A15—Geocoding Service Center (GSC)
None.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on October 31, 2011. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before November 28, 2011.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this ICR, contact Hope Grey at
Regulations at 50 CFR 21.60 authorize States and tribes in the midcontinent and Atlantic flyway regions to control light geese within the United States through the use of alternative regulatory strategies. The conservation order authorizes States and tribes to implement population control measures without having to obtain a Federal permit, thus significantly reducing their administrative burden. The conservation order is a streamlined process that affords an efficient and
• Designate participants and inform them of the requirements and conditions of the conservation order. Individual States and tribes determine the method to designate participants and how they will collect information from participants.
• Keep records of activities carried out under the authority of the conservation order, including:
(1) Number of persons participating in the conservation order;
(2) Number of days that people participated in the conservation order;
(3) Number of persons who pursued light geese with the aid of a shotgun capable of holding more than three shells;
(4) Number of persons who pursued light geese with the aid of an electronic call;
(5) Number of persons who pursued light geese during the period one-half hour after sunset;
(6) Total number of light geese shot and retrieved during the conservation order;
(7) Number of light geese taken with the aid of an electronic call;
(8) Number of light geese taken with the fourth, fifth, or sixth shotgun shell;
(9) Number of light geese taken during the period one-half hour after sunset; and
(10) Number of light geese shot, but not retrieved.
• Submit an annual report summarizing the activities conducted under the conservation order on or before September 15 of each year. Tribal information can be incorporated in State reports to reduce the number of reports submitted.
We received comments from the Wyoming Game and Fish Department, the Atlantic Flyway Council, Mississippi Flyway Council, and the Central Flyway Council. Flyway Councils are comprised of all State wildlife agencies within each respective administrative Flyway. The State of Wyoming and the three Flyway Councils agreed that it was important to estimate the number of citizens participating in the conservation order, as well as actual light goose harvest. However, all commenters recommended that variables related to methods of take should be evaluated for their continued usefulness and potentially discontinued from the information collection. They recommended that only information on hunter numbers and light goose harvest be collected. Commenters also stressed that individual States use different methodologies for obtaining information and that simply adding estimates from disparate methodologies leads to overall estimates that are not as reliable as would be liked. Commenters believed the Service should take over responsibility for data collection, possibly through the Service's Harvest Information Program (HIP).
We are still awaiting a report from the Arctic Goose Habitat Working Group of the Arctic Goose Joint Venture to determine the best method of collecting data to provide the highest quality of information in the most efficient way possible. We feel it is important to wait for and consider the findings of this report because the Joint Venture is comprised of many of our management partners.
Our Harvest Information Program is geared towards estimating harvest of birds during regular hunting seasons that end on or before March 10 each year. Many States hold their light goose conservation order (not a regular hunting season) after March 10. Therefore, if HIP were used to estimate light goose conservation order harvest, our annual HIP reports would be delayed and could affect the normal hunting regulations promulgation process. The Service can only require HIP registration for regular hunting seasons. There is no current mechanism for the Service to require HIP registration for conservation order participants.
We have not made any changes to the information collection requirements at this time. We will continue to work with the States, Flyway Councils, and the Arctic Goose Joint Venture to determine the best method of collecting data to provide the highest quality information in the most efficient way possible.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. The ESA laws require that we invite public comment before issuing these permits.
We must receive comments or requests for documents on or before November 28, 2011.
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358-2280; or email
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for barasingha (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for radiated tortoise
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following families and species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for Cabot's tragopan (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for red siskin (
The applicant requests a permit to import 10 live, captive-born komodo monitors (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service, announce a public meeting of the Wildlife and Hunting Heritage Conservation Council (Council).
The meeting will be held in the Secretary's Conference Room at the Department of the Interior, Room 5160, 1849 C Street, NW., Washington, DC 20240.
Joshua Winchell, Council Coordinator, 4401 North Fairfax Drive, Mailstop 3103-AEA, Arlington, VA 22203; telephone (703) 358-2639; fax (703) 358-2548; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that Wildlife and Hunting Heritage Conservation Council will hold a meeting.
Formed in February 2010, the Council provides advice about wildlife and habitat conservation endeavors that:
1. Benefit recreational hunting;
2. Benefit wildlife resources; and
3. Encourage partnership among the public, the sporting conservation community, the shooting and hunting sports industry, wildlife conservation organizations, the States, Native American tribes, and the Federal Government.
The Council advises the Secretary of the Interior and the Secretary of Agriculture, reporting through the Director, U.S. Fish and Wildlife Service (Service), in consultation with the Director, Bureau of Land Management (BLM); Chief, Forest Service (USFS); Chief, Natural Resources Service (NRCS); and Administrator, Farm Services Agency (FSA). The Council's duties are strictly advisory and consist of, but are not limited to, providing recommendations for:
1. Implementing the Recreational Hunting and Wildlife Resource Conservation Plan—A Ten-Year Plan for Implementation;
2. Increasing public awareness of and support for the Sport Wildlife Trust Fund;
3. Fostering wildlife and habitat conservation and ethics in hunting and shooting sports recreation;
4. Stimulating sportsmen and women's participation in conservation and management of wildlife and habitat resources through outreach and education;
5. Fostering communication and coordination among State, Tribal, and Federal Government; industry; hunting and shooting sportsmen and women; wildlife and habitat conservation and management organizations; and the public;
6. Providing appropriate access to Federal lands for recreational shooting and hunting;
7. Providing recommendation to improve implementation of Federal conservation programs that benefit wildlife, hunting and outdoor recreation on private lands; and
8. When requested by the agencies' designated ex officio members or the DFO in consultation with the Council Chairman, performing a variety of assessments or reviews of policies, programs, and efforts through the Council's designated subcommittees or workgroups.
Background information on the Council is available at
The Council will convene to consider:
1. The Recreational Hunting and Wildlife Resource Conservation Plan—A Ten-Year Plan for Implementation;
2. Coordination of conservation program delivery between federal, state and private entities;
3. Programs of the Department of the Interior and Department of Agriculture, and their bureaus, that enhance hunting opportunities and support wildlife conservation;
4. America's Great Outdoors; and
5. Other Council business.
The final agenda will be posted on the Internet at
Because entry to Federal buildings is restricted, all visitors are required to preregister to be admitted. In order to attend this meeting, you must register by close of business on the dates listed in “Public Input” under
Interested members of the public may submit relevant information or questions for the Council to consider during the public meeting. Written statements must be received by the date above, so that the information may be made available to the Council for their consideration prior to this meeting. Written statements must be supplied to the Council Coordinator in both of the following formats: One hard copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation at the meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator, in writing (preferably via email; see
Summary minutes of the conference will be maintained by the Council Coordinator (see
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as modified, the Bureau of Land Management (BLM), Nevada has prepared a Draft Environmental Impact Statement (EIS) for the Phoenix Copper Leach Project (Proposed Project) and by this notice is announcing the opening of the comment period.
To ensure comments will be considered, the BLM must receive written comments on the Phoenix Copper Leach Project Draft EIS within 45 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the Phoenix Copper Leach Project Draft EIS by any of the following methods to the attention of Dave Davis:
•
•
•
Copies of the Phoenix Copper Leach Project Draft EIS are available in the Mount Lewis Field Office at the above address and on the Battle Mountain District's National Environmental Policy Act (NEPA) Web page at:
For further information contact Dave Davis, BLM Battle Mountain District, Phoenix Copper Leach Project Manager, telephone (775) 635-4150; address 50 Bastian Road, Battle Mountain, NV 89820; email
Newmont Mining Corporation (Newmont) has submitted a proposed Amendment to the Plan of Operations for expansion and operation of the existing Phoenix Gold Mine to include leaching and beneficiation of copper oxide rock material that was previously permitted for disposal on waste rock facilities within the approved Phoenix Mine boundary. The Proposed Project would be located in north-central Nevada 12 miles southwest of Battle Mountain, Nevada, on private and public lands in Lander County. The proposed expansion would increase the surface disturbance of the existing mine area an additional 902 acres; 194 acres of public land and 708 acres of private land.
The Phoenix Copper Leach Project Draft EIS describes and analyzes the site-specific impacts for all affected resources. Three alternatives are analyzed: two action alternatives, the Proposed Action and the Reona Copper Heap Leach Facility (HLF) Elimination Alternative, and the No Action Alternative. Eleven other alternatives were considered then eliminated from further analysis and are discussed in the Draft EIS. Alternatives considered but eliminated from further analysis include: three alternative process options; three alternative plant design options; two alternative facility location options; one alternate pond cover design option; one alternate Phoenix heap leach pad configuration option; and the Borrow Area Elimination Alternative.
The Phoenix Copper Leach Project Preferred Alternative would consist of the following primary components: (1) Expansion of the existing project boundary; (2) development and operation of two copper HLFs; (3) construction of six new process ponds; (4) construction and operation of a copper solvent extraction/electro-winning facility; (5) designation of a new optional use area that could be developed as a copper HLF and borrow area; (6) establishment of a new clay borrow area; (7) development of new water monitoring wells; (8) construction of a new haul road, pipeline, and utility corridor; (9) development of a new production water well; and (10) conversion of six process ponds to evaporation ponds during reclamation. New surface disturbance associated with the Proposed Action totals 902 acres. The majority of the proposed facilities would occur in areas that previously have been approved for surface disturbance. Under the Proposed Action, approximately 158 million tons of copper ore would be mined for processing resulting in the production of approximately 245 million pounds of recoverable copper during the ore processing timeframe. Active mining and processing for the project would last approximately 24 years; overall closure and reclamation activities are anticipated to extend approximately 10 years beyond the operational phase. A minimum of 13 years of revegetation and reclamation monitoring are estimated following mine closure.
Under the Reona Copper HLF Elimination Alternative, the proposed Reona Copper HLF and associated infrastructure (
The No Action Alternative would involve continuation of currently authorized gold mining, leaching, and milling operations at the Phoenix Mine in accordance with the Plan of Operations NVN-067930, as permitted under the Phoenix Project Record of Decision (November 28, 2003) and the other Federal and state permits. Under the No Action Alternative, the Proposed Project would not be constructed, and the currently classified waste rock that contains leach-grade copper would continue to be disposed of in one or more of the currently permitted waste rock facilities at the Phoenix Mine. Upon completion of currently permitted mining operations, the existing facilities identified and analyzed in the Phoenix Project Final EIS would be closed and reclaimed in accordance with current permits and applicable Federal and state closure and reclamation requirements.
On February 12, 2008, a Notice of Intent was published in the
In May 2008, the BLM sent letters to 12 tribes, bands, and interested parties notifying them of the Proposed Project and soliciting comments. Three of these groups (Battle Mountain Band, Yomba Shoshone, and Duckwater Shoshone) responded to the letters, and one, the Battle Mountain Band, requested a field tour of the study area. The field tour was held on August 29, 2008. Several concerns were expressed by the tribal participants, in particular, mining and its impacts on natural resources. None of the tribal members identified any specific sites or resources of concern within the Proposed Project area. The BLM continued consultation in February 2011, by sending letters to seven tribes, bands, and interested parties. No additional issues have been raised. Please note that public comments and information submitted including names, street addresses, and email addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, email address, or other personal identifying information in your comment—you should be aware that your entire comment—including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10
Bureau of Land Management, Interior. Department of Energy.
Notice of availability.
The Bureau of Land Management (BLM) and the Department of Energy (DOE) (the Agencies) as joint lead agencies announce the availability of the Supplement to the Draft Programmatic Environmental Impact Statement (EIS) for Solar Energy Development in Six Southwestern States (Supplement) (BLM/DES 11-49, DOE/EIS-0403D-S).
The Agencies will accept comments for ninety (90) calendar days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the Supplement by the following methods:
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Requests for additional information on the Supplement or general information regarding the BLM National Environmental Policy Act of 1969 (NEPA) process should be directed to Shannon Stewart, Senior Planning and Environmental Analyst, BLM Washington Office, by email at
The Supplement, references, and additional information regarding solar energy development are available at the project
• Arizona State Office, One North Central Avenue, Suite 800, Phoenix, Arizona 85004.
• Caliente Field Office, U.S. Highway 93 Building #1, Caliente, Nevada 89008.
• California Desert District, 22835 Calle San Juan De Los Lagos, Moreno Valley, California 92553.
• California State Office, 2800 Cottage Way, Suite W-1623, Sacramento, California 95825.
• Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215.
• Cedar City Field Office, 176 East D.L. Sargent Drive, Cedar City, Utah 84721.
• El Centro Field Office, 1661 S. 4th Street, El Centro, California 92243.
• Lake Havasu Field Office, 2610 Sweetwater Avenue, Lake Havasu City, Arizona 86406.
• Las Cruces District Office, 1800 Marquess Street, Las Cruces, New Mexico 88005.
• Lower Sonoran Field Office, 21605 N. 7th Avenue, Phoenix, Arizona 85027.
• Nevada State Office, 1340 Financial Boulevard, Reno, Nevada 89502.
• New Mexico State Office, 301 Dinosaur Trail, Santa Fe, New Mexico, 87508.
• Palm Springs—South Coast Field Office, 1201 Bird Center Drive, Palm Springs, California 92262.
• San Luis Valley Public Lands Center, 1803 West Highway 160, Monte Vista, Colorado 81144.
• Southern Nevada District Office, 4701 North Torrey Pines, Las Vegas, Nevada 89130.
• Tonopah Field Office, 1553 South Main Street, Tonopah, Nevada 89049.
• Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101.
The BLM and the DOE will hold four public meetings on the Supplement to provide an overview of the document, answer questions, and receive public comments. The meeting site will open to the public at 6 p.m. The official meeting will begin at 7 p.m. and close after all individuals who wish to speak have been heard. The meeting dates and locations are given below. The specific venues will be announced at least 15 days in advance via local media, the project Web site (
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At these meetings the public will have an opportunity to provide oral and written comments. Oral and written comments from the meetings and additional comments submitted during the comment period will be considered by the Agencies in preparing the Final EIS. Comments submitted after the close of the comment period will be considered to the extent practicable.
On December 17, 2010, the Agencies published a Draft Programmatic EIS for Solar Energy Development in Six Southwestern States (Arizona, California, Colorado, Nevada, New Mexico, and Utah). Public comments were accepted through May 2, 2011. More than 80,500 comments were received. The public, as well as many cooperating agencies, offered suggestions on how the Agencies could increase the utility of the document, strengthen the proposed BLM Solar Energy Program, and increase certainty regarding solar energy development on BLM-administered lands.
The Agencies have revised the Solar PEIS to better meet their solar energy objectives. The Agencies have prepared a targeted Supplement to the Draft Solar Programmatic EIS (Supplement) that includes modified and new components of the proposed BLM Solar Energy Program, DOE's proposed programmatic environmental guidance, and references to relevant portions of the Draft Solar Programmatic EIS. The Agencies have prepared this document in accordance with NEPA, as amended; the Council on Environmental Quality, the DOE, and the Department of Interior (DOI)
The BLM has identified a need to respond in a more efficient and effective manner to the high interest in siting utility-scale solar energy development on BLM-administered lands and ensure consistent application of measures to avoid, minimize, or mitigate the adverse impacts of such development. The BLM proposes to develop a new Solar Energy Program to further support utility-scale solar energy development on BLM-administered lands. The proposed Solar Energy Program has been designed to further the BLM's ability to meet the requirements for facilitating solar energy development on BLM-administered lands established by the Energy Policy Act of 2005 (Pub. L. 109-58) and Secretarial Order 3285A1 issued by the Secretary of the Interior. In particular, the proposed program has been designed to meet the requirements of Order 3285A1 to identify and prioritize solar energy development in locations best suited for such development, called solar energy zones (SEZ). The objectives of the BLM's proposed Solar Energy Program include:
• Facilitating near-term utility-scale solar energy development on public lands;
• Minimizing potential negative environmental, social, and economic impacts;
• Providing flexibility to consider a variety of solar energy projects (
• Optimizing existing transmission infrastructure and corridors; and
• Standardizing and streamlining the authorization process for utility-scale solar energy development on BLM-administered lands.
The elements of the BLM's proposed Solar Energy Program have been expanded from the Draft Solar Programmatic EIS and include:
1. Continued processing of pending applications for utility-scale solar energy development;
2. Identification of lands to be excluded from utility-scale solar energy development in the six-state study area;
3. Identification of priority areas (
4. Establishment of a process to identify new SEZs;
5. Establishment of a process that allows for responsible utility-scale solar energy development outside of priority areas (
6. Establishment of mitigation requirements for solar energy development on public lands to ensure the most environmentally responsible development and delivery of solar energy; and
7. Amendment of BLM land use plans in the six-state study area to adopt those elements of the new Solar Energy Program that pertain to planning.
The alternatives being analyzed through the Supplement include the no action alternative, and two modified action alternatives, each of which would have the BLM establish a comprehensive Solar Energy Program to facilitate utility-scale solar energy development on BLM-administered lands.
On the basis of further data collection, consultation with cooperating agencies and resource managers, and analysis of comments submitted on the Draft Solar Programmatic EIS, the BLM has modified its preferred alternative to emphasize its commitment to the concept of SEZs by eliminating or adjusting SEZs to ensure they are not located in high conflict areas, establishing a protocol to identify new SEZs, and outlining incentives for projects within SEZs. In addition, the BLM has revisited ongoing state-based planning efforts to assure that such efforts could result in the identification of new SEZs. While the BLM's preferred alternative emphasizes the use and creation of SEZs for utility-scale solar energy development, the BLM also proposes a process that will accommodate responsible development outside of SEZs.
Under the modified program alternative (the BLM's preferred alternative), the BLM identifies categories of lands to be excluded from utility-scale solar energy development and identifies specific locations best suited for utility-scale production of solar energy (
Under the modified SEZ alternative, the BLM would restrict utility-scale solar energy development applications to SEZs only, and designate all other lands as exclusion areas for utility-scale solar energy development. The proposed authorization policies that are part of the modified program alternative would also apply to applications in SEZs under the modified SEZ alternative.
The no action alternative remains unchanged from the Draft Solar Programmatic EIS. The no action alternative continues the issuance of right-of-way authorizations for utility-scale solar energy development on BLM-administered lands by implementing the requirements of the BLM's existing solar energy policies. Lands available for solar energy development would include those areas currently allowable under existing applicable laws and statutes and in conformance with the approved land use plan(s). Future solar energy projects and land use plan amendments would continue to be evaluated solely on an individual, case-by-case basis.
The DOE is required to meet mandates under Executive Order 13212, “Actions to Expedite Energy-Related Projects” (66 FR 28357; May 22, 2001); Executive Order 13514, “Federal Leadership in Environmental, Energy, and Economic Performance” (74 FR 52117; October 8, 2009); and Section 603 of the Energy Independence and Security Act of 2007 (EISA) (Pub. L. 110-140). The DOE's purpose and need is to satisfy both executive orders and comply with congressional mandates to promote, expedite, and advance the production and transmission of environmentally sound energy resources, including renewable energy resources and, in particular, cost-competitive solar energy systems at the utility scale.
Specifically, the DOE proposes to further integrate environmental considerations into its analysis and selection of solar projects through the development of programmatic environmental guidance. The proposed DOE guidance, provided in this Supplement, builds on the BLM's analysis of potential impacts of utility-scale solar development on the environment for all phases of development to provide a technical basis. The DOE could use, as appropriate, the programmatic guidance
The DOE will consider this guidance, including recommended environmental practices and mitigation measures, in its investment and deployment strategies and decision-making process. This guidance, based on the analyses in the Draft Solar Programmatic EIS and other information, would provide DOE with a tool for making more informed, environmentally sound decisions at the outset, help to streamline future environmental analysis and documentation for DOE-supported solar projects, and support the DOE's efforts to comprehensively (1) Determine where to make technology and resource investments to minimize the potential environmental impacts of solar technologies for DOE-supported solar projects, and (2) establish environmental mitigation recommendations for proponents of DOE solar projects to consider in project plans.
Through the Solar Programmatic EIS, the DOE is evaluating two alternatives: an action alternative and a no action alternative. Under the action alternative, the DOE would develop and adopt programmatic environmental guidance that would be used by DOE to further integrate environmental considerations into its analysis and selection of proposed solar projects. In the Supplement, DOE presents for public comment proposed guidance intended to amend its existing case-by-case approach, thus facilitating the advancement of solar energy development. Under the no action alternative, the DOE would continue its existing case-by-case process for addressing environmental concerns for solar projects supported by DOE. It would not develop programmatic environmental guidance with recommended environmental best management practices and mitigation measures that could be applied to DOE-supported solar projects.
Cooperating Federal agencies on the Solar Programmatic EIS include the Department of Defense; the U.S. Fish and Wildlife Service; the National Park Service; the Bureau of Reclamation; the U.S. Environmental Protection Agency, Region 9; and the U.S. Army Corps of Engineers, South Pacific Division. Other cooperating agencies on the Solar PEIS include the Arizona Game and Fish Department; the California Energy Commission and Public Utilities Commission; the Nevada Department of Wildlife, the N-4 Grazing Board, and the Southern Nevada Water Authority; the Utah Public Lands Policy Coordination Office; Clark, Esmeralda, Eureka, Lincoln, and Nye Counties, Nevada; Saguache County, Colorado; and Dona Ana County, New Mexico.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 1506.10, 43 CFR 1610.2, and 10 CFR 1021.313.
National Park Service, Interior.
Notice of Availability, Record of Decision on the Final Environmental Impact Statement for the National Mall Plan, National Mall and Memorial Parks, Washington, DC.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service announces the availability of the Record of Decision for the Final Environmental Impact Statement for the National Mall Plan, National Mall and Memorial Parks (Final EIS/Plan).
The Record of Decision, Final EIS/Plan, and other information are available for public review in the Office of the Superintendent, National Mall and Memorial Parks, 900 Ohio Drive SW., Washington, DC 20024-2000. Copies are also posted online at
Superintendent, National Mall and Memorial Parks, 900 Ohio Drive SW., Washington, DC 20024-2000, or by telephone at (202) 245-4690.
The Record of Decision was signed at the Thomas Jefferson Memorial in Washington, DC on November 9, 2010, by Secretary of the Interior Ken Salazar; Assistant Secretary for Fish, Wildlife and Parks Tom Strickland, and National Park Service Director Jon Jarvis. The Record of Decision was also signed by National Capital Regional Director Peggy O'Dell and Acting National Mall and Memorial Parks Superintendent Maria Burks. A Floodplain Statement of Findings was signed on September 30, 2010, and a Programmatic Agreement with the Advisory Council on Historic Preservation, the District of Columbia State Historic Preservation Office, and others was signed on November 8, 2010. All of these documents are posted online at
Other related material is also available at
The National Mall in Washington, DC is managed by the National Park Service as part of the National Park System. Following direction by Congress, in November 2006, the National Park Service announced an intensive planning effort to refurbish the National Mall so that (1) Its treasured memorials and historic landscapes could be preserved, (2) very high levels of use could be sustained, and (3) the needs of visitors could be met. This effort recognized that the National Mall was not designed for the types and levels of use it currently receives—nearly 25 million visits annually, including demonstrations, national celebrations, and permitted events. This high level of visitation has resulted in adverse impacts on the cultural and natural resources of the National Mall. Adequate facilities are lacking for large gatherings, events, exhibitions, and celebrations; for tourism and general visitation; for group visitation; for visitors with disabilities; and for recreational opportunities. This has had adverse impacts on visitor experiences and park operations.
The scope of the Final Plan/EIS encompasses three specific locations
• The Mall, which extends from the grounds of the United States Capitol to the Washington Monument and includes Union Square.
• The Washington Monument and its grounds.
• West Potomac Park, including the Lincoln Memorial, the World War II Memorial, the Vietnam Veterans Memorial, the Franklin Delano Roosevelt Memorial, the Tidal Basin, and the Thomas Jefferson Memorial.
The Record of Decision identifies the preferred alternative, as described in the Final EIS/Plan, as the selected action for implementation. The preferred alternative articulates a vision to protect and refurbish the National Mall so that it can better fulfill its function as our American symbol and civic space for our democracy, and so that high levels of use can be sustained, resources protected, and visitor needs met.
The National Park Service's proposed course of action is to reinforce the overall identity of the National Mall and to establish a sense of place through enduring and compatible high-quality design, as well as through the highest standards of facility maintenance. The National Mall will be respectfully rehabilitated and refurbished, with improvements made to the pedestrian environment, so that very high levels of use can be accommodated and so that the needs of all visitors can be met in an attractive, high-quality, energy-efficient, and sustainable manner. As the preeminent civic stage for our country, First Amendment demonstrations, commemorations, national ceremonies and celebrations will be better accommodated. Memorials and landscapes will be protected and the large areas of open space that are defining features of the designed historic landscape will be better maintained.
The landscape will evolve to accommodate contemporary uses while respecting the planned historic character and visions of the L'Enfant and McMillan plans. The National Mall will be emphasized as a year-round destination where the beauty and variety of every season will enhance visitor experiences. Diverse opportunities will be available for visitors and will include educational, cultural, and musical programs, as well as active and passive recreational activities. The National Park Service will continue to manage the National Mall pursuant to the applicable laws, regulations, and policies for these natural, cultural, and historic resources. Taken as a whole, the selected action is also the environmentally preferred alternative because it best meets all six goals of the National Environmental Policy Act (NEPA). It was developed by combining the advantages of the other alternatives, and resource conditions will be greatly improved to help achieve the paramount goal of enriching and providing a quality American experience for all. The selected action will address high levels of use and improve conditions.
• Considerations of public use;
• Civic, ceremonial and commemorative functions;
• Park operational efficiency;
• Analyses of environmental impacts on cultural and natural resources;
• Demonstrations;
• Special events;
• National celebrations;
• Access and circulation;
• Visitor experience;
• Socioeconomic environment; and
• Park operations.
Planning started with a National Park Service-hosted national symposium on future use and management of the National Mall and featured nationally-recognized experts in architecture, freedom of speech, First Amendment rights, landscape architecture, history, law enforcement, planning, and government. Substantial public involvement was integral to the process for developing the plan and resulted in more than 30,000 public comments, as well as close collaboration with 21 governmental agencies and 30 organizations with an interest in the National Mall and/or historic preservation.
The Final EIS/Plan will serve as the foundation for subsequent implementation plans. Among decisions made in the Final EIS/Plan, the identification of locations capable of better accommodating use within a designed historic landscape is significant.
The National Park Service investigated means to avoid or minimize environmental impacts as a result of the plan and its projects. The National Park Service had studies, and assessments prepared at the beginning of the planning process, both for public information and as background for the National Park Service planning team. The National Park Service also worked with the U.S. Environmental Protection Agency and consultants to learn about best practices for solid waste and recycling programs. The results of this extensive background analysis were incorporated into the alternatives, including the preferred alternative. The National Park Service will continue to take all practical measures to avoid environmental harm and harm to related cultural and historic resources through compliance with statutes such as the NEPA and the National Historic Preservation Act, which provide for analyses and consultation. The National Park Service will continue to work with the U.S. Army Corps of Engineers on projects related to the Potomac River, the Tidal Basin, and the Potomac Park levee, and as appropriate with other organizations, agencies, and commissions including the Advisory Council on Historic Preservation, the District of Columbia State Historic Preservation Office, the U.S. Fish and Wildlife Service, the U.S. Commission of Fine Arts, and the National Capital Planning Commission.
• A summary of the selected alternative;
• Mitigation measures developed to minimize environmental harm;
• The four other alternatives considered (including a no-action alternative);
• The basis for the decision in terms of planning objectives and the criteria used to develop the preferred alternative;
• The finding of no impairment of park resources and values;
• The environmentally preferred alternative; and
• The public and agency involvement.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before October 8, 2011. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request renewed approval for the collection of information for Areas Designated by Act of Congress. This information collection activity was previously approved by the Office of Management and Budget (OMB), and assigned clearance number 1029-0111.
Comments on the proposed information collection activities must be received by December 27, 2011, to be assured of consideration.
Comments may be mailed to John Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., NW., Room 203-SIB, Washington, DC 20240. Comments may also be submitted electronically to
To receive a copy of the information collection request contact John Trelease, at (202) 208-2783 or by email at
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8 (d)]. This notice identifies an information collection that OSM will be submitting to OMB for approval. This collection is contained in
Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany OSM's submission of the information collection request to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This notice provides the public with 60 days in which to comment on the following information collection activity:
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for Underground Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan, has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost. This information collection activity was previously approved by OMB and assigned control number 1029-0039.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by November 28, 2011, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of the Interior Desk Officer, by telefax at (202) 395-5806 or via email to
To receive a copy of the information collection request contact John Trelease at (202) 208-2783, or electronically at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval of the collection of information contained in 30 CFR 784—Underground Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan. OSM is requesting a 3-year term of approval for the information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029-0039, and is displayed in 30 CFR 784.10.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request approval to continue the collection of information for Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan. This information collection activity was previously approved by the Office of Management and Budget (OMB), and assigned clearance number 1029-0036.
Comments on the proposed information collection must be received by December 27, 2011, to be assured of consideration.
Comments may be mailed to John Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave, NW., Room 203—SIB, Washington, DC 20240. Comments may also be submitted electronically to
To receive a copy of the information collection request contact John Trelease, at (202) 208-2783, or by email at
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. This notice identifies an information collection that OSM will be submitting to OMB for renewed approval. The collection is contained in 30 CFR part 780—Surface Mining Permit Applications—Minimum Requirements for Reclamation and Operation Plan. OSM will request a 3-year term of approval for this information collection activity. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for part 780 is 1029-0036. Responses are required to obtain a benefit for this collection.
Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany OSM's submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This notice provides the public with 60 days in which to comment on the following information collection activity:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has issued a general exclusion order prohibiting importation of infringing inkjet ink cartridges with printheads and components thereof.
Panyin A. Hughes,
The Commission instituted this investigation on June 25, 2010, based on a complaint filed by Hewlett-Packard Company of Palo Alto, California and Hewlett-Packard Development Company, L.P., of Houston, Texas (collectively “HP”). 75 FR 36442 (June 25, 2010). The complaint alleged 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 inkjet ink cartridges with printheads and components thereof by reason of infringement of various claims of United States Patent Nos. 6,234,598 (“the '598 patent”); 6,309,053 (“the '053 patent”); 6,398,347 (“the '347 patent”); 6,481,817 (“the '817 patent”); 6,402,279 (“the '279 patent”); and 6,412,917 (“the '917 patent”). The '917 patent was subsequently terminated from the investigation. The complaint named the following entities as respondents: MicroJet Technology Co., Ltd. of Hsinchu City, Taiwan (“MicroJet”); ain Asia Pacific Microsystems, Inc. of Hsinchu City, Taiwan (“APM”); Mipo Technology Limited of Kowloon, Hong Kong (“Mipo Tech.”); Mipo Science & Technology Co., Ltd. of Guangzhou, China (“Mipo”); Mextec d/b/a Mipo America Ltd. of Miami, Florida (“Mextec”); SinoTime Technologies, Inc. d/b/a All Colors of Miami, Florida (“SinoTime”); and PTC Holdings Limited of Kowloon, Hong Kong (“PTC”).
Respondents Mipo, Mipo Tech., SinoTime, and Mextec were subsequently terminated from the investigation. Respondent MicroJet defaulted. Respondent PTC did not participate in the hearing and failed to file post-hearing briefs. Pursuant to 19 CFR 210.17(d) and (e), the ALJ drew an adverse inference against PTC that “PTC imported accused products into the United States, that those products were manufactured by MicroJet, and that those products contain ICs [integrated circuits] made by APM.” Final Initial Determination (“ID”) at 29.
On June 10, 2011, the Administrative Law Judge (“ALJ”) issued his final ID, finding a violation of section 337 by the respondents. Specifically, the ALJ found that the Commission has subject matter jurisdiction:
On June 24, 2011, HP filed a contingent petition for review of the ID. On June 27, 2011, APM and the Commission investigative attorney filed petitions for review of the ID. On July 5, 2011, the parties filed responses to the various petitions and contingent petition for review.
On August 11, 2011, the Commission determined to review a single issue in the final ID and requested briefing on the issue it determined to review, and on remedy, the public interest and bonding. 76 FR 51055 (Aug. 17, 2011). Specifically, the Commission determined to review the finding that HP failed to establish by a preponderance of the evidence that Respondent APM induced infringement of the asserted patents.
On August 25, 2011, the parties filed written submissions on the issue under review, remedy, the public interest, and bonding. On September 1, 2011, the parties filed reply submissions. Although Respondent PTC failed to appear at the hearing and failed to file post-hearing briefs, resulting in the ALJ drawing an adverse inference against PTC (ID at 29), PTC filed a letter dated August 24, 2011, responding to the issue under review. However, by failing to file a post-hearing brief, PTC has waived any arguments it has or may have had about any issues in this investigation.
Having examined the record of this investigation, including the ALJ's final ID, the Commission has determined that there is a violation of section 337. The Commission has determined to reverse the ALJ's finding that HP failed to establish by a preponderance of the evidence that Respondent APM induced infringement of the asserted patents, and finds that HP established by a preponderance of the evidence that APM induced infringement of the asserted patents. The Commission adopts the ALJ's findings in all other respects.
The Commission has further determined that the appropriate remedy is a general exclusion order prohibiting the entry of inkjet ink cartridges with printheads and components thereof that infringe any of the asserted claims. The Commission has also determined that the public interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the general exclusion order. Finally, the Commission has determined that a bond of 100 percent of the entered value is required to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)) of inkjet ink cartridges with printheads and components thereof that are subject to the order. The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.42-46 and 210.50 of the Commission's Rules of Practice and Procedure, 19 CFR 210.42-46, 210.50.
By order of the Commission.
On September 14, 2011, Administrative Law Judge (ALJ) Gail A. Randall issued the attached recommended decision. There were no exceptions filed to the ALJ's decision.
Having reviewed the record in its entirety including the ALJ's
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration, BT9856002, issued to Treasure Coast Specialty Pharmacy, be, and it hereby is, revoked. I further order that any pending application of Treasure Coast Specialty Pharmacy, to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.
Gail A. Randall, Administrative Law Judge. On June 27, 2011, the Administrator, Drug Enforcement Administration (“DEA” or “Government”), issued an Order to Show Cause and an Immediate Suspension of Registration (“Order”), immediately suspending the DEA Certificate of Registration, No. BT9856002, of Treasure Coast Specialty Pharmacy (“Treasure Coast”), as a retail pharmacy pursuant to 21 U.S.C. 824(d) (2006), because Treasure Coast's continued registration constitutes an imminent danger to the public health and safety. The Order also proposed to deny any pending DEA registration applications by Treasure Coast and to deny the pending application for DEA registration by Pappy's Drugs d/b/a Prima Vista Pharmacy (“Pappy's Drugs”) because their registrations would be inconsistent with the public interest, as that term is used in 21 U.S.C. 823(f).
Specifically, the Order alleged that Treasure Coast “has dispensed and continues to dispense controlled substances, primarily Schedule III anabolic steroids and Schedule II narcotics under circumstances demonstrating that [Treasure Coast] knew or should have known” that those prescriptions were not issued for a legitimate medical purpose. [Order at 2]. The Order explains that this knowledge must be inferred from Treasure Coast's association with and filling of prescriptions issued by physicians who have pled guilty in federal court to unlawfully distributing steroids, and who market themselves as providing “hormone replacement therapy” and “anti-aging” services. [
Next, the Government alleged that Treasure Coast filled prescriptions for Schedule II controlled substances prescriptions “under circumstances indicating that the drugs are diverted from legitimate channels, misused, or abused.” [
On July 28, 2011, counsel for Treasure Coast and Pappy's Drugs (collectively, “Respondents”) timely filed a request for a hearing in the above-captioned matter.
On July 29, 2011, the Government filed its Motion For Summary Disposition And Motion to Stay Proceedings (“Government's Motion”). Therein, the Government moved for summary disposition of the portion of these proceedings that relate to Treasure Coast's registration. The Government based its motion on the fact that the State of Florida suspended Treasure Coast's registration as a community pharmacy and, therefore, Treasure Coast currently lacks state authority to handle controlled substances.
On August 1, 2011, I ordered the Respondents to file a response to the Government's Motion, if any, on or before August 5, 2011.
On August 5, 2011, counsel for the Respondents filed their Respondents' Response to DEA's Motion For Summary Disposition And Motion To Stay Proceedings (“Respondents' Response”). Therein, the Respondents argued that the Government is precluded from using Treasure Coast Pharmacy's lack of state licensure as a basis for revocation of its DEA registration, through summary disposition or otherwise, as the Government failed to state those grounds in its Order to Show Cause. Consequently, the Respondents' aver that Treasure Coast's due process rights require the Government “to serve an Order to Show Cause * * * stating the DEA's new or substituted basis for revocation and calling upon [Treasure Coast] to appear at the time and place stated in the Order to Show Cause, but in no event less than thirty days after the date of receipt of this order.” [Resp. Response at 2]. In addition, the Respondents argue that under applicable Florida law the owner of a pharmacy need not be licensed as such, yet must designate a managerial pharmacist that is so licensed. Further, citing
On August 5, 2011, I ordered the Government to reply to the Respondents' Response no later than August 12, 2011.
On August 9, 2011, counsel for Treasure Coast filed its Respondents' Supplemental Response to DEA's Motion For Summary Disposition And Motion To Stay Proceedings. Therein, the Respondents argue that Treasure Coast has a valid Florida retail pharmacy drug wholesale distribution license, and on that basis summary disposition is inappropriate.
On August 12, 2011, counsel for the Government filed its Government's Reply To Respondent's Initial And Supplemental Responses To Government's Motion For Summary Disposition (“Government's Reply”). In its Reply the Government argues that its Motion for Summary Disposition remains valid. First, the Government addresses the Respondents' due process argument in stating
The Administrative Procedures Act (APA), 5 U.S.C. 551
Next, the Government addresses the substantive basis for its Motion. Specifically, the Government argues that Treasure Coast's possession of a wholesale distributor permit is meaningless, as the loss of its community pharmacy license renders that permit useless. [
For the reasons set forth below, I will grant the Government's Motion and recommend that the Deputy Administrator revoke Treasure Coast's DEA Certificate of Registration and deny any currently pending applications to renew its registration.
First, I reject Treasure Coast's argument that it will not be afforded procedural due process if its registration is revoked due to its lack of state licensure, as that basis was not noticed in the Government's Order. As correctly stated by the Government, the confines of this administrative proceeding are not defined by the Government's Order to Show Cause, but rather the Government's prehearing disclosures,
Here, the Government put the Respondent on notice through its Motion for Summary Disposition. Accordingly, Treasure Coast's due process rights are not violated because the Government, through its prehearing Motion, timely notified Treasure Coast of its intent to pursue revocation of its registration on the basis of the pharmacy's lack of state licensure. In its Response, Treasure Coast had the opportunity to rebut the factual basis upon which the Government based its Motion. For this reason, Treasure Coast's due process argument fails.
The DEA will not maintain a controlled substances registration if the registrant is without state authority to handle controlled substances. The Controlled Substances Act (“CSA”) provides that obtaining a DEA registration is conditional on holding a state license to handle controlled substances. [
The parties do not dispute that the State of Florida suspended Treasure Coast's retail pharmacy registration. Therefore, Treasure Coast no longer possesses authority under that license to handle controlled substances. However, Treasure Coast argues that it currently possesses other state authority to handle controlled substances, through its maintenance of a wholesale distributor permit.
Nevertheless, I am persuaded by the Government's argument that the State of Florida did not intend a pharmacy, who lacks authority to handle controlled substances under a retail pharmacy registration, to be permitted to handle controlled substances under a wholesale distribution permit. Not only is the alternative plainly inconsistent with Florida law, it renders an absurd interpretation of those laws. [
This interpretation is consistent with the letter from the Chief Legal Counsel, Emergency Action Unit, Florida Department of Health, who wrote that, “[b]ecause Treasure Coast's community pharmacy permit is presently suspended, Treasure Coast may not operate under either its community pharmacy permit or its wholesale distributor permit.” [Government's Reply, attachment 3]. Therefore, because, as a matter of law, Treasure Coast no longer possesses state authority to handle controlled substances, its DEA registration must be revoked.
Treasure Coast's other arguments for denial of the Government's Motion are irrelevant to this proceeding. First, the Respondent's argument that Florida law does not require the owner of a retail pharmacy to be registered as a pharmacist, but instead permits a pharmacy to designate managerial authority to a registered pharmacist, is irrelevant because despite the truth or
In addition, the Respondents' argument that the State of Florida may not revoke a pharmacy's registration on the basis of its pharmacist's wrongdoing is equally irrelevant. Upon a motion for summary disposition due to lack of state licensure, the DEA will not consider whether the State has a valid basis for revoking the Respondent's registration; it will only consider whether the Respondent currently possesses state authority. As Treasure Coast does not, its registration must be revoked.
It is well-settled that when no question of fact is involved, or when the material facts are agreed upon, a plenary, adversarial administrative proceeding is not required under the rationale that Congress does not intend administrative agencies to perform meaningless tasks. [
Accordingly,
I also forward the portion of this case that relates to Treasure Coast's registration to the Deputy Administrator for final disposition. I recommend that Treasure Coast's DEA Certificate of Registration, Number BT9856002, be revoked and any pending renewal applications for this registration be denied.
On April 29, 2010, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Abelardo E. Lecompte-Torres, M.D. (Respondent), of Ponce, Puerto Rico. The Show Cause Order proposed the denial of Respondent's application for a DEA Certificate of Registration, on the ground that his registration “would be inconsistent with the public interest, as that term is defined in 21 U.S.C. 823(f).” Show Cause Order at 1.
The Show Cause Order specifically alleged that “[o]n or about April 7, 2009, [Respondent] filed an application for registration[,] seeking a DEA Certificate of Registration as a practitioner in Schedules II through V * * * at the registered location of 620 Lady Di Street, Apartment #10, Parque Los Almendros, Ponce, Puerto Rico 00716.”
The Show Cause Order further alleged that on May 2, 2007, Respondent was indicted in the United States District Court for the District of Puerto Rico and charged with violations of 18 U.S.C. 2; 1349; 1956(h) and (a)(1)(A)(i); as well as 21 U.S.C. 841(a)(1) and 846. Show Cause Order at 2. The Show Cause Order also alleged that the indictment alleged that Respondent had authorized multiple prescriptions for controlled substances, including hydrocodone, for internet customers who resided in jurisdictions where he was not authorized to practice medicine.
Finally, the Show Cause Order alleged that on January 10, 2008, Respondent pled guilty to one count of conspiracy to possess with intent to distribute hydrocodone, a violation of 21 U.S.C. 841(a)(1) and 846.
On May 22, 2010, the Show Cause Order, which also notified Respondent of his right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedure for doing either, and the consequence for failing to do either, was served on him by certified mail as evidenced by the signed returned receipt card.
However, when, as of September 21, 2010, the Government had not received his statement, it filed its Request for Final Agency Action and forwarded the Investigative Record to this Office. Subsequently, on December 17, 2010, the Government filed an Addendum to its Request for Final Agency Action, stating that it had since learned that Respondent had entered into an agreement with the Puerto Rico Board of Licensing and Medical Discipline (Board), and that on September 22, 2010, the Board had issued a resolution, the terms of which include,
On December 17, 2010, the Government served the Addendum on Respondent's counsel by first class mail. Since Respondent's June 2010 letter, DEA has not received any other correspondence from Respondent or his counsel.
I therefore find that Registrant has waived his right to a hearing and to submit a written statement beyond that contained in his June 2010 letter.
Respondent previously held a DEA registration as a practitioner. However, on September 19, 2005, Respondent was issued an Order to Show Cause and Immediate Suspension of Registration based on allegations that he had issued controlled-substance prescriptions over the internet to persons he neither saw nor physically examined and with whom “he had no prior doctor-patient relationship,” and on whom he did not maintain patient records. GX 3, at 5. The 2005 Show Cause Order thus alleged that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose in issuing the prescriptions.
Thereafter, Respondent and DEA settled the matter by entering into a Memorandum of Agreement (MOA), which became effective on July 11, 2006, and which is to remain in effect for five years. GX 4, at 8. Pursuant to the MOA, Respondent agreed to surrender his registration and the Government agreed that it would approve his application for a new registration “after the expiration of twenty-four (24) months from service of the” 2005 Show Cause Order “barring any unforeseen or heretofore unknown basis to deny the application,” and that “no act that formed the basis for * * * paragraphs 15-17” of the 2005 Show Cause Order “shall form the sole basis for [the] denial of Registration.”
DEA is not precluded from introducing this Agreement, violations of this Agreement and any other relevant allegations, whether enumerated herein or not, that preceded or may ensue during or after the effective period of this Agreement in any future administrative proceedings. Further, nothing in this Agreement shall be construed as a waiver to use any other grounds for revocation or denial of a DEA registration, including, but not limited to, the admissibility of this Agreement and/or any violations of this Agreement in the event that future administrative proceedings become necessary.
GX 4, at 5-6.
On May 2, 2007, a Federal grand jury sitting in the District of Puerto Rico, issued a superseding indictment, which charged Respondent with conspiring to distribute controlled substances, in violation of 21 U.S.C. 846; unlawfully distributing a controlled substance (hydrocodone), in violation of 21 U.S.C. 841(a)(1); conspiracy to commit wire fraud, in violation of 18 U.S.C. 1349; and conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h) and 1956(a)(1)(A)(i).
On April 7, 2009, Respondent submitted an online application for a new DEA Certificate of Registration as a Practitioner in schedules II-V. Respondent sought registration at the address of 620 Lady Di Street, Apt. #10, Parque Los Almendros, Ponce, Puerto Rico 00716. GX 1, at 1.
On May 26, 2010, the Puerto Rico Board issued a complaint against Respondent's license on the ground that he had been convicted of a crime involving moral turpitude. Declaration of Diversion Investigator, at 2. On September 2, 2010, Respondent and the Board's Investigator agreed to a settlement; on September 22, the Board voted to adopt the settlement.
Pursuant to the settlement, Respondent was allowed to continue practicing medicine.
Section 303(f) of the Controlled Substances Act (CSA) provides that “[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances * * * if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Moreover, the CSA defines “[t]he term `practitioner' [to] mean[] a physician * * * licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices * * * to distribute, dispense, * * * [or] administer * * * a controlled substance in the course of professional practice.” 21 U.S.C. 802(21).
As these provisions make plain, possessing authority under state law (or in the case of Puerto Rico, the law of the Commonwealth) to handle controlled substances is an essential condition for obtaining and maintaining a DEA registration.
It is undisputed that the Puerto Rico Board has suspended Respondent's authority to dispense controlled substances in the Commonwealth, the jurisdiction in which he practices, for a period of three years, and that he does not satisfy the CSA's requirement for obtaining a registration.
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) and 0.104, I order that the pending application by Abelardo E. Lecompte-Torres, M.D., for DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately.
On March 17, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Aaron Gloskowski, D.O. (Registrant), of Kearny, Arizona. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration BG6908757, as a practitioner in Schedules II through V, and the denial of any pending applications to renew or modify his registration, pursuant to 21 U.S.C. 824(a)(3) & (4) and 823(f). Show Cause Order at 1.
More specifically, the Show Cause Order alleged that as a result of action by the Arizona Board of Osteopathic Examiners in Medicine and Surgery (hereinafter, the Board), Registrant is without authority to practice medicine or handle controlled substances in the State of Arizona, the State in which he is registered with DEA, and therefore is not entitled to hold a DEA registration.
The Show Cause Order also alleged that pursuant to Registrant's consent agreements with the Board, on two occasions, Registrant provided urine samples for drug testing, which tested positive for methamphetamine, a Schedule I
The Government initially attempted to serve the Show Cause Order by certified mail addressed to Registrant at his registered address. However, the mailing was returned to the Government marked: “Moved, Left no Address” and “Unable to Forward.” Government Request for Final Agency Action (Request), at 1.
Registrant was then located by a DEA Diversion Investigator (DI), who then resent the Show Cause Order to him by certified mail; according to a certified mail receipt, on April 4, 2011, Registrant was served with the Order. Request at 1-2. On March 21, 2011, the Government also emailed the Order to Registrant; the DI confirmed that Registrant had received the email and had opened the attachment containing the Order.
Since the date of service of the Show Cause Order, thirty days have now passed and neither Registrant, nor anyone purporting to represent him, has requested a hearing or submitted a written statement in lieu of a hearing. I therefore find that Registrant has waived his right to a hearing or to submit a written statement in lieu of a hearing, and issue this Decision and Final Order based on relevant evidence contained in the record submitted by the Government. 21 CFR 1301.43(d) & (e). I make the following findings of fact.
Registrant is the holder of DEA Certificate of Registration BG6908757, which authorizes him to handle controlled substances in Schedules II through V as a practitioner, at the registered address of 100 Tilbury Drive, Kearny, Arizona. His registration does not expire until September 30, 2012.
Registrant was formerly licensed as an osteopathic physician in Arizona. On November 21, 2008, Registrant entered into a Stipulated Rehabilitation Agreement with the Arizona Board of Osteopathic Examiners in Medicine and Surgery, under which he was allowed to participate in the Board's confidential program for the treatment and rehabilitation of doctors of medicine who are impaired by alcohol or drug abuse, pursuant to A.R.S. § 32-1861.
The Rehabilitation Agreement stipulated that any violation of its terms constituted unprofessional conduct as defined in A.R.S. § 32-1854,
On February 25, 2009, the Board was notified that Registrant had provided a biological fluid sample which tested positive for methamphetamine. GX F, at 3 (Consent Agreement and Order For Probation, June 29, 2009). Upon notice from the Executive Director of the Board, Registrant voluntarily refrained from practicing medicine, successfully completed an inpatient treatment program, and entered an outpatient program.
On June 29, 2009, the Board issued an Interim Order placing Registrant on probation for five years. The Board imposed extensive conditions on Registrant, including that he participate in the Board's monitored aftercare program and participate in the intensive outpatient program until the program's medical director approved his discharge from it.
On June 9, 2010, Registrant submitted a biological fluid sample for testing pursuant to the 2009 Order. GX H, at 5-6. As a result of irregularities found in the sample, Registrant was directed by the Board to submit an observed urine test and hair test for sampling.
On July 27, 2010, the day after meeting with Board staff to discuss his compliance with the 2009 Order, Registrant submitted to another urine test, which tested positive for amphetamines and methamphetamine. Based in part on this test result, the Board summarily suspended Registrant's license to practice osteopathic medicine. GX G, at 3-4.
Following a hearing before a State Administrative Law Judge (ALJ), the Board made extensive findings regarding Registrant's compliance with the Consent Order. GX H. Regarding
I therefore find that Registrant is currently without authority to handle controlled substances under the laws of the State of Arizona, the State in which he is registered with DEA.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in the “jurisdiction in which he practices” in order to maintain a DEA registration.
Accordingly, DEA has held that revocation of a registration is warranted whenever a practitioner's state authority to dispense controlled substances has been suspended or revoked.
As found above, on March 22, 2011, the Arizona Board revoked Registrant's state osteopathic medicine license. Accordingly, Registrant is without authority to dispense controlled substances in the State where he practices medicine and holds his DEA registration, and is therefore no longer entitled to hold his registration.
The Government further argues that Registrant's abuse of methamphetamine is an additional ground for revoking his registration because he has committed acts that render his registration inconsistent with the public interest. Request for Final Agency Action, at 3 (citing 21 U.S.C. 824(a)(4)). I agree.
Section 304(a) of the Controlled Substances Act provides that a “registration pursuant to section 823 of this title to * * * dispense a controlled substance * * * may be suspended or revoked by the Attorney General upon a finding that the registrant * * * has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section.” 21 U.S.C. 824(a)(4). With respect to a practitioner, the Act requires the consideration of the following factors in making the public interest determination:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
The public interest factors are considered in the disjunctive.
In this matter, while I have considered all of the factors, I conclude that it is not necessary to make findings with respect to factors one
Under longstanding Agency precedent, factor five encompasses “wrongful acts relating to controlled substances committed by a registrant outside of his professional practice but which relate to controlled substances.”
As found above, in 2008, Registrant self-reported to the Arizona Board that he was beginning in-patient treatment for substance abuse. GX H, at 3. Moreover, on two subsequent occasions (February 25, 2009 and July 27, 2010), Registrant provided biological specimens which tested positive for methamphetamine, in violation of his agreements with the Board. Of further significance, the Board found that Registrant's July 2010 test sample had a 90% concentration of an isomer which is the biologically active ingredient in methamphetamine which is sold on the street.
Thus, substantial evidence supports the conclusion that Registrant has
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration BG6908757, issued to Aaron Gloskowski, D.O., be, and it hereby is, revoked. I further order that any pending application of Aaron Gloskowski, D.O., to renew or modify his registration, be, and it hereby is, denied. This Order is effective immediately.
On December 30, 2010, Administrative Law Judge (ALJ) Timothy D. Wing issued the attached recommended decision. Thereafter, Respondent filed exceptions to the decision.
Having reviewed the entire record including Respondent's exceptions, I have decided to adopt the ALJ's rulings, findings of fact, conclusions of law, and recommended order, except as discussed below. Accordingly, I will order that Respondent's application be denied.
Before proceeding to discuss Respondent's exceptions, a discussion of the ALJ's consideration of “community impact” evidence is warranted.
The ALJ further noted, however, that in
While in
The decision in
Moreover, my review of
As I further explained in
In
While the evidence adduced here (which the ALJ rejected as insufficient) was primarily limited to Respondent's assertion that she “was the only pain management doctor reasonably available in southwestern Virginia,” ALJ at 34; here again, there are no workable standards for determining whether other doctors are reasonably available. Moreover, the CSA's primary purpose is to prevent the diversion of controlled substances and nothing in the respective statutes (21 U.S.C. 823(f) & 824(a)) directs the Agency to consider community impact evidence in determining whether to grant an application for registration or to continue an existing registration.
It is acknowledged that there is no evidence in this record that Respondent was engaged in diverting controlled substances.
Under 21 U.S.C. 824(a)(5), the Attorney General is authorized to suspend or revoke a registration “upon a finding that the registrant * * * has been excluded (or directed to be excluded) from participation in a program pursuant to” 42 U.S.C. 1320a-7(a). As I recently explained,
In enacting 42 U.S.C. 1320a-7, Congress was obviously aware that many of the beneficiaries of Medicaid, Medicare, and other health care programs (such as SCHIP) are residents of medically underserved communities. Yet Congress made the exclusion of a provider from participation in these programs mandatory upon conviction of one of the four categories of offenses enumerated in 42 U.S.C. 1320a-7(a), including a conviction for Health Care Fraud. Given this, it makes no sense for the Agency to consider community impact evidence in exercising its authority under 21 U.S.C. 824(a)(5).
I therefore re-affirm my holding in
The ALJ also found that on February 12, 2009, the Virginia Medical Board reinstated Respondent's medical license. ALJ 26. The ALJ further concluded that this action “weigh[s] in favor of a finding that Respondent's registration would not be inconsistent with the public interest, at least as of February 12, 2009.”
However, following the closing of the record, on July 8, 2011, the Virginia Board of Medicine issued an Order following a hearing it conducted on June 24, 2011; I take official notice of the Board's Order.
Under the Controlled Substances Act, a practitioner must possess authority to dispense controlled substances under the laws of the State in which she practices in order to hold a DEA registration.
Respondent filed extensive exceptions to the ALJ's decision. Most of these exceptions (which do not comply with DEA's regulations because they do not cite to the transcript or exhibits,
Furthermore, I find no basis to conclude that the ALJ was biased against Respondent. As the Supreme Court has explained, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”
Respondent further takes exception to the ALJ's findings that she does not accept responsibility for the various acts of misconduct which were proven on this record. With respect to her Health Care Fraud conviction, Respondent argues that by pleading guilty and complying with the various requirements of her sentence, she has accepted responsibility. Resp. Exc. at 6. With respect to the allegation that she wrote controlled substance prescriptions without a registration, Respondent argues that she admitted to writing two prescriptions by mistake shortly after her medical license was restored by the State and that she “is only aware of [two] prescriptions” which she wrote and “admitted to.”
As for the ALJ's finding that Respondent did not accept responsibility for her Health Care Fraud conviction, it is true that pleading guilty and complying with her sentence is probative evidence of whether she has accepted responsibility. However, Respondent did not stop there. Instead, as the ALJ found (and the testimony shows), Respondent maintained that her conviction was “unjust[],” Tr. 386, as it was based on “six billing incidents * * * when I was out of the country,” that “the most I got paid over or extra was $ 11.00 per visit,” and that the U.S. Attorney's Office had brought her down “for $ 66.00.”
As for the ALJ's finding that Respondent did not accept responsibility for her prescribing without holding a registration, it is acknowledged that she admitted to having written a prescription for Ambien (zolpidem), a schedule IV controlled substance, 21 CFR 1308.14(c)(51), on February 23, 2009, and a prescription for Lyrica (pregabalin), a schedule V controlled substance,
I cannot say that that is my signature. I am not opposed to the idea that the government can do a lot of things. And I do not, without having had this information, and be[ing] able to do some research on my own, I will not admit to this being my signature or my prescription.
Respondent's failure to accept responsibility is further manifested by her contentions that if DEA had timely issued her a new registration, “the complaint here would not have any substance” and that DEA's failure to grant her application demonstrates an “abject plan to create the scenario in which to charge [her] with committing a crime.” Resp. Exc. at 10. However, no one forced Respondent to issue prescriptions without a registration and DEA's regulation clearly states that “[n]o person required to be registered shall engage in any activity for which registration is required until the application for registration is granted and a Certificate of Registration is issued by the Administrator to such person.” 21 CFR 1301.13(a). Also, given Respondent's exclusion under 42 U.S.C. 1320-7(a), DEA had no obligation to grant her application.
So too, Respondent asserted that she had an agreement with another physician (Dr. Shultz) under which she acted as a nurse practitioner and evaluated the patients and was supervised by Dr. Schultz; Respondent further claimed that Dr. Schultz would then review her evaluation and authorize a controlled substance prescription for the patients, which was then called in to the patient's pharmacy by Respondent or her staff.
On June 25, 2009, the same day that the above document was signed, Respondent discussed with
And when she told me she had said, “No, I haven't told anybody they can use my DEA number,” I said, “Kathy, you allow us to call in prescriptions for our patients. That is using your DEA number.” “Oh, I didn't realize that,” was her reply.
Tr. 422.
DEA Investigators found numerous controlled substance prescriptions which were called into local pharmacies under Dr. Schultz's DEA registration by either Respondent or her employee, A.Y.
Under Federal law, it is “unlawful for any person knowingly or intentionally * * * to use in the course of the * * * dispensing of a controlled substance * * * a registration number which is * * * issued to another person.” 21 U.S.C. 843(a)(2). It is also unlawful to dispense a controlled substance without first obtaining a registration to do so. 21 U.S.C. 822(a)(2). The evidence shows that Respondent committed multiple violations of both provisions.
Accordingly, the record establishes three independent grounds for denying Respondent's application: (1) Her loss of state authority,
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Linda Sue Cheek, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective November 28, 2011.
Timothy D. Wing, Administrative Law Judge. This proceeding is an adjudication pursuant to the Administrative Procedure Act, 5 U.S.C. 551
On March 13, 2010, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause (“OSC”) seeking the denial of Respondent's pending application as a practitioner for registration in Schedules II through V, alleging that issuing a registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f) and that Respondent has been excluded from participation in a federal health care program as defined in 21 U.S.C. 824(a)(5). (ALJ Ex. 1 at 1.) The OSC alleged in substance: (a) Respondent had been excluded from participation in all federal health care programs for a period of five years following her guilty plea to one count of health care fraud in federal district court on February 21, 2008; and (b) Respondent surrendered her DEA COR number BC4510865 on November 17, 2008, but thereafter continued to issue numerous prescriptions for controlled substances using the surrendered COR, as well as the COR of another practitioner without authorization.
Respondent, acting
Whether the record evidence establishes by substantial evidence that Respondent's pending application for a DEA COR as a practitioner in Schedules II through V should be denied because such registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f) and because Respondent has been excluded or directed to be excluded from participation in a health care program pursuant to 21 U.S.C. 824(a)(5).
I find, by a preponderance of the evidence, the following facts:
On June 4, 2008, the Virginia Department of Health Professions ordered Respondent's medical license
On October 29, 2008, after a formal administrative hearing, the Virginia Board of Medicine (“Board”) issued an Order denying reinstatement of Respondent's medical license, which remained on indefinite suspension. The Order precluded Respondent from petitioning the Board for reinstatement until Respondent presented satisfactory written evidence that she had successfully completed a Board-approved comprehensive physician competency evaluation. (Gov't Ex. 7.)
On January 8, 2009, Respondent petitioned the Board for reinstatement, after completing the required comprehensive physician competency evaluation. (Resp't Ex. 17.) On February 12, 2009, the Virginia Department of Health Professions notified Respondent of the decision to reinstate Respondent's medical license to full and unrestricted status with all attendant rights and privileges. (Resp't Ex. 18.)
Respondent graduated from the University of Texas Health and Science Center at San Antonio, earning a Doctor of Medicine degree on May 23, 1992. (Resp't Ex. 1.) Respondent completed her first year of family practice training at the University of Texas Health Science Center at San Antonio and successfully completed her last two years of training at Roanoke Memorial Hospital in Roanoke, Virginia in June 1995. The Virginia Department of Health Professions, Board of Medicine, issued Respondent a license to practice medicine and surgery on July 1, 1993. Respondent has since maintained a family practice to include a specialty in pain management and alternative medicine. Since 1998, Respondent has completed a number of medical training activities to include: Traditional Chinese Medicine, acupuncture, herbal medicine, Qi Gong, Clinical Issues in Primary Care, evidence-based wellness, clinical hypnosis, The Psychology of Health, Immunity and Disease, numerous pain management courses, addiction and drug diversion courses and homeopathic courses, among others. (Resp't Exs. 7-16.)
Respondent held DEA COR BC4510865 as of July 18, 1995, as a practitioner in controlled substances in Schedules II through V, at the registered address 28 Town Center Drive, Dublin, Virginia, which was last renewed on August 24, 2007. This COR had an expiration date of August 31, 2010. In a letter dated November 14, 2008, Respondent voluntarily surrendered her COR after a formal administrative hearing and denial of reinstatement of Respondent's medical license by the Virginia Board of Medicine on October 29, 2008. (
In support of the allegations contained in the OSC, the Government presented at hearing the testimony of three witnesses: Special Agent Jeffrey Overbeck, U.S. Department of Health and Human Services, Office of Inspector General (“SA Overbeck”), Diversion Investigator Steven Tomaziefski, U.S. Drug Enforcement Administration (“DI Tomaziefski”), and Special Agent Robert Slease, U.S. Department of Health and Human Services, Office of Inspector General (“SA Slease”).
SA Overbeck testified in substance that he has been a special agent for approximately nine years and has approximately twenty-one years of law enforcement experience. In his current position, SA Overbeck specializes in investigating Medicare and Medicaid fraud. SA Overbeck testified that his office began an investigation of Respondent on September 20, 2005, based on information provided by law enforcement agencies regarding concerns with Respondent's prescribing of narcotics and the use of “cleansing sessions” at Respondent's practice. (Tr. 31-32.) SA Overbeck further testified that the investigation revealed the cleansing sessions consisted of a group of patients that were required to either watch a movie or listen to a family nurse practitioner talk, before the patients could obtain prescriptions. If patients required additional medication they would have to repeat the cleansing sessions, which cost patients “up to an additional hundred dollars a month, because they were required to buy supplements, and herbal supplements * * *” before they could obtain prescription medications. (Tr. 42.) Respondent then billed the cleansing sessions as individual office visits, even though Respondent knew from a prior audit that Medicaid, Medicare and Anthem
SA Overbeck also testified that investigative findings revealed that Respondent's practice, New River Medical Associates, Inc., in Dublin, Virginia focused on pain management and alternative medicine. Respondent also employed two family nurse practitioners. Respondent and the two nurse practitioners each had Medicare, Medicaid and Anthem provider numbers, which could be billed for the services that each provided. On a number of occasions, Respondent submitted a bill for services under Respondent's provider number when Respondent was not actually present, contrary to the rules and regulations for “incident to” billing. (Tr. at 33-39.) SA Overbeck's testimony was fully credible. His testimony was internally consistent and the witness was able to recall factual events with a reasonable level of certainty.
Documentary evidence included Respondent's December 9, 2007, signed agreement to plead guilty to a one-count information charging health care fraud in violation of 18 U.S.C. 1347. (Gov't Ex. 3.) On May 27, 2008, the United States District Court for the Western District of Virginia entered a judgment pursuant to a plea of guilty by Respondent to one count of health care fraud, 18 U.S.C. 1347, for offense conduct ending in March 2006. Respondent was sentenced to “probation for a term of: Four (4) years,” with conditions of supervision, a $100.00 assessment, $1,000.00 fine and restitution in the amount of $24,210.37. (Gov't Ex. 4.)
A September 30, 2008 letter from the U.S. Department of Health and Human Services, Office of Inspector General, notified Respondent she was “excluded from participation in any capacity in the Medicare, Medicaid, and
DI Tomaziefski testified in substance that he has been a diversion investigator with DEA for approximately five years, and following initial training was assigned to Roanoke, Virginia. DI Tomaziefski's experience includes participation as a lead investigator in approximately thirty regulatory investigations, and his duties also include reviewing pending applications for DEA registration. DI Tomaziefski testified to becoming aware of Respondent in August of 2008, and learning that Respondent had previously pled guilty and had her medical license suspended. (Tr. 68-70.) In September 2008 he contacted Respondent regarding her DEA registration but decided not to take any action regarding surrender of her DEA
DI Tomaziefski further testified that in April 2009 he received information from the Virginia Department of Health Professions pertaining to two prescriptions that were written and signed by Respondent using her surrendered DEA number. (Tr. 79-80.) One prescription, for “Lyrica 75 mg capsule #60 (sixty)” with two refills, dated March 20, 2009, was not filled by a pharmacy. (Tr. 81; Gov't Ex. 9.) The second prescription, for “Ambien 10 mg tablet #30 (thirty)” with five refills, dated February 23, 2009, was filled by a pharmacy in Wytheville, Virginia. (Tr. 82-83; Gov't Ex. 13.) DI Tomaziefski further testified that he next began looking at different pharmacies for prescriptions that Respondent may have written. On May 19, 2009, DI Tomaziefski received by facsimile a three-page letter from Respondent (
Dr. Schultz saw the patients on her own from September, 2008 to February, 2009. When I got my license in February 2009, I asked her to continue assisting me with the scheduled medications, since I did not have my DEA certificate. She had experience with working with nurse practitioners, so she had no problem supervising me in the same manner. She also established her own practice in my building, so that those patients with Medicare, Medicaid, and any other insurance that I did not associate with, could have a primary care physician to write orders for them. Every patient that pertains to has seen her personally. She has personally seen every patient that receives Schedule II meds. She has approved the medications that they are receiving. Then they continue to see me and she signs their scripts. She has also given me instructions to call scripts in for patients that are schedule III-V. She reviews my notes and signs them. For her supervisory duties, New River Medical Associates pays her $100 per week. We are handling things as if I am a physician extender and she is the supervisory physician * * *
(
DI Tomaziefski also testified that the dates of the prescriptions written by Respondent that he had obtained and seized as evidence did not match the date that Respondent had her medical license reinstated. DI Tomaziefski testified that on May 28, 2009, he sent a confidential source (“CS”) into New River Medical Associates to meet with Respondent as a patient. As a result of that visit, Respondent's office assistant, [AY],
DI Tomaziefski further testified that on June 2, 2009, he participated with the CS in a controlled purchase of the above prescribed hydrocodone from Dublin Pharmacy, and the purchased prescription drug was seized as evidence by DEA. On June 4, 2009, DI Tomaziefski and the CS returned for another controlled visit to Respondent. Respondent and Dr. Schultz confronted the CS with urinalysis results which revealed the presence of buprenorphine, not otherwise prescribed or disclosed by the CS to DEA. As a result, DEA terminated the undercover operation.
DI Tomaziefski next testified to obtaining additional copies of prescriptions issued under Respondent's name and using Respondent's surrendered DEA registration number. (Tr. 109.) On June 26, 2009, a prescription dated May 14, 2009, for “Ambien 10 mg tablet #30 (thirty)” with five refills was obtained from Martin's Pharmacy, in Pulaski, Virginia. DI Tomaziefski concluded the prescription had not been filled because it did not contain a pharmacy tag on the prescription. (Tr. 110;
DI Tomaziefski next testified that on June 17, 2009, he spoke with Dr. Schultz by telephone and Dr. Schultz said she was not affiliated with New River Medical Associates but was just helping out until Respondent got her medical license back. Dr. Schultz also stated that she did not allow Respondent to call in prescriptions for any authorized refills under Dr. Schultz's DEA number. (Tr. 115.) The record evidence also reflects that Dr. Schultz only worked at New River Medical Associates on Thursdays. (Tr. 117-18.)
The record evidence includes twenty-two prescription records obtained by DI Tomaziefski from Dublin Pharmacy, in Dublin, Virginia, covering the period from March to April 2009, all reflecting “called-in” prescriptions by Respondent or [AY] using Dr. Schultz's DEA number. (Tr. 119; Gov't Ex. 15.) DI Tomaziefski testified that the dates on the prescriptions were significant because most of the prescriptions were called in on dates other than Thursdays. (Tr. 118.)
The record evidence also includes ten prescription records obtained by DI Tomaziefski from Martin's Pharmacy in Dublin, Virginia, covering the period from May to June 2009, all reflecting “called-in” prescriptions using Dr. Schultz's DEA number. All but one contained a handwritten notation of either Respondent or [AY]. (Gov't Ex. 16.) DI Tomaziefski testified that he knows these prescriptions are “call-ins” because an original prescription would have the identifying prescriber information, including DEA number, and signature of the provider. (Tr. 564.)
The record evidence further reflects seven prescription records obtained by DI Tomaziefski from a Rite Aid pharmacy covering the period May to June 2009, with all but one record reflecting “called-in” prescriptions using Dr. Schultz's DEA number. The prescription dated June 29, 2009, is a “non-called in” prescription bearing a signature consistent with K. Schultz and written on a prescription form in the name of Kathleen Schultz, D.O., 28 Town Center Drive, Dublin, VA. (Tr. 126-27;
DI Tomaziefski further testified that on June 23, 2009, he traveled to Dr. Schultz's house with a Virginia State Police investigator for the purpose of serving a subpoena and to clarify information contained on Schedule II prescriptions that had been obtained during the DEA investigation. DI Tomaziefski explained that upon identifying themselves to Dr. Schultz, Dr. Schultz spontaneously stated that “she didn't authorize anybody to use her DEA number.” Dr. Schultz further stated that she was somewhat retired and worked one day a week at a clinic “and that on Thursdays, most Thursdays” would be at New River Medical Associates and wrote Schedule II prescriptions for patients. (Tr. 132.)
DI Tomaziefski further testified that on June 25, 2009, he received a telephone call from Respondent regarding the status of her application for a DEA COR. During the call, Respondent put Dr. Schultz on the line together with Respondent. Respondent and Dr. Schultz informed DI Tomaziefski that they had a verbal agreement wherein Respondent could call in prescriptions under Dr. Schultz's DEA number. (Tr. 134.)
On cross examination, DI Tomaziefski testified that the normal time to render a decision on an application for a DEA COR is approximately four to six weeks, but DEA is not obligated to adhere to that time period and the time period is longer when there are issues with the applicant. (Tr. 142-43.)
DI Tomaziefski's testimony was fully credible. The witness testified consistently with regard to facts, and his testimony as a whole reflected a recollection of factual events with a reasonable level of certainty.
Respondent testified at hearing and also presented testimony from former patients [AZ], [DS] and [ET]. [ET] testified by telephone, with consent of the parties, because [ET] was incarcerated at the time of hearing. Additionally, Respondent presented testimony from an employee and patient, [AY].
[AZ] testified in substance that [AZ] is a resident of Elliston, Virginia and had been a patient of Respondent for approximately three years before Respondent lost her medical license. [AZ] testified to being able to maintain a quality of life and function with pain medications, and believed that [AZ] “wouldn't be here today if it wasn't for Dr. Cheek helping” with [AZ]'s pain. (Tr. 178.) [AZ] further testified that after Respondent lost her medical license it was a very difficult time and a constant worry as to how [AZ] would obtain medication. (Tr. 181.) In 2008 [AZ] contacted Respondent's office and learned that Dr. Schultz was available. [AZ] returned to the office as a patient, at first seeing Dr. Schultz. [AZ] further testified that Respondent is not an easy doctor to get medications from, has rules to follow, and expects patients to maintain a healthy diet. [AZ] explained that [AZ] participated in “cleansing groups” and last participated several years prior to the hearing. (Tr. 187-88.)
On cross examination, [AZ] testified that it is approximately a twenty minute drive from [AZ]'s home to Respondent's office, and there are no other pain management physicians in the area. [AZ] had been referred to Respondent by another physician who had prescribed the same pain medication that [AZ] has taken for approximately fifteen years, including from Respondent. [AZ] explained that at no time did Respondent double up on [AZ]'s pain medication but was not sure if Respondent may have written extra prescriptions during May or June 2008. [AZ] explained that after returning to Respondent's practice in October 2008, [AZ] saw Dr. Schultz approximately once every three months, obtaining three months' worth of prescriptions per visit, because it was more cost- and environmentally effective than monthly visits.
Patient [DS] testified in substance to being a patient of Respondent since September 10, 2009, having previously been treated at a VA hospital. [DS] stated that [DS] left the VA hospital after it stopped managing [DS]'s pain for no reason. After discharge from the VA hospital and prior to treating with Respondent [DS] stated that [DS] was ninety percent disabled, suffering from withdrawal, and did not believe [DS] would live another two weeks without treatment. (Tr. 237.) After discharge from the VA hospital [DS] had difficulty finding a physician that would take [DS] given [DS]'s financial means. [DS] further testified that after treating with Respondent and Dr. Schultz, [DS]'s life improved ninety percent or more and [DS] was able to continue attending college. [DS] explained that Respondent is not an easy doctor and only gives pain medicine to someone actually in pain.
On cross examination [DS] indicated that [DS] lives approximately twenty-two miles from Respondent's office. While at the VA hospital [DS] was prescribed methadone and Percocet together, along with Neurontin. [DS] explained that [DS]'s frequency of visits to Respondent's office is once every three months, with the last visit being August 26, 2010. [DS] saw Dr. Schultz in September 2009, which [DS] described as a sit-down discussion. [DS] explained that [DS] believed Respondent was [DS]'s primary care physician. Respondent performed the first physical examination on [DS]'s first visit. (Tr. 254.) I find [DS]'s testimony credible in that it was generally consistent and the witness was able to recall factual events with a reasonable level of certainty.
[AY] testified in substance that [AY] is a certified nursing assistant and receptionist, hired by Respondent on February 5, 2002, initially working as a receptionist. [AY] testified that [AY] currently works as a receptionist and also assists patients. [AY] further testified to being laid off from work in October 2008 and returning to employment with Respondent in February 2009. [AY] stated that Dr. Schultz told [AY] that [AY] could call in prescriptions for the patients based on recommendations of Respondent. [AY] explained that in May 2009 Dr. Schultz put in writing that [AY] was authorized to call in controlled substances under Dr. Schultz's name. (Tr. 261-62.) [AY] further testified that
On cross examination and redirect examination [AY] further explained that [AY] has called in prescriptions as part of [AY]'s job and on a date uncertain Dr. Shultz gave [AY] verbal permission to call in prescriptions, later reduced to writing in June 2009. (Tr. 272-73.) [AY] further testified that [AY] is prescribed controlled substances by New River Medical Associates, is paid eleven dollars per hour, and the cost of [AY]'s visits is offset as part of [AY]'s employment, in that [AY] does not pay for office visits. (Tr. 277-78, 285-86.) [AY]'s Schedule II medications are prescribed by Dr. Schultz but Dr. Schultz has not performed a physical examination of [AY], only a patient history. (Tr. 278.) [AY] stated that she has only seen Dr. Schultz as a patient “one time” within the past year, but did not recall the date. (Tr. 279.) Dr. Schultz only comes into the office one day a week, on Thursdays. [AY] explained that all of the patients at New River Medical Associates are pain patients and all or most pay cash, which includes credit card payments and money orders, ranging from $55.00 to $110.00. [AY] stated that a patient paying $110.00 “would get their examination of three month's worth of medication.” (Tr. 284.) [AY] provided contradictory testimony with regard to insurance and Medicare patients, first testifying on cross examination that “about ten percent” are insurance patients but on redirect examination that the office does “not accept insurance.”
[AY]'s testimony at times was not internally consistent and [AY]'s testimony is evaluated in light of [AY]'s employment status with Respondent at the time of hearing. Additionally, [AY] is a patient of Respondent, receiving services at reduced cost. [AY]'s testimony with regard to Dr. Schultz's presence at the office only on Thursdays is consistent with other objective record evidence and credible. [AY]'s testimony with regard to “call-in” prescription authority from Dr. Schultz largely mirrors that of Respondent and, as more fully explained below, I do not find that testimony entirely credible.
Patient [ET] testified in substance that [ET] was a patient of Respondent before Respondent lost her medical license in 2008. [ET] began seeing Respondent again in February 2009. [ET] testified that while Respondent was without a medical license [ET] received treatment at a health center in Pulaski, Virginia for depression, and also received heart medication and ibuprofen for pain. Upon returning to Respondent for treatment in February 2009, [ET] testified to receiving prescriptions from Respondent, but later learned from Respondent's office that [ET] had to return the prescription because it needed to be issued by a Dr. Schultz. [ET] further testified that Respondent was a good doctor. (Tr. 296-346.) On cross-examination [ET] testified that [ET] did not think that [ET] ever received a physical examination by Dr. Schultz. [ET] further testified that as of the date of hearing [ET] was taking only ibuprofen for pain. (Tr. 350-51.) I find [ET]'s testimony credible in that it was internally consistent and the witness was able to recall factual events with a reasonable level of certainty.
Respondent testified in substance that she is a resident of Dublin, Virginia, and began her family practice rotation at the University Health Science Center before transferring to Roanoke Memorial Hospital Family Practice Residency. (Tr. 359-60.) Respondent applied for a DEA COR while in residency but did not really use it until becoming a practicing physician in 1995. Respondent stated that she chose family practice in part because of the variety of the work and wanted to work in a rural area where good doctors were needed. Respondent explained that after beginning practice on her own she began studying alternative medicine and saw her first pain patient in the late 1990s. (Tr. 362.) Respondent further testified that she was not taught pain management in residency. Respondent began self-study in alternative medicine in 2000, attending numerous training courses and lectures on a variety of subjects. (Resp't Exs. 7-16.) Respondent further testified that she has become noted well enough as a pain management expert that she has been invited twice by two different drug companies to attend review sessions on how the drug companies could present drugs to the Food and Drug Administration (FDA), and how to market them. (Tr. 375.)
Respondent also testified to developing a multidisciplinary facility called New River Medical Associates, in Dublin, Virginia, which was designed to help fix problems and help people heal. (Tr. 377-78.) Respondent testified that she developed “cleansing sessions” which consisted of thirty minutes of exercise or counseling, with remarkable results. (Tr. 378-79.) Respondent explained that she decided to “simply bill the simplest ENM code * * * because if you bill too simple, the insurance company can say, `This was worth more than that,' and they can get you for fraud either way. Laws are basically built to cause doctors to be charged with fraud * * *.” (Tr. 379-80.) Respondent further testified to ending the cleansing sessions in October 2005, after a conversation with an insurance investigator, who told Respondent the sessions were not billable. Respondent stated that as a result of the cleansing sessions taxpayers saved hundreds of thousands or even millions of dollars through improved patient health, concluding: “If this is fraud, maybe we need more of it.” (Tr. 382.)
Respondent testified that she signed a plea agreement and pled guilty due to six billing incidents when she was out of the country, stating that the most she was paid extra because of the billings was eleven dollars per hour or a total loss of $66.00. (Tr. 384-85.) Respondent further explained that following her guilty plea in 2008, she lost her medical license and “[n]inety-nine percent of my patients were unable to find another physician to take care of them, even though I tried to communicate to my colleagues that these people needed a physician * * *.” (Tr. 388.)
Respondent further testified that her medical license was reinstated on February 13, 2008, and she thereafter resumed seeing patients. Respondent testified that she was aware the Government had sent individuals to her practice, identified herein as confidential sources. In August 2005 Respondent declined to provide treatment to a confidential source after discovering that the individual's medical history was false. More recently, she instructed another confidential source to complete a detoxification program after a drug screen revealed multiple positive results. Respondent described having strict rules and procedures, including drug screens. (Tr. 391-93.)
Respondent next testified to hiring Dr. Kathy Schultz
Respondent also testified that on June 25, 2009, a written document was created reflecting a February 23, 2009 verbal agreement, along with a June 25, 2009 addendum further describing the arrangement between Respondent, Respondent's staff and Dr. Schultz. (Resp't Ex. 41; Tr. 424.) Respondent also introduced a letter dated July 20, 2009, from Kathleen Schultz authorizing [AY] to call in Schedule III to V medications. (Resp't Ex. 36.)
Respondent further testified that since June 2010 a webcam service was added to allow Dr. Schultz to connect with Respondent's office and has offered Dr. Schultz a service to review computer information or patient records, but this service has not been set up. Dr. Schultz does not have a key to Respondent's practice location. Respondent further admitted to writing two prescriptions in twenty months that she should not have written, and due to a “comedy of errors” one prescription was filled. Respondent maintains that “two prescriptions were written by me for patients on my first day back to work,” stating that she “had just completely forgotten in my head about the fact that I could not write the controlled drugs, and I did, luckily to only those two patients.” (Tr. 432-33.)
On cross examination, Respondent stated that she did not engage in the treatment of patients between May 28, 2008, and February 13, 2009. (Tr. 477.) The evidence also included a Notice of Denial letter dated February 1, 2009, with a facsimile date of February 1, 2009, addressed to Respondent, denying a payment request for enrollee [AZ]. (Gov't Ex. 19.) The evidence also included a Medicare prior authorization for patient [AZ], dated January 30, 2009, signed by Respondent and listing Respondent as the prescribing physician with a fax notation of February 2, 2009 (hereinafter “Prior Authorization Form”). (Gov't Ex. 20.) Respondent testified that the signature on page two of the Prior Authorization Form was her signature. (Tr. 482;
At hearing, Respondent timely objected to the admission of Government Exhibits 19 and 20, arguing lack of proper notice. (Tr. 485.) To comport with due process requirements, the DEA must “provide a Respondent with notice of those acts which the Agency intends to rely on in seeking the revocation of its registration so as to provide a full and fair opportunity to challenge the factual and legal basis for the Agency's action.”
I find that prior to hearing, the Government did not disclose the substantive information relating to the January 30, 2009 Medicare Prior Authorization Form for patient [AZ] in the OSC, subsequent pre-hearing statements or list of exhibits. Accordingly, for purposes of this Recommended Decision, I give no weight to that evidence and related testimony other than to evaluate Respondent's credibility.
On further cross-examination, Respondent was shown a prescription dated March 20, 2009, to patient [JB] for “Lyrica 75 mg capsule #60 (sixty),” (
In a letter dated January 13, 2010, (Resp't Ex. 40 at 1), Respondent stated that Respondent wrote a prescription dated March 20, 2009, to patient [JB] for Lyrica. Respondent further wrote that she did not know Lyrica was a controlled substance. (
The Government's evidence included eight prescriptions for various medications to [ET], all dated May 27, 2010, in the name of Dr. Schultz.
Respondent further testified that with regard to the process of preparing prescriptions for patients, Respondent is “the expert in pain management. Dr. Schultz is not the expert in pain management. I am. So, she relies on me to—to tell her what is needed for the patient.” (Tr. 523.) Respondent then testified that she is “recommending” to Dr. Schultz and “in many cases” Dr. Schultz makes the decisions. (Tr. 524.)
In rebuttal, SA Slease testified that he has been employed as a Special Agent with the Department of Health and Human Services since 2005 and has experience in approximately twenty-five fraud related investigations. SA Slease further testified that he is familiar with Respondent's practice location and very familiar with the southwestern Virginia area, to include Dublin, Virginia. SA
The Government argues that Respondent's application for registration should be denied due to her mandatory five-year exclusion from Medicare and Medicaid, pursuant to 21 U.S.C. 824(a)(5). Additionally, the Government argues that Respondent's registration would be inconsistent with the public interest pursuant to 21 U.S.C. 823(f) and 824(a)(4). The Government maintains that factor one of § 823(f), the recommendation of the appropriate state licensing board or professional disciplinary authority, is applicable based on the suspension and later reinstatement of Respondent's Virginia medical license but factor three, the applicant's conviction record relating to the manufacture, distribution or dispensing of controlled substances, is not applicable. As to factors two and four, the applicant's experience in dispensing or conducting research with respect to controlled substances and compliance with applicable laws relating to controlled substances, the Government maintains that Respondent issued prescriptions for controlled substances using her surrendered DEA COR. Additionally, the Government argues Respondent caused controlled substances prescriptions to issue under the DEA COR of another doctor, without permission. The Government further argues that Respondent executed pre-signed prescriptions for Schedule II controlled substances from 2003 through February 2006, in violation of 21 CFR 1306.05(a). Finally, the Government maintains that Respondent has refused to accept responsibility for past misconduct and was not forthright at hearing.
Respondent argues that she only wrote one prescription for controlled substances on her first day back to work after her medical license was reinstated, a mistake due to habit. Respondent maintains that she has shown professional responsibility by calling the first patient to have the prescription returned, but after learning that it had already been filled “there wasn't anything else she could do.” Respondent also argues that she showed professional responsibility by calling the second patient and directing the patient to return the prescription before filling it. Respondent further argues that if “DEA had done their job in a timely manner and approved Respondent's certificate within the timeframe listed on the DEA certificate Web site, that prescription would not have been a problem.” Respondent maintains that over a twenty-month time span, only two prescriptions were written, and none in the past eighteen months, demonstrating Respondent's professionalism and accordance with the law. Respondent further argues that the called-in prescriptions for Dr. Schultz were done at Dr. Schultz's direction and not done illegally.
With regard to 21 U.S.C. 824(a)(5), Respondent argues that this particular exclusion from Medicare should not be the sole cause for denying her application for a COR because billing issues are very complex; the billing issues were based on “incident-to billing by her nurse practitioners when Respondent was out of the country” for which Respondent took responsibility; and denial of a COR “on the most minimal felony conviction that could be assessed would be a gross injustice.”
Respondent maintains that her reinstatement by the Virginia Board of Medicine weighs in her favor as to factor one of § 823(f), the recommendation of the appropriate state licensing board or professional disciplinary authority. As to factor two, the applicant's experience in dispensing, or conducting research with respect to controlled substances, Respondent maintains that she has extensive experience and training in pain management, and has been recognized by other pain management specialists as well as pharmaceutical companies. In the case of factor five, Respondent maintains there is no allegation or evidence that any conduct by Respondent would threaten the public health and safety.
Respondent further argues that denying her application for a DEA COR would prevent her patients from receiving pain management treatment in Respondent's geographic area. Respondent questions whether the Government's “real goal is to deny patient care to the underprivileged, poor, disabled, and elderly,” among other charges.
The Controlled Substances Act (“CSA”) provides that any person who dispenses (including prescribing) a controlled substance must obtain a registration issued by the DEA in accordance with applicable rules and regulations.
The CSA specifies in 21 U.S.C. 824(a) five factors that the Deputy Administrator may consider when suspending or revoking a DEA registration.
In addition, I conclude that the reference in § 823(f)(5) to “other conduct which may threaten the public health and safety” would as a matter of statutory interpretation logically encompass the factors listed in § 824(a).
In an action to deny an application for a DEA COR, the Government has the burden of proving that the requirements for granting such registration are not satisfied.
The CSA, 21 U.S.C. 824(a)(5), provides, insofar as pertinent to this proceeding, that the Deputy Administrator may revoke or deny a registration if an applicant has been excluded from participation in a program pursuant to 42 U.S.C. 1320a-7(a).
Under Section 1320a-7(a), the Secretary of the Department of Health and Human Services is required to exclude from participation in any federal health care program any individual convicted of a criminal offense “related to the delivery of an item or service under [42 U.S.C. 1395
I find that Respondent's Medicare fraud conviction and subsequent exclusion from Medicare are supported by substantial evidence. The evidence at hearing includes a plea agreement and judgment pertaining to Respondent's conviction for violating 18 U.S.C. 1347. (Gov't Exs. 3 & 4.) Additionally, the evidence includes a letter from the Department of Health and Human Services dated September 30, 2008, excluding Respondent from all federal health care programs for the minimum statutory period of five years. (Gov't Ex. 6.) Consequently, exclusion from Medicare is an independent ground for denying or revoking a DEA registration in this case.
Respondent does not dispute the evidence of conviction or exclusion, but argues, correctly, that denial of an application for registration on this ground is a matter of discretion.
Accordingly, on these facts, the Government has met its burden of proving its Section 824(a)(5) claim,
I further find that the record evidence fully supports denying Respondent's application for registration on this ground alone. Respondent's conduct pertaining to her conviction for health care fraud related in substance to improper billing of services. Respondent's sentence included restitution in the amount of $24,210.37. (Gov't Ex. 4 at 2;
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an application for a DEA registration if she determines that such registration would be inconsistent with the public interest. In determining the public interest, the Deputy Administrator is required to consider the following factors:
(1) The recommendation of the appropriate state licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing or conducting research with respect to controlled substances.
(3) The applicant's conviction record under federal or state laws relating to the manufacture, distribution or dispensing of controlled substances.
(4) Compliance with applicable state, federal or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
As a threshold matter, the factors specified in Section 823(f) are to be considered in the disjunctive: The Deputy Administrator may properly rely on any one or a combination of those factors, and give each factor the weight she deems appropriate, in determining whether a registration should be revoked or an application for registration denied.
As described in the Evidence and Incorporated Findings of Fact Section of this Recommended Decision, Respondent holds a valid state medical license but Respondent's state medical license has been suspended in the past. The suspension of Respondent's medical license, between June 4, 2008, and February 12, 2009, included several findings of fact by the Virginia Board of Medicine regarding Respondent's conduct, her credibility and her conviction for health care fraud. The Board also found that “[f]rom approximately 2003 until on or about February 28, 2006, at which time a search warrant executed at her practice produced a prescription pad with numerous pre-signed blank prescription sheets, Dr. Cheek pre-signed blank prescription sheets for use by the nurse practitioners if she was not in the office.” (Gov't Ex. 7 at 3.) Additionally, the Board did not find credible Respondent's testimony at formal hearing that the pre-signed forms were not for medications. The Board also found that Respondent “continued to prescribe Kadian 20 mg (morphine sulfate, C-II)” to a patient despite the fact that a urine drug screen was negative for opiates during the relevant timeframe. (
In mitigation, the Virginia Medical Board reinstated Respondent's medical license on February 12, 2009. (Resp't Ex. 18.) While not dispositive, this reinstatement does weigh in favor of a finding that Respondent's registration would not be inconsistent with the public interest, at least as of February 12, 2009. The weight accorded to the reinstatement of Respondent's medical license, however, is tempered by the fact that on the first day of practice following reinstatement Respondent wrote prescriptions for controlled substances without a DEA registration. (
As noted above, one of the factors in determining whether Respondent's registration would be inconsistent with the public interest is “[t]he applicant's conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). Respondent argued at hearing, and I find, that Respondent has not been convicted of any laws relating to the manufacture, distribution or dispensing of controlled substances. I therefore find that the third factor under Section 823(f), while not dispositive, does weigh in favor of a finding that Respondent's registration would be consistent with the public interest.
“Every person who manufactures, distributes, dispenses, imports or exports any controlled substance or who proposes to [do so] * * * shall obtain a registration unless exempted by law or pursuant to §§ 1301.22-1301.26.” 21 CFR 1301.11(a) (2010). Although a person may apply for registration at any time, “
Respondent's conduct with regard to compliance with applicable federal, state or local laws relating to controlled substances since regaining her medical license in February 2009 has been dismal, at best. On the same day as her medical license was restored, Respondent admittedly wrote at least two prescriptions without authority. Respondent's testimony at hearing explaining that she had forgotten she was unauthorized to write prescriptions and wrote prescriptions by “habit” is simply not credible. The evidence at hearing reflects numerous prescriptions that Respondent wrote in her own name on and after February 13, 2009. The objective evidence of record reflects five prescriptions to different patients for Scheduled controlled substances, signed by Respondent between February 23, 2009, and May 14, 2009. (Gov't Exs. 9-13.) Finally, Respondent wrote a prescription for Lyrica on March 20, 2009, admitting that she did not know or research whether Lyrica was a controlled substance.
Respondent's conduct with regard to issuing controlled substance prescriptions under the direction and authority of Dr. Kathleen Schultz was also unlawful. As an initial matter, Respondent's explanation of her arrangement with Dr. Shultz is not credible. Respondent maintains in substance that she reached a verbal and later written agreement with Dr. Schultz for Respondent to prescribe controlled substances, including pain medications, at the direction of Dr. Schultz. Respondent further testified that Dr. Schultz was present at Respondent's practice on Thursdays to see Respondent's patients and issue prescriptions. That testimony stands in sharp contrast to the objective evidence of record reflecting that a significant majority of prescriptions issued at Respondent's practice occurred on other days of the week. For example, DI Tomaziefski testified that “most of the prescriptions were called in on days other than Thursdays.” (Tr. 118;
Respondent's testimony with regard to identification of her own signature as well as Dr. Schultz's signature on prescriptions issued from Respondent's office was notably contrived. Respondent testified that she recognized her own signature on a prescription for Lyrica with two refills issued on March 20, 2009. (Tr. 491;
Respondent also testified that she could not recognize the signature of Dr. Schultz with regard to sixteen prescriptions. (Tr. 519-20;
The record as a whole supports by substantial evidence a finding that Respondent knowingly wrote prescriptions without authority on and after February 13, 2009, in her own name. Additionally, the record further supports a finding by substantial evidence that Respondent wrote prescriptions unlawfully using Dr. Schultz's DEA registration.
The evidence with regard to whether Dr. Schultz knowingly authorized Respondent and Respondent's assistant [AY] to call in prescriptions under Dr. Schultz's DEA registration number is mixed. DI Tomaziefski testified that in an initial conversation with Dr. Schultz, Dr. Schultz stated she did not authorize anyone to use her number. In a later call initiated by Respondent and with Respondent on the line, Dr. Schultz
The transparency of the arrangement was quite apparent even from the testimony of Respondent. Respondent testified at one point that she was the pain management expert, not Dr. Schultz. (Tr. 523.) The testimony of Respondent's patients also undermined Respondent's story. All of Respondent's patients who testified indicated that they saw Respondent for treatment and only rarely did Dr. Schultz perform physical examinations or see patients. For example, patient [AZ] testified to last having a physical examination from Dr. Schultz nine months to a year ago, yet visited Respondent's practice approximately once every three months. (Tr. 214.) Patient [ET] testified that [ET] had been a patient of Respondent until Respondent lost her medical license in 2008. [ET] began treatment with Respondent again on February 23, 2009. (Tr. 340.) [ET] further testified that [ET] does not recall having a physical examination by Dr. Schultz. (Tr. 350.) Patient [AY] testified that Dr. Schultz was only present in Respondent's practice on Thursdays. (Tr. 280.) [AY] further testified that Dr. Schultz has never performed a physical examination of [AY] while a patient and that [AY] has only seen Dr. Schultz as a patient one time. (Tr. 278-79.)
The evidence also includes testimony from DI Tomaziefski regarding an undercover visit by a confidential source (“CS”) to Respondent's practice on May 28, 2009. DI Tomaziefski testified in substance that the CS was wearing a “wire” and DI Tomaziefski listened to the office visit and learned that the CS was treated by Respondent and not seen by Dr. Schultz. Respondent gave the CS a prescription for hydrocodone, which Respondent's office assistant called in to a local pharmacy using Dr. Schultz's DEA number. (Tr. 99-100;
There is additional evidence of record reflecting inconsistencies with regard to Respondent's claim that she was working at the direction of Dr. Schultz, but further elaboration is unnecessary. The evidence as a whole demonstrates that Respondent's claim that she was working at the direction of Dr. Schultz is not supported by credible evidence. To the contrary, the evidence as a whole reflects a pattern of conduct by Respondent aimed at unlawfully circumventing her lack of a DEA COR to prescribe controlled substances in violation of 21 U.S.C. 822(a)(2) and 843(a)(2).
The Government has introduced evidence and argued that Respondent's history of non-compliance with applicable laws is evident from the October 29, 2008, findings of fact by the Virginia Board of Medicine. The Board found that from “approximately 2003 until on or about February 28, 2006, at which time a search warrant executed at her practice produced a prescription pad with numerous pre-signed blank prescription sheets, Dr. Cheek pre-signed blank prescription sheets for use by the nurse practitioners if she was not in the office.” (Gov't Ex. 7 at 3.) Such conduct is contrary to DEA regulations which require prescriptions for controlled substances to be “dated as of, and signed on, the day when issued * * *” as well as Virginia law.
As an initial matter, this issue of Respondent's pre-signing of prescription pads between 2003 and 2006 was not specifically noticed by the Government in the OSC or pre-hearing statements. It was, however, addressed in Government Exhibit 7, an exhibit that was provided to Respondent prior to hearing, presumably on or before the September 13, 2010 deadline set by the Prehearing Ruling (ALJ Ex. 4 at 2), and filed on September 27, 2010. At hearing Respondent did not object to the admission of the exhibit. (Tr. 72.) To comport with due process requirements, the DEA must “provide a Respondent with notice of those acts which the Agency intends to rely on in seeking the revocation of its registration so as to provide a full and fair opportunity to challenge the factual and legal basis for the Agency's action.”
I find in this case that the issue of Respondent's pre-signing of prescription pads between 2003 and 2006 was sufficiently noticed to Respondent in advance of hearing, because the matter was provided to Respondent as an exhibit prior to hearing. Respondent's failure to object to the admission of the exhibit further supports its consideration on the issue of sanction. I find that Respondent's history of pre-signing blank prescription sheets from 2003 to February 2006 to be supported by substantial evidence and contrary to DEA regulation and Virginia law.
The action of the Virginia Medical Board appears to consider issues directly related to this proceeding and therefore should be afforded significant weight. In particular, the Board's consideration of Respondent's lack of responsibility for her actions and belief in a government conspiracy against her practice of pain management was very consistent with the testimony of Respondent at the proceedings in the above-captioned case. It is also noteworthy that the Board did not find Respondent's testimony with regard to material issues to be credible. Respondent's clear disregard of applicable law and regulations prohibiting such conduct over an extended period of time weighs heavily against Respondent's application for registration.
Additionally, the evidence of Respondent's dispensing practice includes an instance on May 20, 2009, when she issued to a patient a prescription for Lyrica, a Schedule V controlled substance, admitting that she
The evidence of Respondent's experience in dispensing controlled substances and compliance with applicable law and regulations weigh heavily in favor of a finding that Respondent's registration would be inconsistent with the public interest.
As to factor five, “Respondent's lack of candor and inconsistent explanations” may serve as a basis for denial of a registration.
Respondent's testimony at hearing repeatedly and clearly demonstrated that she does not accept responsibility for her actions. For example, Respondent testified that she
(Tr. 389.) Respondent's testimony about a “government conspiracy” against her was also noted by the Virginia Board of Medicine in its Order dated October 29, 2008. “Specifically, Dr. Cheek did not take responsibility for her actions and felt that there was a government conspiracy against her because she practices pain management.” (Gov't Ex. 7 at 4.)
Respondent's testimony at hearing regarding her “mistaken” issuance of prescriptions because of “habit,” along with her testimony regarding the arrangement with Dr. Schultz to issue prescriptions at the direction of Dr. Schultz, is not credible; it is moreover contrary to other objective evidence of record. Equally incredible is Respondent's ability to recognize her signature in one instance, but not in another, for no apparent reason. Further examples permeate the record. I find that Respondent's lack of credibility during numerous material portions of her testimony weighs heavily in favor of denying Respondent's application.
Respondent at hearing sought to introduce testimony from several witnesses on the issue of “community impact,” maintaining that a denial of her DEA COR would leave southwestern Virginia medically underserved by pain management practitioners.
Although not discussed in
In light of this precedent, I find that community impact evidence as a threshold matter is not entirely irrelevant. That said, the evidence adduced at hearing does not support a finding that denying Respondent's application for registration would have any appreciable adverse community impact. The testimony offered by Respondent and three patient witnesses claimed in substance that Respondent was the only pain management doctor reasonably available in southwestern Virginia. Respondent also introduced an Internet search results query to support her assertion. (Resp't Ex. 43.)
This testimony and evidence was rebutted by testimony from SA Slease, Department of Health and Human Services, who credibly testified that he was very familiar with the southwestern Virginia area to include Dublin, Virginia, and based on an Internet and government Web site search for pain management providers, located seven pain management specialists in the area.
While I have admitted and considered testimony with regard to community impact for the reasons set forth above, I find in this instance that the denial of Respondent's application for registration would have little if any adverse community impact with regard to the availability of pain management physicians.
I find the Government has established by substantial evidence a prima facie case in support of denying Respondent's application for registration. I conclude by a preponderance of the evidence that the Government has proved independent grounds for denying Respondent's application for registration pursuant to 21 U.S.C.
Once DEA has made its prima facie case for revocation or denial, the burden shifts to the respondent to show that, given the totality of the facts and circumstances in the record, revoking or denying the registration would not be appropriate.
Additionally, where a potential registrant has committed acts inconsistent with the public interest, she must accept responsibility for her actions and demonstrate that she will not engage in future misconduct.
I recommend denial of Respondent's application. I find the evidence as a whole demonstrates that Respondent has not accepted responsibility. To the contrary, Respondent maintains without credibility that she is being unfairly persecuted because of her pain management practice. Respondent's past performance, including a felony conviction for health care fraud, past and recent history of non-compliance with applicable laws and regulations, and overall lack of candor while testifying at hearing is fully consistent with a denial of Respondent's application for a DEA COR.
On May 19, 2011, Administrative Law Judge (ALJ) Timothy D. Wing issued the attached recommended decision. Neither party filed exceptions to the decision.
Having reviewed the entire record, I have decided to adopt the ALJ's findings of fact, conclusions of law and recommended order in its entirety except as explained below.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I hereby order that the application of Shawn M. Gallegos, D.D.S., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately.
Administrative Law Judge Timothy D. Wing. This proceeding is an adjudication pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 551
On August 3, 2010, the DEA Deputy Assistant Administrator, Office of Diversion Control, issued an Order to Show Cause (OSC) to Respondent, giving Respondent notice of an opportunity to show cause why the DEA should not deny Respondent's application for a DEA COR, filed on or around January 27, 2010, pursuant to 21 U.S.C. 824(a)(4) and 21 U.S.C. 823(f), on the grounds that Respondent's registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 824(a)(4) and 823(f).
In part and in substance, the OSC alleges that Respondent voluntarily surrendered his DEA registration number BG6936491 for cause on December 2, 2009, alleging that during the course of a DEA investigation concerning suspicious orders of hydrocodone and phentermine, Respondent stated the controlled substances were not used in the normal course of his dental practice. The OSC further alleges that on multiple occasions, Respondent failed in his responsibility as a practitioner to ensure that the controlled substances ordered and dispensed by him were for a legitimate medical purpose by a practitioner acting in the usual course of professional practice, in violation of 21 CFR 1306.04(a). Additional alleged violations include the inability to account for the dispensing of the controlled substances in violation of 21 CFR 1304.04(a); the failure to keep a dispensing log for controlled substances, in violation of 21 CFR 1304.03(b); the failure to keep accurate, complete and mandatory records of controlled substances in violation of 21 CFR 1304.21(a); the failure to properly report the theft of hydrocodone and the unauthorized use of Respondent's registration, in violation of 21 CFR 1301.76(b); the failure to establish a valid doctor-patient relationship before issuing and dispensing controlled substances (diet pills), which were for other than a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 CFR 1306.04; and the commission of “such acts that would render Respondent's registration inconsistent
In addition to the OSC, the Government also noticed and alleged in its September 24, 2010 prehearing statement that on January 16, 2010, Respondent used his previously surrendered DEA registration to call in a prescription for the controlled substance lorazepam, which was filled and dispensed to patient [GS]. (Gov't PHS at 7.) The Government further alleged that “DI Windsor will testify that this [lorazepam] controlled substance is not used in the normal course of the Respondent's dental practice.”
On September 13, 2010, Respondent, acting
Whether the record establishes by substantial evidence that Respondent's application for a DEA COR, W10004582C, as a practitioner, should be denied pursuant to 21 U.S.C. 823(f) and 824(a)(4), because Respondent's registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f).
Respondent was assigned DEA registration BG6936491 on September 7, 2000, as a practitioner in Schedules II-V. (Gov't Ex. 1.) The last renewal of this registration was on October 1, 2009, at the address of 220 E. Alamo Plaza, Alamo, California. On December 2, 2009, Respondent voluntarily surrendered this registration, “after which date no controlled substances could be obtained, stored, administered, prescribed, or dispensed under DEA registration BG6936491.” (Gov't Exs. 1 & 2.) On January 27, 2010, Respondent submitted an application for registration W10004582C as a practitioner in Schedules II-V, at the address of 220 E. Alamo Plaza, Alamo, California. (Gov't Exs. 1 & 3.)
At hearing, the Government presented the testimony of three witnesses: Respondent's former patient [GS];
The evidence also included a transaction history report from DEA's Automation of Reports and Consolidated Orders System (ARCOS),
DI Windsor next testified to visiting Respondent's registered practice location on the morning of December 2, 2009, accompanied by another DEA diversion investigator. (Tr. 129.) Respondent was present in the office along with a receptionist, and possibly a third employee. When the diversion investigators arrived they presented Respondent with a DEA form entitled Notice of Inspection of Controlled Premises, which was subsequently
DI Windsor also testified regarding statements made by Respondent during the inspection relating to controlled substances. With regard to diet pills, DI Windsor testified that Respondent first raised the issue, stating that “he had ordered diet pills for his wife [referring to Ms. Muratalla] and he had also said that she ordered them for herself.” (Tr. 146.) DI Windsor did not recall specifically discussing the diet pills Adipex, Fastin, phentermine or Tenuate with Respondent, or the specific time frames for the orders. (Tr. 147.) The inspection revealed no invoices, inventory or dispensing records of any type for any of the diet pills referenced in shipment records to Respondent. (Tr. 147-48.) DI Windsor further testified that Respondent stated he purchased the diet pills with a company credit card, and informed DI Windsor that he would work on getting a copy of the bill, but as recently as the date of hearing Respondent had not produced a copy. (Tr. 153.)
DI Windsor next testified that Respondent stated during the inspection that there had been two occasions within the preceding one or two years in which controlled substances believed to be hydrocodone that had been placed on his desk “had come up missing.” (Tr. 148, 150.) Respondent further stated that “on one occasion he did not contact law enforcement [and] on the second occasion he thought law enforcement had been contacted by one of his staff, but he wasn't certain of that.” (Tr. 149.) Respondent was certain that neither incident had been reported to DEA. (
The evidence also included a form entitled Voluntary Surrender of Controlled Substances Privileges, dated December 2, 2009, and signed by Respondent. (Gov't Ex. 2.) DI Windsor testified that after the completion of the closing inventory and request for documentation, Respondent was presented the form, including an explanation of its terms and Respondent's right to re-apply at a later date. (Tr. 155-56.) Respondent signed the form but was unable to produce a copy of his DEA COR. (Tr. 159; Gov't Ex. 9.)
On cross- and redirect examination, DI Windsor testified to being at Respondent's office on December 2, 2009 for approximately two hours. (Tr. 168.) DI Windsor testified that between December 2, 2009, and August 3, 2010, she spoke with Respondent by telephone approximately six times regarding Respondent's application and the California Dental Board, but DI Windsor ceased communication with Respondent after becoming aware that Respondent “had a patient call [DI Windsor] pretending to be [Respondent's] attorney.” (Tr. 169, 173.) DI Windsor further testified that upon Respondent's request that she contact Harvard to inquire about the ordering of diet pills, DI Windsor called Harvard and was informed that the person who ordered the diet pills in June 2009 was not Ms. Muratalla.
The Government presented the testimony of Respondent's former patient [GS], who credibly testified in substance to being Respondent's patient from December 2009 until approximately March 2010. (Tr. 38-40.) [GS] testified that Respondent treated her initially in December 2009 for an infected tooth, and later in or about January 2010 Respondent performed a root canal. (Tr. 38.) [GS] further testified that Respondent prescribed “two rounds of antibiotics * * * initially [and] on the third visit * * * he gave me a prescription for lorazepam.” (Tr. 39.) [GS] specifically recalls being prescribed the lorazepam in the latter part of January or February of 2010. (
The evidence also included a pharmacy prescription record dated January 16, 2010, detailing a prescription for “Amox” and “Lorazepam” to patient [GS], and listing Respondent as the prescriber. (Gov't Ex. 6.) DI Windsor credibly testified in relevant part that the prescription was “phoned in” and lorazepam was the only controlled substance prescribed and dispensed.
The Government next offered the testimony of Ms. Muratalla, who testified in substance to having married Respondent in 1999, separated in May 2008, and divorced in June 2010. (Tr. 47-48.) Ms. Muratalla explained that she also had a working relationship with Respondent, initially working as colleagues and eventually opening their own practice in September 2002. (Tr. 48.) Ms. Muratalla testified that her primary duty was working as a dental hygienist, but also had responsibilities such as “management, payroll * * * accounts receivable and accounts payable, as well as * * * cleaning crew on weekends.” (Tr. 49.) Ms. Muratalla explained that she performed all of the above duties until July 22, 2008, when Respondent removed her access to his financial accounts. (Tr. 53-54.) From July 22, 2008, until September 11, 2008, Ms. Muratalla testified that she was not involved in any ordering of drugs and only worked in Respondent's office as a hygienist.
Ms. Muratalla outlined the drug ordering system in Respondent's office between 2002 and July 2008, noting that “I'm not sure how we came across Harvard drugstore” but opened an account and eventually began placing all orders through Harvard for financial reasons. (Tr. 49.) In terms of Respondent's role in ordering drugs, Ms. Muratalla testified that Respondent did not make requests verbally, but was “very specific as far as writing down a list for me. He did every time.” (Tr. 50.) Ms. Muratalla did not recall amounts ordered but did not believe the amounts
Ms. Muratalla further testified about a series of drug orders placed between October 2007 and March 2009. (Tr. 59;
On cross- and redirect examination, Ms. Muratalla testified that prior to 2007 when the dental practice was very busy approximately 4500 hydrocodone pills could reasonably have been distributed to patients, who were given ten to twenty pills at a time. (Tr. 76.) After 2007, Ms. Muratalla testified that that level of distribution was not possible because “there was absolutely no patients coming through the doors.” (Tr. 75-76.) Ms. Muratalla testified that she was familiar with a person named Jennifer Savarese, a dental distributor who visited Respondent's office, but she never reviewed a Harvard drug catalogue with Ms. Savarese regarding diet pills and never handed diet pills to Ms. Savarese. (Tr. 77-78; 81-82.) Ms. Muratalla further testified that her relationship with Ms. Savarese was strictly professional, and she did not socialize with Ms. Savarese or consider her a friend. (Tr. 80.)
In addition to the foregoing, the Government also introduced a document entitled: “In the Matter of the Accusation Against” [Respondent], brought on behalf of the Dental Board of California, and dated January 31, 2011.
Respondent did not testify and presented only one witness, Jennifer Yuen (
With regard to the issue of diet pills, Ms. Savarese recalled going through a catalogue with Ms. Muratalla to order diet pills, and testified that “she said she would order them through her rep for me.” (
Respondent's evidence also included a May 11, 2000 Certificate of Recognition for high achievement in the Undergraduate Curriculum in Dental Care for Persons with Disabilities, a daily schedule calendar covering the period October 2007 to March 2009 and contact information for a probation office in Utah.
I find the testimony of Ms. Savarese fully credible. Her testimony was internally consistent, and the witness was able to recall factual events with a reasonable level of certainty. There is no documentary evidence of record that contradicts the testimony of Ms. Savarese, nor was there any evidence to suggest that she had a bias or other personal interest in the outcome of the case. Ms. Savarese's past relationship to Respondent was both professional and social, but no evidence was offered to suggest that the witness's relationship with Respondent or Ms. Muratalla would influence her testimony. Ms. Savarese's demeanor was serious and forthright throughout her testimony. The credibility of Ms. Savarese's testimony was further enhanced by her statement against interest, admitting that at the time she placed the order for phentermine she did not “think that it was illegal” but now realizes that it was illegal. (Tr. 105.)
I find the testimony of Ms. Muratalla only partially credible. I do not find credible Ms. Muratalla's testimony that she never reviewed a Harvard drug
The Government argues in its post-hearing brief that “the ALJ and Deputy Administrator may consider the Dental Board's complaint as a recommendation * * * `of the appropriate State licensing board.' ”
Respondent argues in his post-hearing brief that the Government has not met its burden to identify who ordered the diet pills from Harvard, and further argues that the testimony of Ms. Muratalla should be given no weight. (Resp't Br. at 8-9.) Respondent maintains that the DEA made insufficient investigation regarding mistaken information contained within Government Exhibit 5, noting that this “page could definitely have altered the whole scope of this investigation if proper investigation was done.” (
Respondent argues at various points that the Government has not met its burden of proof,
The Controlled Substances Act (CSA) provides that any person who dispenses (including prescribing) a controlled substance must obtain a registration issued by the DEA in accordance with applicable rules and regulations.
The CSA, at 21 U.S.C. 824(a)(4), provides, insofar as pertinent to this proceeding, that the Deputy Administrator may revoke a COR if she finds that the registrant's continued registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f). In determining the public interest, the Deputy Administrator is required to consider the following factors:
(1) The recommendation of the appropriate state licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing or conducting research with respect to controlled substances.
(3) The applicant's conviction record under federal or state laws relating to the manufacture, distribution or dispensing of controlled substances.
(4) Compliance with applicable state, federal or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
As a threshold matter, the factors specified in Section 823(f) are to be considered in the disjunctive: The Deputy Administrator may properly rely on any one or a combination of those factors, and give each factor the weight deemed appropriate, in determining whether a registration should be revoked or an application for registration denied.
In addition to the public interest factors discussed above, 21 U.S.C. 824(a) provides four other factors that
In this case, regarding Factor One, it is undisputed that Respondent currently holds a valid dental license in California, but Respondent's dental license is presently the subject of state disciplinary action pursuant to a pending state Accusation against Respondent, the results of which are unknown.
Regarding Factor Three, there is no evidence that Respondent has ever been convicted under any federal or state law relating to the manufacture, distribution or dispensing of controlled substances. I therefore find that this factor, although not dispositive,
The Government alleges that Respondent failed to effectively monitor the receipt and distribution of controlled substances because Respondent did not maintain an effective recordkeeping system in accordance with 21 CFR 1304.03, 1304.04 and 1304.21, among others. The evidence and testimony in this case centered in significant part on Respondent's failure to properly handle controlled substances, as well as his failure to comply with applicable laws regarding mandatory record keeping. As an initial matter, this is not a case of a registrant failing to adhere to the finer points of record keeping. The undisputed evidence of record is that Respondent's record keeping was essentially non-existent.
Pursuant to 21 CFR 1304.03(b), 1304.21(a), 1304.22(a)(2)(iv), 1304.22(a)(2)(ix) and 1304.22(c), a registered individual practitioner is required to maintain records of controlled substances in Schedules II-V that are dispensed and received, including the number of dosage units, the date of receipt or disposal and the name, address and registration number of the distributor. It is unlawful to fail to make, keep or furnish required records.
One mandatory recordkeeping vehicle is DEA Form 222, the “official triplicate order form[] used by physicians to order scheduled narcotics” and other controlled substances.
Failing to comply with recordkeeping laws and regulations relating to controlled substances can justify adverse action against a registrant's COR. “[A] blatant disregard for statutory provisions implemented to maintain a record of the flow of controlled substances and to prevent the diversion of controlled substances to unauthorized individuals, would justify revocation” of a certificate of registration.
DEA regulations state that a registered individual practitioner is required to keep records of controlled substances in Schedules II, III, IV and V which are dispensed.
The undisputed evidence of record reflects that Respondent consented to an inspection of his registered location on December 2, 2009, by two DEA diversion investigators. The evidence also reflects that between October 2007 and March 2009, Respondent had received in six separate shipments from his supplier, Harvard Drug Group, several thousand tablets of hydrocodone, and in July 2008, a significant quantity of oxycodone. (Gov't Ex. 5 at 2-5.) Additionally, the evidence reflects Respondent's order and receipt in or before June 2009 of significant quantities of the Schedule IV controlled substances Adipex, Fastin,
Respondent's statement during the December 2, 2009 audit that the dispensing records were located within his patient records was found to be inaccurate. Even if true, the patient records would not substitute for required copies of DEA Form 222 relating to the Schedule II controlled substance oxycodone, among other recordkeeping requirements. Respondent's attempt to produce relevant patient records during the audit to support his claim was also revealing. Respondent initially produced patient records that were outside the scope of the inspection period, and was redirected by the diversion investigators to produce relevant files. (Tr. 142.) Respondent then produced a “printout of patient names.” (Tr. 143.) At that point, the diversion investigators identified a random sample of patient files by name within the time frame of the audit, which upon production and review were found to contain no dispensing records. (
I find by a preponderance of the evidence that Respondent unlawfully failed to make, keep or furnish required records relating to his handling of controlled substances, in violation of 21 U.S.C. 842(a)(5) and 827(a) and applicable regulations.
The Government also alleged and offered evidence of Respondent's failure to properly report the theft of controlled substances, in violation of 21 CFR 1301.76(b). During the December 2, 2009 audit, Respondent stated to diversion investigators that there were two separate occasions within the preceding two years in which Respondent believed that hydrocodone which had been placed on his desk had come up missing. (Tr. 148, 150.) Respondent was also certain that neither incident had been reported to DEA. (Tr. 149.) The applicable regulation unambiguously requires a registrant to notify the “Field Division Office of [DEA] in writing, of the theft or significant loss of any controlled substances within one business day of discovery * * *.” 21 CFR 1301.76(b). In this case, Respondent's violation was not a
I find by a preponderance of the evidence that Respondent failed to timely notify DEA of the theft or loss of controlled substances on two separate occasions between 2007 and 2009, in violation of 21 U.S.C. 1301.76(b).
The Government also offered evidence of Respondent's unlawful use of his surrendered DEA registration to issue a prescription for lorazepam in January 2010. This evidence centered on the testimony of patient [GS], along with the testimony of DI Windsor, as corroborated by a pharmacy copy of the filled prescription. The evidence at hearing clearly documented Respondent's voluntary surrender of his DEA registration on December 2, 2009.
In addition to the actual notice Respondent received as to his lack of authority to handle controlled substances on and after December 2, 2009, applicable law and regulations provide clear guidance. “Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally * * * to * * * dispense[] a controlled substance.” 21 U.S.C. 841(a). Moreover, “[e]very person who dispenses * * * any controlled substance, shall obtain from the Attorney General a registration,”
The uncontroverted evidence of record reflects that notwithstanding his lack of DEA registration, Respondent unlawfully prescribed the Schedule IV controlled substance lorazepam to patient [GS] on January 16, 2010. Patient [GS] credibly testified to being treated by Respondent for an infected tooth beginning in December 2009 and further testified that in the latter part of January 2010, Respondent performed a root canal on [GS]. (Tr. 38.) [GS] specifically recalls Respondent prescribing lorazepam on a third office visit, recalling the time frame as the latter part of January or February 2010. (Tr. 39.) Corroborating [GS]'s testimony, the
I find by a preponderance of the evidence that Respondent violated federal and state law by prescribing a Schedule IV controlled substance on January 16, 2010, knowing that he lacked a DEA registration and was prohibited from prescribing any controlled substance.
Another issue in this case concerns Respondent's prescribing practices with regard to hydrocodone and phentermine, which the Government alleges were not prescribed pursuant to a legitimate medical purpose or within the usual course of professional practice, contrary to 21 CFR 1306.04(a) (2010). (Gov't PHS at 7.) Evaluation of Respondent's prescribing conduct in this case is governed by applicable federal and state law. The applicable standard under federal law is whether a prescription for a controlled substance is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). The standard of care refers to that generally recognized and accepted in the medical community rather than a standard unique to the practitioner.
The applicable standards under California law may be found in various provisions of the California Business and Professional Code as well as the California Health and Safety Code. Mirroring federal law in substantial part, California law provides that
Turning to the evidence of record, with regard to Respondent's prescribing practices for hydrocodone, no specific evidence was offered other than the evidence discussed above as to a complete lack of documentation. The evidence pertaining to Respondent's prescribing practices for phentermine and related diet pills included Respondent's admission on December 2, 2009, that “he had ordered diet pills for his wife [Ms. Muratalla] and he had also said that she ordered them for herself.” (Tr. 146.) The evidence with regard to the 2200 tablets of diet pills that formed the basis of the investigation of Respondent after Harvard's June 11, 2009 Suspicious Order Report was minimal, as DI Windsor testified that she did not recall specifically discussing with Respondent the diet pills Adipex, Fastin, phentermine or Tenuate, with reference to a specific time frame for the orders. (Tr. 146-47.) Ms. Muratalla testified that she ordered diet pills on Respondent's behalf prior to July 2008, but is certain she did not order any after that date. (Tr. 64.) Ms. Savarese testified that she ordered phentermine from Ms. Muratalla, recalling placing two separate orders prior to 2007. (Tr. 94; 99-100.)
Although the foregoing evidence is vague as to time frames and mixed as to who placed each order, there is no ambiguity in the evidence that Respondent ordered and dispensed the Schedule IV controlled substances phentermine, Adipex-P, Fastin and Tenuate in or before December 2009, without a legitimate medical purpose and not in the usual course of his professional practice. Respondent admitted on December 2, 2009, that he had ordered diet pills for his wife and knew that she had ordered them for herself. Ms. Savarese also credibly testified that she received two separate orders of phentermine from Ms. Muratalla in exchange for cash, without a prescription between 2006 and 2007. The evidence of record reflects a shipment of phentermine, Adipex, Fastin, and Tenuate to Respondent in June 2009, none of which was present or accounted for at Respondent's registered location in December 2009.
Accordingly, I find by a preponderance of the evidence that Respondent violated applicable federal and state law in ordering and prescribing Schedule IV controlled substances without a legitimate medical purpose and outside the usual course of professional practice at various times between 2006 and December 2, 2009. Additionally, Respondent's handling of these controlled substances failed to comply with any of the mandated record keeping requirements under the CSA, discussed above.
Respondent elected not to testify in this case and the Government suggests summarily in its post-hearing brief that “DEA may draw an adverse interest (sic) that Respondent presented no testimony on his own behalf.” (Gov't Br. at 20;
The evidence of Respondent's experience in dispensing controlled substances and compliance with applicable law and regulations weighs heavily in favor of a finding that Respondent's registration would be inconsistent with the public interest under Factors Two and Four.
Under Factor Five, the Deputy Administrator is authorized to consider “other conduct which may threaten the public health and safety.” 5 U.S.C. 823(f)(5). The Agency has accordingly
The Government alleged “other conduct” relevant to Factor Five during the course of prehearing procedures in the form of a February 24, 2011 Motion to Include Dental Board of California Complaint. The proposed document is entitled: “In the Matter of the Accusation Against” [Respondent], brought on behalf of the Dental Board of California, and dated January 31, 2011. (Gov't Ex. 10.) The California Dental Board allegations relevant to Factor Five include obtaining, possessing or administering to oneself, cocaine between May and October 2008, and marijuana between March and April 2010, citing California Health and Safety Code 11054 and 11055; and using alcohol in a dangerous manner in or about January 8, 2010, citing California Business and Professions Code 1681(b). The Government's prehearing notice of evidence to support the above issues consisted of a supplemental prehearing statement dated January 21, 2011, stating in relevant part “Ms. Murutalla (sic) will testify that she told the DEA that the Respondent had been hospitalized in August 2008 for alcohol and cocaine abuse.” (Gov't SPHS at 4.)
At hearing, I excluded Ms. Muratalla's proposed testimony on the limited issue of alcohol and cocaine abuse based in part on lack of adequate notice, particularly given the brevity of the noticed testimony and variance from allegations of the California Dental Board. I did allow the Government to proffer in detail Ms. Muratalla's proposed testimony, which produced even greater variance from the alleged conduct.
Agency precedent has “long held that a practitioner's self-abuse of a controlled substance is a relevant consideration under factor five and has done so even when there is no evidence that the registrant abused his prescription writing authority.”
Although I have considered Respondent's prehearing admission of a single instance of marijuana use while intoxicated in April 2010, I give it little overall weight for purposes of this Recommended Decision, particularly given the absence of any other credible evidence of record to support allegations of other drug or alcohol abuse by Respondent at any other time.
I find by a preponderance of the evidence that the Government has met its burden to establish a prima facie case based on substantial evidence of record. After considering all of the relevant factors, the evidence is fully consistent with a denial of Respondent's application for a DEA COR as a practitioner, because Respondent's registration would be inconsistent with the public interest.
Respondent has not sustained his burden in this regard. Respondent did not testify and did not accept responsibility for his past misconduct. Moreover, Respondent presented no credible evidence to demonstrate that he has learned from his past mistakes or to demonstrate that he would now handle controlled substances properly if granted a registration.
In light of the foregoing, Respondent's evidence as a whole fails to sustain his burden to accept responsibility for his misconduct and demonstrate that he will not engage in future misconduct. I find that Factor Five strongly weighs in favor of a finding that Respondent's registration would be inconsistent with the public interest.
Accordingly, I recommend denial of Respondent's application for a COR. I find the evidence as a whole demonstrates that Respondent has not accepted responsibility, and Respondent's registration would be inconsistent with the public interest.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on April 5, 2011, Research Triangle Institute, Hermann Building, East Institute Drive, P.O. Box 12194, Research Triangle Park, North
The Institute will manufacture marihuana, and cocaine derivatives for use by their customers in analytical kits, reagents, and reference standards as directed by the National Institute on Drug Abuse.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control,
On July 24, 2009, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to David T. Koon (hereinafter, Registrant), of Summerton, South Carolina. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration, BK4092350, as a practitioner, and the denial of any applications to renew or modify the registration, on the ground that he does not “have authority to practice medicine or handle controlled substance in the [S]tate of South Carolina, the [S]tate in which [he is] registered with DEA” because “of actions by the South Carolina Board of Medical Examiners and the South Carolina Bureau of Drug Control.”
On August 1, 2009, the Show Cause Order, which also advised Registrant of his right to request a hearing on the allegations or to file a written statement in lieu of a hearing, the procedures for doing either, and the consequence for failing to do so, was served by certified mail sent to him at his home address as established by the signed return-receipt card.
Respondent is the holder of DEA Certificate of Registration, BK4092350. Respondent's registration was last renewed on January 2, 2009, and does not expire until December 31, 2011.
On March 31, 2009, the South Carolina Board of Medical Examiners ordered that Respondent's medical license be “temporarily suspended, effective immediately, until further Order of the Board.” Order of Temporary Suspension,
DEA does not have statutory authority to grant or maintain a DEA registration if the applicant or registrant lacks authority to handle controlled substances under the laws of the State in which he is engaged in professional practice.
Accordingly, DEA has held repeatedly that the CSA requires the revocation of a registration issued to a practitioner whose state license has been suspended or revoked.
Moreover, the Agency has interpreted the CSA to require the revocation of a registration upon a practitioner's loss of state authority “not only where a registrant's authority has been suspended or revoked, but also where a practitioner * * * has lost his state authority for reasons other than through formal disciplinary action of a State board.”
Because Registrant is no longer licensed to practice medicine and to dispense controlled substances in South Carolina, the State in which he is registered with DEA, under the CSA, he is no longer entitled to hold his registration. Accordingly, his registration will be revoked and any pending applications will be denied.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration, BK4092350, issued to David T. Koon, M.D., be, and it hereby is, revoked. I further order that any pending application of David T. Koon, M.D., to renew or modify his registration, be, and it hereby is, denied.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Forging Machines,” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Submit comments on or before November 28, 2011.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: (202) 395-6929/Fax: (202) 395-6881 (these are not toll-free numbers), email:
Contact Michel Smyth by telephone at (202) 693-4129 (this is not a toll-free number) or by email at
Under regulations 29 CFR 1910.218, it is mandatory for covered employers to conduct and to document periodic inspections of forging machines, guards, and point-of-operation protection devices and to mark manually controlled valves and switches. These requirements reduce workers' risks of death or serious injury by ensuring that forging machines used by them are in safe operating condition and that the workers are able to identify manually operated valves and switches.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Employment and Training Administration, Labor.
Notice.
Notice is hereby given on the development of the U.S. Department of Labor (Department), Employment and Training Administration's (ETA) Five-Year Research and Evaluation Strategic Plan for 2010-2015, hereafter referred to as the “Research Plan.” The Research Plan is required under the Workforce Investment Act (WIA) of 1998 (29 U.S.C. 2916(a)). The Research Plan sets a research agenda by identifying high priority topics for potential pilot, demonstration, multiservice, multistate, research, and evaluation efforts that should be examined over the next five years. The draft Research Plan was based on a consultation process of internal and external stakeholders. This request for public comment is another opportunity for ETA to receive additional stakeholder feedback as part of its process in finalizing the Research Plan and transmitting it to Congress.
To download a copy of the full draft report as a PDF, visit the ETA Research Web site at
Submit comments on or before November 14, 2011.
You may submit comments and/or suggestions by any one of the following methods:
• Regulations.gov Federal Portal
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Please submit your comments by only one method. The Department will not review comments received by means other than those listed above or that are received after the comment period has closed. The Department will post all comments received on
If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the notice available, upon request, in large print and as an electronic file on computer disk. The Department will consider providing the notice in other formats upon request. To schedule an appointment to review the comments and/or obtain the draft research plan in an alternate format, contact the Office of Policy Development and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).
Janet Javar, Employment and Training Administration, Office of Policy Development and Research, Room N-5641, 200 Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 693-3677 (this is not a toll-free number); fax: (202) 693-2766; email:
Under Section 171 of WIA, the Secretary of Labor is required to submit, every two years, a plan that describes priorities for pilot, demonstration, multiservice, multistate, and research projects. The Research Plan provides ETA with an extensive literature review of prior research, a summary of current research, and an identification of research topics related to workforce development programs and policies that should be taken into consideration over the next five years, from 2010-2015. In addition to ETA-funded studies, this Research Plan includes a number of studies and research efforts funded by other public and private organizations, such as state and local agencies, other Federal agencies, foundations and other non-profits, universities, and other stakeholders, to gain a better understanding of the gaps in employment and training research in order to identify high priority topics for research.
The Research Plan is composed of five chapters:
• Chapter I introduces the role of the plan in informing the decision-making process for carrying out research and evaluation.
• Chapter II identifies significant recently completed research and evaluation projects conducted in the years from 2005-2010.
• Chapter III identifies current and ongoing research and evaluation efforts.
• Chapter IV recommends five high priority topic areas for research.
• Chapter V summarizes the role of the plan.
In the development of the Research Plan, WIA calls for the consultation of interested parties to address national employment and training problems. With support from ETA, an extensive effort was made by the John J. Heldrich Center of Rutgers University to engage both internal and external stakeholders in the process of identifying research gaps and high priority topics for the public workforce system. The Heldrich Center produced a paper summarizing the findings from these efforts entitled
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Technology and Innovation Committee of the NASA Advisory Council (NAC). The meeting will be held for the purpose of reviewing the status of the Space Technology programs; the status of activities within the Office of the Chief Technologist; and the status of the Draft NASA Space Technology Roadmaps being reviewed by National Research Council.
Friday, November 18, 2011, 8 a.m. to 3:15 p.m., Local Time.
NASA Headquarters, 300 E Street, SW., Room MIC-6A (6H45), Washington, DC 20546.
Mr. Mike Green, Office of the Chief Technologist, NASA Headquarters, Washington, DC 20546, (202) 358-4710, fax (202) 358-4078, or
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. 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 10 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, telephone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information 3 working days in advance by contacting Mr. Mike Green via email 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 (NASA) announces a meeting of the Astrophysics Subcommittee of the NASA Advisory Council (NAC). This subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, November 21, 2011, 3 p.m. to 4:30 p.m., Local Time.
This meeting will take place telephonically and by WebEx. Any interested person may call the USA toll free conference call number (800) 857-9696, pass code APS, to participate in this meeting by telephone. The WebEx link is
The meeting will be open to the public. The agenda for the meeting includes the following topic:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC)
Any interested party may submit comments on the draft EIS for consideration by the NRC staff. To be considered, comments on the draft EIS must be received by January 11, 2012. The NRC Staff is able to ensure consideration only for comments received on or before this date.
Please include Docket ID NRC-2008-0566 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the
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Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
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In addition, the draft EIS can be accessed online at the NRC's Fermi Unit 3 specific Web page at
The NRC staff will hold two public meetings to present an overview of the draft EIS and to accept public comments on the document on Thursday, December 15, 2011, at the Monroe County Community College, La-Z-Boy Center Meyer Theater, 1555 South Raisinville Road, Monroe, Michigan 48161. The first meeting will convene at 1 p.m. and will continue until 4 p.m., as necessary. The second meeting will convene at 7 p.m., with a repeat of the overview portions of the first meeting, and will continue until 10 p.m., as necessary. The meetings will be transcribed and will include: (1) A presentation of the contents of the draft EIS; and (2) the opportunity for interested government agencies, organizations, and individuals to provide comments on the draft report. To be considered, comments must be provided during the transcribed public meeting either orally or in writing. Additionally, the NRC and Corps staff will host informal discussions one hour before the start of each meeting during which members of the public may meet and talk with staff members on an informal basis. No formal comments on the draft EIS will be accepted during the informal discussions.
In the event that the La-Z-Boy Center Meyer Theater is closed due to weather conditions on December 15, 2011, the open houses and public meetings would be held on Monday, December 19, 2011, during the same hours as listed above.
Persons may pre-register to attend or present oral comments at the meetings by contacting Mr. Bruce Olson by telephone at 1-(800) 368-5642, extension 3731, or via email to
Mr. Bruce Olson, Project Manager, Environmental Projects Branch 2, Division of Site and Environmental Reviews, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Dated at Rockville, Maryland, this 20th day of October, 2011.
For the Nuclear Regulatory Commission.
Week of October 31, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301) 415-1969, or send an email to
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Jenkinjones, West Virginia post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 1, 2011:
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on October 17, 2011, the Commission received a petition for review of the Postal Service's determination to close the Jenkinjones post office in Jenkinjones, West Virginia. The petition for review was filed by Mrs. Thomas Vinyard, Jr. (Petitioner) and is postmarked October 6, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-15 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than November 21, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the one set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 1, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 1, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 1, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Witter, Arkansas post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on October 17, 2011, the Commission received a petition for review of the Postal Service's determination to close the Witter post office in Witter, Arkansas. The petition for review was filed by Joy Russell (Petitioner) and is postmarked October 6, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-14 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than November 21, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 1, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 1, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 1, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, James Waclawski is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the New Hampton, Missouri post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on October 17, 2011, the Commission received a petition for review of the Postal Service's determination to close the New Hampton post office in New Hampton, Missouri. The petition for review was filed by Darrol Lofgren (Petitioner) and is postmarked September 29, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-13 to consider Petitioner's appeal. If Petitioner would like to further explain his position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than November 21, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the one set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 1, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 1, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 1, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Malin Moench is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Adona, Arkansas post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
November 1, 2011:
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at (202) 789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on October 17, 2011, the Commission received a petition for review of the Postal Service's determination to close the Adona post office in Adona, Arkansas. The petition for review was filed by Bill D. Greene, Mayor of the City of Adona (Petitioner) and is postmarked October 11, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2012-16 to consider Petitioner's appeal. If Petitioner would like to further explain his position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the one set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is November 1, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than November 1, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than November 1, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Emmett Rand Costich is designated officer of the Commission (Public Representative) to represent the interests of the general public.
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Section 204(c) of the Investment Advisers Act of 1940 (“Advisers Act”) authorizes the Securities and Exchange Commission (“Commission”) to require investment advisers to file applications and other documents through an entity that the Commission designates and to pay the reasonable costs associated with such filings. The Commission recently adopted a new rule requiring exempt reporting advisers to file portions of Form ADV on a periodic basis.
In addition, the Commission recently proposed a new rule that would require any adviser registered with the Commission and managing one or more private funds (a “private fund adviser”) to file proposed Form PF on a periodic basis.
Following discussions with Commission staff, FINRA recommended a schedule of filing fees for exempt reporting advisers and private fund advisers.
The Notice also explained that the fee for exempt reporting advisers filing Form ADV would apply starting with the date on which this order is published in the
The Notice gave interested persons an opportunity to request a hearing and stated that an order approving these filing fees would be issued unless a hearing were ordered. No request for a hearing has been filed, and no hearing has been ordered.
For initial reports and annual updating amendments on Form ADV filed on or after October 28, 2011, the filing fee due from exempt reporting advisers is $150.
For quarterly reports on Form PF filed on or after the effective date of rule 204(b)-1 under the Advisers Act, the filing fee due from private fund advisers is $150.
For annual reports on Form PF filed on or after the effective date of rule 204(b)-1 under the Advisers Act, the filing fee due from private fund advisers is $150.
By the Commission.
Notice is given that the Securities and Exchange Commission (the “Commission”) intends to issue an order, pursuant to Section 203(h) of the Investment Advisers Act of 1940 (the “Act”), cancelling the registration of Creative Investment Research, Inc., hereinafter referred to as the registrant.
Section 203(h) provides, in pertinent part, that if the Commission finds that any person registered under Section 203, or who has pending an application for registration filed under that section, is no longer in existence, is not engaged in business as an investment adviser, or is prohibited from registering as an investment adviser under section 203A, the Commission shall by order, cancel the registration of such person.
The registrant indicated on its most recent Form ADV filing that it is relying on rule 203A-2(b) to register with the Commission, which, at the time of the filing, provided an exemption from the prohibition on registration for a pension consultant if it provided investment advice to plans described in the rule that had an aggregate value of at least $50,000,000 in assets.
Any interested person may, by November 18, 2011, at 5:30 p.m., submit to the Commission in writing a request for a hearing on the cancellation, accompanied by a statement as to the nature of his interest, the reason for such request, and the issues, if any, of fact or law proposed to be controverted, and he may request that he be notified if the Commission should order a hearing thereon. Any such communication should be addressed: Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
At any time after November 18, 2011, the Commission may issue an order cancelling the registration, upon the basis of the information stated above, unless an order for a hearing on the cancellation shall be issued upon request or upon the Commission's own motion. Persons who requested a hearing, or to be advised as to whether a hearing is ordered, will receive any notices and orders issued in this matter, including the date of the hearing (if ordered) and any postponements thereof. Any adviser whose registration is cancelled under delegated authority may appeal that decision directly to the Commission in accordance with rules 430 and 431 of the Commission's rules of practice (17 CFR 201.430 and 431).
For further information contact: Jennifer Porter, Senior Counsel at (202) 551-6787 (Office of Investment Adviser Regulation).
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing this proposed rule change with respect to an amendment to the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of committees of the NASDAQ OMX Board of Directors. First, NASDAQ OMX is amending the compositional requirements of its Audit Committee in Section 4.13(g) to provide that the committee shall include three or more directors. Currently, the provision provides that the Audit Committee shall be composed of either four or five directors. The change will provide the NASDAQ OMX Board of Directors, which has authority to establish the size of each committee of the Board of Directors, with flexibility to increase or decrease the size of the committee, as long as the committee includes at least three directors. The listing standards of the NASDAQ Stock Market, which apply to NASDAQ OMX as a listed company, require that NASDAQ OMX's Audit Committee must have at least three members.
Similarly, NASDAQ OMX is proposing to amend the compositional requirements of the Nominating & Governance Committee in Section 4.13(h) to replace a requirement that the committee comprise four or five members with a requirement to include two or more members, thereby creating flexibility to populate a larger or a smaller committee than is currently the case. NASDAQ Stock Market listing standards do not regulate the size of a listed company's nominating committee. The amendment would not change any of the other compositional requirements of the Nominating & Governance Committee, including independence requirements.
NASDAQ expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. It is likely that the authority would be used to reduce the size of these committees below their current levels only in the event of a reduction in the overall size of the NASDAQ OMX Board of Directors (which currently has 16 members). The Audit Committee supervises the audit function with respect to NASDAQ OMX and all of its subsidiaries, including NASDAQ, but the Nominating & Governance Committee does not perform a nominating function with respect to NASDAQ OMX's subsidiaries.
Third, NASDAQ OMX proposes to delete a paragraph of the by-laws (Section 4.13(k)) that pertains to the qualifications of committee members who are not directors. This provision was originally adopted by NASDAQ OMX's predecessor corporation, The Nasdaq Stock Market, Inc., when it was a subsidiary and facility of the National Association of Securities Dealers, Inc. (“NASD”). In that capacity, The Nasdaq Stock Market, Inc. appointed committees that included non-directors and that exercised authority provided for under NASD rules. For example, at that time, the Board of Directors of The Nasdaq Stock Market, Inc. appointed the Nasdaq Listing and Hearing Review Council, a committee composed of non-directors with authority to review listing decisions with respect to companies with securities listed on The Nasdaq Stock Market, which was then a facility of NASD.
In 2005, NASDAQ was formed as a subsidiary [sic] The Nasdaq Stock Market, Inc., and in 2006, NASDAQ was registered as a national securities exchange. The Nasdaq Stock Market, Inc., which had already issued stock to the public, became a holding company, and in 2007, it ceased operating as a facility of NASD or NASDAQ. Subsequently, following the acquisition of OMX AB, The Nasdaq Stock Market, Inc. became NASDAQ OMX. As a public holding company, NASDAQ OMX no longer appoints committees that include non-directors. Accordingly, the provision with respect to the qualifications of non-directors is obsolete and may appropriately be deleted.
Finally, NASDAQ OMX is correcting a typographical error in the numbering of the provisions of Section 4.13(h) of the by-laws.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ believes that the proposed amendments are non-controversial. The proposal to modify the compositional requirements of the NASDAQ OMX Audit Committee and Nominating & Governance Committee will provide the NASDAQ OMX Board of Directors with greater flexibility to determine the appropriate size for these committees, while maintaining compliance with applicable listing standards. NASDAQ expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. The proposed changes also delete an obsolete provision from the by-laws and correct a typographical error.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
BSECC is filing this proposed rule change with respect to an amendment to the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available on the Corporation's Web site at
In its filing with the Commission, the Corporation included statements concerning the purpose of and basis for the proposed rule change. The text of
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of committees of the NASDAQ OMX Board of Directors. First, NASDAQ OMX is amending the compositional requirements of its Audit Committee in Section 4.13(g) to provide that the committee shall include three or more directors. Currently, the provision provides that the Audit Committee shall be composed of either four or five directors. The change will provide the NASDAQ OMX Board of Directors, which has authority to establish the size of each committee of the Board of Directors, with flexibility to increase or decrease the size of the committee, as long as the committee includes at least three directors. The listing standards of the NASDAQ Stock Market, which apply to NASDAQ OMX as a listed company, require that NASDAQ OMX's Audit Committee must have at least three members.
Similarly, NASDAQ OMX is proposing to amend the compositional requirements of the Nominating & Governance Committee in Section 4.13(h) to replace a requirement that the committee comprise four or five members with a requirement to include two or more members, thereby creating flexibility to populate a larger or a smaller committee than is currently the case. NASDAQ Stock Market listing standards do not regulate the size of a listed company's nominating committee. The amendment would not change any of the other compositional requirements of the Nominating & Governance Committee, including independence requirements.
BSECC expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. It is likely that the authority would be used to reduce the size of these committees below their current levels only in the event of a reduction in the overall size of the NASDAQ OMX Board of Directors (which currently has 16 members). The Audit Committee supervises the audit function with respect to NASDAQ OMX and all of its subsidiaries, including BSECC, but the Nominating & Governance Committee does not perform a nominating function with respect to NASDAQ OMX's subsidiaries.
Third, NASDAQ OMX proposes to delete a paragraph of the by-laws (Section 4.13(k)) that pertains to the qualifications of committee members who are not directors. This provision was originally adopted by NASDAQ OMX's predecessor corporation, The Nasdaq Stock Market, Inc., when it was a subsidiary and facility of the National Association of Securities Dealers, Inc. (“NASD”). In that capacity, The Nasdaq Stock Market, Inc. appointed committees that included non-directors and that exercised authority provided for under NASD rules. For example, at that time, the Board of Directors of The Nasdaq Stock Market, Inc. appointed the Nasdaq Listing and Hearing Review Council, a committee composed of non-directors with authority to review listing decisions with respect to companies with securities listed on The Nasdaq Stock Market, which was then a facility of NASD.
In 2005, The NASDAQ Stock Market LLC (“NASDAQ”) was formed as a subsidiary of The Nasdaq Stock Market, Inc., and in 2006, NASDAQ was registered as a national securities exchange. The Nasdaq Stock Market, Inc., which had already issued stock to the public, became a holding company, and in 2007, it ceased operating as a facility of NASD or NASDAQ. Subsequently, following the acquisition of OMX AB, The Nasdaq Stock Market, Inc. became NASDAQ OMX. As a public holding company, NASDAQ OMX no longer appoints committees that include non-directors. Accordingly, the provision with respect to the qualifications of non-directors is obsolete and may appropriately be deleted.
Finally, NASDAQ OMX is correcting a typographical error in the numbering of the provisions of Section 4.13(h) of the by-laws.
BSECC believes that that the proposed rule change is consistent with provisions of Section 17A of the Act.
The Corporation does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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 email to rule-comments@sec.gov. Please include File Number SR-BSECC-2011-003 on the subject line.
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-BSECC-2011-003 and should be submitted on or before November 18, 2011.
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”),
SCCP is filing this proposed rule change with respect to an amendment to the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available on the Corporation's Web site at
In its filing with the Commission, the Corporation 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 Corporation has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of committees of the NASDAQ OMX Board of Directors. First, NASDAQ OMX is amending the compositional requirements of its Audit Committee in Section 4.13(g) to provide that the committee shall include three or more directors. Currently, the provision provides that the Audit Committee shall be composed of either four or five directors. The change will provide the NASDAQ OMX Board of Directors, which has authority to establish the size of each committee of the Board of Directors, with flexibility to increase or decrease the size of the committee, as long as the committee includes at least three directors. The listing standards of the NASDAQ Stock Market, which apply to NASDAQ OMX as a listed company, require that NASDAQ OMX's Audit Committee must have at least three members.
Similarly, NASDAQ OMX is proposing to amend the compositional requirements of the Nominating & Governance Committee in Section 4.13(h) to replace a requirement that the committee comprise four or five members with a requirement to include two or more members, thereby creating flexibility to populate a larger or a smaller committee than is currently the case. NASDAQ Stock Market listing standards do not regulate the size of a listed company's nominating committee. The amendment would not change any of the other compositional requirements of the Nominating & Governance Committee, including independence requirements.
SCCP expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. It is likely that the authority would be used to reduce the size of these committees below their current levels only in the event of a reduction in the overall size of the NASDAQ OMX Board of Directors (which currently has 16 members). The Audit Committee
Third, NASDAQ OMX proposes to delete a paragraph of the by-laws (Section 4.13(k)) that pertains to the qualifications of committee members who are not directors. This provision was originally adopted by NASDAQ OMX's predecessor corporation, The Nasdaq Stock Market, Inc., when it was a subsidiary and facility of the National Association of Securities Dealers, Inc. (“NASD”). In that capacity, The Nasdaq Stock Market, Inc. appointed committees that included non-directors and that exercised authority provided for under NASD rules. For example, at that time, the Board of Directors of The Nasdaq Stock Market, Inc. appointed the Nasdaq Listing and Hearing Review Council, a committee composed of non-directors with authority to review listing decisions with respect to companies with securities listed on The Nasdaq Stock Market, which was then a facility of NASD.
In 2005, The NASDAQ Stock Market LLC (“NASDAQ”) was formed as a subsidiary of The Nasdaq Stock Market, Inc., and in 2006, NASDAQ was registered as a national securities exchange. The Nasdaq Stock Market, Inc., which had already issued stock to the public, became a holding company, and in 2007, it ceased operating as a facility of NASD or NASDAQ. Subsequently, following the acquisition of OMX AB, The Nasdaq Stock Market, Inc. became NASDAQ OMX. As a public holding company, NASDAQ OMX no longer appoints committees that include non-directors. Accordingly, the provision with respect to the qualifications of non-directors is obsolete and may appropriately be deleted.
Finally, NASDAQ OMX is correcting a typographical error in the numbering of the provisions of Section 4.13(h) of the by-laws.
SCCP believes that that the proposed rule change is consistent with provisions of Section 17A of the Act.
The Corporation does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-SCCP-2011-03 and should be submitted on or before November 18, 2011.
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”),
CME proposes to adopt revisions to certain CME rules in connection with its clearing of contracts listed by the Eris Exchange, LLC (“Eris”) to reflect the pending change in regulatory status of Eris from an “EBOT” to a designated contract market. CME is also at the same time amending its Manual of Operations to reflect the proposed rule changes related to Eris. The text of the proposed rule change in the CME rulebook is available at the CME's Web site at
In its filing with the Commission, CME included statements concerning the purpose and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CME proposes to adopt revisions to CME Rules 8F001 (Scope of Chapter) and 8F004 (OTC Clearing Member Obligations and Qualifications) and to the CME Clearing House Manual of Operations in connection with its clearing of contracts listed by Eris Exchange, LLC (“Eris”). CME began acting as the clearing house for Eris in 2010, at which time Eris became an exempt board of trade (“EBOT”). Initially, with respect to customer positions, Eris contracts were cleared in the Regulation 30.7/secured origin, and since October 2010, they have been cleared in the Cleared OTC Derivatives Account Class/sequestered origin. Because of its status as an EBOT, Eris has been referenced in Chapter 8-F (Over-the-Counter Derivative Clearing) of CME's rule book.
After passage of the Dodd-Frank Act, Eris applied for registration with the Commodity Futures Trading Commission as a designated contract market (“DCM”). CME understands that Eris expects to begin operating as a DCM in or around mid October, 2011. To reflect Eris's change in regulatory status from an EBOT to a DCM, and the related requirement that customer positions and collateral be maintained in the futures account class/segregated origin, CME proposes to remove references to Eris from Chapter 8-F of CME's rule book. CME also proposes to make related revisions to the section on Eris in CME's Clearing House Manual of Operations.
All proposed revisions will become effective immediately but will not become operational earlier than the date on which the Commodity Futures Trading Commission grants Eris's DCM application. CME notes that it has also certified the proposed rule changes that are the subject of this filing to its primary regulator, the Commodity Futures Trading Commission (“CFTC”).
The proposed CME rule amendments are intended to facilitate CME's activities as a derivatives clearing organization clearing the futures transactions of a DCM. As such, the proposed CME rule amendments do not significantly affect the security-based swap clearing operations of CME or any related rights or obligations of CME security-based swap clearing participants. The proposed rule change is therefore properly filed under Section 19(b)(3)(A) and Rule 19b-4(f)(4)(ii) thereunder because it effects a change in an existing service of a registered clearing agency that primarily affects the futures clearing operations of the clearing agency with respect to futures that are not security futures and does not significantly affect any securities clearing operations of the clearing agency or any related rights or obligations of the clearing agency or persons using such service.
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
The foregoing rule change was filed pursuant to Section 19(b)(3)(A) of the Act and paragraph (f)(2) of Rule 19b-4 and became effective on filing. At any time within sixty days of the filing of such 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:
• Electronic comments may be submitted by using the Commission's Internet comment form (
• Paper comments should be sent in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-CME-2011-13 and should be submitted on or before November 18, 2011.
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”)
PHLX is filing this proposed rule change to introduce a new order type—the Minimum Life Order—for use in the NASDAQ OMX PSX (“PSX”) system. PHLX proposes to implement the rule change as soon as practicable following Commission approval. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
PHLX proposes to introduce a new order type—the Minimum Life Order—for use on PSX. Today's cash equities markets are characterized by high levels of automation and speed, both in the systems employed by exchanges and by their market participants. In such an environment, the degree to which displayed orders reflect committed trading sentiment has become less predictable, because many entered orders are rapidly cancelled. Market participants that seek to interact with orders that are cancelled before they can execute may ultimately achieve less favorable executions than would have been the case if the order had not cancelled or if they had directed their own order elsewhere. The more often a market participant pursues displayed liquidity at a particular venue that is no longer available by the time its order arrives, the more likely it is that the market participant will pursue liquidity at another venue. Conversely, if an exchange's fill rates are good, market participants will direct liquidity-seeking orders to it with greater confidence.
PSX was developed to provide an alternative to traditional price-time markets that reward market participants whose systems are quickest to post at a given price. Through its unique price-size-pro rata algorithm, PSX instead allocates execution opportunities based on the size of posted orders. The Exchange has devised the Minimum Life Order as a further enhancement to this market model, designed to provide market participants with a means to signal that their order will not be cancelled within a given time frame, and thereby encourage removers of liquidity to route orders to PSX in the expectation of receiving higher fill rates. The Exchange believes that the order type may also enhance price discovery by allowing a market participant to signal its commitment to trade at a particular price.
Once entered, a Minimum Life Order may not be cancelled for a period of time established in advance by the Exchange. If a market participant entering a Minimum Life Order submits a cancel message with respect to a Minimum Life Order at the same time as the order, or at any point during the “no cancel” window, the cancel message will not be rejected, but will be effected only following the expiration of the window (assuming the order has not already been executed). Thus, a market participant that wished to use the order type but that was concerned about the potential for keeping its order on the book too long would have a readily available mechanism for cancelling the order at the end of the window. The initial “no cancel” window will be 100 milliseconds. The Exchange reserves the right to change the duration of the no cancel window by submitting a proposed rule change to do so. All Minimum Life Orders must be designated as Displayed Orders.
Through a separate filing, the Exchange will establish pricing for the order. Because the Exchange believes that the order type may enhance PSX's market quality through improved fill rates, the Exchange expects to propose to offer an enhanced liquidity provider rebate of $0.0026 per share executed for Minimum Life Orders that provide liquidity after posting to the book. This rebate is the same as the rebate offered with respect to displayed orders with an initial size of 2,000 shares or more, and compares favorably to the rates of $0.0024 per share executed for displayed orders with a smaller size and $0.0010 per share executed for non-displayed orders.
PHLX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
PHLX 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. Rather, the change will promote greater competition by enhancing the functionality offered by PSX. Use of the order type is entirely voluntary.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
The Exchange stated that it will submit an amendment to the proposed rule change upon its approval by the Board of Directors of PHLX.
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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
BX is filing this proposed rule change with respect to an amendment to the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of committees of the NASDAQ OMX Board of Directors. First, NASDAQ OMX is amending the compositional requirements of its Audit Committee in Section 4.13(g) to provide that the committee shall include three or more directors. Currently, the provision provides that the Audit Committee shall be composed of either four or five directors. The change will provide the NASDAQ OMX Board of Directors, which has authority to establish the size of each committee of the Board of Directors, with flexibility to increase or decrease the size of the committee, as long as the committee includes at least three directors. The listing standards of the NASDAQ Stock Market, which apply to NASDAQ OMX as a listed company, require that NASDAQ OMX's Audit Committee must have at least three members.
Similarly, NASDAQ OMX is proposing to amend the compositional requirements of the Nominating & Governance Committee in Section 4.13(h) to replace a requirement that the committee comprise four or five members with a requirement to include two or more members, thereby creating flexibility to populate a larger or a smaller committee than is currently the case. NASDAQ Stock Market listing standards do not regulate the size of a listed company's nominating committee. The amendment would not change any of the other compositional requirements of the Nominating & Governance Committee, including independence requirements.
BX expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. It is likely that the authority would be used to reduce the size of these committees below their current levels only in the event of a reduction in the overall size of the NASDAQ OMX Board of Directors (which currently has 16 members). The Audit Committee supervises the audit function with respect to NASDAQ OMX and all of its subsidiaries, including BX, but the Nominating & Governance Committee does not perform a nominating function with respect to NASDAQ OMX's subsidiaries.
Third, NASDAQ OMX proposes to delete a paragraph of the by-laws (Section 4.13(k)) that pertains to the qualifications of committee members who are not directors. This provision was originally adopted by NASDAQ OMX's predecessor corporation, The Nasdaq Stock Market, Inc., when it was a subsidiary and facility of the National Association of Securities Dealers, Inc. (“NASD”). In that capacity, The Nasdaq Stock Market, Inc. appointed committees that included non-directors and that exercised authority provided for under NASD rules. For example, at that time, the Board of Directors of The Nasdaq Stock Market, Inc. appointed the Nasdaq Listing and Hearing Review Council, a committee composed of non-directors with authority to review listing decisions with respect to companies with securities listed on The Nasdaq Stock Market, which was then a facility of NASD.
In 2005, The NASDAQ Stock Market LLC (“NASDAQ”) was formed as a subsidiary [sic] The Nasdaq Stock Market, Inc., and in 2006, NASDAQ was registered as a national securities exchange. The Nasdaq Stock Market, Inc., which had already issued stock to the public, became a holding company, and in 2007, it ceased operating as a facility of NASD or NASDAQ. Subsequently, following the acquisition of OMX AB, The Nasdaq Stock Market, Inc. became NASDAQ OMX. As a public holding company, NASDAQ OMX no longer appoints committees that include non-directors. Accordingly, the provision with respect to the qualifications of non-directors is obsolete and may appropriately be deleted.
Finally, NASDAQ OMX is correcting a typographical error in the numbering of the provisions of Section 4.13(h) of the by-laws.
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX believes that the proposed amendments are non-controversial. The proposal to modify the compositional requirements of the NASDAQ OMX Audit Committee and Nominating & Governance Committee will provide the NASDAQ OMX Board of Directors with greater flexibility to determine the appropriate size for these committees, while maintaining compliance with applicable listing standards. BX expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. The proposed changes also delete an obsolete provision from the by-laws and correct a typographical error.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
PHLX is filing this proposed rule change with respect to an amendment to the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of committees of the NASDAQ OMX Board of Directors. First, NASDAQ OMX is amending the compositional requirements of its Audit Committee in Section 4.13(g) to provide that the committee shall include three or more directors. Currently, the provision provides that the Audit Committee shall be composed of either four or five directors. The change will provide the NASDAQ OMX Board of Directors, which has authority to establish the size of each committee of the Board of Directors, with flexibility to increase or decrease the size of the committee, as long as the committee includes at least three directors. The listing standards of the NASDAQ Stock Market, which apply to NASDAQ OMX as a listed company, require that NASDAQ OMX's Audit Committee must have at least three members.
Similarly, NASDAQ OMX is proposing to amend the compositional requirements of the Nominating & Governance Committee in Section 4.13(h) to replace a requirement that the committee comprise four or five members with a requirement to include two or more members, thereby creating flexibility to populate a larger or a
PHLX expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. It is likely that the authority would be used to reduce the size of these committees below their current levels only in the event of a reduction in the overall size of the NASDAQ OMX Board of Directors (which currently has 16 members). The Audit Committee supervises the audit function with respect to NASDAQ OMX and all of its subsidiaries, including PHLX, but the Nominating & Governance Committee does not perform a nominating function with respect to NASDAQ OMX's subsidiaries.
Third, NASDAQ OMX proposes to delete a paragraph of the by-laws (Section 4.13(k)) that pertains to the qualifications of committee members who are not directors. This provision was originally adopted by NASDAQ OMX's predecessor corporation, The Nasdaq Stock Market, Inc., when it was a subsidiary and facility of the National Association of Securities Dealers, Inc. (“NASD”). In that capacity, The Nasdaq Stock Market, Inc. appointed committees that included non-directors and that exercised authority provided for under NASD rules. For example, at that time, the Board of Directors of The Nasdaq Stock Market, Inc. appointed the Nasdaq Listing and Hearing Review Council, a committee composed of non-directors with authority to review listing decisions with respect to companies with securities listed on The Nasdaq Stock Market, which was then a facility of NASD.
In 2005, The NASDAQ Stock Market LLC (“NASDAQ”) was formed as a subsidiary [sic] The Nasdaq Stock Market, Inc., and in 2006, NASDAQ was registered as a national securities exchange. The Nasdaq Stock Market, Inc., which had already issued stock to the public, became a holding company, and in 2007, it ceased operating as a facility of NASD or NASDAQ. Subsequently, following the acquisition of OMX AB, The Nasdaq Stock Market, Inc. became NASDAQ OMX. As a public holding company, NASDAQ OMX no longer appoints committees that include non-directors. Accordingly, the provision with respect to the qualifications of non-directors is obsolete and may appropriately be deleted.
Finally, NASDAQ OMX is correcting a typographical error in the numbering of the provisions of Section 4.13(h) of the by-laws.
PHLX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
PHLX believes that the proposed amendments are non-controversial. The proposal to modify the compositional requirements of the NASDAQ OMX Audit Committee and Nominating & Governance Committee will provide the NASDAQ OMX Board of Directors with greater flexibility to determine the appropriate size for these committees, while maintaining compliance with applicable listing standards. PHLX expects that the NASDAQ OMX Board of Directors will, in the immediate future, use the modified authority to increase the size of the Nominating & Governance Committee to six directors, but will not modify the size of the Audit Committee at this time. The proposed changes also delete an obsolete provision from the by-laws and correct a typographical error.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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 email 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.
Notice is hereby given that Praesidian Capital Opportunity Fund III, LP, 419 Park Avenue South, New York, NY 10016, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest, of the Small Business Administration Rules and Regulations (13 CFR 107.730). Praesidian Capital Opportunity Fund III, LP proposes to provide debt financing to JPB Marketing Enterprises, Inc. d/b/a DisplayWorks (“DW”). The financing is contemplated for recapitalization purposes following the consummation of an acquisition.
The financing is brought within the purview of § 107.730(a)(4) of the Regulations because Praesidian Capital Investors II, LP, Associate of Praesidian Capital Opportunity Fund III, LP, holds a debt investment and warrant position in DW, both of which will be extinguished as a result of the recapitalization. Therefore the transaction is considered as financing to discharge an obligation to an Associate, requiring prior written exemption from the Small Business Administration.
Notice is hereby given that any interested person may submit written comments on the transaction within 15 days of the date of this publication to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: (202) 632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Federal Aviation Administration (FAA), U.S. DOT.
Notice to Manufacturers of Airport Avian Radar Systems.
Projects funded under the Airport Improvement Program (AIP) must meet the requirements of 49 U.S.C. 50101, Buy American Preferences. The Federal Aviation Administration (FAA) is considering issuing waivers to foreign manufacturers of airport avian radar systems that meet the requirements of FAA Advisory Circular (AC) 150/5220-25, Airport Avian Radar Systems. This notice requests information from manufacturers of systems meeting the technical requirements to determine whether a waiver to the Buy American Preferences should be issued.
Ms. Nancy S. Williams, Airports Financial Assistance, APP 501, Room 619, FAA, 800 Independence Avenue SW., Washington, DC 20591, Telephone (202) 267-3831.
The Federal Aviation Administration (FAA) manages a Federal grant program for airports called the Airport Improvement Program (AIP). AIP grant recipients must follow 49 U.S.C. 50101, Buy American Preferences.
Under 49 U.S.C. 50101(b)(3), the Secretary of Transportation may waive the Buy American Preference requirement if the goods are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality.
On November 23, 2010, FAA published Advisory Circular (AC) 150/5220-25, Airport Avian Radar Systems. The AC specified the technical requirements for avian radar systems at airports. The FAA is seeking to determine if there is a sufficient quantity of airport avian radar system manufacturers that are capable of meeting the AC requirements produced in the United States. If the FAA cannot find that there are USA manufacturers, it will issue a nationwide waiver to the
The purpose of this notice is to request manufacturers, both domestic and foreign, to advise FAA of the system that they manufacture and whether it can meet the technical requirements. The detailed instructions for submitting the qualifications statement, including forms, may be found on the FAA Web site at:
After review, the FAA may issue a nationwide waiver to Buy American Preferences for the foreign manufacturers. This “nationwide waiver” allows the equipment to be used on airport projects without having to receive separate project waivers. Having a nationwide waiver allows projects to start quickly without have to wait for the Buy American analysis to be completed for every project, while still assuring the funds used for airport projects under the Act are being directed to U.S. manufacturers.
The items that have been granted a “nationwide waiver” can be found on the FAA Web site at:
Federal Aviation Administration (FAA), U.S. DOT.
Notice to Manufacturers of In-Pavement Stationary Runway Weather Information Systems.
Projects funded under the Airport Improvement Program (AIP) must meet the requirements of 49 U.S.C. 50101, Buy American Preferences. The Federal Aviation Administration (FAA) is considering issuing waivers to foreign manufacturers of Active or Passive In-Pavement Stationary Runway Weather Information Systems that meet the requirements of FAA Advisory Circular (AC) 150/5220-30, Airport Winter Safety and Operations. This notice requests information from manufacturers of systems meeting the technical requirements to determine whether a waiver to the Buy American Preferences should be issued.
Ms. Nancy S. Williams, Airports Financial Assistance, APP 501, Room 619, FAA, 800 Independence Avenue SW., Washington, DC 20591, Telephone (202) 267-3831.
The Federal Aviation Administration (FAA) manages a Federal grant program for airports called the Airport Improvement Program (AIP). AIP grant recipients must follow 49 U.S.C. 50101, Buy American Preferences.
Under 49 U.S.C. 50101(b)(3), the Secretary of Transportation may waive the Buy American Preference requirement if the goods are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality.
The purpose of this notice is to request manufacturers of both passive and active in-pavement runway surface condition sensor systems, both domestic and foreign, to advise FAA of the system that they manufacture and whether it can meet the FAA Advisory Circular technical requirements. The detailed instructions for submitting the qualifications statement, including forms, may be found on the FAA Web site at:
The FAA wants to determine if there is sufficient quantity of domestic manufacturers capable of meeting the FAA technical requirements. If the FAA cannot find that there are USA manufacturers, it will issue a nationwide waiver to the foreign manufacturers identified as being capable of meeting the technical requirements.
After review, the FAA may issue a nationwide waiver to Buy American Preferences for foreign manufacturers or United States manufacturers that do not meet the Buy American Preference requirements. Waivers will not be issued for manufacturers that do not fully meet the technical requirements. This “nationwide waiver” allows equipment to be used on airport projects without having to receive separate project waivers. Having a nationwide waiver allows projects to start quickly without have to wait for the Buy American analysis to be completed for every project, while still assuring the funds used for airport projects under the Act are being directed to U.S. manufacturers.
Items that have been granted a “nationwide waiver” can be found on the FAA Web site at:
Federal Aviation Administration (FAA), DOT.
Notice of Commercial Space Transportation Advisory Committee Teleconference.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a teleconference of the Space Transportation Operations Working Group (STOWG) of the Commercial Space Transportation Advisory Committee (COMSTAC). The teleconference will take place on Thursday, November 17, 2011, starting at 11 a.m. Eastern Standard Time. Individuals who plan to participate should contact Susan Lender, DFO, (the Contact Person listed below) by phone or email for the teleconference call in
• Gathering best practice guidelines on the long-term sustainability of space for consideration by the UN Office of Outer Space Affairs; and
• Collecting COMSTAC's suggestions for revisions to Title 14 of the Code of Federal Regulations (14 CFR) part 420.
Interested members of the public may submit relevant written statements for the COMSTAC working group members to consider under the advisory process. Statements may concern the issues and agenda items mentioned above or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact Susan Lender, DFO, (the Contact Person listed below) in writing (mail or email) by November 14, 2011, so that the information can be made available to COMSTAC members for their review and consideration before the November 17, 2011, teleconference. Written statements should be supplied in the following formats: one hard copy with original signature or one electronic copy via email.
An agenda will be posted on the FAA Web site at
Individuals who plan to participate and need special assistance should inform the Contact Person listed below in advance of the meeting.
Susan Lender (AST-5), Office of Commercial Space Transportation (AST), 800 Independence Avenue, SW., Room 331, Washington, DC 20591, telephone (202) 267-8029; Email
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of RTCA Special Committee 159 meeting: Global Positioning System (GPS).
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 159: Global Positioning System (GPS) 87th meeting.
The meeting will be held November 14-18, 2011, from 9 a.m. to 4:30 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street, NW., Suite 910, Washington, DC 20036.
The RTCA Secretariat, 1150 18th Street, NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.), notice is hereby given for a Special Committee 159, Global Positioning System (GPS). The agenda will include the following:
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of RTCA Special Committee 224, Airport Security Access Control.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 224, Airport Security Access Control.
The meeting will be held November 17, 2011, from 9:30 a.m.-5 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street, NW., Suite 910, Washington, DC 20036.
The RTCA Secretariat, 1150 18th Street, NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a Special Committee 224, Airport Security Access Control. The agenda will include the following:
• Welcome, Introductions and Administrative Remarks
• Review and Approve Summary of Ninth Meeting
• Propose Structure Overview
• Sub Section Workgroup Reports
• Document Structure Finalization
• Adjourn
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the “
Federal Highway Administration (FHWA), DOT.
Notice of Availability of the Final Environmental Impact Statement.
The FHWA, on behalf of the California Department of Transportation (Caltrans), announces the availability of the Final Environmental Impact Statement for the 6th Street Viaduct Seismic Improvement Project in Los Angeles County, California.
The comment period for the 6th Street Viaduct Seismic Improvement Project will end 30 days after publication of the NOA in the
A hard copy of the document may be viewed at the following locations:
• City of Los Angeles Bureau of Engineering, Bridge Improvement Program, 1149 South Broadway, Suite 750, Los Angeles, CA 90015
• Caltrans, District 7, 100 S Main St, Los Angeles CA 90012
• Benjamin Franklin City Library, 2200 E 1st St., Los Angeles, CA 90033
• Little Tokyo Branch City Library, 244 S. Alameda St., Los Angeles, CA 90012
• Los Angeles City Council District 14, 1870 E 1st Street, Los Angeles, CA 90033
The report can also be accessed through the project Web site at
Carlos J. Montez, Branch Chief, Division of Environmental Planning, Caltrans District 7, 100 S. Main Street, Los Angeles, CA 90012,
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Caltrans as the delegated National Environmental Policy Act (NEPA) agency has prepared a Final EIS on a proposal for 6th Street Viaduct Seismic Improvement project in Los Angeles County, California.
The City of Los Angeles (City) and the California Department of Transportation (Caltrans) propose to undertake the seismic improvement of the 6th Street Viaduct over the Los Angeles River (Bridge No. 53C-1880) and the 6th Street Overcrossing, which spans the US 101 Hollywood Freeway (Bridge No. 53-0595). These two bridges comprise a single structure—the 6th Street Viaduct. The project limits would extend along 6th Street from west of southbound (SB) Interstate 5 (I-5) on the east side of the Los Angeles River to Mill Street on the west side of the river.
The project alternatives consist of two Build Alternatives (Alternative 2, Viaduct Retrofit; Alternative 3, Viaduct Replacement) and one No Action Alternative (Alternative 1). Alternative 3, Viaduct Replacement, has been selected as the Preferred Alternative. Under the replacement alternative, the proposed project would correct geometric design and structural detailing deficiencies of the existing viaduct by constructing the replacement to current standards set forth by American Association of State Highway and Transportation officials (AASHTO) and the City of Los Angeles Department of Transportation (LADOT).
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of Railroad Safety Advisory Committee (RSAC) Meeting.
FRA announces the forty-fifth meeting of the RSAC, a Federal Advisory Committee that develops railroad safety regulations through a consensus process. The RSAC meeting topics will include opening remarks from the FRA Administrator, and status reports will be provided by the Electronic Device Distraction, Critical Incident, Track Safety Standards, Dark Territory, Passenger Safety, and Medical Standards Working Groups. This agenda is subject to change, including the possible addition of further proposed tasks under the Rail Safety Improvement Act of 2008.
The meeting of the RSAC is scheduled to commence at 9:30 a.m. on Thursday, December 8, 2011, and will adjourn by 4:30 p.m.
The RSAC meeting will be held at the National Housing Center, 1201 15th Street NW., Washington DC 20005. The meeting is open to the public on a first-come, first-served basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Mr. Larry Woolverton, RSAC Program Manager, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6212; or Mr. Robert Lauby, Deputy Associate Administrator for Regulatory and Legislative Operations, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493-6474.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), FRA is giving notice of a meeting of the RSAC. The RSAC was established
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 Community Development Financial Institutions Fund (the “CDFI Fund”) within the Department of the Treasury is soliciting comments concerning the Bank Enterprise Award (“BEA”) Program Application.
Written comments should be received on or before December 27, 2011 to be assured of consideration.
Direct all comments to Mia Sowell, Policy and Program Officer, at the Community Development Financial Institutions Fund, U.S. Department of the Treasury, 601 13th Street NW., Suite 200 South, Washington, DC 20005, by email to
The BEA Program application may be obtained from the BEA page of the CDFI Fund's Web site at
12 U.S.C. 1834a, 4703, 4703 note, 4713, 4717; 31 U.S.C. 321; 12 CFR part 1806.
Department of Veterans Affairs.
Notice of Intent to Enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on an approximately 5.0-acre parcel of land at the VA Connecticut Healthcare System, Newington campus in Newington, Connecticut. The selected lessee will finance, design, develop, construct, manage, maintain and operate the EUL development. As consideration for the lease, the lessee will be required to construct, renovate, operate and maintain an assisted living facility; provide preference and priority placement for senior and disabled Veterans and their families; and provide a supportive services program.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
Department of Veterans Affairs.
Notice of Intent to Enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on an approximately 7.0-acre parcel of land at the Alexandria VA Medical Center in Pineville, Louisiana. The selected lessee will finance, design, develop, construct, renovate, manage, operate and maintain the EUL development. As consideration for the lease, the lessee will be required to construct, renovate, operate, and maintain a transitional housing facility; provide preference and priority placement for Veterans and their families; and provide a supportive services program for resident Veterans.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
Department of Veterans Affairs.
Notice of intent to enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on an approximately 9.0-acre parcel of land at the Northampton VA Medical Center in Northampton, Massachusetts. The selected lessee will finance, design, develop, construct, manage, maintain and operate the EUL development. As consideration for the lease, the lessee will be required to construct, renovate, operate and maintain a permanent housing facility and provide preference and priority placement for Veterans, as well as a supportive services program.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
Department of Veterans Affairs.
Notice of Intent to Enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on 3 parcels of land (163 acres) that comprise the entire Knoxville campus of the VA Central Iowa Healthcare System. The selected lessee will finance, design, develop, construct, manage, maintain and operate the EUL development. As consideration for the lease, the lessee will be required to construct, renovate, operate, and maintain a mixed use development that includes integrated residential, commercial, agricultural and technology components. The residential component will contain a permanent housing facility for homeless and at-risk Veterans and their families where the lessee will give preference and priority placement to Veterans and provide supportive services to Veterans.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
Department of Veterans Affairs.
Notice of Intent to Enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on an approximately 5.0-acre parcel of land at the VA South Texas Healthcare System—Kerrville campus in Kerrville, Texas. The selected lessee will finance, design, develop, construct, manage, maintain and operate the EUL development. As consideration for the lease, the lessee will be required to construct, renovate, operate and maintain a senior housing facility; provide preference and priority placement for senior and disabled Veterans and their families; and provide a supportive services program.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
Department of Veterans Affairs.
Notice of Intent to Enter into an Enhanced-Use Lease (EUL).
The Secretary of VA intends to enter into an EUL on an approximately 9.3-acre parcel of land at the Roseburg VAMC in Roseburg, Oregon. The selected lessees will finance, design, develop, construct, manage, maintain and operate the EUL development. As consideration for the lease, the lessees will be required to construct, renovate, operate, and maintain a permanent and transitional housing facility; provide preference and priority placement for homeless Veterans and Veterans at risk of homelessness and their families; and provide a supportive services program that guides resident Veterans toward attaining long-term independence and self-sufficiency.
Edward Bradley, Office of Asset Enterprise Management (044), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7778 (this is not a toll-free number).
Title 38 U.S.C. 8161
FTC, DOJ.
Final Policy Statement.
The FTC and DOJ (the “Agencies”) are issuing the final
The final Policy Statement differs from the proposed Policy Statement issued earlier this year, 76 FR 21,894 (Apr. 19, 2011), in two significant respects. First, the entire final Policy Statement—with the exception of the voluntary expedited antitrust review—applies to all collaborations among otherwise independent providers and provider groups that are eligible and intend, or have been approved, to participate in the Medicare Shared Savings Program (the “Shared Savings Program”); its applicability is no longer limited to those collaborations formed after March 23, 2010, the date on which the Patient Protection and Affordable Care Act was enacted. Second, because the Shared Savings Program final rule will no longer require a mandatory antitrust review for certain collaborations as a condition of entry into the Shared Savings Program, the final Policy Statement no longer contains provisions relating to mandatory antitrust review. However, as discussed in the final rule, the Agencies will continue to protect competition in markets served by accountable care organizations (“ACOs”) that participate in the Shared Savings Program, aided by data and information from CMS that will assist the Agencies in monitoring the competitive effects of ACOs. Specifically, CMS will provide the Agencies with aggregate claims data regarding allowed charges and fee-for-service payments for all ACOs accepted into the Shared Savings Program and also with copies of all of the applications to the Shared Savings Program of ACOs formed after March 23, 2010. The Agencies will vigilantly monitor complaints about an ACO's formation or conduct and take whatever enforcement action may be appropriate. Additionally, upon request, the Agencies will provide an expedited 90 day review for newly formed ACOs that wish to obtain additional antitrust guidance.
The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively, the “Affordable Care Act”) seek to improve the quality and reduce the costs of health care services in the United States by, among other things, encouraging physicians, hospitals, and other health care providers to become accountable for a patient population through integrated health care delivery systems.
Recent commentary suggests that some health care providers are likely to create and participate in ACOs that serve both Medicare beneficiaries and commercially insured patients.
To achieve these goals, the Agencies have developed this
The Policy Statement applies to collaborations among otherwise independent providers and provider groups
The antitrust laws treat naked price-fixing and market-allocation agreements among competitors as per se illegal. Joint price agreements among competing health care providers are evaluated under the rule of reason, however, if the providers are financially or clinically integrated and the agreement is reasonably necessary to accomplish the procompetitive benefits of the integration.
A rule of reason analysis evaluates whether the collaboration is likely to have anticompetitive effects and, if so, whether the collaboration's potential procompetitive efficiencies are likely to outweigh those effects. The greater the likely anticompetitive effects, the greater the likely efficiencies must be for the collaboration to pass muster under the antitrust laws. The Agencies have articulated the standards for both financial and clinical integration in various policy statements, speeches, business reviews, and advisory opinions. For example, the Agencies'
The Health Care Statements further explain that provider joint ventures also may involve clinical integration sufficient to ensure that the venture is likely to produce significant efficiencies.
The Affordable Care Act provides that CMS may approve ACOs that meet certain eligibility criteria, including (1) a formal legal structure that allows the ACO to receive and distribute payments for shared savings; (2) a leadership and management structure that includes clinical and administrative processes; (3) processes to promote evidence-based medicine and patient engagement; (4) reporting on quality and cost measures; and (5) coordinated care for beneficiaries.
By contrast, the Agencies have not previously listed specific criteria required to establish clinical integration, but instead have responded to detailed proposals from health care providers who have decided on specific ways to integrate their health care delivery systems to improve quality and lower costs.
The Agencies have determined that CMS's eligibility criteria are broadly consistent with the indicia of clinical integration that the Agencies previously set forth in the Health Care Statements and identified in the context of specific proposals for clinical integration from health care providers.
To assess whether an ACO has improved quality and reduced costs to Medicare, CMS will collect and evaluate cost, utilization, and quality metrics relating to each ACO's performance in the Shared Savings Program. The results of this monitoring will help the Agencies determine whether the CMS eligibility criteria have required a sufficient level of clinical integration to produce cost savings and quality improvements, and may help inform the Agencies' future analysis of ACOs and other provider organizations.
In light of CMS's eligibility criteria, and its monitoring of each ACO's results, the Agencies will treat joint negotiations with private payers as reasonably necessary to an ACO's primary purpose of improving health care delivery, and will afford rule of reason treatment to an ACO that meets CMS's eligibility requirements for, and participates in, the Shared Savings Program and uses the same governance and leadership structures and clinical and administrative processes it uses in the Shared Savings Program to serve patients in commercial markets. The Agencies further note that CMS's regulations allow an ACO to propose alternative ways to establish clinical management and oversight of the ACO, and the Agencies are willing to consider other proposals for clinical integration as well.
The following Sections provide additional antitrust guidance for ACOs that are eligible and intend, or have been approved, to participate in the Shared Savings Program, including those ACOs that also plan to operate in the commercial market. Section A sets forth a safety zone for certain ACOs that are highly unlikely to raise significant competitive concerns and, therefore, will not be challenged by the Agencies under the antitrust laws, absent extraordinary circumstances.
The Agencies emphasize that ACOs outside the safety zone may be procompetitive and legal. An ACO that does not impede the functioning of a competitive market will not raise competitive concerns. The creation of a safety zone reflects the view that ACOs that fall within the safety zone are highly unlikely to raise significant competitive concerns; it does not imply that ACOs outside the safety zone necessarily present competitive concerns.
Section B offers options for ACOs that seek additional antitrust guidance. It describes certain conduct all ACOs generally should avoid, other conduct that ACOs with high Primary Service Area (“PSA”) shares or other possible indicia of market power may wish to avoid, and the process by which a newly formed ACO
This Section sets forth an antitrust safety zone for ACOs that meet the CMS eligibility criteria for and intend, or have been approved, to participate in the Shared Savings Program and are highly unlikely to raise significant competitive concerns. The Agencies will not challenge ACOs that fall within the safety zone, absent extraordinary circumstances.
To determine whether it falls within the safety zone, an ACO should evaluate the ACO's share of services in each ACO participant's PSA. Although a PSA does not necessarily constitute a relevant antitrust geographic market, it nonetheless serves as a useful screen for evaluating potential competitive effects.
The Policy Statement focuses on PSA shares for three major categories of services: physician specialties, major diagnostic categories (“MDCs”) for inpatient facilities, and outpatient categories, as defined by CMS, for outpatient facilities.
For an ACO to fall within the safety zone, independent ACO participants that provide the same service (a “common service”) must have a combined share of 30 percent or less of each common service in each participant's PSA, wherever two or more ACO participants provide that service to patients from that PSA.
As described below, the availability of the PSA safety zone differs in some cases depending on whether an ACO participant is exclusive or non-exclusive to the ACO. To participate in an ACO on a non-exclusive basis, a participant must be allowed to contract with private payers through entities other than the ACO, including contracting individually or through other ACOs or analogous collaborations. The ACO must be non-exclusive in fact and not just in name. Exclusivity may be present explicitly or implicitly, formally or informally, through a written or de facto agreement as shown by conduct.
An ACO that exceeds the 30 percent PSA share may still fall within the safety zone if it qualifies for this rural exception. The rural exception allows such an ACO to include one physician or physician group practice
Likewise, an ACO may include Rural Hospitals
The dominant participant limitation applies to any ACO that includes a participant with a greater than 50 percent share in its PSA of any service that no other ACO participant provides to patients in that PSA. Under these conditions, the ACO participant must be non-exclusive to the ACO for the ACO to fall within the safety zone.
The safety zone will remain in effect for the duration of an ACO's agreement with CMS, provided the ACO continues to meet the safety zone's requirements. An ACO will not lose its safety zone status solely because it attracts more patients.
ACOs that fall outside the safety zone may be procompetitive and lawful. An ACO that does not impede the functioning of a competitive market will not raise competitive concerns.
Nonetheless, there may be circumstances in which an ACO would raise competitive concerns. This section describes some types of conduct by an ACO that, under certain circumstances, may raise competitive concerns and outlines how an ACO may obtain further antitrust guidance from the Agencies.
Regardless of an ACO's PSA shares or other indicia of market power, significant competitive concerns can arise when an ACO's operations lead to price-fixing or other collusion among ACO participants in their sale of competing services outside the ACO. For example, improper exchanges of prices or other competitively sensitive information among competing participants could facilitate collusion and reduce competition in the provision of services outside the ACO, leading to increased prices or reduced quality or availability of health care services.
For ACOs with high PSA shares or other possible indicia of market power, the Agencies identify four types of conduct that may raise competitive concerns.
An ACO with high PSA shares or other possible indicia of market power may wish to avoid the conduct set forth in (1) through (4) below. Depending on the circumstances, the conduct identified below may prevent private payers from obtaining lower prices and better quality service for their enrollees:
1. Preventing or discouraging private payers from directing or incentivizing patients to choose certain providers, including providers that do not participate in the ACO, through “anti-steering,” “anti-tiering,” “guaranteed inclusion,” “most-favored-nation,” or similar contractual clauses or provisions.
2. Tying sales (either explicitly or implicitly through pricing policies) of the ACO's services to the private payer's purchase of other services from providers outside the ACO (and vice versa), including providers affiliated with an ACO participant (e.g., an ACO should not require a purchaser to contract with all of the hospitals under common ownership with a hospital that participates in the ACO).
3. Contracting on an exclusive basis with ACO physicians, hospitals, ASCs, or other providers, thereby preventing or discouraging those providers from contracting with private payers outside the ACO, either individually or through other ACOs or analogous collaborations.
4. Restricting a private payer's ability to make available to its health plan enrollees cost, quality, efficiency, and performance information to aid enrollees in evaluating and selecting providers in the health plan, if that information is similar to the cost, quality, efficiency, and performance measures used in the Shared Savings Program.
Any newly formed ACO
The ACO should submit its request for expedited review, along with a completed cover sheet (available on the Agencies' Web sites), to both Agencies before its entrance into the Shared Savings Program, and the Agencies will then promptly determine, and notify the applicant, which Agency will be the reviewing Agency.
To start the 90 day review, the reviewing Agency must receive all of the following documents and information:
1. The application and all supporting documents that the ACO plans to submit, or has submitted, to CMS, including a sample of each type of participation agreement and each type of document that reflects a financial arrangement between or among the ACO and its participants, as well as the ACO's bylaws and operating policies.
2. Documents discussing
a. the ACO's business strategies or plans to compete in the Medicare and commercial markets, including those relating to the ACO's likely impact on the prices, cost, or quality of any service provided by the ACO to Medicare beneficiaries, commercial health plans, or other payers; and
b. the level and nature of competition among participants in the ACO, and the competitive significance of the ACO and ACO participants in the markets in which they provide services.
3. Information sufficient to show the following:
a. The common services that two or more ACO participants provide to patients from the same PSA, as described in the Appendix, and the identity of the ACO participants or providers providing those services.
b. The PSA of each ACO participant, and either PSA share calculations the ACO may have performed or other data that show the current competitive significance of the ACO or ACO participants, including any data that describe the geographic service area of each participant and the size of each participant relative to other providers serving patients from that area.
c. Restrictions that prevent ACO participants from obtaining information regarding prices that other ACO participants charge private payers that do not contract through the ACO.
d. The identity, including points of contact, of the five largest commercial health plans or other private payers, actual or projected, for the ACO's services.
e. The identity of any other existing or proposed ACO known to operate, or
Moreover, the ACO may submit any other documents and information that it believes may be helpful to the Agency in assessing the ACO's likely impact on competition. The documents and information may include anything that may establish a clearer picture of competitive realities in the market, including:
1. evidence that the ACO is not likely to have market power in the relevant market;
2. any substantial procompetitive justification for why the ACO needs its proposed composition to provide high-quality, cost-effective care to Medicare beneficiaries and patients in the commercial market; and
3. if relevant, an explanation as to why the ACO engaging in any of the four types of conduct listed in Section IV.B of the Policy Statement would not be anticompetitive or might even be procompetitive.
Within 90 days of receiving all of the above documents and information,
1. does not likely raise competitive concerns or, if appropriate, does not likely raise competitive concerns conditioned on the ACO's written agreement to take specific steps to remedy concerns raised by the Agency;
2. potentially raises competitive concerns; or
3. likely raises competitive concerns.
As is current practice, both the request letter and the reviewing Agency's response will be made public consistent with applicable confidentiality provisions.
This Appendix explains how to calculate the PSA shares of common services discussed in the Policy Statement.
1. Identify each service provided by at least two independent ACO participants (i.e., each common service). A service is defined as follows:
a. For physicians, a service is the physician's primary specialty, as designated on the physician's Medicare Enrollment Application. Each specialty is identified by its Medicare Specialty Code (“MSC”), as defined by CMS.
b. For inpatient facilities (
c. For outpatient facilities (
2. Identify the PSA(s) for each participant (
3. Separately for each common service, calculate the ACO's PSA share in the PSA of each participant that provides that service if at least two participants provide that service to patients from that PSA. If an entity owned by an ACO participant provides services in a PSA, those services should be included in the share calculation regardless of whether the affiliated organization participates in the ACO.
a. For physician services, the ACO should calculate its shares of Medicare fee-for-service allowed charges (
b. For inpatient services, the ACO should calculate its shares of inpatient discharges, using state-level all-payer hospital discharge data where available, for the most recent calendar year for which data are available. For ACOs located in a state where all-payer hospital discharge data are not available, the ACO should calculate its shares of Medicare fee-for-service payments during the most recent federal fiscal year for which data are available. CMS will make public the data necessary to identify the full range of services and the aggregate fee-for-service payments for each service, by zip code.
c. For outpatient services, the ACO should calculate its shares of Medicare fee-for-service payments for hospitals and fee-for-services allowed charges for ASCs during the most recent calendar year for which data are available, or the ACO can use state-level all-payer claims data, if available. CMS will make public the data necessary to identify the full range of services and the aggregate fee-for-service payments and allowed charges for each service, by zip code.
For those services that are rarely used by Medicare beneficiaries (
The following example illustrates how to calculate the ACO's relevant PSA shares. Assume that two independent physician practices, two independent hospitals, and an ASC propose to form an ACO. For purposes of this example, further assume that the hospitals do not directly employ physicians. If they do, then services provided by the hospitals' employed physicians would need to be taken into account in determining the PSA and calculating the ACO's shares for each common physician service where at least two participants provide that service to patients from the same PSA.
For the physician groups:
1. Identify the physician groups' common MSCs. In this example, Physician Group A (“PG A”) has physicians with general surgery (MSC 02) and orthopedic surgery specialties (MSC 20). Physician Group B (“PG B”) has physicians with orthopedic surgery (MSC 20) and cardiology (MSC 06) specialties. The only common service is orthopedic surgery, not general surgery or cardiology, because PG A does not have cardiologists and PG B does not have general surgeons.
2. Identify the zip codes that make up the PSA for each physician group. In this example, there will be two PSAs: one for PG A (“PSA A”) and one for PG B (“PSA B”).
3. Determine the ACO's share in each of the PSAs. In this example, both PG A's and PG B's orthopedic surgeons serve patients
For the inpatient services:
1. Identify the hospitals' common MDCs. In this example, Hospital 1 and Hospital 2 each provide services in 10 MDCs, but only two are common services: cardiac care (i.e., services related to diseases and disorders of the circulatory system—MDC 05) and orthopedic care (i.e., services related to diseases and disorders of the musculoskeletal system and connective tissue—MDC 08).
2. Identify the zip codes that make up the PSA for inpatient services for each hospital. In this example, there will be two PSAs: Hospital 1's PSA and Hospital 2's PSA.
3. Determine the ACO's share in each of the PSAs. In this example, Hospital l and Hospital 2 both serve cardiac patients located in each hospital's PSA and both serve orthopedic patients in each hospital's PSA. Thus, shares need to be calculated in both PSAs, resulting in four shares. This hypothetical ACO is located in a state for which all-payer hospital discharge data are available, so the ACO's share of cardiac care in Hospital 1's PSA would be the ACO's total number of inpatient discharges for MDC 05 (which are Hospital 1's and Hospital 2's total inpatient discharges for cardiac care in Hospital l's PSA) divided by the total number of inpatient discharges for MDC 05 for all residents of this PSA. Use the analogous process to calculate the ACO's share of cardiac care in Hospital 2's PSA, the ACO's share of orthopedic care in Hospital 1's PSA, and the ACO's share of orthopedic care in Hospital 2's PSA.
For the outpatient services:
1. Identify the hospitals' and ASC's common outpatient categories. In this example, Hospital 1 does not provide outpatient services, while Hospital 2 and the ASC each provide services in 10 outpatient categories, but only two are common services: cardiovascular tests/procedures (outpatient category 2) and musculoskeletal procedures (outpatient category 5).
2. Identify the zip codes that make up the PSA for outpatient services for Hospital 2 and the ASC. In this example, there will be two PSAs: Hospital 2's PSA for outpatient services and the ASC's PSA.
3. Determine the ACO's share in each of the PSAs. In this example, Hospital 2 and the ASC both provide cardiovascular tests/procedures to patients located in each facility's PSA, and both provide musculoskeletal procedures to patients located in each facility's PSA. Thus, shares need to be calculated in both PSAs, resulting in four shares. The ACO's share of cardiovascular tests/procedures in Hospital 2's PSA would be the ACO's total Medicare fee-for-service payments/charges for outpatient category 2 (which are Hospital 2's total payments and the ASC's total allowed charges for outpatient cardiovascular tests/procedures for Medicare beneficiaries in Hospital 2's PSA) divided by the total payments/charges for outpatient category 2 for all Medicare beneficiaries in this PSA. Use the analogous process to calculate the ACO's share of cardiovascular tests/procedures in the ASC's PSA, the ACO's share of musculoskeletal procedures in Hospital 2's PSA, and the ACO's share of musculoskeletal procedures in the ASC's PSA.
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(1) Côte d’Ivoire, Guinea, and Niger are designated as eligible sub-Saharan African countries and as beneficiary sub-Saharan African countries.
(2) In order to reflect this designation in the HTS, general note 16(a) to the HTS is modified by inserting in alphabetical sequence in the list of beneficiary sub-Saharan African countries “Republic of Côte d’Ivoire”, “Republic of Guinea”, and “Republic of Niger”.
(3) For purposes of section 112(c) of the AGOA, Côte d’Ivoire, Guinea, and Niger are lesser developed beneficiary sub-Saharan African countries.