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Committee for Purchase From People Who Are Blind or Severely Disabled
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Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Election Commission.
Agency procedure; correction.
On July 10, 2009, the Federal Election Commission published a Procedural Rule (“Commission”) instituting a program that provides committees that are audited pursuant to the Federal Election Campaign Act of 1971, as amended (“FECA”) with the opportunity to have a hearing before the Commission prior to the Commission's adoption of a Final Audit Report. Procedural Rules for Audit Hearings, 74 FR 33140 (July 10, 2009). The Commission is now adding a further statement at the end of that procedural rule to conform this statement to other agency procedural rules.
Effective August 7, 2009.
Joseph F. Stoltz, Assistant Staff Director, Audit Division, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On July 10, 2009, the Commission published a Procedural Rule instituting a program that provides committees that are audited pursuant to the Federal Election Campaign Act of 1971, as amended (“FECA”) with the opportunity to have a hearing before the Commission prior to the Commission's adoption of a Final Audit Report. Procedural Rules for Audit Hearings, The Commission is now adding a statement to that procedural rule to conform the rule to other agency procedural rules and policy statements.
On page 33143, in the first column, at the end of paragraph E, insert the following:
The above provides general guidance concerning notice to those being audited and announces the general course of action that the Commission intends to follow. This notice sets forth the Commission's intentions concerning the exercise of its discretion in its audit program. However, the Commission retains that discretion and will exercise it as appropriate with respect to the facts and circumstances of each audit it considers. Consequently, this notice does not bind the Commission or any member of the general public.
On behalf of the Commission.
Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Commission (“Commission”) is issuing a final rule providing guidance as to what product components or classes of components will be considered to be “inaccessible.” Section 101(b)(2)(A) of the Consumer Product Safety Improvement Act (“CPSIA”) provides that the lead limits shall not apply to any component part of a children's product that is not accessible to a child through normal and reasonably foreseeable use and abuse. Section 101(b)(2)(B) of the CPSIA requires the Commission to issue, by August 14, 2009, a rule providing guidance with respect to what product components, or classes of components, will be considered to be inaccessible. This final rule satisfies the Commission's statutory obligation.
Kristina Hatlelid, PhD, M.P.H., Directorate for Health Sciences, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail
The CPSIA establishes specific lead limits in children's products. Section 101(a) of the CPSIA provides that, as of February 10, 2009, products designed or intended primarily for children 12 and younger may not contain more than 600 parts per million (ppm) of lead. After August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. On August 14, 2011, the limit may be further reduced to 100 ppm, unless the Commission determines that it is not technologically feasible to meet this lower limit. Section 3(a)(16) of the Consumer Product Safety Act, as amended by section 235(a) of the CPSIA, defines “children's product” as a “consumer product designed or intended primarily for children 12 years of age or younger.”
Section 101(b)(2) of the CPSIA provides that the lead limits do not apply to component parts of a product that are not accessible to a child. This section specifies that a component part is not accessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission. Paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child under section 101(b)(3) of the CPSIA.
In the
• An accessible component part of a children's product is one that a child may touch;
• An inaccessible component part is one that is located inside the product and not capable of being touched or mouthed by a child, whether or not such part is visible to a user of the product;
• An inaccessible part is one that may be enclosed in any type of material,
• To assess whether a part is inaccessible, the accessibility probes defined in the Commission's existing regulations for evaluating accessibility of sharp points or sharp metal or glass edges (16 CFR 1500.48 and 1500.49) could be used. An accessible lead-containing component part would be defined as one that contacts any portion of the specified segment of the accessibility probe. An inaccessible lead-containing component part would be defined as one that cannot be contacted by any portion of the specified segment of the accessibility probe; and
• Use and abuse tests are appropriate for evaluating whether lead-containing component parts of a product become accessible to a child during normal and reasonably foreseeable use and abuse of the product by a child. The purpose of the tests is to simulate use and damage or abuse of a product by children and to expose potential hazards that might result from use and abuse. 16 CFR 1500.50-1500.53.
The Commission received comments from trade associations, testing services, consumer groups, electronic products associations, youth recreational vehicle companies, and textile groups. In general, most comments, particularly those from consumer groups, agreed with most of the proposed interpretative rule, whereas other comments, particularly those from industry, sought a narrower or different interpretation of “accessibility.”
Proposed § 1500.87(a), in essence, summarized the lead limits in section 101 of the CPSIA and how, over time, the limits decrease from 600 ppm to 100 ppm by August 14, 2011 unless the Commission determines that it is not technologically feasible to meet this lower limit. Proposed § 1500.87(a) also stated that, “Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child.”
We did not receive any comment on this provision. However, on our own initiative, we deleted the sentence regarding paint, coatings, and electroplating because the identical sentence appears in § 1500.87(b).
Proposed § 1500.87(b) explained that the lead limits do not apply to component parts of a product that are not accessible to a child. The proposal explained that a component part is not accessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission. It added that paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child.
Some commenters agreed with the Commission's determination that accessibility is defined in the statute as physical access and stressed that exposure to lead such as through leaching is not what was intended.
However, other commenters said the Commission should explore other inaccessibility scenarios, not just physical inaccessibility, including considering whether children using the product could be exposed to the lead that is present. Similarly, other commenters stated that the physical contact is only an example of accessibility and said that evaluations of accessibility focus on whether parts are ingestible or mouthable, or alternatively, consider whether a child will actually touch the part during foreseeable use or abuse of the product.
We decline to revise the rule as suggested by the comments. The statute refers to physical accessibility of component parts of products, and this reference is not simply an example of how accessibility might be defined. The proposed interpretative rule followed the statutory language for determining inaccessibility. Section 101(b)(2)(A) of the CPSIA provides that, “[a] component part is not accessible under this subparagraph
“Other children's activities” could reasonably include touching, grasping, and handling that can lead to physical exposure to the lead containing parts. Accordingly, the final rule construes accessibility to be physical contact with lead-containing component parts, and mouthing and swallowing, along with touching, among the children's activities that can result in contact with the lead-containing parts.
Some commenters recommended that the rule explicitly state that inaccessible component parts are relieved of the testing requirement of section 102 of the CPSIA. One commenter said that the rule should state clearly that no certificate is required when no provision of CPSIA or any other rule or standard applies. In addition, the commenters requested that the rule provide that third-party testing is not required to demonstrate compliance with section 101 of the CPSIA when the lead in the product is deemed to be inaccessible.
In general, inaccessible component parts do not have to comply with the lead content limits or be tested and certified as to lead content. The accessible portions of a product, unless specifically excluded from lead content
Currently, third-party testing and certification is required for toys and children's products under the small parts regulations (16 CFR Part 1501 and 1500.50-53 and 16 CFR 1500(18)(a)(9)), as well as under the toy safety standard, ASTM-F963. Accordingly, some of the tests proposed for evaluating accessibility are already being conducted by manufacturers for small parts evaluations. In addition, toys and games that are or contain small parts that are intended for use by children from 3 to 6 years old are subject to the labeling requirements of 16 CFR 1500.19. With respect to other children's products that do not fall within the scope of the small parts regulations, but that contain inaccessible parts, the manufacturer currently is not required to provide third-party testing to demonstrate inaccessibility. The Commission intends to address certification requirements and the establishment of protocols and standards for ensuring that children's products are tested for compliance with applicable children's products safety rules in a separate rulemaking.
Proposed § 1500.87(c) cited section 101(b)(2)(B) of the CPSIA as the legal authority to promulgate the interpretative rule and stated that the rulemaking is to be conducted by August 14, 2009.
We received no comments on this provision and have finalized it without change.
Proposed § 1500.87(d) stated that:
The accessibility probes specified for sharp points or edges under the Commission's regulations at 16 CFR 1500.48-1500.49 will be used to assess the accessibility of lead-component parts of a children's product. A lead-containing component part would be considered accessible if it contacts any portion of the specified segment of the accessibility probe. A lead-containing component part would be considered inaccessible if it cannot be contacted by any portion of the specified segment of the accessibility probe.
In general, most commenters agree with the proposed approach of using accessibility probes to evaluate whether certain parts of a product might be accessible to a child. However, one commenter stated that probes should be unnecessary for products that are sealed and have no accessible cavities.
The Commission agrees that, for products that are effectively sealed so that there is no point of entry to any internal parts that contain lead, use of the probes would not be necessary to demonstrate that the parts are not accessible. However, it would be necessary to test the material which encases or encloses the inaccessible lead-containing part, unless it is a material that the Commission has specifically determined falls below the lead content limits of the CPSIA. The Commission established procedures for a Commission determination that a specific material or product does not exceed the lead content limits specified under section 101(a) of the CPSIA (74 FR 10475 (March 11, 2009)). In addition, the Commission has issued a notice of proposed rulemaking regarding lead content limits on certain materials or products which have been preliminarily determined to fall below the lead content limits of the CPSIA (74 FR 2433 (January 15, 2009)).
Some commenters stated that accessibility probes could be used to evaluate products, but they questioned whether existing test fixtures are appropriate for the entire age range of children's products. The commenters argued that older children have developed their motor skills and have increased agility compared to younger children for which the probes were designed.
In considering reasonably foreseeable use and abuse, the Commission finds that the accessibility probes are appropriate for testing the wider range of products for children through age twelve years. The probes are used to evaluate possible gaps or holes in a product through which a young child's finger might physically contact a lead-containing component part. Because older children's larger fingers generally would have more limited access to gaps that would be accessible to smaller children, the Commission believes that, in most cases, the probes will indicate whether access is possible.
Some commenters claimed that the use of accessibility probes for evaluating accessibility is inappropriate; these commenters said that the proper method for determining inaccessibility would evaluate mouthing and swallowing behaviors. The commenters argued that the possibility of simple physical contact with a lead-containing component part does not necessarily lead to mouthing or swallowing, or that the lead-containing component parts are not touched during normal and reasonably foreseeable use and abuse of the component part.
We disagree with the comments. The statute provides for inaccessibility of component parts based on physical exposure to the part. Therefore, the Commission must assess accessibility based on whether a child may touch a component part that contains lead above the lead limits, not simply on whether a child might ingest or mouth a part of a product. In addition, we have deemed that, in the context of an exclusion request for all-terrain vehicles, the normal and reasonably foreseeable contact with lead-containing parts by children using motorized recreational vehicles would not be extensive but would occur. For example, in the regular use of the product, users will have to touch the brake and clutch levers and the throttle controls. It is reasonable to assume that children will not be washing their hands immediately after touching these parts. Average users (6-12 year olds) do not typically engage in hand-to-mouth behavior; however, it is not unreasonable to assume they may wipe their mouth or face with their hands while using or right after using the recreational vehicle. (
Some commenters asked that we clarify that access to a component containing smaller components that may, themselves, contain lead-containing parts does not mean that a lead-containing component is accessible if the lead is fully enclosed within the larger component which can be touched by an accessibility probe.
The Commission interprets a lead-containing component part to mean the material used to construct the part includes lead in its formulation, not that the part contains smaller parts that contain lead. For example, assume that the product is a sealed ball made of plastic and that the sealed ball has a lead content that complies with the CPSIA lead limits. Inside the sealed ball are metal beads that contain lead. In this example, the metal beads are lead-containing component parts, but the ball is not. If the sealed ball does not provide access to the beads inside it, through a hole or a crevice, or after being subject to use and abuse testing, then the lead-containing parts would be deemed inaccessible. The Commission also notes that, for certain electronic devices that contain accessible lead-containing
Proposed § 1500.87(e) explained that the use and abuse tests at 16 CFR 1500.50-1500.53 (excluding the bite tests of 1500.51(c) and 1500.52(c)) will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product by children that are 18 months of age or less, over 18 months but not over 36 months of age, and over 36 months but not over 96 months of age.
Proposed § 1500.87(f) was similar to proposed § 1500.87(e), except that it referred to use and abuse tests at 16 CFR 1500.50-1500.53 (excluding the bite tests of 1500.51(c) and 1500.52(c)) intended for children aged 37-96 months being used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product by a child through 12 years of age.
In general, most commenters agreed with the proposed approach of using existing use and abuse tests to evaluate the normal use of toys and other articles intended for use by children as well as the reasonably foreseeable damage or abuse to which the articles may be subjected.
Some commenters agreed that the use and abuse tests are appropriate for evaluating whether ingestible or mouthable parts might come loose from a product, but said that intentional disassembly or destruction by older children, including use of tools, should not be considered in evaluating accessibility. Other commenters questioned whether the tests are appropriate for older children given their increased strength and dexterity.
We acknowledge that older children have advanced motor skills compared to younger children. However, older children also have advanced cognitive skills and the ability to properly care for their belongings. For the purposes of evaluating product integrity, the Commission believes that the existing use and abuse tests are appropriate for revealing inherent characteristics or possible defects in products that could result in accessibility of components and will expose potential hazards that might result from use and abuse for most children's products.
The test methods in 16 CFR 1500.50-1500.53 are used to simulate the normal and reasonably foreseeable use, damage, or abuse of toys and other articles intended for children in three separate age groups. Accordingly, revised §§ 1500.87(e),(f), and (g) make clear that the use and abuse tests at 16 CFR 1500.50-1500.53 will be used to evaluate accessibility of lead-containing component parts of a children's product for the specific age group the product is intended. In addition, § 1500.87(h) is revised to make clear that the test under § 1500.87(g) will apply to products intended for children that are over 96 months through 12 years of age. Accordingly, we have revised §§ 1500.87(e) through (h) to read as follows:
(e) For products intended for children that are 18 months of age or less, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.51 (excluding the bite test of 1500.51(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(f) For products intended for children that are over 18 months but not over 36 months of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.52 (excluding the bite test of 1500.52(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(g) For products intended for children that are over 36 months but not over 96 months of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.53 (excluding the bite test of 1500.53(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(h) For products intended for children over 96 months through 12 years of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.53 (excluding the bite test of 1500.53(c)) intended for children aged 37-96 months will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product by a child through 12 years of age.
Proposed § 1500.87(e) and (f) referred to the “bite tests of 1500.51(c) and 1500.52(c).”
Some commenters requested an explanation for the exclusion of the bite test. One commenter pointed out that the proposed rule excludes the bite test from 16 CFR 1500.51 and 1500.52, but not § 1500.53, and stated that the bite test from all three sections should be excluded.
Currently, the Commission does not use the bite test specified in the three CFR sections, as a result of a court case (
Because the bite test currently is not applied as part of use and abuse testing in general, it will not be applied for the purposes of evaluating whether lead-containing component parts are accessible. Nevertheless, the inclusion of the bite test in 16 CFR 1500.53 was inadvertent in the proposed rule, and we have revised §§ 1500.87(g) and (h) to exclude the bite test of 16 CFR 1500.53(c).
Several commenters claimed that fabric coverings are appropriate barriers. Some commenters gave examples of a fabric-covered button or base of a zipper that would form a barrier to a lead-containing part, such as a metal button or zipper base, thus rendering it inaccessible to a child. The commenters said that such use of fabric must withstand wear and tear and remain intact through the life of a garment. In addition, the commenters noted that fabrics in footwear applications must be durable and able to withstand abrasion and other abuse and must not wear out over the expected life of a shoe. They asserted that fabrics are barriers especially given that the use of tools is not to be considered in an accessibility evaluation. Another commenter said that fabric coverings surrounding the inner parts of mattresses and foundations are barriers for which there is no point of entry and which must withstand normal use of these products.
Conversely, other commenters stated that the Commission must evaluate the possibility that lead could leach from components that are fabric-covered and must evaluate the ability of fabric barriers to hold up to use and abuse.
Although test data was not submitted that specifically address the possibility
The Commission has reviewed section 108 of the CPSIA, which addresses phthalate content of certain products, for a definition for toys that can be placed in a child's mouth. Section 108(e)(2)(B) of the CPSIA provides that “if a toy or part of toy in one dimension is smaller than 5 centimeters, it can be placed in the mouth.” Although the CPSIA provisions for lead apply to all children's products, not just toys, the definition in section 108 of the CPSIA is helpful in assessing whether a part of any children's product can be placed in a child's mouth. Accordingly, fabric-covered components that are used in children's products, including toys, should be evaluated for the potential to be placed in the mouth according to this definition to assess whether the fabric-covered part is accessible.
The Commission believes that, in general, fabric coverings may be considered barriers to physical contact with underlying materials for products such as mattresses because they cannot be mouthed or swallowed. However, the appropriate use and abuse tests, such as for the integrity of seams, should be used to evaluate the coverings. Smaller items or small components of children's products should be evaluated for the potential for mouthing or swallowing using the small parts test. For fabric-covered children's products, an additional test to determine whether any part in one dimension is smaller than 5 centimeters should be performed to see if it can be placed in the mouth. If mouthing or swallowing of a component part could occur, the material beneath the fabric covering is considered to be accessible to a child. Therefore, the Commission has revised the final interpretative rule by adding a new § 1500.87(i) to explain that a children's product that is or contains a lead-containing part which is enclosed, encased, or covered by fabric and passes the appropriate use and abuse tests on such covers, is inaccessible to a child unless the product or part of the product in one dimension is smaller than 5 centimeters. The Commission also has renumbered proposed § 1500.87(g), which pertained to the intentional disassembly or destruction of products by children, as § 1500.87(j).
Proposed § 1500.87(g) (now renumbered as § 1500.87(j)), explained that the intentional disassembly or destruction of products by children older than age 8 years by means or knowledge not generally available to younger children, including use of tools, will not be considered in evaluating products for accessibility of lead-containing components.
For the reasons stated in section D.6 of this preamble, we have retained the text for this provision without change, but have renumbered the provision as § 1500.87(j).
Some commenters said that, if aging and wear and tear exposes lead-containing parts, the components should be considered accessible.
Conversely, other commenters said that, with respect to textile products, the necessary durability of such products already incorporates consideration of aging and wear and tear. Another commenter claimed that additional testing to account for aging for their type of products does not need to be done, because the product lifespan of children's electronics is shorter than for other children's products, and aging leads to products becoming unusable.
Section 101(b)(2)(A) of the CPSIA provides that aging of the product may be considered in the evaluation of the accessibility of component parts. However, because of the wide range of products and product types subject to the lead content requirements of the CPSIA, the Commission believes that such evaluations are necessarily specific to individual products or product types and may not be generalized. Currently, the Commission does not have specific requirements on the effects of aging on children's products. Testing for aging on children's products is similar to normal use testing. Section 8.5 of ASTM-F963 provides that normal use testing would entail tests intended to simulate normal use conditions so as to ensure that hazards are not generated through normal wear and deterioration of the product. Such tests would be used to uncover hazards rather than to demonstrate the reliability of the toy. However, ASTM-F963 does not specify requirements because it would not be possible to define such requirements in view of the wide range of children's products in the marketplace. Since any evaluation on the effects of aging on the integrity of product must be conducted on product by product basis, the Commission will continue to review the effects of aging of the integrity of the children's products and will issue further guidance on this issue in the future if it deems such guidance is necessary.
One commenter specifically requested that the final interpretive rule address compact disks and DVDs. These products are composed of acrylic polymer layers that encase the data part of the product. Because the law does not allow for coatings to be used as a barrier that would render lead in the substrate inaccessible to a child, this commenter asked that the rule state that the acrylic part of a disk is not a “coating.” The commenter was concerned that if the acrylic polymer layer is not clearly determined to not be a coating, then manufacturers would have to test the layer of material within the polymer part of the product.
Acrylic polymer layers of a compact disk or DVD are not considered to be a coating within the definition of section 1303 because the acrylic polymer layers are not a surface coating that is separable from the substrate through scraping. If the internal metallic layer of a disk is not accessible to a child, testing and certification would not be required. The Commission notes that the issue of whether there is any lead in compact disks or DVDs has been raised in various proceedings. However, we have not received any test data or information regarding lead content in CDs or DVDs and would require further information before we can evaluate these products properly. Moreover, given the very large numbers of children's products in the market, an interpretative rule on accessibility is not the appropriate forum for the Commission to address such product-specific issues. Rather, the interpretative rule is intended to provide guidance to allow manufacturers of children's products to assess whether their own products or component parts of their products are inaccessible for purposes of section 101(b)(2) of the CPSIA. Product-specific requests should be made under the rule
The CPSIA requires the Commission to promulgate a rule providing guidance on inaccessible component parts by August 14, 2009. Although interpretative rules do not require a particular effective date under the Administrative Procedure Act, 5 U.S.C. 553(d)(2), the Commission recognizes the need for providing the guidance expeditiously. Accordingly, the interpretative rule will take effect on August 14, 2009.
Consumer protection, Hazardous materials, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, and Toys.
15 U.S.C. 1261-1278, 122 Stat. 3016.
(a) The Consumer Product Safety Improvement Act (CPSIA) provides for specific lead limits in children's products. Section 101(a) of the CPSIA provides that by February 10, 2009, products designed or intended primarily for children 12 and younger may not contain more than 600 ppm of lead. After August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. On August 14, 2011, the limit may be further reduced to 100 ppm after three years, unless the Commission determines that it is not technologically feasible to have this lower limit.
(b) Section 101 (b)(2) of the CPSIA provides that the lead limits do not apply to component parts of a product that are not accessible to a child. This section specifies that a component part is not accessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission. Paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child.
(c) Section 101(b)(2)(B) of the CPSIA directs the Commission to promulgate by August 14, 2009, this interpretative rule to provide guidance with respect to what product components or classes of components will be considered to be inaccessible.
(d) The accessibility probes specified for sharp points or edges under the Commissions' regulations at 16 CFR 1500.48-1500.49 will be used to assess the accessibility of lead-component parts of a children's product. A lead-containing component part would be considered accessible if it can be contacted by any portion of the specified segment of the accessibility probe. A lead-containing component part would be considered inaccessible if it cannot be contacted by any portion of the specified segment of the accessibility probe.
(e) For products intended for children that are 18 months of age or less, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.51 (excluding the bite test of § 1500.51(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(f) For products intended for children that are over 18 months but not over 36 months of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.52 (excluding the bite test of § 1500.52(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(g) For products intended for children that are over 36 months but not over 96 months of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.53 (excluding the bite test of § 1500.53(c)), will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(h) For products intended for children over 96 months through 12 years of age, the use and abuse tests set forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.53 (excluding the bite test of § 1500.53(c)) intended for children aged 37-96 months will be used to evaluate accessibility of lead-containing component parts of a children's product as a result of normal and reasonably foreseeable use and abuse of the product.
(i) A children's product that is or contains a lead-containing part which is enclosed, encased, or covered by fabric and passes the appropriate use and abuse tests on such covers, is inaccessible to a child unless the product or part of the product in one dimension is smaller than 5 centimeters.
(j) The intentional disassembly or destruction of products by children older than age 8 years by means or knowledge not generally available to younger children, including use of tools, will not be considered in evaluating products for accessibility of lead-containing components.
Environmental Protection Agency (EPA).
Final rule, correction.
On May 20, 2009 EPA published a Final Rule that established an 18-month, time-limited exemption from the requirement of a tolerance for residues of the
This regulation is effective August 7, 2009. Objections and requests for hearings must be received on or before October 6, 2009 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-0101. All documents in the docket are listed in the docket index available at
Denise Greenway, Biopesticides and Pollution Prevention Division (7511P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-8263; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing electronically available documents at
Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0101 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 6, 2009.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in
•
•
•
In the
Subsequent to the publication of the May 20, 2009 regulation, the Agency identified an error in the Analytical Methods section of the Rule's preamble (Unit VII.B.). Specifically, the text in the Analytical Methods section of the preamble to the May 20, 2009 Final Rule erroneously stated that the Polymerase Chain Reaction (PCR) method analyzed for
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.... ” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues ” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
For a more extensive discussion, see the Final Rule of May 20, 2009 (74 FR 23635, FRL-8417-3).
In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).
See the Final Rule of May 20, 2009 (74 FR 23635), (FRL-8417-3).
See the Final Rule of May 20, 2009 (74 FR 23635), (FRL-8417-3).
See the Final Rule of May 20, 2009 (74 FR 23635), (FRL-8417-3).
A Polymerase Chain Reaction (PCR) method for the detection and (in the context of a tolerance exemption) measurement of the
See the Final Rule of May 20, 2009 (74 FR 23635, FRL-8417-3).
See the Final Rule of May 20, 2009 (74 FR 23635, FRL-8417-3).
This final rule establishes an exemption from the requirement of a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a) Residues of
(b) A time-limited exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Direct final rule.
This document moves the effective date of the revocation of six inert ingredient tolerance exemptions with insufficient data for reassessment as set forth in the
In the final rule published August 9, 2006 (71 FR 45415), and delayed on August 4, 2008 (73 FR 45312):
1. The effective date is delayed from August 9, 2009, to October 9, 2009, for the following amendments to § 180.910: 2.m., n., and cc.
2. The effective date is delayed from August 9, 2009, to October 9, 2009, for the following amendments to § 180.930: 4.t., u., and v.
Objections and requests for hearings must be received on or before October 6, 2009, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-0601. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at
Kerry Leifer, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8811; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In a final rule published in the
In a subsequent direct final rule published in the
In the case of six of the revoked tolerance exemptions, EPA has received petitions for the establishment of tolerance exemptions which included the submission of data for these inert ingredients. Notices of filing of these petitions (PP 8E7466 and PP 8E7478) were published in the
A ``tolerance'' represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore ``adulterated'' under FFDCA section 402(a), 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under FFDCA, but also must be registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136
The amendatory designations listed in this unit are reprinted from the final rule published in the
m. α-(p-Nonylphenyl)-ω-hydroxypoly(oxyethylene) mixture of dihydrogen phosphate and monohydrogen phosphate esters and the corresponding ammonium, calcium, magnesium, monoethanolamine, potassium, sodium, and zinc salts of the phosphate esters; the nonyl group is a propylene trimer isomer and the poly (oxyethylene) content averages 4-14 moles or 30 moles.
n. α-(p-Nonylphenyl)-ω-hydroxypoly(oxyethylene) sulfate, ammonium, calcium, magnesium, potassium, sodium, and zinc salts; the nonyl group is a propylene trimer isomer and the poly(oxyethylene) content averages 4 moles.
cc. α-[p-(1,1,3,3-Tetramethylbutyl)phenyl]-ω- hydroxypoly(oxyethylene) produced by the condensation of 1 mole of p- (1,1,3,3-tetramethylbutyl)phenol with a range of 1-14 or 30-70 moles of ethylene oxide: if a blend of products is used, the average range number of moles of ethylene oxide reacted to produce any product that is a component of the blend shall be in the range of 1-14 or 30-70.
t. α-(p-Nonylphenyl)-ω-hydroxypoly(oxyethylene) mixture of dihydrogen phosphate and monohydrogen phosphate esters and the corresponding ammonium, calcium, magnesium, monoethanolamine, potassium, sodium, and zinc salts of the phosphate esters; the nonyl group is a propylene trimer isomer and the poly(oxyethylene) content averages 4-14 moles.
u. α-(p-Nonylphenyl)-ω-hydroxypoly(oxyethylene) sulfate, and its ammonium, calcium, magnesium, potassium, sodium, and zinc salts; the nonyl group is a propylene trimer isomer and the poly(oxyethylene) content averages 4 moles.
v. α-(p-Nonylphenyl)-ω-hydroxypoly(oxyethylene) sulfate, and its ammonium, calcium, magnesium, monoethanolamine, potassium, sodium, and zinc salts; the nonyl group is a propylene trimer isomer and the poly(oxyethylene) content averages 4-14 or 30-90 moles of ethyiene oxide.
This rule changes the effective date of the revocation of certain tolerance exemptions under section 408(d) of FFDCA. The Office of Management and Budget (OMB) has exempted tolerance exemption actions from review under Executive Order 12866, entitled
Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for combined residues of avermectin B
This regulation is effective August 7, 2009. Objections and requests for hearings must be received on or before October 6, 2009, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2008-0806. All documents in the docket are listed in the docket index available at
Thomas C. Harris, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9423; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing electronically available documents at
Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2008-0806 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before October 6, 2009.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in
•
•
•
As listed below, EPA published notices pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions in the
Based upon EPA review of the data supporting the petition, the petition was subsequently amended to request permanent tolerances for avermectin B
This regulation also makes a technical amendment to correctly express the existing tolerances for mint which were established in the final rule published on February 16, 2005 (70 FR 7876) (FRL-7695-7). That rule listed the tolerance as “mint” at 0.010 ppm. The correct terminology is “peppermint, tops” at 0.010 ppm and “spearmint, tops” at 0.010 ppm.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is
Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerances for combined residues of avermectin B
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Avermection B
Specific information on the studies received and the nature of the adverse effects caused by avermectin B
For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure (POD) is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) or a Benchmark Dose (BMD) approach is sometimes used for risk assessment. Uncertainty/safety factors (UFs) are used in conjunction with the POD to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic dietary risks by comparing aggregate food and water exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the POD by all applicable UFs. Aggregate short-, intermediate-, and chronic-term risks are evaluated by comparing food, water, and residential exposure to the POD to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded. This latter value is referred to as the Level of Concern (LOC).
For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect greater than that expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for avermectin B
1.
i.
In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA used a probabilistic distribution of anticipated residues derived from field trial data for all commodities. Default processing factors and maximum surveyed percent crop treated (PCT) were used as available. See Unit C.1.iv. below for full listing of PCTs.
ii.
iii.
iv.
Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
The Agency used PCT information as follows (average and maximum, respectively):
In most cases, EPA uses available data from the U.S. Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is <1. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which avermectin B
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) for surface water and Screening Concentration in
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 0.464 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 0.211 ppb was used to assess the contribution to drinking water.
3.
Avermectin B
4.
EPA has not found avermectin B
1.
2.
3.
Nonetheless, EPA has determined that reliable data show the safety of infants and children would be adequately protected if the 10X FQPA safety (SF) were reduced to 3X for chronic/long term and short/intermediate-term assessments and reduced to 1X for acute assessments. This conclusion is based on the following findings:
i. Retaining an additional 3x FQPA safety factor effectively provides a 10x margin between the dose which causes death (0.4 mg/kg/day) and the NOAEL adjusted by the additional safety factor (0.12 mg/kg/day/3x = 0.04 mg/kg/day). A dose spacing of 10x between a NOAEL and LOAEL is as broad, if not broader, than the dose spacing generally used in animal testing and thus removes the residual concern with the steepness of the dose response curve and the severe effects seen here.
ii. This adjusted point of departure (0.04 mg/kg/day) would also address the concerns for the increased susceptibility seen at higher doses in the two-generation reproduction study in rats (LOAEL = 0.4 mg/kg/day), prenatal developmental study in CD-1 mice (LOAEL = 0.75 mg/kg/day), the prenatal developmental toxicity study in rabbits (LOAEL = 2 mg/kg/day), and the one-generation reproduction study (LOAEL = 0.2 mg/kg/day).
iii. The toxicity database for avermectin B
iv. With respect to acute dietary exposure, the endpoint selected for risk assessment is based on mydriasis observed in dogs. The additional 3x factor applied to chronic and other exposure scenarios is not applicable to acute exposure because steepness of the dose and severity of effects were not seen in the studies where mydriasis occurred. In addition, reduced body weight is not considered a single dose effect and would not be appropriate as a toxicity endpoint for acute exposure scenarios.
v. There are no residual concerns with respect to the exposure databases. The chronic and acute dietary food exposure assessment utilizes reliable data on anticipated residues and percent crop treated as well as default processing factors. The dietary drinking water assessment utilized modeling results which included conservative assumptions for the parent and all degradates of concern. Conservative assumptions were used in the water models. Therefore, the water exposure assessment will not underestimate the potential risks for infants and children. Likewise, the use of maximum application rates and central-to-high end inputs results in calculated residential exposures that should not underestimate the risks to infants and children from these requested uses.
EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded.
1.
2.
3.
4.
5.
Adequate enforcement methods for avermectin B
The plant methods used for data collection adequately measure the residues of concern. The methods have been validated at 0.001, 0.002, or 0.005 ppm (depending on the commodity and the method) for each of two analyte peaks (avermectin B
The 1990 Pestrak database indicates that avermectin B
The Codex tolerance expressions for plants are consistent with the U.S. tolerance expression.
No comments were received to the Notices of Filing.
The correct commodity definitions are obtained from the “Food and Feed Commodity Vocabulary”, which can be found at
Therefore, tolerances are established for combined residues of avermectin B
Existing tolerances for cattle, fat and cattle, meat byproducts are revised. Existing individual crop tolerances on almond, plum, potato, and walnut are deleted and replaced by the establishment of new crop group tolerances. Existing tolerances on almond, hulls and plum, prune, dried are retained. The expression for existing mint tolerances is corrected by deleting the term mint and replacing with peppermint, tops at 0.010 ppm and spearmint, tops at 0.010 ppm.
This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Federal Communications Commission.
Final rule.
This document amends the Commission's rules so that providers of interconnected Voice over Internet Protocol (VoIP) service will be required to comply with the same discontinuance rules as domestic non-dominant telecommunications carriers. These rules protect consumers of interconnected VoIP service from the abrupt discontinuance, reduction or impairment of their service by requiring
Effective September 8, 2009 except for §§ 63.60(a) and (f) which affect information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Interested parties may submit PRA comments by any of the following methods:
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In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Judith B. Herman, Federal Communications Commission, Room 1-B441, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
Rodney McDonald, Wireline Competition Bureau, (202) 418-1580. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Judith B. Herman at (202) 418-0214, or via the Internet at
This is a summary of the Commission's Report and Order (Order) in WC Docket No. 04-36; FCC 09-40, adopted and released May 13, 2009. In this Order, the Commission extends to providers of interconnected VoIP service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under section 214 of the Communications Act of 1934, as amended (the Act). Consequently, before an interconnected VoIP provider may discontinue, reduce, or impair service, it must comply with the streamlined discontinuance requirements under part 63 of the Commission's rules, including the requirements to provide written notice to all affected customers, notify relevant state authorities, and file an application for authorization of the planned action with the Commission.
The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via e-mail at
This document contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this Order as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
In this present document, we have assessed the effects of extending the Commission's discontinuance obligations to interconnected VoIP providers and find these changes warranted. The reasons for this conclusion are explained in more detail below.
The Commission will send a copy of the Order, including this FRFA, in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. [A copy of this present summarized Order and FRFA is also hereby published in the
In this Order, the Commission extends to providers of interconnected VoIP service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under section 214 of the Communications Act of 1934, as amended (the Act). Consequently, before an interconnected VoIP provider may discontinue, reduce, or impair service, it must comply with the streamlined discontinuance requirements under part 63 of the Commission's rules, including the requirements to provide written notice to all affected customers, notify relevant state authorities, and file an application for authorization of the planned action with the Commission.
1. On March 10, 2004, the Commission initiated a rulemaking proceeding to examine issues relating to IP-enabled services—services and applications making use of IP, including, but not limited to, VoIP services. In the
2. Consumers increasingly use interconnected VoIP service as a replacement for traditional voice service, and as interconnected VoIP service improves and proliferates, consumers' expectations for this type of service trend toward their expectations for other telephone services. Thus, in this Order, the Commission takes steps to protect consumers of interconnected VoIP service from the abrupt discontinuance, reduction, or impairment of their service without notice. Specifically, the Commission extends to providers of interconnected VoIP service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under section 214 of the Communications Act of 1934, as amended (the Act). Consequently, before an interconnected VoIP provider may discontinue service, it must comply with the streamlined discontinuance requirements under part 63 of the Commission's rules, including the requirements to provide written notice to all affected customers, notify relevant state authorities, and file an application
3.
4. As the Commission has found before, unlike certain other IP-enabled services, interconnected VoIP service increasingly is used as a replacement for traditional voice service. Customers therefore reasonably expect their interconnected VoIP service to include the regulatory protections that they would receive with traditional voice services. The Commission believes it is critically important that all customers of interconnected VoIP service receive the protections of the section 214 discontinuance requirements. Importantly, if customers were to lose their telephone service without sufficient notice, they would also lose access to 911 service—possibly with disastrous consequences. This Order, therefore, is consistent with, and a necessary extension of, the Commission's prior exercises of authority to ensure public safety.
5.
6. First, as the Commission previously has concluded, interconnected VoIP service falls within the subject matter jurisdiction granted to the Commission under the Act. Second, the Commission must evaluate whether imposing service discontinuance obligations on interconnected VoIP providers is reasonably ancillary to the effective performance of the Commission's responsibilities. As discussed further below, the Commission finds that sections 1 and 214 of the Act provide the requisite nexus, with additional support from section 706. Specifically, the Commission finds that extending the section 214 discontinuance procedures to interconnected VoIP service providers is “reasonably ancillary to the effective performance of [our] responsibilities” under these statutory provisions, and “will `further the achievement of long-established regulatory goals' ” to ensure that the public is not adversely affected by the discontinuance, reduction, or impairment of service.
7. The Commission finds that extending domestic discontinuance requirements to interconnected VoIP providers is reasonably ancillary to the Commission's effective performance of its responsibility to promote safety of life and property through the use of wire and radio communication. Section 1 of the Act charges the Commission with responsibility for making available “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service * * * for the purpose of promoting safety of life and property through the use of wire and radio communication.” By extending the section 214 discontinuance procedures to interconnected VoIP providers, the Commission protects American consumers from the unanticipated and harmful consequences that could follow the loss of telephone service without sufficient notice. Most notably, as mentioned above, if an interconnected VoIP provider discontinued service without notice, customers would lose the ability to call 911 through that service. In addition, extending the section 214 discontinuance rules to interconnected VoIP providers ensures customers' ability to transition to alternative service providers in an orderly fashion. The Commission thereby fosters “rapid, efficient, Nation-wide, and world-wide wire and radio communication service” by safeguarding the public interest in continuity of such services—irrespective of which provider makes those services available.
8. Section 214(a) of the Act states that “[n]o carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby.” The primary purpose of this requirement is to reduce the harm to consumers caused by discontinuances of service. The Commission finds that the extension of section 214 service discontinuance requirements to providers of interconnected VoIP service is reasonably ancillary to the effective performance of the Commission's duty to protect the public from the adverse effects of service discontinuances. The Commission already has found that interconnected VoIP service “is increasingly used to replace analog voice service”—a trend that the Commission expects will continue. From the perspective of a customer making an ordinary telephone call, the Commission believes that interconnected VoIP service is functionally indistinguishable from traditional telephone service. It therefore is reasonable for American consumers to have similar expectations for these services. In particular, the Commission finds it reasonable for customers of interconnected VoIP service to expect some advance notice before the discontinuance of their voice service, and notes that customers receiving traditional telephone service from wireline carriers are already entitled to such notice under the Commission's discontinuance requirements. By extending the Commission's discontinuance requirements to interconnected VoIP services, the Commission advances the public interest by helping ensure that such notice is actually given to customers that are making and receiving calls regardless of whether they are receiving service from a traditional
9. The Commission is also guided by section 706 of the 1996 Act, which, among other things, directs the Commission to encourage the deployment of advanced telecommunications capability to all Americans by using measures that “promote competition in the local telecommunications market.” The assurance that providers of interconnected VoIP services are subject to service-discontinuance procedures comparable to those that apply to non-dominant carriers may spur consumer demand for those services, in turn driving demand for broadband connections, and consequently encouraging more broadband investment and deployment consistent with the goals of section 706.
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11. The Commission's rules do not provide an exhaustive list of what constitutes the discontinuance, reduction, or impairment of service. In the context of interconnected VoIP service, the Commission finds that a discontinuance, reduction, or impairment of service would include, but is not limited to, the conversion of an interconnected VoIP service to one that permits only inbound, but not outbound, calls to the PSTN—or one that permits only outbound, but not inbound, calls to the PSTN.
12. By requiring interconnected VoIP providers to comply with the Commission's streamlined domestic discontinuance requirements applicable to non-dominant carriers, the Commission balances the need to protect consumers with the goal, set forth in section 230 of the Act, of minimizing the regulation of the Internet and other interactive computer services. As the Commission previously has found, § 63.71 of the Commission's rules strikes a good balance between the Commission's dual objectives of permitting ease of exit from competitive markets and ensuring that the public will be given a reasonable period of time to make other service arrangements. The Commission therefore disagrees with commenters who argue that applying section 214 exit regulations to interconnected VoIP service will unduly deter market entry, distort the market, or depress investment in new technologies. On the contrary, as the Commission has stated previously, disparate treatment of entities providing the same or similar services is not in the public interest as it creates distortions in the marketplace that may harm consumers.
13. It is important to note that the Commission does not impose any economic regulation on providers of interconnected VoIP service by this Order. Title II and the Commission's rules subject all common carriers to a variety of
14. The Commission amends the part 63 domestic discontinuance rules to encompass interconnected VoIP service. Accordingly, before an interconnected VoIP provider may discontinue, reduce, or impair service, it must provide all affected customers with written notice that includes the provider's name and address, typically by postal mail to the customer's billing address; the date of the planned service discontinuance, reduction, or impairment; the geographic areas where service will be affected; a brief description of the affected service; and the statement found in § 63.71(a)(5)(i) of the Commission's rules. The Commission recognizes that because of the potentially portable nature of some interconnected VoIP services, there may be additional and/or alternative means of providing effective notice to customers of interconnected VoIP providers. As such, upon request, the Commission may authorize in advance another form of notice for good cause shown.
15. On or after the date it provides notice to its customers as specified above, the interconnected VoIP provider must file with the Commission an application for authorization of the planned discontinuance. The application shall identify that the provider is an interconnected VoIP provider seeking to discontinue, reduce, or impair interconnected VoIP services and shall include, in addition to the information set forth in the notice provided to affected customers, a caption, a brief description of the dates and methods of notice to all affected customers, and any other information the Commission may require. An interconnected VoIP provider shall also submit a copy of its application to the public utility commission and to the Governor of the State(s) in which it proposes to discontinue, reduce, or impair service, as well as to the
16. The application to discontinue, reduce, or impair service shall be automatically granted on the 31st day after the Commission releases public notice of the application unless the Commission notifies the applicant that the grant will not be automatically effective. Thus the Commission believes that interconnected VoIP providers will be faced with discontinuance requirements that are no more burdensome than the reduced requirements that already apply to competitive carriers, and that their customers will be afforded a reasonable time to make alternative service arrangements in the event of a discontinuance, reduction, or impairment of service. The Commission expects that providers of wholesale inputs will coordinate and continue to work with interconnected VoIP providers in the event that a discontinuance of service becomes necessary so that the discontinuance of service can occur in an orderly fashion consistent with this Order, the Commission's rules, and the interest of customers.
17. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
18. This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this Order as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
19. In this present document, we have assessed the effects of imposing domestic non-dominant discontinuance rules on providers of interconnected VoIP service, and find that these requirements do not place a significant burden on businesses with fewer than 25 employees.
20. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
21. This Order takes a series of steps designed to ensure that consumers of interconnected VoIP are afforded appropriate consumer protection measures consistent with the Communications Act of 1934, as amended (the Act). Today's telecommunications marketplace is one of rapidly changing technology, capability, and services. Since the Commission first described IP-enabled services nearly five years ago, the American public has embraced them, resulting in the widespread adoption of mass market interconnected VoIP and broadband services by millions of consumers for voice, video, and Internet communications. Consumers increasingly use interconnected VoIP service as a replacement for traditional voice service, and as interconnected VoIP service improves and proliferates, consumers' expectations for this type of service trend toward their expectations for other telephone services.
22. This Order extends to providers of interconnected VoIP service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under section 214 of the Act. Consequently, before an interconnected VoIP provider may discontinue service, it must comply with the streamlined discontinuance requirements under part 63 of the Commission's rules, including the requirements to provide written notice to all affected customers, notify relevant state authorities, and file an application for authorization of the planned discontinuance with the Commission.
23. In this section, the Commission responds to comments filed in response to the IRFA. To the extent the Commission received comments raising general small business concerns during these proceedings, those comments are discussed in the Order.
24. The Small Business Administration (SBA) comments that the Commission's
25. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
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28. The Commission includes small incumbent local exchange carriers (LECs) in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
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35. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by this action.
36. The second category of All Other Telecommunications comprises,
37. Below, for those services subject to auctions, the Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.
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50. The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and Other Program Distribution. Information available to the Commission indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 small entity MDS (or BRS) providers, as defined by the SBA and the Commission's auction rules.
51. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS). The Commission estimates that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of the licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small entities.
52. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that has annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, the Commission believes that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules.
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68. In this Order, the Commission requires providers of interconnected VoIP service to take actions to comply with section 214 service discontinuance obligations. For example, to protect against abrupt termination of service, the Order requires providers of interconnected VoIP services to be subject to the same service discontinuance procedures as non-dominant carriers. Thus, the Commission requires that a provider of interconnected VoIP service seeking to discontinue service provide all affected customers with notice of the planned discontinuance of service. Specifically, the Order requires an interconnected VoIP provider to provide all affected customers with its name and address, the date of the planned service discontinuance, the geographic areas where service will be discontinued, a brief description of the service to be discontinued, and the statement found in § 63.71(a)(5)(i) of the Commission's rules. The Order requires written notice to be provided to each affected customer, but allows the Commission to authorize in advance another form of notice for good cause shown upon request.
69. The Order also requires an interconnected VoIP provider to file with the Commission an application for authorization of the planned discontinuance. The application shall identify that the provider is an interconnected VoIP provider with respect to the service to be discontinued and shall include, in addition to the information set forth in the notice provided to affected customers, a caption, a brief description of the dates and methods of notice to all affected customers, and any other information the Commission may require. The Order also requires an interconnected VoIP provider to submit a copy of its application to the public utility commission and to the Governor of the State(s) in which it proposes to discontinue, reduce, or impair service, as well as to the Secretary of Defense.
70. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
71. The
72. In the Order, the Commission found that allowing customers of interconnected VoIP services to receive the benefits of section 214 discontinuance procedures is fundamentally important for the protection of consumers. Specifically, the Commission found that extending section 214 discontinuance procedures to interconnected VoIP service customers is necessary to protect consumers from abrupt and unexpected telecommunications service interruptions. As the Commission stated, even customers with competitive alternatives need fair notice and information to choose a substitute service. The Commission thus found that notice of proposed service discontinuances is important for the protection of all customers of interconnected VoIP providers, including those of small businesses. In considering whether to impose section 214 service discontinuance obligations on interconnected VoIP providers, the Commission considered several alternatives, including imposing streamlined obligations for dominant and non-dominant carriers and separate notice provisions. The Commission concluded that imposing the minimal streamlined obligations for non-dominant carriers on interconnected VoIP providers was appropriate, striking a good balance between the Commission's dual objectives of permitting ease of exit from competitive markets and ensuring that the public will be given a reasonable period of time to make other service arrangements. The Commission further concluded that given that these same minimal requirements were imposed on non-dominant carrier small entities and did not result in any hardship, imposing these requirements on all interconnected VoIP providers, including providers that may be small entities, would be appropriate.
73. Accordingly,
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Cable television, Communications, Communications common carriers, Discontinuance of service, IP-enabled services, Radio, Reporting and recordkeeping requirements, Telecommunications, Telegraph, Telephone, Voice over Internet Protocol, VoIP.
Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.
(a) For the purposes of §§ 63.60 through 63.90, the term “carrier,” when used to refer either to all telecommunications carriers or more specifically to non-dominant telecommunications carriers, shall include interconnected VoIP providers.
(b) * * *
(3) The conversion of an interconnected VoIP service to a service that permits users to receive calls that originate on the public switched telephone network but not terminate calls to the public switched telephone network, or the converse.
(d) The term “interconnected VoIP provider” is an entity that provides interconnected VoIP service as that term is defined in § 9.3 of this chapter.
(f) For the purposes of §§ 63.60 through 63.90, the term “service,” when used to refer to a real-time, two-way voice communications service, shall include interconnected VoIP service as that term is defined in § 9.3 of this chapter but shall not include any interconnected VoIP service that is a “mobile service” as defined in § 20.3 of this chapter.
General Services Administration (GSA), Office of the Chief Acquisition Officer.
Final rule.
The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to revise sections of GSAR Part 502 that provide definitions for general words and terms. This section will only contain definitions for terms that are used in more than one place in the GSAR.
For clarification of content, contact Mr. Edward Loeb, Procurement Analyst, at (202) 501-0650. For information pertaining to status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, 1800 F Street, NW., Washington, DC 20405, (202) 501-4755. Please cite Amendment 2009-10, GSAR case 2008-G501 (Change 38).
The GSA is amending the GSAR to update the text addressing GSAR 502.101, Definition of Words and Terms. This rule is a result of the GSA Acquisition Manual (GSAM) Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR, and to implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can use when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.
The GSA will rewrite each part of the GSAR and GSAM, and as each part is rewritten, will publish it in the
This rule covers the rewrite of GSAR Part 502. The rule revises Part 502 to update the text addressing GSAR 502.101, Definition of Words and Terms. The section was changed to reflect the merger of the Federal Technology Service and Federal Supply Service; creation of the Federal Acquisition Service; and deletion of the title Deputy Associate Administrator of Acquisition Policy, and introduction of Deputy Chief Acquisition Officer. No additional definitions were added. The GSA is publishing this as a final rule. The changes are considered administrative.
The GSA published an Advance Notice of Proposed Rulemaking (ANPR) with request for comments at 71 FR 7910 on February 15, 2006. The comments have been addressed in previous
One comment was received from numerous small businesses stating that they believe the GSAR may unnecessarily impose an adverse significant economic impact on a substantial number of small entities and is concerned that any changes GSA might propose will fail to address the biggest problem affecting small business today. The commenter further states that GSA policies must address the major problems that continue to allow this to happen. The commenter's main concern is that there is not enough oversight at the Federal level and large businesses have been finding loopholes that result in small business contracts not getting their fair share of Federal Government small business contracts. The commenter further states that GSA policies must address the major problems that continue to allow this to happen and that GSA propose policies to ensure that 23 percent of Federal contracts go to legitimate small businesses, as the law requires.
The GSA non-concurs. The comment is outside the scope of the GSAM. The U.S. Government Accountability Office has the primary oversight for fraud, abuse and loopholes. Further, the GSA is only one agency that contributes to the government-wide statutory 23 percent goal. GSA continually exceeds the 23 percent goal.
Another commenter recommended that the GSAR be revised to provide that contractors may apply general and administrative costs (G&A) to travel costs and other direct changes in
The GSA non-concurs. Part 31 of the FAR does not prescribe the types of direct charges, such as travel, against which indirect costs may be applied. Rather, it provides broad discretion to an organization in selecting the bases for charging indirect costs. Travel is one of innumerable direct costs that can serve as a base for the application of indirect costs, provided that such indirect charges are in compliance with the organization's approved Cost Accounting Standards (CAS) disclosure statement. To the extent that travel is among a large number of potential bases for the charging of indirect costs, there is no compelling reason to single out travel in the FAR, much less the GSAR, as such a base.
Another commenter recommended that the GSAM clarify the requirement to establish and maintain Earned Value Management Systems in a manner consistent with current Department of Defense policy.
The GSA non-concurs. Change 19 to the GSAM adds coverage to Part 534, Major Systems Acquisition, to provide guidance on the implementation of Earned Value Management Systems in GSA contracts.
Another commenter recommended revision of the GSAR to clarify the ability of agencies to enter into share-in-savings contracts.
The GSA non-concurs. The statute governing share-in-savings contracts for information technology expired several years ago. Some agencies still have authority to enter into share-in-savings contracts for other purposes, such as energy savings performance contracting. Those agencies may provide guidance regarding share-in-savings contracts pertaining to their respective agencies.
Another commenter recommended revising the Assignment of Claims clause to facilitate contractor teaming arrangements. The commenter further stated that the clause should permit one teammate to be the lead and issue invoices and accept payment on behalf of the other teammate(s).
The GSA non-concurs. This change is outside the scope of the GSAM rewrite. A change of this nature would require a change to the FAR, not the GSAM.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act applies; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 3090-0027.
Government procurement.
40 U.S.C. 486(c).
(a) Except in the Federal Acquisition Service (FAS), a director of a Central Office or Regional office Division responsible for performing contracting or contract administration functions.
(b) In FAS Central Office—
(1) The Assistant Commissioner for Assisted Acquisition Services or designee;
(2) The Assistant Commissioner for General Supplies and Services or designee;
(3) The Assistant Commissioner for Integrated Technology Services or designee;
(4) The Assistant Commissioner for Travel, Motor Vehicle and Card Services or designee; and
(5) The Assistant Commissioner for Acquisition Management or designee for support offices with contracting functions.
(c) In FAS Regions, the Assistant Regional Commissioner or designee.
Farm Service Agency, USDA.
Proposed rule.
The Farm Service Agency (FSA) is proposing to amend the Farm Loan Programs (FLP) direct loan servicing regulations primarily to implement provisions of the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill). FSA proposes four amendments to the rules. The first amendment would further emphasize transitioning borrowers to private sources of credit in the shortest timeframe practicable. The second amendment would amend the Homestead Protection lease regulations by extending the right to purchase the leased property to the lessee's immediate family when the lessee is a member of a socially disadvantaged group. The third amendment would amend the account liquidation regulations to suspend certain loan acceleration and foreclosure actions, including suspending interest accrual and offsets, if a borrower has filed a claim of program discrimination that has been accepted as valid by USDA and is at the point of acceleration or foreclosure. The fourth amendment would amend the supervised bank account regulations to be consistent with the recently amended Federal Deposit Insurance Act.
We will consider comments that we receive by October 6, 2009.
We invite you to submit written comments on this proposed rule. In your comment, include the volume, date, and page number of this issue of the
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Comments may be inspected in the Office of the Director, Loan Servicing and Property Management Division (LSPMD), Farm Service Agency, at 1250 Maryland Ave., SW., Suite 500, Washington, DC, between 8 a.m. and 4:30 p.m., except holidays.
Michael C. Cumpton, Assistant to the Director, LSPMD, Farm Service Agency;
This proposed rule implements three provisions of the 2008 Farm Bill (Public Law 110-246; June 18, 2008) concerning loan servicing for FSA's direct loan program. This law repealed Public Law 110-234 dated May 22, 2008 that inadvertently omitted Title III (Trade of the 2008 Farm Bill.) FSA loans are a means of providing credit to farmers whose financial risk exceeds a level acceptable to commercial lenders. For two of these amendments, the one that would allow family members of lessees who are members of a socially disadvantaged group to purchase properties under Homestead Protection and the one setting a moratorium on foreclosure actions for borrowers with an accepted program discrimination claim, there is little to no discretion in how to implement the provisions of the 2008 Farm Bill. For the third amendment promoting the goal of transitioning borrowers to private credit, the 2008 Farm Bill provides general guidance. In addition, this proposed rule would implement a conforming amendment to comply with section 136 of the Emergency Economic Stabilization Act of 2008 (Pub. L. 110-343; October 3, 2008), which temporarily increased the standard maximum deposit insurance amount for Federal Deposit Insurance Corporation (FDIC)-insured accounts.
Sections 302(a), 311(a), and 321(a) of the Consolidated Farm and Rural Development Act (the Con Act) establish the inability “to obtain sufficient credit elsewhere” as an eligibility requirement for FLP direct loans. Section 319 of the Con Act requires that FSA develop a plan “to encourage each borrower * * * to graduate to private commercial or other sources of credit.”
Section 5304 of the 2008 Farm Bill requires that the Secretary “establish a plan and promulgate regulations (including performance criteria) that promote the goal of transitioning borrowers to private commercial credit and other sources of credit in the shortest time practicable.” Both section 319 of the Con Act and section 5304 of the 2008 Farm Bill require coordination with the following sections of the Con Act:
• Borrower training established under section 359;
• Loan assessment established under section 360;
• Supervised credit under section 361; and
• Market placement under section 362.
FSA has implemented the borrower training program in existing regulations in 7 CFR part 764, subpart J. The market placement program is addressed in 7 CFR 762.110(g). Requirements regarding a borrower's graduation to another source of credit are addressed in 7 CFR part 765, subpart C. None of these regulations would be changed by this proposed rule. The supervised credit requirement, which includes the loan assessment program, is specified in 7 CFR part 761, subpart C. This rule proposes to amend 7 CFR 761.103 pertaining to farm assessments, as well as 7 CFR 761.1, “Introduction,” to encourage the transitioning of borrowers
FSA is developing an internal plan that will include performance criteria to evaluate its success in transitioning borrowers to commercial credit. Performance criteria are not being established for borrowers in this proposed rule.
This rule proposes to amend section 766.154, “Homestead Protection Leases.” Section 766.154(c) currently addresses the right of a lessee to purchase leased property under Homestead Protection. This proposed amendment would expand that right to also allow an immediate family member of a lessee who is a member of a socially disadvantaged group (as currently defined in section 761.2) to exercise the option to purchase, as required by section 5305 of the 2008 Farm Bill. The lessee may designate a member of the lessee's immediate family (parent, sibling, or child) as having this right to purchase. This immediate family member also has the right under section 5305 to choose any independent appraiser from a list of three approved by FSA to establish the current market value of the property. This policy will be added to the FSA Handbook procedures.
Section 14002 of the 2008 Farm Bill requires a moratorium on certain acceleration and loan foreclosure proceedings against any farmer or rancher who has a claim of program discrimination accepted by the Department as valid or who files such a claim that is accepted. The statutory moratorium applies only with respect to Farm Loan Program loans made under subtitle A, B, or C, of the Con Act, which includes Farm Ownership (FO), Soil and Water (SW), Recreation loans, and Emergency (EM) loans. Section 343(a)(10) of the Con Act defines “Farmer Program Loan” to include FO loans under section 303, Operating Loans (OL) under section 312, SW loans under section 304, EM loans under section 321, Economic Emergency (EE) loans under section 202 of the Emergency Agricultural Credit Adjustment Act, Economic Opportunity (EO) loans under the Economic Opportunity Act of 1961, Softwood Timber (ST) loans under section 1254 of the Food Security Act of 1985, and Rural Housing loans for farm service buildings (RHF) under section 502 of the Housing Act of 1949. SW, EE, EO, ST, and RHF loans are no longer being made, but a few remain to be serviced. FSA regulation, 7 CFR 761.2, also includes Recreation loans formerly made under section 304 of the Con Act as a “program loan.” Loans made under statutory authorities other than the Con Act, such as the EE, EO, ST, and RHF loans, would not be covered by the section 14002 moratorium, but will continue to be covered by FSA's internal voluntary suspension of acceleration and foreclosure when the borrower has a program discrimination complaint accepted by the USDA Office of Adjudication and Compliance (OAC).
Non-program loans are not covered by the mandatory section 14002 moratorium, but will continue to be covered by the Agency's voluntary suspension policy on acceleration and foreclosure when the borrower has a program discrimination complaint accepted by OAC. Non-program loans are defined by section 761.2 as those loans made on more stringent terms for the convenience of FSA because the applicant or property does not qualify for a program loan under applicable statutes and regulations. For example, under FSA regulations a third party may assume a program loan on non-program terms if the transferee is not eligible for the program loan, and in some circumstances FSA might collect an unauthorized loan by permitting the borrower to continue making payments on non-program terms. Homestead Protection financing and financing of recapture under Shared Appreciation Agreements authorized by sections 352 and 353 of the Con Act, respectively, also are considered non-program loans. Non-program loans historically have not been considered eligible for the broad loan servicing options available for program loans. These servicing rights are commonly the subject of dispute in the program discrimination claims addressed by section 14002, so it is reasonable to limit the moratorium to the program loans specified in the statute. FSA has found no Congressional intent for this moratorium provision to cover non-program loans. In fact, Congress' specific reference to “Farm Loan Program Loans” indicates otherwise. Liquidation of non-program loans, therefore, may be delayed if a borrower's program loans are under moratorium. This rule proposes to amend section 766.351, “Liquidation,” to specify the provisions of the moratorium accordingly.
An “accepted” claim under section 14002 is a claim for which OAC has made the determination to accept on basic jurisdictional grounds. As explained in the Conference Report for the 2008 Farm Bill, “accepted” is a procedural term and not a statement as to the merits of the program discrimination claim. The acceptance of the claim is distinct from the person's filing of a program discrimination claim. The moratorium began on the effective date of the 2008 Farm Bill, which was May 22, 2008, if the borrower had a pending claim that was accepted and the borrower was at the point of acceleration and foreclosure on or prior to that date. Otherwise, it will begin when a program discrimination complaint has been accepted and the borrower is at the point of acceleration or foreclosure. In either case, moratorium begins after all available loan servicing and appeal rights have been offered to the borrower. If the borrower's account were accelerated and foreclosed prior to enactment of the statute or OAC's acceptance of the borrower's program discrimination claim, the moratorium would never be triggered. The moratorium will end on the earlier of the date the program discrimination claim is resolved by USDA OAC, or the date that a court of competent jurisdiction renders a final decision on the program discrimination claim if the farmer or rancher appeals the decision of USDA OAC.
In addition to the moratorium on acceleration and foreclosure, section 14002 provided that interest accrual and offset would be suspended on the farm program loans made under subtitle A, B, or C of the Con Act for the claimants during the moratorium period (at the point of acceleration or foreclosure after all servicing and appeal rights have been exhausted). These benefits were not provided under FSA's prior voluntary suspension policy and cannot be provided on any loans not made under subtitle A, B, or C of the Con Act. Interest accrual and Treasury offset generally are required by 31 U.S.C. sections 3717 and 3716, respectively. Interest accruals and offsets will resume on the covered loans when the moratorium terminates. If the borrower does not prevail on the program discrimination claim, the borrower will be liable for the interest that accrued during the moratorium under section 14002. In such case, the interest that would have accrued during the moratorium will be reinstated on the debt. Any debt that would have been
This rule proposes to amend existing regulations in 7 CFR 761.51(e) which currently require that a financial institution pledge acceptable collateral with the Federal Reserve Bank when the balance deposited into a supervised bank account will exceed $100,000. The Emergency Economic Stabilization Act of 2008, section 136, amended the Federal Deposit Insurance Corporation Act to temporarily increase the standard maximum deposit insurance amount from $100,000 to $250,000, effective October 3, 2008, and ending December 31, 2009. After that date, the standard maximum deposit insurance amount will return to $100,000. This rule, therefore, proposes to amend section 761.51, “Establishing a Supervised Bank Account,” to remove the reference to the $100,000 threshold for insured balances and replace it with a reference to “the maximum amount insurable by the Federal Government.”
The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB was not required to review this proposed rule.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601), FSA is certifying that there would not be a significant economic impact on a substantial number of small entities. All FSA direct loan borrowers and all farm entities affected by this rule are small businesses according to the North American Industry Classification System and the U. S. Small Business Administration. There is no diversity in size of the entities affected by this rule, and the costs to comply with it are the same for all entities.
In this rule, FSA is proposing to revise regulations that affect loan servicing only.
In 2007, over 2,500 direct borrowers (about 3.7 percent of the portfolio) graduated to commercial credit. FSA believes graduation will continue in the 3 to 5 percent range and is dependent on the overall farm economy.
Currently, FSA has 38 inventory properties under a Homestead Protection lease. The extension of purchase rights to the immediate family of lessees who are a members of a socially disadvantaged group will affect very few of these cases.
Due to the acceleration and foreclosure moratorium FSA expects some Government losses due to the suspension of interest accrual (when the borrower prevails) and the loss of some offset payments. FSA does not expect these changes to impose any additional cost to the borrowers. Therefore, the costs of compliance from this rule are expected to be minimal. Therefore, FSA certifies that this rule will not have a significant economic impact on a substantial number of small entities.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). The changes to the FLP direct loan servicing program, required by the 2008 Farm Bill that are identified in this proposed rule, are non-discretionary. Therefore, FSA has determined that NEPA does not apply to this rule, and no environmental assessment or environmental impact statement will be prepared.
This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with the executive order: (1) All State and local laws and regulations that are in conflict with this rule would be preempted; (2) no retroactive effect would be given to this rule; and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule unless those regulations specifically allow bringing suit at an earlier time.
For reasons set forth in the Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This proposed rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and tribal governments or the private sector. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of UMRA.
The policies contained in this rule would not have any substantial direct effect on States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor would this proposed rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
The amendments proposed for 7 CFR parts 761 and 766 require no changes or new collection to the currently approved information collections by OMB under the control numbers of 0560-0233, 0560-0233 and 0560-0238.
FSA 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.
The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this proposed rule would apply are:
10.404 Emergency Loans;
10.406 Farm Operating Loans;
10.407 Farm Ownership Loans.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—Agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—Agriculture.
For the reasons discussed in the preamble, the Farm Service Agency (USDA) proposes to amend 7 CFR chapter VII as follows:
1. The authority citation for part 761 continues to read as follows:
5 U.S.C. 301 and 7 U.S.C. 1989.
2. In § 761.1, paragraph (c) is amended by adding a new fourth sentence at the end to read as follows:
(c) * * * The programs are designed to allow those who participate to transition to private commercial credit or other sources of credit in the shortest period of time practicable through the use of supervised credit, including farm assessments, borrower training, and market placement.
3. In § 761.51, paragraph (e) is revised to read as follows:
(e) If the funds to be deposited into the account cause the balance to exceed the maximum amount insurable by the Federal Government, the financial institution must agree to pledge acceptable collateral with the Federal Reserve Bank for the excess over the insured amount, before the deposit is made.
4. In § 761.103, paragraph (a) is revised to read as follows:
(a) The Agency, in collaboration with the applicant, will assess the farming operation to:
(1) Determine the applicant's financial condition, organization structure, and management strengths and weaknesses;
(2) Identify and prioritize training and supervisory needs; and
(3) Develop a plan of supervision to assist the borrower in achieving financial viability and transitioning to private commercial credit or other sources of credit in the shortest time practicable.
5. The authority citation for part 766 is revised to read as follows:
5 U.S.C. 301 and 7 U.S.C. 1989.
6. In § 766.154, paragraph (c) is revised to read as follows:
(c)
(2) If the lessee is a member of a socially disadvantaged group, the lessee may designate a member of the lessee's immediate family (that is, parent, sibling, or child) (designee) as having the right to exercise the option to purchase.
(3) The purchase price is the market value of the property when the option is exercised as determined by a current appraisal obtained by the Agency.
(4) The lessee or designee may purchase homestead protection property with cash or other credit source.
(5) The purchaser may receive Agency program or non-program financing provided:
(i) The purchaser has not received previous debt forgiveness;
(ii) The Agency has funds available to finance the purchase of homestead protection property;
(iii) The purchaser demonstrates an ability to repay such an FLP loan; and
(iv) The purchaser is otherwise eligible for the FLP loan.
7. Section 766.358 is added to read as follows:
(a) Notwithstanding any other provisions of this subpart, borrowers who file or have filed a program discrimination complaint that is accepted by USDA Office of Adjudication and Compliance or successor office (USDA), and have been serviced to the point of acceleration or foreclosure on or after May 22, 2008, will not be accelerated or liquidated until such complaint has been resolved by USDA or closed by a court of competent jurisdiction. This moratorium applies only to program loans made under subtitle A, B, or C of the Act (for example, FO, OL, EM, SW, or RL). Interest will not accrue and no offsets will be taken on these loans during the moratorium. Interest accrual and offsets will continue on all other loans, including, but not limited to, non-program loans.
(1) If the Agency prevails on the program discrimination compliant, the interest that would have accrued during the moratorium will be reinstated on the account when the moratorium terminates, and all offsets and servicing actions will resume.
(2) If the borrower prevails on the program discrimination compliant, the interest that would have accrued during the moratorium will not be reinstated on the account unless specifically required by the settlement agreement or court order.
(b) The moratorium will begin on:
(1) May 22, 2008, if the borrower had a pending program discrimination claim that was accepted by USDA as valid and was at the point of acceleration or foreclosure on or before that date or
(2) The date after May 22, 2008, when the borrower has a program discrimination claim accepted by USDA as valid and the borrower is at the point of acceleration or foreclosure.
(c) The point of acceleration under this section is the earliest of the following:
(1) The day after all rights offered on the Agency notice of intent to accelerate expire if the borrower does not appeal;
(2) The day after all appeals resulting from an Agency notice of intent to accelerate are concluded if the borrower appeals and the Agency prevails on the appeal;
(3) The day after all appeal rights have been concluded relating to a failure to graduate and the Agency prevails on any appeal;
(4) Any other time when, because of litigation, third party action, or other unforeseen circumstance, acceleration is the next step for the Agency in servicing and liquidating the account.
(d) A borrower is considered to be in foreclosure status under this section anytime after acceleration of the account.
(e) The moratorium will end on the earlier of:
(1) The date the program discrimination claim is resolved by USDA or
(2) The date that a court of competent jurisdiction renders a final decision on the program discrimination claim if the farmer or rancher appeals the decision of USDA.
Office of the Chief Financial Officer, Department of Energy.
Proposed rule.
On October 23, 2007, the Department of Energy (DOE or the Department) published a final rule establishing regulations for the loan guarantee program authorized by Section 1703 of Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act). Section 1703 of Title XVII authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Section 1703 of Title XVII also identifies ten categories of technologies and projects that are potentially eligible for loan guarantees. The two principal goals of section 1703 of Title XVII are to encourage commercial use in the United States of new or significantly improved energy-related technologies and to achieve substantial environmental benefits. DOE believes that commercial use of these technologies will help sustain and promote economic growth, produce a more stable and secure energy supply and economy for the United States, and improve the environment.
Through experience gained implementing the loan guarantee program authorized by section 1703 of Title XVII, and information received from industry indicating the wide variety of ownership structures which participants would like to employ in implementing projects seeking loan guarantees, DOE believes it is appropriate to consider certain changes to the existing regulations to provide flexibility in the determination of an appropriate collateral package to secure guaranteed loan obligations, facilitate collateral sharing and related intercreditor arrangements with other project lenders, and to provide a more workable interpretation of certain statutory provisions regarding DOE's treatment of collateral.
Comments on this proposed rule must be postmarked no later than September 8, 2009.
Comments may be submitted using any of the following methods:
•
•
•
•
David G. Frantz, Director, Loan Guarantee Program Office, Office of the Chief Financial Officer, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-8336, e-mail:
Today's proposed rule would amend the regulations implementing the loan guarantee program authorized by section 1703 of Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514) (referred to as Title XVII). Section 1703 of Title XVII authorizes the Secretary of Energy (Secretary), after consultation with the Secretary of the Treasury, to make loan guarantees for projects that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and (2) employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” (42 U.S.C. 16513(a))
Section 1702 of Title XVII outlines general terms and conditions for loan guarantee agreements and directs the Secretary to include in loan guarantee agreements “such detailed terms and conditions as the Secretary determines appropriate to (i) protect the interests of the United States in case of a default; and (ii) have available all the patents and technology necessary for any person selected, including the Secretary, to complete and operate the project. (42 U.S.C. 16512(g)(2)(c)). Further, section 1702(d) addresses certain threshold requirements that must be met before the guaranty is made; and section 1702(g) addresses the Secretary's rights in the case of default of the loan. Specifically, section 1702(d) of Title XVII states, under the heading “Repayment” and addressing “Subordination,” that “[t]he [guaranteed] obligation shall be subject to the condition that the obligation is not subordinate to other financing.” Further, when addressing the situation of default, section 1702(g)(2) of Title XVII states, with respect to “subrogation” and “superiority of rights,” that “[t]he rights of the Secretary, with respect to any property acquired pursuant to a guarantee or related agreements, shall be superior to the rights of any other person with respect to the property.”
In the October 23, 2007 final rule implementing Title XVII, DOE interpreted the interplay between these two provisions of section 1702 such that both describe the rights the Secretary must secure as a condition of making a guarantee. This understanding is reflected in the text of the regulations which requires that the Secretary receive a first lien security interest in all project assets as an incident to making a guarantee. Moreover, this
The Department has critically reexamined the statute, particularly its text and structure, and now concludes, as described below, that the interpretation of the statute requiring receipt of a first lien on all project assets is not one that it was legally compelled to adopt, and was not correct. A first lien on all project assets is better understood as one element that the Secretary may require for a particular project, but is not compelled by the statute to require. This proposed rulemaking reflects what the Department has concluded is the correct interpretation of section 1702.
First, it should be borne in mind that nowhere does section 1702 itself require that the Secretary receive a first lien on all project assets as a condition of his ability to make a loan guarantee. Instead the statute requires only that the Secretary's guaranteed obligation “not be subordinate to other financing.” In fact, section 1702 does not require that the lender or the Secretary receive any collateral as a statutory requirement for making a loan guarantee.
Next, the “first lien on all project assets” requirement contained in the regulations seems traceable only to the “superiority of rights” provision contained in section 1702(g)(2)(B). The structure of the statute, however, is suggestive that section 1702(g)'s provisions are designed to govern post-default rights of the Secretary, rather than to impose conditions that must be met at the time the Secretary determines to make a loan guarantee. So understood, the “property acquired” as to which the Secretary's rights “shall be superior to the rights of any other person” relates to property “acquired” by the Secretary pursuant to his right of subrogation to the rights of the lender in any collateral or security interest.
As a structural matter, it is notable that the “superiority of rights” provision appears within and under the head “subrogation” contained in section 1702(g)(2). Consideration of the structure of the statute is aided by the various captions that introduce its various substantive provisions. In general, those captions—first “repayment,” then “subordination,” then “defaults,” “payment by the Secretary,” “subrogation,” and then “superiority of rights,”—tend to reinforce the structural understanding of the statute as keying its particular provisions to the sequence of stages that are foreseeable in the loan guarantee relationship. So perceived, the topic of “superiority of rights” would become germane only as a subset of the sequence that begins with a “default” and after “payment by the Secretary.”
Moreover, in reviewing applications for projects seeking a loan guarantee under section 1703 of Title XVII, DOE became aware that its original reading of the statute was in tension with the financing structure of many commercial transactions in the energy sector. In particular, the tenancy in common ownership structure proposed for the next generation of nuclear generating facilities, under which multiple entities own undivided interests in a single facility, does not lend itself to the unitary project ownership anticipated by the regulations. In fact, tenancy in common is the typical form of ownership of utility grade power plants that are jointly owned by public power agencies, cooperative power systems and investor-owned utilities. Approximately one-third of all currently operating nuclear power reactors, and approximately one-third of all planned nuclear power reactors for which applications are pending at the Nuclear Regulatory Commission are jointly owned through tenancies in common. As such, each owner holds an undivided interest in the physical project assets, and each owner typically finances its investment in the project separately. In this scenario, DOE would not be lending directly to a project company, and may be lending only to some but not all of the project owners. As a result, it may not be commercially feasible to obtain a lien on all project assets. Moreover, in certain circumstances, both in large infrastructure projects and in smaller projects, creditworthy sponsors may be willing to offer a corporate lending structure in which DOE would rely on the balance sheet of the sponsor. In such a case, the credit of the sponsor may be sufficient to support a more modest pledge of assets.
Additionally, in response to prior solicitations, DOE has received expressions of interest from Export Credit Agencies (ECAs) concerning their possible participation in eligible projects as co-lenders, co-guarantors or insurers of loans. ECAs are governmental, quasi-governmental, or private institutions supported by and acting on behalf of their host governments that facilitate financing for home country exporters doing business in other nations. In addition to ECAs, there is a variety of other potential sources of financing for power generation projects, including municipal bond financing. There also could be interest rate or commodity hedging agreements and, after completion, working capital facilities for project companies. The ECAs, and likely the other sources of financing, will expect to share, on a
Thus, the interpretation of the statute contained in the October 23, 2007, final rule effectively disqualifies from participation in Title XVII programs proposed energy production facilities that employ innovative technologies, particularly in the nuclear power industry, that are jointly owned through a tenants in common structure or where there are appropriate co-lenders or co-guarantors who require a
As stated and explained above, DOE has concluded that section 1702 of Title XVII does not mandate that DOE receive a first lien position on all projects assets. In light of this interpretation of section 1702 of Title XVII, DOE is proposing amendments to the existing regulations. Specifically, to ensure that the loan guarantee program has the ability to respond to the kinds of structuring issues discussed above, the proposed rule would delete the requirement of a first priority lien on all project assets (and other pledged collateral) and leave to the Secretary the determination of an appropriate collateral package, as well as intercreditor arrangements. Such a determination by the Secretary is contemplated by sections 1702(a) and 1702 (g)(2)(C), and remains subject to the requirement of section 1702(d)(3) that the guaranteed obligation not be subordinate to other financing. The Department believes that having the flexibility to determine on a project by project basis the scope of the collateral package and whether
Today's proposed rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs at Office of Management and Budget (OMB).
Through the issuance of this proposed rule, DOE is making no decision relative to the approval of a loan guarantee for a particular proposed project. DOE has, therefore, determined that publication of the proposed rule is covered under the Categorical Exclusion found at paragraph A.6 of Appendix A to Subpart D, 10 CFR part 1021, which applies to the establishment of procedural rulemakings. Accordingly, neither an environmental assessment nor an environmental impact statement is required at this time. However, appropriate NEPA project review will be conducted prior to execution of a Loan Guarantee Agreement.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE is not obliged to prepare a regulatory flexibility analysis for this rulemaking because there is no requirement to publish a general notice of proposed rulemaking for rules related to loans under the Administrative Procedure Act (5 U.S.C. 553(a)(2)).
This proposed rule involves a collection of information previously approved by OMB under Control Number [1910-5134]. The burden imposed by that collection is ________.
Title II of the Unfunded Mandates Reform Act of 1995 (Act) (2 U.S.C. 1531
The term “Federal mandate” is defined in the Act to mean a Federal intergovernmental mandate or a Federal private sector mandate (2 U.S.C. 658(6)). Although the rule will impose certain requirements on non-Federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “Federal intergovernmental mandate” and “Federal private sector mandate” exclude, among other things, any provision in legislation, statute, or regulation that is a condition of Federal assistance or a duty arising from participation in a voluntary program (2 U.S.C. 658(5) and (7), respectively). Today's proposed rule establishes requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a Federal loan guarantee. Thus, the proposed rule falls under the exceptions in the definitions of “Federal intergovernmental mandate” and “Federal private sector mandate” for requirements that are a condition of Federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
The Secretary of Energy has approved the issuance of this proposed rule.
Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements.
For the reasons stated in the preamble, chapter II of title 10 of the Code of Federal Regulations is proposed to be amended to read as set forth below.
1. Part 609 is revised to read as follows:
42 U.S.C. 7254, 16511-16514.
(a) This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and, after consultation with the Department of the Treasury, approving applications for loan guarantees to support Eligible Projects under Section 1703 of Title XVII of the Energy Policy Act of 2005, as amended.
(b) Except as set forth in paragraph (c) of this section, this part applies to all Pre-Applications, Applications, Conditional Commitments and Loan Guarantee Agreements to support Eligible Projects under Section 1703 of Title XVII of the Energy Policy Act of 2005, as amended.
(c) Sections 609.3, 609.4 and 609.5 of this part shall not apply to any Pre-Applications, Applications, Conditional Commitments or Loan Guarantee Agreements under the Guidelines issued by DOE on August 8, 2006, which were published in the
(d) Part 1024 of chapter X of title 10 of the Code of Federal Regulations shall not apply to actions taken under this part.
(1) The evaluation of a Pre-Application, if a Pre-Application is requested in a solicitation, and an Application for a loan guarantee;
(2) The offering of a Term Sheet, executing the Conditional Commitment, negotiation, and closing of a Loan Guarantee Agreement; and
(3) The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project.
(1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less
(2) Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement.
(1) Any person or legal entity formed for the purpose of, or engaged in the business of, lending money, including, but not limited to, commercial banks, savings and loan institutions, insurance companies, factoring companies, investment banks, institutional investors, venture capital investment companies, trusts, or other entities designated as trustees or agents acting on behalf of bondholders or other lenders; and
(2) Any person or legal entity that meets the requirements of § 609.11 of this part, as determined by DOE; or
(3) The Federal Financing Bank.
(1) Only recently been developed, discovered or learned; or
(2) Involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued.
(a) DOE may issue solicitations to invite the submission of Pre-Applications or Applications for loan guarantees for Eligible Projects. DOE must issue a solicitation before proceeding with other steps in the loan guarantee process including issuance of a loan guarantee. A Project Sponsor or Applicant may only submit one Pre-Application or Application for one project using a particular technology. A Project Sponsor or Applicant, in other words, may not submit a Pre-Application or Application for multiple projects using the same technology.
(b) Each solicitation must include, at a minimum, the following information:
(1) The dollar amount of loan guarantee authority potentially being made available by DOE in that solicitation;
(2) The place and time for response submission;
(3) The name and address of the DOE representative whom a potential Project Sponsor may contact to receive further information and a copy of the solicitation;
(4) The form, format, and page limits applicable to the response submission;
(5) The amount of the application fee (First Fee), if any, that will be required;
(6) The programmatic, technical, financial and other factors the Secretary will use to evaluate response submissions, including the loan guarantee percentage requested by the Applicant and the relative weightings that DOE will use when evaluating those factors; and
(7) Such other information as DOE may deem appropriate.
In response to a solicitation requesting the submission of Pre-Applications, either Project Sponsors or Applicants may submit Pre-Applications to DOE. Pre-Applications must meet all requirements specified in the solicitation and this part. At a minimum, each Pre-Application must contain all of the following:
(a) A cover page signed by an individual with full authority to bind the Project Sponsor or Applicant that attests to the accuracy of the information in the Pre-Application, and that binds the Project Sponsor(s) or Applicant to the commitments made in the Pre-Application. In addition, the information requested in paragraphs (b) and (c) should be submitted in a volume one and the information requested in paragraphs (d) through (h) of this section should be submitted in a volume two, to expedite the DOE review process.
(b) An executive summary briefly encapsulating the key project features and attributes of the proposed project;
(c) A business plan which includes an overview of the proposed project, including:
(1) A description of the Project Sponsor, including all entities involved, and its experience in project investment, development, construction, operation and maintenance;
(2) A description of the new or significantly improved technology to be employed in the project, including:
(i) A report detailing its successes and failures during the pilot and demonstration phases;
(ii) The technology's commercial applications;
(iii) The significance of the technology to energy use or emission control;
(iv) How and why the technology is “new” or “significantly improved” compared to technology already in general use in the commercial marketplace in the United States;
(v) Why the technology to be employed in the project is not in “general use;”
(vi) The owners or controllers of the intellectual property incorporated in and utilized by such technologies; and
(vii) The manufacturer(s) and licensee(s), if any, authorized to make the technology available in the United States, the potential for replication of commercial use of the technology in the United States, and whether and how the technology is or will be made available in the United States for further commercial use;
(3) The estimated amount, in reasonable detail, of the total Project Costs;
(4) The timeframe required for construction and commissioning of the project;
(5) A description of any primary off-take or other revenue-generating agreements that will provide the primary sources of revenues for the project, including repayment of the debt obligations for which a guarantee is sought.
(6) An overview of how the project complies with the eligibility requirements in section 1703 of the Act (42 U.S.C. 16513);
(7) An outline of the potential environmental impacts of the project and how these impacts will be mitigated;
(8) A description of the anticipated air pollution and/or anthropogenic greenhouse gas reduction benefits and how these benefits will be measured and validated; and
(9) A list of all of the requirements contained in this part and the solicitation and where in the Pre-Application these requirements are addressed;
(d) A financing plan overview describing:
(1) The amount of equity to be invested and the sources of such equity;
(2) The amount of the total debt obligations to be incurred and the funding sources of all such debt if available;
(3) The amount of the Guaranteed Obligation as a percentage of total project debt; and as a percentage of total project cost; and
(4) A financial model detailing the investments in and the cash flows generated and anticipated from the project over the project's expected life-cycle, including a complete explanation of the facts, assumptions, and methodologies in the financial model;
(e) An explanation of what estimated impact the loan guarantee will have on the interest rate, debt term, and overall financial structure of the project;
(f) Where the Federal Financing Bank is not the lender, a copy of a letter from an Eligible Lender or other Holder(s) expressing its commitment to provide, or interest in providing, the required debt financing necessary to construct and fully commission the project;
(g) A copy of the equity commitment letter(s) from each of the Project Sponsors and a description of the sources for such equity; and
(h) A commitment to pay the Application fee (First Fee), if invited to submit an Application.
(a) Where Pre-Applications are requested in a solicitation, DOE will conduct an initial review of the Pre-Application to determine whether:
(1) The proposal is for an Eligible Project;
(2) The submission contains the information required by § 609.4 of this part; and
(3) The submission meets all other requirements of the applicable solicitation.
(b) If a Pre-Application fails to meet the requirements of paragraph (a) of this section, DOE may deem it non-responsive and eliminate it from further review.
(c) If DOE deems a Pre-Application responsive, DOE will evaluate:
(1) The commercial viability of the proposed project;
(2) The technology to be employed in the project;
(3) The relevant experience of the principal(s); and
(4) The financial capability of the Project Sponsor (including personal and/or business credit information of the principal(s)).
(d) After the evaluation described in paragraph (c) of this section, DOE will determine if there is sufficient information in the Pre-Application to assess the technical and commercial viability of the proposed project and/or the financial capability of the Project Sponsor and to assess other aspects of the Pre-Application. DOE may ask for additional information from the Project Sponsor during the review process and may request one or more meetings with the Project Sponsor.
(e) After reviewing a Pre-Application and other information acquired under paragraph (c) of this section, DOE may provide a written response to the Project Sponsor or Applicant either inviting the Applicant to submit an Application for a loan guarantee and specifying the amount of the Application filing fee (First Fee) or advising the Project Sponsor that the project proposal will not receive further consideration. Neither the Pre-Application nor any written or other feedback that DOE may provide in response to the Pre-Application eliminates the requirement for an Application.
(f) No response by DOE to, or communication by DOE with, a Project Sponsor, or an Applicant submitting a Pre-Application or subsequent Application shall impose any obligation on DOE to enter into a Loan Guarantee Agreement.
(a) In response to a solicitation or written invitation to submit an Application, an Applicant submitting an Application must meet all requirements and provide all information specified in the solicitation and/or invitation and this part.
(b) An Application must include, at a minimum, the following information and materials:
(1) A completed Application form signed by an individual with full authority to bind the Applicant and the Project Sponsors;
(2) Payment of the Application filing fee (First Fee) for the Pre-Application, if any, and Application phase;
(3) A detailed description of all material amendments, modifications, and additions made to the information and documentation provided in the Pre-Application, if a Pre-Application was requested in the solicitation, including any changes in the proposed project's financing structure or other terms;
(4) A description of how and to what measurable extent the project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those benefits;
(5) A description of the nature and scope of the proposed project, including:
(i) Key milestones;
(ii) Location of the project;
(iii) Identification and commercial feasibility of the new or significantly improved technology(ies) to be employed in the project;
(iv) How the Applicant intends to employ such technology(ies) in the project; and
(v) How the Applicant intends to assure, to the extent possible, the further commercial availability of the technology(ies) in the United States;
(6) A detailed explanation of how the proposed project qualifies as an Eligible Project;
(7) A detailed estimate of the total Project Costs together with a description of the methodology and assumptions used;
(8) A detailed description of the engineering and design contractor(s), construction contractor(s), equipment supplier(s), and construction schedules for the project, including major activity and cost milestones as well as the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties to be provided;
(9) A detailed description of the operations and maintenance provider(s), the plant operating plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated annual downtime, and performance guarantees and related liquidated damage provisions, if any;
(10) A description of the management plan of operations to be employed in carrying out the project, and information concerning the management experience of each officer or key person associated with the project;
(11) A detailed description of the project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;
(12) An analysis of the market for any product to be produced by the project, including relevant economics justifying the analysis, and copies of any contractual agreements for the sale of these products or assurance of the revenues to be generated from sale of these products;
(13) A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity and debt, and the liability of parties associated with the project over the term of the Loan Guarantee Agreement;
(14) A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the project;
(15) A copy of the financial closing checklist for the equity and debt to the extent available;
(16) Applicant's business plan on which the project is based and Applicant's financial model presenting project
(17) Financial statements for the past three years, or less if the Applicant has been in operation less than three years, that have been audited by an independent certified public accountant, including all associated notes, as well as interim financial statements and notes for the current fiscal year, of Applicant and parties providing Applicant's financial backing, together with business and financial interests of controlling or commonly controlled organizations or persons, including parent, subsidiary and other affiliated corporations or partners of the Applicant;
(18) A copy of all legal opinions, and other material reports, analyses, and reviews related to the project;
(19) An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address: The project's siting and permitting, engineering and design, contractual requirements, environmental compliance, testing and commissioning and operations and maintenance;
(20) Credit history of the Applicant and, if appropriate, any party who owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the project or the Applicant;
(21) A preliminary credit assessment for the project without a loan guarantee from a nationally recognized rating agency for projects where the estimated total Project Costs exceed $25 million. For projects where the total estimated Project Costs are $25 million or less and
(22) A list showing the status of and estimated completion date of Applicant's required project-related applications or approvals for Federal, State, and local permits and authorizations to site, construct, and operate the project;
(23) A report containing an analysis of the potential environmental impacts of the project that will enable DOE to assess whether the project will comply with all applicable environmental requirements, and that will enable DOE to undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;
(24) A listing and description of assets associated, or to be associated, with the project and any other asset that will serve as collateral for the Guaranteed Obligations, including appropriate data as to the value of the assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;
(25) An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guaranteed Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based;
(26) Written affirmation from an officer of the Eligible Lender or other Holder confirming that it is in good standing with DOE's and other Federal agencies' loan guarantee programs;
(27) A list of all of the requirements contained in this part and the solicitation and where in the Application these requirements are addressed;
(28) A statement from the Applicant that it believes that there is “reasonable prospect” that the Guaranteed Obligations will be fully paid from project revenue; and
(29) Any other information requested in the invitation to submit an Application or requests from DOE in order to clarify an Application;
(c) DOE will not consider any Application complete unless the Applicant has paid the First Fee and the Application is signed by the appropriate entity or entities with the authority to bind the Applicant to the commitments and representations made in the Application.
(a) In reviewing completed Applications, and in prioritizing and selecting those to whom a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, the applicable solicitation, and this part. Applications will be considered in a competitive process, i.e. each Application will be evaluated against other Applications responsive to the Solicitation. Greater weight will be given to applications that rely upon a smaller guarantee percentage, all else being equal. Concurrent with its review process, DOE will consult with the Secretary of the Treasury regarding the terms and conditions of the potential loan guarantee. Applications will be denied if:
(1) The project will be built or operated outside the United States;
(2) The project is not ready to be employed commercially in the United States, cannot yield a commercially viable product or service in the use proposed in the project, does not have the potential to be employed in other commercial projects in the United States, and is not or will not be available for further commercial use in the United States;
(3) The entity or person issuing the loan or other debt obligations subject to the loan guarantee is not an Eligible Lender or other Holder, as defined in § 609.11 of this part;
(4) The project is for demonstration, research, or development;
(5) The project does not avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases; or
(6) The Applicant will not provide an equity contribution.
(b) In evaluating Applications, DOE will consider the following factors:
(1) To what measurable extent the project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases;
(2) To what extent the new or significantly improved technology to be employed in the project, as compared to Commercial Technology in general use in the United States, is ready to be employed commercially in the United States, can be replicated, yields a commercially viable project or service in the use proposed in the project, has potential to be employed in other commercial projects in the United States, and is or will be available for further commercial use in the United States;
(3) To what extent the new or significantly improved technology used in the project constitutes an important improvement in technology, as compared to Commercial Technology, used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases, and the Applicant has a plan to advance or assist in the advancement of that technology into the commercial marketplace;
(4) The extent to which the requested amount of the loan guarantee, and requested amount of Guaranteed Obligations are reasonable relative to the nature and scope of the project;
(5) The total amount and nature of the Eligible Project Costs and the extent to which Project Costs are funded by Guaranteed Obligations;
(6) The likelihood that the project will be ready for full commercial operations in the time frame stated in the Application;
(7) The amount of equity commitment to the project by the Applicant and other principals involved in the project;
(8) Whether there is sufficient evidence that the Applicant will diligently pursue the project, including initiating and completing the project in a timely manner;
(9) Whether and to what extent the Applicant will rely upon other Federal and non-Federal governmental assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the project and how such assistance will impact the project;
(10) The feasibility of the project and likelihood that the project will produce sufficient revenues to service the project's debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;
(11) The levels of safeguards provided to the Federal government in the event of default through collateral, warranties, and other assurance of repayment described in the Application, including the nature of any anticipated intercreditor arrangements;
(12) The Applicant's capacity and expertise to successfully operate the project, based on factors such as financial soundness, management organization, and the nature and extent of corporate and personal experience;
(13) The ability of the applicant to ensure that the project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;
(14) The levels of market, regulatory, legal, financial, technological, and other risks associated with the project and their appropriateness for a loan guarantee provided by DOE;
(15) Whether the Application contains sufficient information, including a detailed description of the nature and scope of the project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the project; and
(16) Such other criteria that DOE deems relevant in evaluating the merits of an Application.
(c) During the Application review process DOE may raise issues or concerns that were not raised during the Pre-Application review process where a Pre-Application was requested in the applicable solicitation.
(d) If DOE determines that a project may be suitable for a loan guarantee, DOE will notify the Applicant and Eligible Lender or other Holder in writing and provide them with a Term Sheet. If DOE reviews an Application and decides not to proceed further with the issuance of a Term Sheet, DOE will inform the Applicant in writing of the reason(s) for denial.
(a) DOE, after review and evaluation of the Application, additional information requested and received by DOE, potentially including a preliminary credit rating or credit assessment, and information obtained as the result of meeting with the Applicant and the Eligible Lender or other Holder, may offer to an Applicant and the Eligible Lender or other Holder detailed terms and conditions that must be met, including terms and conditions that must be met by the Applicant and the Eligible Lender or other Holder.
(b) The terms and conditions required by DOE will be expressed in a written Term Sheet signed by a Contracting Officer and addressed to the Applicant and the Eligible Lender or other Holder, where appropriate. The Term Sheet will request that the Project Sponsor and the Eligible Lender or other Holder express agreement with the terms and conditions contained in the Term Sheet by signing the Term Sheet in the designated place. Each person signing the Term Sheet must be a duly authorized official or officer of the Applicant and Eligible Lender or other Holder. The Term Sheet will include an expiration date on which the terms offered will expire unless the Contracting Officer agrees in writing to extend the expiration date.
(c) The Applicant and/or the Eligible Lender or other Holder may respond to the Term Sheet offer in writing or may request discussions or meetings on the terms and conditions contained in the Term Sheet, including requests for clarifications or revisions. When DOE, the Applicant, and the Eligible Lender or other Holder agree on all of the final terms and conditions and all parties sign the Term Sheet, the Term Sheet becomes a Conditional Commitment. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.
(d) DOE's obligations under each Conditional Commitment are conditional upon statutory authority having been provided in advance of the execution of the Loan Guarantee Agreement sufficient under FCRA and Title XVII for DOE to execute the Loan Guarantee Agreement, and either an appropriation has been made or a borrower has paid into the Treasury sufficient funds to cover the full Credit Subsidy Cost for the loan guarantee that is the subject of the Conditional Commitment.
(e) The Applicant is required to pay fees to DOE to cover the Administrative Cost of Issuing a Loan Guarantee for the period of the Term Sheet through the closing of the Loan Guarantee Agreement (Second Fee).
(a) Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation with the Applicant, will set a closing date for execution of Loan Guarantee Agreement.
(b) By the closing date, the Applicant and the Eligible Lender or other Holder must have satisfied all of the detailed terms and conditions contained in the Conditional Commitment and other related documents and all other contractual, statutory, and regulatory requirements. If the Applicant and the Eligible Lender or other Holder has not satisfied all such terms and conditions by the closing date, the Secretary may, in his/her sole discretion, set a new closing date or terminate the Conditional Commitment.
(c) In order to enter into a Loan Guarantee Agreement at closing:
(1) DOE must have received authority in an appropriations act for the loan guarantee; and
(2) All other applicable statutory, regulatory, or other requirements must be fulfilled.
(d) Prior to, or on, the closing date, DOE will ensure that:
(1) Pursuant to section 1702(b) of the Act, DOE has received payment of the Credit Subsidy Cost of the loan guarantee, as defined in § 609.2 of this part from
(i) A Congressional appropriation of funds; or
(ii) A payment from the Borrower.
(2) Pursuant to section 1702(h) of the Act, DOE has received from the Borrower the First and Second Fees and, if applicable, the Third fee, or portions thereof, for the Administrative Cost of Issuing the Loan Guarantee, as specified in the Loan Guarantee Agreement;
(3) OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the loan guarantee;
(4) The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;
(5) The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States; and
(6) All conditions precedent specified in the Conditional Commitment are either satisfied or waived by a Contracting Officer and all other applicable contractual, statutory, and regulatory requirements are satisfied.
(e) Not later than the period approved in writing by the Contracting Officer, which may not be less than 30 days prior to the closing date, the Applicant must provide in writing updated project financing information if the terms and conditions of the financing arrangements changed between execution of the Conditional Commitment and that date. The Conditional Commitment must be updated to reflect the revised terms and conditions.
(f) Where the total Project Costs for an Eligible Project are projected to exceed $25 million, the Applicant must provide a credit rating from a nationally recognized rating agency reflecting the revised Conditional Commitment for the project without a Federal guarantee. Where total Project Costs are projected to be $25 million or less than $25 million, the Secretary may, on a case-by-case basis, require a credit rating. If a rating is required, an updated rating must be provided to the Secretary not later than 30 days prior to closing.
(g) Changes in the terms and conditions of the financing arrangements will affect the Credit Subsidy Cost for the Loan Guarantee Agreement. DOE may postpone the expected closing date pursuant to any changes submitted under paragraph (e) and (f) of this section. In addition, DOE may choose to terminate the Conditional Commitment.
(a) Only a Loan Guarantee Agreement executed by a duly authorized DOE Contracting Officer can contractually obligate DOE to guarantee loans or other debt obligations.
(b) DOE is not bound by oral representations made during the Pre-Application stage, if Pre-Applications were solicited, or Application stage, or during any negotiation process.
(c) Except if explicitly authorized by an Act of Congress, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for Credit Subsidy Costs, administrative fees, or other fees charged by or paid to DOE relating to the Title XVII program or any loan guarantee there under.
(d) Prior to the execution by DOE of a Loan Guarantee Agreement, DOE must ensure that the following requirements and conditions, which must be specified in the Loan Guarantee Agreement, are satisfied:
(1) The project qualifies as an Eligible Project under the Act and is not a research, development, or demonstration project or a project that employs Commercial Technologies in service in the United States;
(2) The project will be constructed and operated in the United States, the employment of the new or significantly improved technology in the project has the potential to be replicated in other commercial projects in the United States, and this technology is or is likely to be available in the United States for further commercial application;
(3) The face value of the debt guaranteed by DOE is limited to no more than 80 percent of total Project Costs.
(4)(i) Where DOE guarantees 100 percent of the Guaranteed Obligation, the loan shall be funded by the Federal Financing Bank;
(ii) Where DOE guarantees more than 90 percent of the Guaranteed Obligation, the guaranteed portion cannot be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation if the loan is participated, syndicated or otherwise resold in the secondary market;
(iii) Where DOE guarantees 90 percent or less of the Guaranteed Obligation, the guaranteed portion may be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or otherwise resold in the secondary debt market;
(5) The Borrower and other principals involved in the project have made or will make a significant equity investment in the project;
(6) The Borrower is obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other project debt over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the project's major physical assets, as calculated in accordance with generally accepted accounting principles and practices. The non-guaranteed portion of any Guaranteed Obligation must be repaid on a pro-rata basis, and may not be repaid on a shorter amortization schedule than the guaranteed portion;
(7) The loan guarantee does not finance, either directly or indirectly, tax-exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code;
(8) The amount of the loan guaranteed, when combined with other funds committed to the project, will be sufficient to carry out the project, including adequate contingency funds;
(9) There is a reasonable prospect of repayment by Borrower of the principal of and interest on the Guaranteed Obligations and other project debt;
(10) The Borrower has pledged project assets and other collateral or surety, including non project-related assets, determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations;
(11) The Loan Guarantee Agreement and related documents include detailed terms and conditions necessary and appropriate to protect the interest of the United States in the case of default, including ensuring availability of all the intellectual property rights, technical data including software, and physical assets necessary for any person or entity, including DOE, to complete, operate, convey, and dispose of the defaulted project;
(12) The interest rate on any Guaranteed Obligation is determined by DOE, after consultation with the Treasury Department, to be reasonable, taking into account the range of interest rates prevailing in the private sector for similar obligations of comparable risk guaranteed by the Federal Government;
(13) Any Guaranteed Obligation is not subordinate to any loan or other debt obligation;
(14) There is satisfactory evidence that Borrower and Eligible Lenders or other Holders are willing, competent, and capable of performing the terms and conditions of the Guaranteed Obligations and other debt obligation and the Loan Guarantee Agreement, and will diligently pursue the project;
(15) The Borrower has made the initial (or total) payment of fees for the Administrative Cost of Issuing a Loan Guarantee for the construction and operational phases of the project (Third Fee), as specified in the Conditional Commitment;
(16) The Eligible Lender, other Holder or servicer has taken and is obligated to continue to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligation;
(17) If Borrower is to make payment in full for the Credit Subsidy Cost of the loan guarantee pursuant to section 1702(b)(2) of the Act, such payment must be received by DOE prior to, or at the time of, closing;
(18) DOE or its representatives have access to the project site at all reasonable times in order to monitor the performance of the project;
(19) DOE, the Eligible Lender, or other Holder and Borrower have reached an agreement as to the information that will be made available to DOE and the information that will be made publicly available;
(20) The prospective Borrower has filed applications for or obtained any required regulatory approvals for the project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, State, and local regulatory requirements;
(21) Borrower has no delinquent Federal debt, including tax liabilities, unless the delinquency has been resolved with the appropriate Federal agency in accordance with the standards of the Debt Collection Improvement Act of 1996;
(22) The Loan Guarantee Agreement and related agreements contain such other terms and conditions as DOE deems reasonable and necessary to protect the interests of the United States, including without limitation provisions for—
(i) Such collateral and other credit support for the Guaranteed Obligation,
(ii) Such lien sharing and (subject always to Section 1702(d)(3) of Title XVII) priorities among lenders, and
(iii) Such intercreditor arrangements as, in each case, DOE deems reasonable and necessary to protect the interests of the United States; and
(23)(i) The Lender is an Eligible Lender, as defined in § 609.2 of this part, and meets DOE's lender eligibility and performance requirement contained in §§ 609.11 (a) and (b) of this part; and
(ii) The servicer meets the servicing performance requirements of § 609.11(c) of this part.
(e) The Loan Guarantee Agreement must provide that, in the event of a default by the Borrower:
(1) Interest accrues on the Guaranteed Obligations at the rate stated in the Loan Guarantee Agreement or Loan Agreement, until DOE makes full payment of the defaulted Guaranteed Obligations and, except when debt is funded through the Federal Financing Bank, DOE is not required to pay any premium, default penalties, or prepayment penalties;
(2) Upon payment of the Guaranteed Obligations by DOE, DOE is subrogated to the rights of the Holders of the debt, including all related liens, security, and collateral rights.
(3) The Eligible Lender or other servicer acting on DOE's behalf is obligated to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligations.
(4) The holder of pledged collateral is obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery upon default by Borrower on the Guaranteed Obligations.
(f) The Loan Guarantee Agreement must contain audit provisions which provide, in substance, as follows:
(1) The Eligible Lender or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, must keep such records concerning the project as are necessary to facilitate an effective and accurate audit and performance evaluation of the project as required in § 609.17 of this part.
(2) DOE and the Comptroller General, or their duly authorized representatives, must have access, for the purpose of audit and examination, to any pertinent books, documents, papers, and records of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, as applicable. Examination of records may be made during the regular business hours of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, or at any other time mutually convenient as required in § 609.17 of this part.
(g)(1) An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to another Eligible Lender that meets the requirements of § 609.11 of this part. Such Eligible Lender to which a Guaranteed Obligation is assigned or transferred, is required to fulfill all servicing, monitoring, and reporting requirements contained in the Loan Guarantee Agreement and these regulations if the transferring Eligible Lender was forming these functions and transfer such functions to the new Eligible Lender. Any assignment or transfer, however, of the servicing, monitoring, and reporting functions must be approved by DOE in writing in advance of such assignment.
(2) The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying Holders with the right to receive payment under the guarantees shall include in the Loan Guarantee Agreement or related documents a procedure for tracking and identifying Holders of Guarantee Obligations. These duties usually will be performed by the servicer. Any contractual agent approved by the Secretary to perform this function cannot transfer or assign this responsibility without the prior written consent of the Secretary.
(a) An Eligible Lender shall meet the following requirements:
(1) Not be debarred or suspended from participation in a Federal Government contract (under 48 CFR subpart 9.4) or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);
(2) Not be delinquent on any Federal debt or loan;
(3) Be legally authorized to enter into loan guarantee transactions authorized by the Act and these regulations and is in good standing with DOE and other Federal agency loan guarantee programs;
(4) Be able to demonstrate, or has access to, experience in originating and servicing loans for commercial projects similar in size and scope to the project under consideration; and
(5) Be able to demonstrate experience or capability as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience; or
(6) Be the Federal Financing Bank.
(b) When performing its duties to review and evaluate a proposed Eligible Project prior to the submission of a Pre-Application or Application, as appropriate, by the Project Sponsor through the execution of a Loan Guarantee Agreement, the Eligible Lender or DOE if loans are funded by the Federal Financing Bank, shall exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.
(c) The servicing duties shall be performed by the Eligible Lender, DOE or other servicer if approved by the Secretary. When performing the servicing duties the Eligible Lender, DOE or other servicer shall exercise the level of care and diligence that a reasonable and prudent lender would exercise when servicing a loan made without a Federal guarantee, including:
(1) During the construction period, enforcing all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement and related documents;
(2) During the operational phase, monitoring and servicing the Debt Obligations and collection of the outstanding principal and accrued interest as well as ensuring that the collateral package securing the Guaranteed Obligations remains uncompromised; and
(3) As specified by DOE, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or other debt obligations.
(c) With regard to partial guarantees, even though DOE may in part rely on the Eligible Lender or other servicer to service and monitor the Guaranteed Obligation, DOE will also conduct its own independent monitoring and review of the Eligible Project.
(a) Before entering into a Loan Guarantee Agreement, DOE shall determine the estimated Project Costs for the project that is the subject of the agreement. To assist the Department in making that determination, the Applicant must estimate, calculate and record all such costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the project in accordance with generally accepted accounting principles and practices. Among other things, the Applicant must calculate the sum of necessary, reasonable and customary costs that it has paid and expects to pay, which are directly related to the project, including costs for escalation and contingencies, to estimate the total Project Costs.
(b) Project Costs include:
(1) Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land
(2) Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility; and materials, labor, services, travel and transportation for facility design, construction, startup, commissioning and shakedown;
(3) Costs of equipment purchases;
(4) Costs to provide equipment, facilities, and services related to safety and environmental protection;
(5) Financial and legal services costs, including other professional services and fees necessary to obtain required licenses and permits and to prepare environmental reports and data;
(6) The cost of issuing project debt, such as fees, transaction and legal costs and other normal charges imposed by Eligible Lenders and other Holders;
(7) Costs of necessary and appropriate insurance and bonds of all types;
(8) Costs of design, engineering, startup, commissioning and shakedown;
(9) Costs of obtaining licenses to intellectual property necessary to design, construct, and operate the project;
(10) A reasonable contingency reserve for cost overruns during construction; and
(11) Capitalized interest necessary to meet market requirements, reasonably required reserve funds and other carrying costs during construction; and
(12) Other necessary and reasonable costs.
(c) Project Costs do not include:
(1) Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;
(2) Parent corporation or other affiliated entity's general and administrative expenses, and non-project related parent corporation or affiliated entity assessments, including organizational expenses;
(3) Goodwill, franchise, trade, or brand name costs;
(4) Dividends and profit sharing to stockholders, employees, and officers;
(5) Research, development, and demonstration costs of readying the innovative energy or environmental technology for employment in a commercial project;
(6) Costs that are excessive or are not directly required to carry out the project, as determined by DOE, including but not limited to the cost of hedging instruments;
(7) Expenses incurred after startup, commissioning, and shakedown before the facility has been placed in service;
(8) Borrower-paid Credit Subsidy Costs and Administrative Costs of Issuing a Loan Guarantee; and
(9) Operating costs.
With respect to the guaranteed portion of any Guaranteed Obligation, and subject to the availability of appropriations, DOE may enter into a contract to pay Holders, for and on behalf of Borrower, from funds appropriated for that purpose, the principal and interest charges that become due and payable on the unpaid balance of the guaranteed portion of the Guaranteed Obligation, if DOE finds that:
(a) The Borrower:
(1) Is unable to make the payments and is not in default; and
(2) Will, and is financially able to, continue to make the scheduled payments on the remaining portion of the principal and interest due under the non-guaranteed portion of the debt obligation, if any, and other debt obligations of the project, or an agreement, approved by DOE, has otherwise been reached in order to avoid a payment default on non-guaranteed debt.
(b) It is in the public interest to permit Borrower to continue to pursue the purposes of the project;
(c) In paying the principal and interest, the Federal Government expects a probable net benefit to the Government will be greater than that which would result in the event of a default;
(d) The payment authorized is no greater than the amount of principal and interest that Borrower is obligated to pay under the terms of the Loan Guarantee Agreement; and
(e) Borrower agrees to reimburse DOE for the payment (including interest) on terms and conditions that are satisfactory to DOE and executes all written contracts required by DOE for such purpose.
The full faith and credit of the United States is pledged to the payment of all Guaranteed Obligations issued in accordance with this part with respect to principal and interest. Such guarantee shall be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such guarantee; and that, but for fraud or material misrepresentation by the Holder, such guarantee will be presumed to be valid, legal, and enforceable.
(a) In the event that the Borrower has defaulted in the making of required payments of principal or interest on any portion of a Guaranteed Obligation, and such default has not been cured within the period of grace provided in the Loan Guarantee Agreement and/or the Loan Agreement, the Eligible Lender or other Holder, or nominee or trustee empowered to act for the Eligible Lender or other Holder (referred to in this section collectively as “Holder”), may make written demand upon the Secretary for payment pursuant to the provisions of the Loan Guarantee Agreement.
(b) In the event that the Borrower is in default as a result of a breach of one or more of the terms and conditions of the Loan Guarantee Agreement, note, mortgage, Loan Agreement, or other contractual obligations related to the transaction, other than the Borrower's obligation to pay principal or interest on the Guaranteed Obligation, as provided in paragraph (a) of this section, the Holder will not be entitled to make demand for payment pursuant to the Loan Guarantee Agreement, unless the Secretary agrees in writing that such default has materially affected the rights of the parties, and finds that the Holder should be entitled to receive payment pursuant to the Loan Guarantee Agreement.
(c) In the event that the Borrower has defaulted as described in paragraph (a) of this section and such default is not cured during the grace period provided in the Loan Guarantee Agreement, the Secretary shall notify the U.S. Attorney General and, subject to and in addition to the terms of any applicable Intercreditor Agreement, may cause the principal amount of all Guaranteed Obligations, together with accrued interest thereon, and all amounts owed to the United States by Borrower pursuant to the Loan Guarantee Agreement, to become immediately due and payable by giving the Borrower written notice to such effect (without the need for consent or other action on the part of the Holders of the Guaranteed Obligations). In the event the Borrower is in default as described in paragraph (b) of this section, where the Secretary determines in writing that such a default has materially affected the rights of the parties, the Borrower shall be given the period of grace provided in the Loan Guarantee Agreement to cure such default. If the default is not cured during the period of grace, the Secretary may, subject to and in addition to the terms of any applicable Intercreditor Agreement,
(d) No provision of this regulation shall be construed to preclude forbearance by any Holder with the consent of the Secretary for the benefit of the Borrower.
(e) Upon the making of demand for payment as provided in paragraph (a) or (b) of this section, the Holder shall provide, in conjunction with such demand or immediately thereafter, at the request of the Secretary, the supporting documentation specified in the Loan Guarantee Agreement and any other supporting documentation as may reasonably be required to justify such demand.
(f) Payment as required by the Loan Guarantee Agreement of the Guaranteed Obligation shall be made 60 days after receipt by the Secretary of written demand for payment, provided that the demand complies with the terms of the Loan Guarantee Agreement. The Loan Guarantee Agreement shall provide that interest shall accrue to the Holder at the rate stated in the Loan Guarantee Agreement until the Guaranteed Obligation has been fully paid by the Federal government.
(g) The Loan Guarantee Agreement shall provide that, upon payment of the Guaranteed Obligations, the Secretary shall be subrogated to the rights of the Holders. The Holder shall transfer and assign to the Secretary all rights held by the Holder of the Guaranteed Obligation. Such assignment shall include all related liens, security, and collateral rights to the extent held by the Holder.
(h) Where the Loan Guarantee Agreement or any applicable Intercreditor Agreement so provides, the Eligible Lender or other Holder, or other agent or servicer, as appropriate, and the Secretary may jointly agree to a work-out strategy, and/or a plan of liquidation of the assets pledged to secure the Guaranteed Obligation and other applicable debt.
(i) Where payment of the Guaranteed Obligation has been made and the Eligible Lender or other Holder or other agent or servicer has not undertaken a plan of liquidation (or at any such earlier time as may be permitted by applicable agreements), the Secretary, acting through the U.S. Attorney General, in accordance with the rights received through subrogation or other applicable agreements, subject to any applicable Intercreditor Agreement, may seek to foreclose on the collateral assets and/or take such other legal action as necessary for the protection of the Government.
(j) If the Secretary (or an agent acting for the benefit of the Secretary) is awarded title to collateral assets pursuant to a foreclosure proceeding, the Secretary may take action to complete, maintain, operate, or lease such assets, or otherwise dispose of any such assets or take any other necessary action which the Secretary deems appropriate (and consistent with any applicable Intercreditor Agreement), in order that the original goals and objectives of the project will, to the extent possible, be realized.
(k) In addition to foreclosure and sale of collateral pursuant thereto, the U.S. Attorney General shall take appropriate action in accordance with rights contained in the Loan Guarantee Agreement and any applicable Intercreditor Agreement to recover costs incurred by the Government as a result of the defaulted loan or other defaulted obligation. Any recovery so received by the U.S. Attorney General on behalf of the Government shall be applied in the following manner: First to the expenses incurred by the U.S. Attorney General, DOE and any agent acting for the benefit of DOE in effecting such recovery; second, to reimbursement of any amounts paid by DOE as a result of the defaulted obligation; third, to any amounts owed to DOE under related principal and interest assistance contracts; and fourth, to any other lawful claims held by the Government on such process. Any sums remaining after full payment of the foregoing shall be available for the benefit of other parties lawfully entitled to claim them.
(l) If there was a partial guarantee by DOE of the Guaranteed Obligation or if any other creditors are secured by a lien on collateral pledged to secure the Guaranteed Obligation, the proceeds received by the collateral agent or other responsible party as a result of any liquidation or sale of, collection from or other realization on any such collateral may, if so agreed in advance, be applied as follows (with any money distributed to the Federal Government to be further distributed according to § 609.15 (k)):
(1) First, to the payment of reasonable and customary fees and expenses incurred in the liquidation or sale, collection or other realization (including without limitation any fees and expenses that the Attorney General of the United States is lawfully entitled to claim in connection with such action);
(2) Second, distributed among the Holders of the Guaranteed Debt (including DOE, as subrogee) and the other creditors entitled to share in such proceeds on no greater than a pro rata share basis; and
(3) As otherwise provided in the applicable agreement or agreements.
(m) No action taken by the Eligible Lender or other Holder or other agent or servicer in respect of any pledged assets will affect the rights of any party, including the Secretary, having an interest in the loan or other debt obligations, to pursue, jointly or severally, to the extent provided in the Loan Guarantee Agreement or other applicable agreement, legal action against the Borrower or other liable parties, for any deficiencies owing on the balance of the Guaranteed Obligations or other debt obligations after application of the proceeds received upon liquidation.
(n) In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection with the liquidation or sale of, collection from or other realization on the collateral or recovery of deficiencies due under the loan, the Secretary will take such action as may be appropriate under the circumstances.
(o) Nothing in this part precludes the Secretary from purchasing any Holder's or other person's interest in the project upon liquidation or sale of, collection from or other realization on the collateral.
(a) The Loan Guarantee Agreement and other documents related thereto shall provide that:
(1) The Eligible Lender, or DOE in conjunction with the Federal Financing Bank
(2) Upon default by the Borrower, the holder of pledged collateral shall take such actions as the Secretary (subject to any applicable Intercreditor Agreement) may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the pledged assets. The Secretary shall reimburse the holder of collateral for reasonable and appropriate expenses incurred in taking
(b) In the event of a default, the Secretary may enter into such contracts as the Secretary determines are required to preserve the collateral. The cost of such contracts may be charged to the Borrower.
(a) The Loan Guarantee Agreement and related documents shall provide that:
(1) The Eligible Lender, or DOE in conjunction with the Federal Financing Bank where loans are funded by the Federal Financing Bank or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the project as is necessary, including the Pre-Application, Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all project assets and non-project assets pledged as security for the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the project; and
(2) The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.
(b) The Secretary may from time to time audit any or all items of costs included as Project Costs in statements or certificates submitted to the Secretary or the servicer or otherwise, and may exclude or reduce the amount of any item which the Secretary determines to be unnecessary or excessive, or otherwise not to be an item of Project Costs. The Borrower will make available to the Secretary all books and records and other data available to the Borrower in order to permit the Secretary to carry out such audits. The Borrower should represent that it has within its rights access to all financial and operational records and data relating to Project Costs, and agrees that it will, upon request by the Secretary, exercise such rights in order to make such financial and operational records and data available to the Secretary. In exercising its rights hereunder, the Secretary may utilize employees of other Federal agencies, independent accountants, or other persons.
To the extent that such requirements are not specified by the Act or other applicable statutes, DOE may authorize deviations on an individual request basis from the requirements of this part upon a finding that such deviation is essential to program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government. DOE will consult with OMB and the Secretary of the Treasury before DOE grants any deviation that would constitute a substantial change in the financial terms of the Loan Guarantee Agreement and related documents. Any deviation, however, that was not captured in the Credit Subsidy Cost will require either additional fees or discretionary appropriations. A recommendation for any deviation shall be submitted in writing to DOE. Such recommendation must include a supporting statement, which indicates briefly the nature of the deviation requested and the reasons in support thereof.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) for Pratt & Whitney JT8D-1, -1A, -1B, -7, -7A, -7B, -9, -9A, -11, -15, and -17 turbofan engines with 2nd stage fan blades, part number (P/N) 433802, 645902, 759902, 695932, 678102, or 746402 installed. That AD currently requires initial and repetitive ultrasonic inspection (UI) and fluorescent penetrant inspection (FPI) of those P/N 2nd stage fan blades. This proposed AD would replace the required FPI with eddy current inspection (ECI) on all affected 2nd stage fan blades and would maintain the requirement of ultrasonic inspection (UI) of the blade root attachment on some of the affected 2nd stage fan blades. This proposed AD would also introduce an optional terminating action to the repetitive blade inspections for certain engine models. This proposed AD results from reports of 10 fractures of 2nd stage fan blades since AD 87-14-01R1 became effective. We are proposing this AD to prevent uncontained failure of 2nd stage fan blades, which could result in damage to the airplane.
We must receive any comments on this proposed AD by October 6, 2009.
Use one of the following addresses to comment on this proposed AD.
•
•
•
•
Kevin Dickert, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
The FAA proposes to amend 14 CFR part 39 by superseding AD 87-14-01 R1, Amendment 39-6359 (54 FR 43954, October 30, 1989). That AD requires initial and repetitive UI and FPI of P/N 433802, 645902, 759902, 695932, 678102, and 746402 2nd stage fan blades. That AD was the result of reports of on-going fractures of 2nd stage fan blades since 1980. That condition, if not corrected, could result in uncontained failure of 2nd stage fan blades, which could result in damage to the airplane.
Since AD 87-14-01 R1 was issued, Pratt & Whitney has developed and published an ECI procedure for inspecting the 2nd stage fan blade pin-root holes. We have reviewed this procedure and determined that mandating this ECI procedure will result in an increased level of safety for the affected engines.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For that reason, we are proposing this AD, which would require, for 2nd stage fan blades P/Ns 678102 and 746402, an ECI of the blade pin-root holes for cracks, and for 2nd stage fan blades P/Ns 433802, 645902, 759902, and 695932, an ECI of the blade pin-root holes and UI the blade root attachment for cracks. This proposed AD would also eliminate the JT8D-1, -1A, and -1B engines from the applicability, because those engine models have either been converted to other affected engine models included in the proposed AD or retired from service.
We estimate that this proposed AD would affect 1,380 engines installed on airplanes of U.S. registry. We also estimate that it would take about 25 work-hours per engine to perform one inspection cycle, and that the average labor rate is $80 per work-hour. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $2,760,000.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-6359 (54 FR 43954, October 30, 1989) and by adding a new airworthiness directive to read as follows:
(a) The Federal Aviation Administration (FAA) must receive comments on this
(b) This AD supersedes AD 87-14-01 R1, Amendment 39-6359.
(c) This AD applies to Pratt & Whitney JT8D-7, -7A, -7B, -9, -9A, -11, -15, and -17 turbofan engines, with 2nd stage fan blades, part number (P/N) 433802, 645902, 759902, 695932, 678102, or 746402, installed. These engines are installed on, but not limited to, Boeing 727, 737, and McDonnell Douglas DC-9 series airplanes.
(d) This AD results from reports of 10 fractures of 2nd stage fan blades since AD 87-14-01R1 became effective. We are issuing this AD to prevent uncontained failure of 2nd stage fan blades, which could result in damage to the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) For 2nd stage fan blades, P/N 678102 and P/N 746402, perform an eddy current inspection (ECI) of the blade pin-root holes for cracks, and for 2nd stage fan blades, P/Ns 433802, 645902, 759902, and 695932, perform an ECI of the blade pin-root holes and perform an ultrasonic inspection (UI) of the blade root attachment for cracks, as follows:
(1) Perform an inspection at the first disassembly of the 2nd stage fan rotor from the low-pressure (LP) compressor after accumulation of 3,000 cycles-in-service (CIS) since the last inspection of the blade root attachment, not to exceed 10,000 CIS since last inspection.
(2) If the 2nd stage fan blades were new at their last installation onto the 2nd stage fan disk, inspect at the first disassembly of the 2nd stage fan rotor from the LP compressor after accumulating 3,000 cycles-since-new (CSN), not to exceed 10,000 CSN.
(3) Thereafter, inspect the 2nd stage fan blades at each disassembly of the 2nd stage fan rotor from the LP compressor after accumulating 3,000 CIS, not to exceed 10,000 CIS since the last inspection.
(4) Guidance on performing ECIs and UIs of the 2nd stage fan blade pin-root holes and blade root attachments can be found in Pratt & Whitney Maintenance Advisory Notice MAN-JT8D-1-08.
(5) Remove from service before further flight any 2nd stage fan blades that are found cracked.
(g) For JT8D-9, -9A, -11, -15, and -17 engines, as optional terminating action to the repetitive inspections required by this AD, replace the affected 2nd stage fan blades with redesigned 2nd stage fan blades using Pratt & Whitney Service Bulletin No. 5866, Revision 2, dated October 20, 1998.
(h) The Manager, Engine Certification Office, FAA, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(i) Contact Kevin Dickert, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
(j) Contact Pratt & Whitney, 400 Main St., East Hartford, CT 06108; telephone (860) 565-8770; fax (860) 565-4503, for a copy of the service information referenced in this AD.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a safety zone around San Clemente Island in support of potentially hazardous military training and testing exercises. The existing zones do not sufficiently overlap potential danger zones and testing areas used by the Navy during live-fire and ocean research operations resulting in a delay or cancellation of these operations. The proposed safety zone would protect the public from hazardous, live-fire and testing operations and ensure operations proceed as scheduled.
Comments and related material must be received by the Coast Guard on or before November 5, 2009. Requests for public meetings must be received by the Coast Guard on or before August 28, 2009.
You may submit comments identified by docket number USCG-2009-0277 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods.
If you have questions on this proposed rule, call or e-mail Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7262, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0277), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
The Coast Guard is proposing to establish this safety zone to conduct training essential to successful accomplishment of U.S. Navy missions relating to military operations and national security. Accordingly, this proposed safety zone falls within the military function exception to the Administrative Procedure Act (APA), 5 U.S.C. 553(a)(1). Notice and comment rulemaking under 5 U.S.C. 553(b) and an effective date of 30 days after publication under 5 U.S.C. 553(d) are not required for this rulemaking.
However, we have determined that it would be beneficial to accept public comments on this proposed rule. Therefore, we will be accepting comments until November 5, 2009. By issuing this notice of proposed rulemaking and accepting public comments, the Coast Guard does not waive its ability to claim the military function exception to notice and comment rulemaking.
As part of the Southern California Range Complex, San Clemente Island (SCI) and the surrounding littoral waters support the training requirements for the U.S. Pacific Fleet, Fleet Marine Forces Pacific, Naval Special Warfare Command, Naval Expeditionary Combat Command and other military training and research units. In 1934, Executive Order 6897 transferred ownership of SCI from the Department of Commerce to the Department of the Navy for “naval purposes”. The San Clemente Island Range Complex (SCIRC) has the capability to support training in all warfare areas including Undersea Warfare, Surface Warfare, Mine Warfare, Strike Warfare, Air Warfare, Amphibious Warfare, Command and Control, and Naval Special Warfare. It is the only location in the United States that supports Naval Special Warfare full-mission training profiles. The Shore Bombardment Area (SHOBA) is the only range in the United States where expeditionary fire support exercises utilizing ship to shore naval gunfire can be conducted. SCI's unique coastal topography, proximity to the major Fleet and Marine concentration areas in San Diego County, supporting infrastructure, and exclusive Navy ownership make the island and surrounding waters vitally important for fleet training, weapon and electronic systems testing, and research and development activities.
The proposed safety zone is necessary to protect the public from hazardous, live-fire and testing operations and ensure operations proceed as scheduled.
The Coast Guard proposes to establish a permanent safety zone around San Clemente Island for use by the U.S. Navy. The segmented safety zone would extend from the high tide line seaward 3 NM. The zone would be broken down into the following sections:
Beginning at 33°02.05′ N, 118°35.85′ W; thence to 33°04.93′ N, 118°37.07′ W; thence running parallel to the shore at a distance of approximately 3 NM from the high tide line to 33°02.82′ N, 118°30.65′ W; thence to 33°17.28′ N, 118°33.88′ W; thence along the shoreline returning to 33°02.05′ N, 118°35.85′ W.
Beginning at 32°57.30′ N, 118°30.88′ W; thence to 32°59.60′ N, 118°28.33′ W; thence running parallel to the shore at a distance of approximately 3 NM from the high tide line to 32°55.83′ N, 118°24.22′ W; thence to 32°53.53′ N, 118°26.52′ W; thence along the shoreline returning to 32°57.30′ N, 118°30.88′ W.
Beginning at 32°53.53′ N, 118°26.52′ W; thence to 32°55.83′ N, 118°24.22′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°47.27′ N, 118°18.23′ W; thence to 32°49.10′ N, 118°21.05′ W; thence along the shoreline returning to 32°53.53′ N, 118°26.52′ W.
Beginning at 32°49.10′ N, 118°21.05′ W; thence to 32°47.27′ N, 118°18.23′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°48.38′ N, 118°31.69′ W; thence to 32°50.70′ N, 118°29.37′ W; thence along the shoreline returning to 32°49.10′ N, 118°21.05′ W.
Beginning at 32°50.70′ N, 118°29.37′ W; thence to 32°48.05′ N, 118°31.68′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°53.62′ N, 118°35.93′ W; thence to 32°56.13′ N, 118°32.95′ W; thence along the shoreline returning to 32°50.70′ N, 118°29.37′ W.
Beginning at 32°56.13′ N, 118°32.95′ W; thence to 32°53.62′ N, 118°35.93′ W; thence running parallel to the shoreline at a distance of approximately 3 NM
Beginning at 33°01.08′ N, 118°36.333′ W; thence to 32°59.95′ N, 118°39.77′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 33°04.93′ N, 118°37.07′ W; thence to 33°02.05′ N, 118°35.85′ W; thence along the shoreline returning to 33°01.08′ N, 118°36.33′ W.
Beginning at 33°01.28′ N, 118°33.88′ W; thence to 33°02.82′ N, 118°30.65′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°59.60′ N, 118°28.33′ W; thence to 32°57.30′ N, 118°30.88′ W; thence along the shoreline returning to 33°01.28′ N, 118°33.88′ W.
All of the sections above would be continually enforced as a safety zone, thereby restricting public use of these offshore waters. Mariners desiring to transit through Section G or the Wilson Cove section would be required to request authorization to do so from the Fleet Area Control and Surveillance Facility (FACSFAC) San Diego. In the final rule, the Navy will provide a call sign to be used by mariners to request transfer to the appropriate FACSFAC point of contact for authorizing safe transit through these safety zone sections.
Mariners who wish to transit through any of the other six sections (A, B, C, D, E, and/or F) would also be required to request permission from FACSFAC San Diego, using the same procedure described above, except during periods when the Navy is not conducting potentially hazardous military training or testing activity. Mariners would be able to transit some or all of these sections without obtaining prior authorization from FACSFAC San Diego only when the Coast Guard notifies the public that enforcement of the zone in specified sections is temporarily suspended. Notice of suspended enforcement would be provided through broadcast notice to mariners and publication in the local notice to mariners; and the schedule of restricted access periods by date, location and duration would continue to be posted at
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the fact that the majority of the proposed safety zone will be open a significant portion of the time.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Pacific Ocean around San Clemente Island.
This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. Except for Section G and Wilson Cove, which will be continually enforced, the safety zone would be activated, and thus subject to enforcement, only during naval training and testing exercises. During periods when portions of the safety zone are enforced in sections A through F, vessel traffic could pass safely around the safety zone. When the safety zone is not enforced, vessel traffic would be allowed to use the offshore waters for commercial and recreational activities. Permission for safe vessel transit through the permanently restricted safety zones designated Section G and Wilson Cove may be requested of the Fleet Area Control and Surveillance Facility, San Diego.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its possible effects, if any, on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Kristen Beer (
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add a new § 165.1141:
(a)
Beginning at 33°02.05′ N, 118°35.85′ W; thence to 33°04.93′ N, 118°37.07′ W; thence running parallel to the shore at a distance of approximately 3 NM from the high tide line to 33°02.82′ N, 118°30.65′ W; thence to 33°17.28′ N, 118°33.88′ W; thence along the shoreline returning to 33°02.05′ N, 118°35.85′ W.
Beginning at 32°57.30′ N, 118°30.88′ W; thence to 32°59.60′ N, 118°28.33′ W; thence running parallel to the shore at a distance of approximately 3 NM from the high tide line to 32°55.83′ N, 118°24.22′ W; thence to 32°53.53′ N, 118°26.52′ W; thence along the shoreline returning to 32°57.30′ N, 118°30.88′ W.
Beginning at 32°53.53′ N, 118°26.52′ W; thence to 32°55.83′ N, 118°24.22′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°47.27′ N, 118°18.23′ W; thence to 32°49.10′ N, 118°21.05′ W; thence along the shoreline returning to 32°53.53′ N, 118°26.52′ W.
Beginning at 32°49.10′ N, 118°21.05′ W; thence to 32°47.27′ N, 118°18.23′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°48.38′ N, 118°31.69′ W; thence to 32°50.70′ N, 118°29.37′ W; thence along the shoreline returning to 32°49.10′ N, 118°21.05′ W.
Beginning at 32°50.70′ N, 118°29.37′ W; thence to 32°48.05′ N, 118°31.68′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°53.62′ N, 118°35.93′ W; thence to 32°56.13′ N, 118°32.95′ W; thence along the shoreline returning to 32°50.70′ N, 118°29.37′ W.
Beginning at 32°56.13′ N, 118°32.95′ W; thence to 32°53.62′ N, 118°35.93′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°59.95′ N, 118°39.77′ W; thence to 33°01.08′ N, 118°36.33′ W; thence along the shoreline returning to 32°56.13′ N, 118°32.95′ W.
Beginning at 33°01.08′ N, 118°36.333′ W; thence to 32°59.95′ N, 118°39.77′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 33°04.93′ N,
Beginning at 33°01.28′ N, 118°33.88′ W; thence to 33°02.82′ N, 118°30.65′ W; thence running parallel to the shoreline at a distance of approximately 3 NM from the high tide line to 32°59.60′ N, 118°28.33′ W; thence to 32°57.30′ N, 118°30.88′ W; thence along the shoreline returning to 33°01.28′ N, 118°33.88′ W.
(b)
(c)
(2) This regulation will be enforced in Sections A through F of the safety zone described in paragraph (a) except when the Coast Guard notifies the public that enforcement of the zone in specified sections is temporarily suspended. Mariners need not obtain permission in accordance with the procedure described in paragraph (d)(2) to enter a zone section in which enforcement is temporarily suspended. At all other times, mariners must obtain permission in accordance with the procedure described in paragraph (d)(2) before entering any of those sections.
(3) The COTP will provide notice of suspended enforcement by means appropriate to effect the widest publicity, including broadcast notice to mariners, publication in the local notice to mariners, and posting the schedule of restricted access periods by date, location and duration at
(d)
(2) Mariners requesting permission to transit through any section of the zone may request authorization to do so from the Fleet Area Control and Surveillance Facility (FACSFAC) San Diego by either calling (619) 545-4742 or establishing a VHF bridge-to-bridge radio connection on Channel 16. Immediately upon completing transit, the vessel operator must promptly notify FACSFAC of safe passage through the safety zone. Failure to expeditiously notify FACSFAC of passage through the safety zone will result in a determination by the Navy that the vessel is still in the safety zone, thereby restricting the use of the area for naval operations. If the Navy determines that facilitating safe transit through the zone negatively impacts range operations, the Navy will cease this practice and enforce the safety zone without exception.
(3) All persons and vessels must comply with the instructions of the U.S. Navy, Coast Guard Captain of the Port or the designated representative.
(4) Upon being hailed by U.S. Navy or U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel must proceed as directed.
(5) The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone described in paragraph (a) of this section by the U.S. Navy and local law enforcement agencies.
Department of Veterans Affairs.
Proposed rule.
This document proposes to amend Department of Veterans Affairs (VA) regulations to implement certain provisions of the Combat Veterans Debt Elimination Act of 2008 and of the Veterans' Benefits Improvement Act of 2008. The proposed rule would implement the first statute's provisions granting limited authority to the Secretary of Veterans Affairs (Secretary) to terminate collection action on certain debts arising from a VA benefit program when the indebted individual is a member of the Armed Forces or a veteran who dies as a result of injury incurred or aggravated in the line of duty while serving in a theater of combat operations in a war or in combat against a hostile force during a period of hostilities after September 11, 2001, and to refund amounts collected after the individual's death. The proposed rule would also implement the second statute's provisions that similarly grants the Secretary discretionary authority to suspend or terminate collection of debts owed to VA by individuals who died while serving on active duty as a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard during a period when the Coast Guard is operating as a service in the Navy, and to refund amounts collected after the individual's death.
Comments must be received on or before October 6, 2009.
Written comments may be submitted through
Peter Mulhern, Office of Financial Policy (047G), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
Prior to the enactment of section 1303 of the Combat Veterans Debt Elimination Act of 2008 (Pub. L. 110-252) and section 801 of the Veterans' Benefits Improvement Act of 2008 (Pub. L. 110-389), VA could terminate collection of an indebtedness owed by a deceased servicemember or veteran only after determining that the servicemember or veteran left no estate or an insufficient estate from which to collect the debt. VA would contact the decedent's family or next-of-kin regarding collection of the debt to obtain information needed to make a decision on terminating collection. No matter how compassionate the language of the demand for repayment, VA's attempt to collect a debt at such time and under such circumstances has a huge emotional impact on the decedent's family. The Government's attempt to collect such a debt in these cases is often viewed as a callous action, which demonstrates a complete disregard and lack of gratitude for the servicemember's sacrifice, and insensitivity to the family's loss of their loved one.
Section 1303 of Public Law 110-252 amends chapter 53 of title 38, United States Code, to add a new section (38 U.S.C. 5302A) granting limited authority to the Secretary to terminate collection action on certain debts arising from an individual's indebtedness from a VA benefit program. The individual must be a member of the Armed Forces or a veteran who dies as a result of injury incurred or aggravated in the line of duty while serving in a theater of combat operations, as determined by the Secretary in consultation with the Secretary of Defense, in a war or in combat against a hostile force during a period of hostilities after September 11, 2001. This authority may be exercised in the Secretary's discretion when determined to be in the best interest of the United States. This authority does not apply to any amounts owed the United States under any program carried out under the authority of 38 U.S.C. chapter 37 relating to housing and small business loans. This legislation eliminates the need to contact family members and avoids further hardship on them. Instead, it demonstrates appreciation for the decedent's sacrifice on behalf of a grateful Nation.
Section 1303 of Public Law 110-252 also states that in any case where all or any part of a debt of a covered individual, as described in 38 U.S.C. 5302A(a), was collected after September 11, 2001, but before the date of Public Law 110-252, enacted on June 30, 2008, the Secretary may refund the amount collected if, in the Secretary's determination, collection of the indebtedness would have been terminated had section 5302A been in effect at the time and the individual is equitably entitled to such a refund.
Noting the problems associated with contacting grieving survivors for purposes of collecting the debts owed to VA described above,
In preparing this proposed rule, we determined that the refund of any monies would be made to the estate of the decedent or, if there is no estate, to the decedent's next-of-kin. Public Law 110-252 does not specify how the refunded monies are to be distributed. Public Law 110-389 only describes a refund to the estate of the decedent. However, in many instances the servicemember or veteran may not have left an estate or, if he or she did leave an estate, it has been closed by the time a refund may be distributed. Without a rule to fill this gap left by Congress, there is a strong possibility that the family of a deceased servicemember or veteran may suffer further by having, for example, to reopen a closed estate to accommodate Congress' instruction to pay refunds to decedents' estates. Therefore, to implement the legislation consistent with our interpretation of its purpose, it is necessary to address the distribution of a refund when an estate does not exist.
We note that the refunds are for the express purpose of providing relief to the families of certain indebted servicemembers or veterans.
In drafting this proposed rule, we have attempted to incorporate the provisions of both Public Laws 110-252 and 110-389 into a single, consistent rule. One obstacle is the fact that the termination and refund provisions of Public Law 110-252 apply to a servicemember or a veteran who dies as a result of injury incurred or aggravated in the line of duty after September 11, 2001. Public Law 110-389 applies to a person who died while serving on active duty and states only that money collected before, on, or after the date of enactment of that law may be refunded. In S. Rep. No. 110-449, at 44, the Senate Committee on Veterans' Affairs noted that the predecessor bill, S. 3023, includes a freestanding provision that would permit VA to provide an equitable refund to any estate from which it collected a debt that it would have otherwise waived had the provision been in effect at the time. The report goes on to state that VA would have discretion to determine in which cases, if any, the use of the discretionary authority would be appropriate. Based upon our interpretation of the authority granted by Congress, we propose to limit refunds to the estate or next-of-kin of servicemembers or veterans who served on active duty after September 11, 2001. This would ensure consistency in the refund of money under the proposed rule.
We also propose to add a new section, 38 CFR 1.945, in order to implement 38 U.S.C. 5302A and 31 U.S.C. 3711(f). The new section would provide that the authority exercised by the Secretary to suspend or terminate collection action and/or refund amounts previously collected on certain indebtedness will not be delegated. It would provide that requests for suspension, termination of collection action and/or for refund of amounts previously collected would be submitted by certain VA officials to the Office of the Secretary through the VA Office of the General Counsel.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action” requiring review by the Office of Management and Budget (OMB) as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined not to be a significant regulatory action under the Executive Order.
The Secretary of Veterans Affairs hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Only individual survivors and estates of certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This proposed rule would have no such effect on State, local, or tribal governments, or the private sector.
There is no Catalog of Federal Domestic Assistance program number applicable to this proposed rule.
Claims, Administrative practice and procedure, Veterans.
For the reasons stated in the preamble, the Department of Veterans
1. The authority citation for part 1 continues to read as follows:
38 U.S.C. 501(a), and as noted in specific sections.
2. The authority citation preceding § 1.900 is revised to read as follows:
Sections 1.900 through 1.953 are issued under the authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, 5302, 5302A, 5314 and as noted in specific sections.
3. Amend § 1.940 by adding introductory text, to read as follows:
Except as otherwise provided in § 1.945:
4. Add § 1.945 to read as follows:
(a) The Secretary of Veterans Affairs (Secretary) may suspend or terminate collection action on all or any part of an indebtedness owed to VA by a member of the Armed Forces who dies while on active duty, if the Secretary determines that such suspension or termination of collection is appropriate and in the best interest of the United States.
(b) The Secretary may terminate collection action on all or any part of an amount owed to the United States for an indebtedness resulting from an individual's participation in a benefits program administered by the Secretary, other than a program as described in paragraph (h) of this section, if the Secretary determines that such termination of collection is in the best interest of the United States. For purposes of this paragraph, an
(c) For purposes of this section:
(1)
(2)
(d) The Secretary may refund amounts collected after the death of a member of the Armed Forces or veteran in accordance with this paragraph and paragraph (e) of this section.
(1) In any case where all or any part of a debt of a member of the Armed Forces, as described under paragraph (a) of this section, was collected, the Secretary may refund the amount collected if, in the Secretary's determination, the indebtedness would have been suspended or terminated under authority of 31 U.S.C. 3711(f). The member of the Armed Services must have been serving on active duty after September 11, 2001. In any case where all or any part of a debt of a covered member of the Armed Forces was collected, the Secretary may refund the amount collected, but only if the Secretary determines that, under the circumstances applicable with respect to the deceased member of the Armed Forces, it is appropriate to do so.
(2) In any case where all or any part of a debt of a covered member of the Armed Forces or veteran, as described under paragraph (b) of this section, was collected after September 11, 2001, the Secretary may refund the amount collected if, in the Secretary's determination, the indebtedness would have been terminated under authority of 38 U.S.C. 5302A. In addition, the Secretary may refund the amount only if he or she determines that the deceased individual is equitably entitled to the refund.
(e) Refunds under paragraph (d) of this section will be made to the estate of the decedent or, in its absence, to the decedent's next-of-kin first listed below.
(1) The decedent's spouse.
(2) The decedent's children (in equal shares).
(3) The decedent's parents (in equal shares).
(f) The authority exercised by the Secretary to suspend or terminate collection action and/or refund amounts collected on certain indebtedness is reserved to the Secretary and will not be delegated.
(g) Requests for a determination to suspend or terminate collection action and/or refund amounts previously collected as described in this section will be submitted to the Office of the Secretary through the Office of the General Counsel. Such requests for suspension or termination and/or refund may be initiated by the head of the VA administration having responsibility for the program that gave rise to the indebtedness, or any concerned staff office, or by the Chairman of the Board of Veterans Appeals. When a recommendation for refund under this section is initiated by the head of a staff office, or by the Chairman, Board of Veterans Appeals, the views of the head of the administration that administers the program that gave rise to the indebtedness will be obtained and transmitted with the recommendation of the initiating office.
(h) The provisions of this section concerning suspension or termination of collection actions and the refunding of moneys previously collected do not apply to any amounts owed the United States under any program carried out under 38 U.S.C. chapter 37.
Department of Veterans Affairs.
Proposed rule; Correction.
The Department of Veterans Affairs (VA) published a proposed rule in the
Comments must be received on or before September 8, 2009.
Written comments may be submitted by: Mail or hand-delivery to Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or e-mail at
James F. Burris, MD, Chief Consultant, Geriatrics and Extended Care State Home Construction Grant Program (114), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-6774 (This is not a toll-free number).
VA published a document in the
In FR Doc. E9-16341, published July 10, 2009, (74 FR 33192), make the following correction: On page 33194, in the third column of the table “New max # of beds (based on 2020 projection)” in the entry for Vermont, remove the number “1312” and add, in its place, “142”.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to the North Carolina State Implementation Plan (SIP) submitted by the State of North Carolina through the North Carolina Department of Environment and Natural Resources on June 20, 2008. This revision addresses the requirements of EPA's Clean Air Interstate Rule (CAIR). Although the DC Circuit Court found CAIR to be flawed, the rule was remanded without vacatur and thus remains in place. Thus, EPA is continuing to approve CAIR provisions into SIPs as appropriate. CAIR, as promulgated, requires States to reduce emissions of sulfur dioxide (SO
Comments must be received on or before September 8, 2009.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0454, by one of the following methods:
1.
2.
3.
4.
5.
Steven Scofield, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9034. Mr. Scofield can also be reached via electronic mail at
EPA is proposing to approve, the full SIP revision, submitted by North Carolina on June 20, 2008, as interpreted and clarified herein
EPA published CAIR on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the NAAQS for fine particles (PM
CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM
On April 28, 2006, EPA promulgated FIPs for all States covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. The CAIR FIPs require EGUs to participate in the EPA-administered CAIR SO
On April 28, 2006, EPA published two additional CAIR-related final rules that added the States of Delaware and New Jersey to the list of States subject to CAIR for PM
EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety.
CAIR establishes State-wide emission budgets for SO
The May 12, 2005 and April 28, 2006 CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO
States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most States will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such States, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (
A State submitting a full SIP revision may either adopt regulations that are substantively identical to the model rules or incorporate by reference the model rules. CAIR provides that States may only make limited changes to the model rules if the States want to participate in the EPA-administered trading programs. A full SIP revision may change the model rules only by altering their applicability and allowance allocation provisions to:
1. Include all NO
2. Provide for State allocation of NO
3. Provide for State allocation of NO
4. Allow units that are not otherwise CAIR units to opt individually into the CAIR SO
An approved CAIR full SIP revision addressing EGUs' SO
The CAIR NO
The CAIR State SO
In today's action, EPA is proposing to approve North Carolina's SIP revision that adopts the budgets established for the State in CAIR. These budgets are 62,183 tons for NO
EPA notes that, in
On May 7, 2009, EPA participated in a teleconference with North Carolina and requested several clarifications. EPA received a letter from North Carolina dated May 8, 2009, that provided the requested clarifications. Specifically, in the May 8, 2009, letter the State clarified references in North Carolina's rule to “CAIR NO
The CAIR NO
The provisions of the CAIR SO
EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for Federal rather than State implementation. The CAIR model SO
In the SIP revision, North Carolina chooses to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO
In general, the CAIR model trading rules apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 megawatt electrical (MWe) producing electricity for sale.
States have the option of bringing in, for the CAIR NO
North Carolina has chosen to expand the applicability provisions of the CAIR NO
Under the NO
States may establish in their SIP submissions a different NO
1. The cost to recipients of the allowances, which may be distributed for free or auctioned;
2. The frequency of allocations;
3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and
4. The use of allowance set-asides and, if used, their size.
North Carolina has chosen to distribute NO
North Carolina has chosen to distribute NO
The State's NO
The CAIR establishes a CSP to provide an incentive for early reductions in NO
The CAIR annual NO
Consistent with the flexibility given to States in the model trading rule, North Carolina has not chosen to modify the provisions of the CAIR NO
The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (
States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all.
Consistent with the flexibility given to States in the FIPs, North Carolina has chosen to allow non-EGUs meeting certain requirements to participate in the CAIR NO
Consistent with the flexibility given to the States in the FIPs, North Carolina has chosen to permit non-EGUs meeting certain requirements to participate in the CAIR NO
Consistent with the flexibility given to the States in the FIPs, North Carolina has chosen to allow certain non-EGUs to opt into the CAIR SO
EPA is proposing to approve, as interpreted and clarified herein, North Carolina's full CAIR SIP revision submitted on June 20, 2008. Under the approved SIP revision, North Carolina is choosing to participate in the EPA-administered CAIR cap-and-trade programs for SO
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); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Carbon monoxide, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.
Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.
42 U.S.C. 7401
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to revise the list of nonavailable articles at FAR 25.104(a). The Councils also request public comment as to whether some articles on the list of nonavailable articles are now mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality and should therefore be removed from the list.
Interested parties should submit written comments to the Regulatory Secretariat on or before October 6, 2009 to be considered in the formulation of a final rule.
Submit comments identified by FAR case 2009-013 by any of the following methods:
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•
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Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501-4755. Please cite FAR case FAR case 2009-013.
The Buy American Act does not apply with respect to articles, materials, or supplies if articles, materials, or supplies of the class or kind to be acquired, either as end items or components, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.
A nonavailability determination has been made for the articles listed in FAR 25.104(a). As stated at FAR 25.103, this determination does not necessarily mean that there is no domestic source for the listed items, but that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment demand.
Before acquisition of an article on the list, the procuring agency is responsible for conducting market research appropriate to the circumstances, including seeking domestic sources. This applies to acquisition of an article as—
(A) An end product; or
(B) A significant component (valued at more than 50 percent of the value of all the components).
The class determination for articles on the list does not apply if the contracting officer learns at any time before the time designated for receipt of bids in sealed bidding or final offers in negotiation that an article on the list is available domestically in sufficient and reasonably available commercial quantities of a satisfactory quality to meet the requirements of the solicitation.
The head of the contracting activity may make an individual determination that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. If the contracting officer considers that the nonavailability of an article is likely to affect future acquisitions, the contracting officer may submit a copy of the determination and supporting
Accordingly, the Defense Supply Center Philadelphia (DSCP), a field activity of the Defense Logistics Agency (DLA), has requested addition of yeast (active dry and instant active dry) and canned pineapple. The results of DSCP market research are summarized as follows:
a.
b.
A previous FAR Case, 2003-007, added to the list at FAR 25.104(a) an article titled “modacrylic fur ruff” (69 FR 34241, June 18, 2004). This addition was based upon a domestic nonavailability determination approved by the Under Secretary of Defense (Acquisition, Technology and Logistics) dated December 11, 2002, for modacrylic fiber. Therefore, this rule proposes to correct the listing to read “modacrylic fiber” in lieu of “modacrylic fur ruff.”
In addition, FAR 25.104(b) requires publication of the list of nonavailable articles for public comment in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35,
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 25 as set forth below:
1. The authority citation for 48 CFR part 25 continues to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 25.104 by removing from paragraph (a) “Modacrylic fur ruff” and adding “Modacrylic fiber” in its place, and by adding, in alphabetical order, “Pineapple, canned” and “Yeast, active dry and instant active dry”.
Fish and Wildlife Service, Interior.
Proposed rule; availability of draft environmental assessment.
We, the U.S. Fish and Wildlife Service propose to approve tungsten-iron-fluoropolymer shot alloys for hunting waterfowl and coots. We published an advance notice of proposed rulemaking for this group of alloys in the
Send comments on this proposal and/or the associated Draft Environmental Assessment by September 8, 2009.
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George T. Allen, Division of Migratory Bird Management, 703-358-1825.
The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-711) and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712) implement migratory bird treaties between the United States and Great Britain for Canada (1916, amended), Mexico (1936, amended), Japan (1972, amended), and Russia (then the Soviet Union, 1978). These treaties protect certain migratory birds from take, except as permitted under the Acts. The Acts authorize the Secretary of the Interior to regulate take of migratory birds in the United States. Under this authority, we control hunting of migratory game birds through regulations in 50 CFR part 20.
Deposition of toxic shot and release of toxic shot components in waterfowl hunting locations are potentially harmful to many organisms. Research has shown that ingested spent lead shot causes significant mortality in migratory birds. Since the mid-1970s, we have sought to identify shot types that do not pose significant toxicity hazards to migratory birds or other wildlife. We addressed lead poisoning in waterfowl in an Environmental Impact Statement (EIS) in 1976, and again in a 1986 supplemental EIS. The 1986 document provided the scientific justification for a ban on the use of lead shot and the subsequent approval of steel shot for hunting waterfowl and coots that began that year, with a complete ban of lead for waterfowl and coot hunting in 1991. We have continued to consider other potential candidates for approval as nontoxic shot. We are obligated to review applications for approval of alternative shot types as nontoxic for hunting waterfowl and coots.
Tundra Composites, LLC, seeks approval of Tungsten-Iron-Fluoropolymer (TIF) shot alloys of 41.5 to 95.2 percent tungsten, 1.5 to 52.0 percent steel, and 3.5 to 8.0 percent fluoropolymer by weight as nontoxic. The tungsten and iron in this shot type have already been approved in other nontoxic shot types. The applicant did a worst-case evaluation of the potential impacts of the fluoropolymer on fish, wildlife, and their habitats.
The data from the applicant indicate that the tungsten-iron-fluoropolymer alloys will be nontoxic when ingested by waterfowl, and should not pose a significant danger to migratory birds, other wildlife, or their habitats. We conclude that they raise no particular concerns about deposition in the environment or about ingestion by waterfowl or predators.
Many hunters believe that some nontoxic shot types do not compare favorably to lead and that they may damage some shotgun barrels, and a small percentage of hunters have not complied with nontoxic shot regulations. Allowing use of additional nontoxic shot types may encourage greater hunter compliance and participation with nontoxic shot requirements and discourage the use of lead shot. The use of nontoxic shot for waterfowl hunting increased after the ban on lead shot (Anderson
We have reviewed the shot under the criteria in Tier 1 of the revised nontoxic shot approval procedures contained in 50 CFR 20.134 for permanent approval of shot as nontoxic for hunting waterfowl and coots. We propose to amend 50 CFR 20.21 (j) to add TIF shot to the list of the approved types of shot for waterfowl and coot hunting.
In 2008, in the Waterfowl Breeding Population and Habitat Survey traditional survey area (strata 1-18, 20-50, and 75-77), the total duck population estimate was 37.3 ± with a standard error of 0.6 million birds. This was 9% lower than last year's estimate of 41.2 ± 0.7 million birds, but 11% above the 1955-2007 long-term average. Mallard (
Habitat conditions during the 2008 Waterfowl Breeding Population and Habitat Survey were characterized in many areas by a delayed spring compared to several preceding years. Drought in many parts of the traditional survey area contrasted sharply with record snow and rainfall in the eastern survey area. The total pond estimate for Prairie Canada and the United States combined was 4.4 ± 0.2 million ponds, 37% below last year's estimate of 7.0 ± 0.3 million ponds and 10% lower than the long-term average of 4.9 ± 0.03 million ponds. The 2008 estimate of ponds in Prairie Canada was 3.1 ± 0.1 million. This was a 39% decrease from last year's estimate (5.0 ± 0.3 million), and 11% below the 1955-2007 average (3.4 ± 0.03 million). The 2008 pond estimate for the north-central United States (1.4 ± 0.1 million) was 30% lower than last year's estimate (2.0 ± 0.1 million) and 11% below the long-term
Tungsten-Iron-Fluoropolymer shot has a density ranging from 8.0 to 12.5 grams per cubic centimeter (g/cm
The 8.0 g/cm
The tungsten and the iron in these alloys have been approved in other nontoxic shot types (see “Impact of Approval of the Shot Type”), and the submitters asserted that the alloys pose no adverse toxicological risks to waterfowl or other forms of terrestrial or aquatic life. The metals in the alloys are insoluble under normal hot and cold. Neither manufacturing the shot nor firing shotshells containing the shot will alter the metals or the fluoropolymer, or change how they dissolve in the environment.
Calculation of the estimated environmental concentration (EEC) of a candidate shot in a terrestrial ecosystem is based on 69,000 shot per hectare (ha) (50 CFR 20.134). These calculations assume that the shot dissolves promptly and completely after deposition. Because the tungsten and iron have been approved in other nontoxic shot types, we focus on the manganese and silicon in the alloys.
The EEC for the manganese in TIF shot would be approximately 0.11 parts per million. The maximum increase in environmental concentration for manganese in terrestrial settings would be 23.1 micrograms per liter. If the shot were completely dissolved or eroded, the EEC in soil is much less than the 50th percentile of typical background concentrations for manganese in soils of the United States.
If totally dissolved, the shot would produce a silicon concentration of 0.1082 parts per million (ppm), or 0.07 kg/ha/year. Silicon is not found free in nature, but combines with oxygen and other elements in nature to form silicates (LANL 2003; USGS 2009). Silicates constitute more than 25% of the Earth's crust (USGS 2009). Sand, quartz, rock crystal, amethyst, agate, flint, jasper, and opal are some of the forms in which the oxide appears (LANL 2003). Thus, the silicon from TIF shot would be insignificant.
The EEC for water assumes that 69,000 number 4 shot are completely dissolved in 1 ha of water 30.48 centimeters deep. The submitter then calculates the concentration of each metal in the shot if the shot pellets dissolve completely. The analyses assume complete dissolution of the shot type containing the highest proportion of each metal in the range of alloys submitted.
The maximum EEC for manganese is 23.1 ppm. There are no U.S. Environmental Protection Agency (EPA) acute or chronic quality criteria available for manganese for freshwater or saltwater. However, the State of Colorado has acute and chronic freshwater quality criteria for manganese of 2,986 ppm and 1,650 ppm, respectively (assuming a hardness of 100 mg/L as CaCO
The EEC for silicon from TIF shot would be 21.4 ppm. The EPA has set no acute or chronic criteria for silicon in freshwater or saltwater. Furthermore, silicates are commonly present in many soils and sediments.
For the fluoropolymer in the shot, the EEC in aquatic systems would be 273.1 ppm. We believe this value has little meaning, given the insolubility of the fluoropolymer.
When nontoxic shot is ingested by waterfowl, both physical breakup of the shot and dissolution of the metals that comprise the shot may occur in the highly acidic environment of the gizzard. In addition to the standard Tier 1 application information (50 CFR 20.134), Tundra Composites provided the results of an in vitro gizzard simulation test conducted to quantify the release of metals in solution under the prevailing pH conditions of the avian gizzard. The metal concentrations released during the simulation test were, in turn, compared to known levels of metals that cause toxicity in waterfowl. The evaluation followed the methodology of Kimball and Munir (1971) as closely as possible.
The test solution pH averaged 2.01 over the 14-day test period and the average temperature of the digestion solution averaged 41.8 °C. In the test,
It is reasonable to expect that if the
The testing completed by the applicant indicates that TIF shot is highly resistant to degradation, and poses little risk to waterfowl or other biota if ingested in the field. The slow breakdown of the shot only permits metals to be released at concentrations that are substantially below toxic levels of concern in waterfowl. Furthermore, the fluoropolymer present in TIF shot will not degrade if ingested by waterfowl.
We have previously assessed and approved various alloys containing tungsten, and/or iron as nontoxic for hunting waterfowl (
Manganese is an essential nutrient for both plants and animals. In animals, manganese is associated with growth, normal functioning of the central nervous system, and reproductive function. In plants, manganese is essential for the oxidation-reduction process (EPA 2007). Manganese compounds are important soil constituents, and the 50th percentile of typical background concentrations for manganese range from 400 kg dry weight in eastern U.S. soils to 600 kg dry weight in western U.S. soils.
One number 4 TIF shot contains approximately 0.001 gram of manganese. The geometric mean of avian No Observed Adverse Effect Level (NOAEL) values for reproduction and growth that were identified by the EPA in its derivation of an Ecological Soil Screening Level (Eco-SSL) for manganese was 179 kg of body weight per day (EPA 2007). Based upon the avian NOAEL of 179 milligrams of manganese per kilogram of body weight per day, a 2-kg bird could safely consume about 352 TIF shot per day without suffering from the consumption of the shot. Similarly for mammals, the geometric mean of mammalian NOAEL values for reproduction and growth that were identified by the EPA in its derivation of an Eco-SSL for manganese was 51.5 milligrams of manganese per kilogram of body weight per day (EPA 2007). Based upon the mammalian NOAEL of 51.5 milligrams of manganese per kilogram of body weight per day, a 1-kg mammal could safely consume approximately 50 TIF shot per day without suffering manganese toxicosis.
There are no EPA acute or chronic or freshwater saltwater criteria for manganese. However, Colorado acute and chronic freshwater criteria are 2,986 micrograms per liter and 1,650 micrograms per liter, respectively (assuming a hardness of 100 milligrams per liter as CaCO
Based upon available NOAEL values, birds and mammals would have to ingest in excess of 50 TIF shot per day before manganese toxicosis could occur. Assuming complete erosion of all shot, the EEC of manganese in soil is much less than the 50th percentile of typical background concentrations for manganese in soils of the United States. The EEC for manganese is well below both the acute and chronic criteria for freshwater from the State of Colorado, assuming complete dissolution of the shot. In sum, the manganese in TIF shot will result in very minimal estimated exposure concentrations to wetland biota.
No reproductive or other effects were observed in mallards consuming the equivalent of 102 milligrams of nickel as nickel sulfate each day for 90 days (Eastin and O'Shea 1981). Therefore, the 0.037 milligram of nickel released from 8 TIF shot per day will pose no risk of adverse effects to waterfowl. In addition, metallic nickel likely is absorbed less from the gastrointestinal tract than is the nickel sulfate used in the mallard reproduction study.
The maximum tolerable level of dietary copper during the long-term growth of chickens and turkeys has been reported to be 300 kg (CMTA 1980). At the maximum tolerable level for chronic exposure of 300 kg for poultry, a 1.8-kg chicken consuming 100 g of food per day (Morck and Austic 1981) would consume 30 mg copper per day (16.7 milligrams of copper per kilogram of body weight per day). Since the average amount of copper released from 8 TIF shot per day would be 0.017 mg, a bird would have to ingest in excess of 1000 TIF shot to exceed the maximum tolerable level.
Dietary levels of 10.0 mg chromium(III)/kilogram for 10 weeks depressed survival in young black ducks (Haseltine
We found no data for assessing acute or chronic toxicity of the silicon present in TIF shot. EPA has not set acute or chronic criteria for silicon in aquatic systems. However, silicon compounds are so widespread in nature, and we think it highly likely that sediments consumed incidentally by waterfowl contain silicates.
Silicon is not found free in nature, but silicates constitute more than 25% of the Earth's crust (USGS 2009), in sand, quartz, rock crystal, amethyst, agate, flint, jasper, and opal, among other rocks. Granite, hornblende, asbestos, feldspar, clay, and mica are among the numerous silicate minerals.
No data are available on acute or chronic toxicity of the fluoropolymer
Based on the information provided by the applicant and our assessment, we have little concern for problems due to organisms ingesting TIF shot or from dissolution of the shot in aquatic settings.
Allowing use of additional nontoxic shot types may encourage greater hunter compliance and participation with nontoxic shot requirements and discourage the use of lead shot. Furnishing additional approved nontoxic shot types will likely further reduce the use of lead shot. Thus, approving additional nontoxic shot types will likely result in a minor positive long-term impact on waterfowl and wetland habitats.
The impact on endangered and threatened species of approval of the TIF alloys would be very small, but positive. The metals in TIF alloys have been approved in other nontoxic shot types, and we believe that the fluoropolymer is highly unlikely to adversely affect animals that consume the shot or habitats in which the shot might be used. We see no potential effects on threatened or endangered species due to approval of these alloys.
We obtained a biological opinion pursuant to section 7 of the ESA prior to establishing the seasonal hunting regulations. The hunting regulations promulgated as a result of this consultation remove and alleviate chances of conflict between migratory bird hunting and endangered and threatened species.
Previously approved shot types have been shown in test results to be nontoxic to the migratory bird resource, and we believe that they cause no adverse impact on ecosystems. There is concern, however, about noncompliance and potential ecosystem effects. The use of lead shot has a negative impact on wetland ecosystems due to the erosion of shot, causing sediment/soil and water contamination and the direct ingestion of shot by aquatic and predatory animals. Though we believe noncompliance is of concern, approval of the TIF alloys will have little impact on the resource.
We foresee no negative cumulative impacts of approval of the TIF alloys for waterfowl hunting. Their approval may help to further reduce the negative impacts of the use of lead shot for hunting waterfowl and coots. We believe the impacts of approval of TIF shot for waterfowl hunting in the United States should be positive.
Previous assessments of nontoxic shot types indicated that the iron and the tungsten from shot alloys should not harm aquatic or terrestrial systems. The solubility testing of TIF shot indicated that the negligible release of the metals from TIF shot (including the trace amounts of chromium, copper, and nickel released at low pH) will not be a hazard to aquatic systems or to biota. For these reasons, and in accordance with 50 CFR 20.134, we propose to approve TIF shot as nontoxic for hunting waterfowl and coots, and propose to amend 50 CFR 20.21(j) accordingly. Our approval is based on the toxicological report, acute toxicity studies, reproductive/chronic toxicity studies, and other published research. The available information indicates that the TIF alloys should be nontoxic when ingested by waterfowl and that they pose no significant danger to migratory birds, other wildlife, or their habitats.
For a complete list of the literature cited in this proposed rule, contact the person listed under
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
If you submit a comment via
The Office of Management and Budget (OMB) has determined that this rule is not significant under E.O. 12866. OMB bases its determination upon the following four criteria:
a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
b. Whether the rule will create inconsistencies with other Federal agencies' actions.
c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
d. Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities. The rule would allow small entities to continue actions they have been able to take under the regulations—actions specifically designed to improve the economic viability of those entities—and, therefore, will not significantly affect them economically. We certify that because this rule will not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.
This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)).
a. This rule will not have an annual effect on the economy of $100 million or more.
b. This rule will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, Tribal, or local government agencies; or geographic regions.
c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This rule will not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the regulation will not affect small government activities in any significant way.
b. This rule will not produce a Federal mandate of $100 million or greater in any year. It will not be a “significant regulatory action” under the Unfunded Mandates Reform Act.
In accordance with E.O. 12630, this rule does not have significant takings implications. A takings implication assessment is not required. This rule does not contain a provision for taking of private property.
This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It will not interfere with the ability of States to manage themselves or their funds.
In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501
Our Draft Environmental Assessment is part of the administrative record for this proposed regulations change. In accordance with the National Environmental Policy Act (NEPA, 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian Tribes and have determined that there are no potential effects. This rule will not interfere with the ability of Tribes to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.
On May 18, 2001, the President issued E.O. 13211 addressing regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule change will not be a significant regulatory action under E.O. 12866, nor would it significantly affect energy supplies, distribution, or use. This action will not be a significant energy action, and no Statement of Energy Effects is required.
Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons discussed in the preamble, we propose to amend part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations as follows:
1. The authority citation for part 20 continues to read as follows:
Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C. 703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Public Law 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
2. Amend § 20.21 by revising paragraph (j) to read as follows:
(j)(1) While possessing loose shot for muzzle loading or shotshells containing other than the following approved shot types.
(2) Each approved shot type must contain less than 1 percent residual lead (
(3) This shot type restriction applies to the taking of ducks, geese (including brant), swans, coots (
Notice and request for comments.
The Recovery Accountability and Transparency Board (Board) invites comments on the proposed information collection request as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before October 6, 2009.
Send all comments to Jennifer Dure, Office of General Counsel, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue, NW., Suite 700, Washington, DC 20006.
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to provide 60 days' notice to the public for comment on information collection activities before seeking approval of such activities by the Office of Management and Budget (OMB). Specifically, the Board invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) Whether the information collection activities are necessary for the Board to properly execute its functions; (ii) the accuracy of the Board's estimates of the burden of the information collection activities; (iii) ways for the Board to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for the Board to minimize the burden of information collection activities on the public.
Below is a brief summary of the proposed information collection:
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the use of irradiation as a phytosanitary treatment of imported fruits and vegetables.
We will consider all comments that we receive on or before October 6, 2009.
You may submit comments by either of the following methods:
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•
For information regarding regulations for irradiation as a phytosanitary treatment of imported fruits and vegetables, contact Dr. Inder P. Gadh, Senior Risk Manager-Treatments, Regulations, Permits, and Manuals, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 734-0627. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
Regulations governing the importation of fruits and vegetables are set out in 7 CFR part 319. In accordance with the regulations, some fruits and vegetables from certain regions of the world must be treated for insect pests in order to be eligible for entry into the United States.
The regulations in 7 CFR part 305 provide for the use of irradiation as a phytosanitary treatment for fruits and vegetables imported into the United States. The irradiation treatment provides protection against all insect pests including fruit flies, the mango seed weevil, and others. It may be used as an alternative to other approved treatments for these pests in fruits and vegetables, such as fumigation, cold treatment, heat treatment, and other techniques.
The regulations concerning irradiation treatment involve the collection of information, including a compliance agreement, 24-hour notification, labeling, dosimetry recordings, requests for dosimetry device approval, requests for facility approval, trust fund agreement, and annual work plan, as well as recordkeeping.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, 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 information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on a proposed information collection for determining eligibility for free and reduced price meals and free milk in schools. 7 CFR part 245 contains information on Federal requirements regarding the determination and verification of eligibility for free and reduced price meals. The provisions also apply to the determination of eligibility for free milk under the Special Milk Program, OMB Number 0584-0005 and are generally applicable to the Child and Adult Care Food Program, OMB Number 0584-0055 and the Summer Food Service Program, OMB Number 0584-0280 when individual children's eligibility must be established. The current approval for the information collection burden associated with 7 CFR part 245 expires on January 31, 2010. This proposed collection is a revision of the currently approved collection for determining eligibility for free and reduced price meals and free milk in schools and concerns the collection of eligibility information and verification proceedings.
Written comments must be submitted by October 6, 2009.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) 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; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of 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.
All written comment(s) will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval, and will become a matter of public record.
Mrs. Lynn Rodgers-Kuperman at (703) 305-2590.
The affected public, estimated number of respondents, frequency of reporting, annual responses and burden for reporting and recordkeeping are as follows:
National Agricultural Statistics Service.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Cold Storage Survey. Revision to burden hours will be needed due to changes in the size of the target population, expected increases in response rates, and modes of data collection. The questionnaires have had some minor modifications to accommodate changes in the products stored by the industry, and to make the questionnaires easier to complete. The entire target population for cold storage operators will be contacted for this data on a monthly basis. Fruit storage operations are contacted on a seasonal basis. The capacity survey is conduced once every other year. These surveys are voluntary, except for operations that store certain manufactured dairy products that are required by Public Law No. 106-532 and 107-171 to respond.
Comments on this notice must be received by October 6, 2009 to be assured of consideration.
You may submit comments, identified by docket number 0535-0001, by any of the following methods:
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Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333.
The monthly Cold Storage Survey provides information on national supplies of food commodities in refrigerated storage facilities. A biennial survey of refrigerated warehouse capacity is also conducted to provide a benchmark of the capacity available for refrigerated storage of the nation's food supply. Information on stocks of food commodities facilitates proper price discovery and orderly marketing, processing, and distribution of agricultural products.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on a proposed information collection. The proposed collection is an extension of a currently approved collection for the FNS-143, Claim for Reimbursement (Summer Food Service Program), which is used to collect data on the number of meals served and cost data from sponsoring organizations participating in the Program.
Written comments must be submitted by October 6, 2009.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All written comment(s) will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for OMB approval, and will become a matter of public record.
Request for additional information should be directed to: Mrs. Lynn Rodgers-Kuperman at (703) 305-2590.
The form is an intrinsic part of the accounting system currently being used by the subject program to ensure proper reimbursement as well as to facilitate adequate recordkeeping.
Animal and Plant Health Inspection Service, USDA.
Revision and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to revise an information collection associated with plant pest, noxious weed, and garbage regulations and to request an extension of approval of the information collection.
We will consider all comments that we receive on or before
You may submit comments by either of the following methods:
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For information regarding plant pest, noxious weed, and garbage regulations, contact Dr. Shirley Wager-Pagé, Chief, Pest Permit Branch, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 734-8453. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
In connection with this mission, APHIS regulates the importation and interstate movement of plant pests, noxious weeds, and waste material derived from plant or animal matter (commonly referred to as garbage) under 7 CFR parts 330 and 360 and 9 CFR part 94.
These regulations contain information collection requirements, including requirements to apply for permits to import regulated articles (
This information collection includes information collection requirements currently approved by the Office of Management and Budget (OMB) under control numbers 0579-0054, “Plant Pest, Noxious Weed, and Garbage Regulations,” and 0579-0306, “Interstate Movement of Garbage from Hawaii.” After OMB approves and combines the burden for both collections under a single collection (0579-0054), the Department will retire number 0579-0306.
We are asking OMB to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, 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 information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the Virus-Serum-Toxin Act and regulations.
We will consider all comments that we receive on or before October 6, 2009.
You may submit comments by either of the following methods:
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For information on the Virus-Serum-Toxin Act and regulations, contact Dr. Albert Morgan, Section Leader, Operational Support Staff, Center for Veterinary Biologics, VS, APHIS, 4700 River Road, Unit 148, Riverdale, MD 20737; (301) 734-8245. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
In accordance with the regulations in 9 CFR 105.3 and 115.2, APHIS may notify a veterinary biologics licensee or permittee to stop the preparation, importation, and/or distribution and sale of a serial or a subserial of a veterinary biologic if, at any time, it appears that such product may be worthless, contaminated, dangerous, or harmful in the treatment of animals. This notification triggers two information collection activities: (1) After being contacted by APHIS, veterinary biologics licensees or permittees must immediately, but no later than 2 days, send stop distribution and sale notifications to any wholesalers, jobbers, dealers, foreign consignees, or other persons known to have such veterinary biologic in their possession, and (2) veterinary biologics licensees and permittees must account for the remaining quantity of each serial or subserial of any such veterinary biologic at each location in the distribution channel known to the licensee or permittee.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning these information collection activities. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, 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 information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Notice of Intent to prepare an Environmental Impact Statement.
The Forest Service will prepare an environmental impact statement (EIS) on a proposal to implement restoration activities, fuel reduction treatments, and recreation enhancements within the Cedar and Thompson Creek drainages, Lolo National Forest, Superior Ranger District, Mineral County, Montana.
This EIS will tier to the Lolo National Forest Plan Final EIS (April 1986).
Comments concerning the scope of the analysis must be received by no later than 30 days from date of publication of this notice in the
Send written comments to: Cedar-Thom Project Leader, USDA Forest Service, P.O. Box 429, Plains, Montana 59859. Comments may also be sent via e-mail to:
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action.
Pat Partyka, Project Leader, (406) 826-4314.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The Lolo National Forest Plan, 1986, provides overall guidance for land management activities in the project area. The purposes of the Cedar-Thom project are to: (1) Restore vegetative conditions that are resistant to undesirable effects of fire, insects, disease, and drought; (2) Reduce forest fuels in wildland urban interface (WUI) and non-WUI areas and re-establish fire as a disturbance process on the landscape; (3) Improve or maintain big game winter range; (4) Enhance watershed health with improvements to fish habitat and stream function; and (5) Enhance recreation opportunities and establish trail travel management designations consistent with land management objectives.
The Cedar-Thom project area of approximately 58,000 acres is located southwest of Superior, Montana within TI5N, R27W; TI5N, R28W; TI6N, R27W; TI6N, R28W; TI7N, R26W; T 1 7N, R27W, P.M.M. Within this area, the Lolo National Forest proposes the following activities to achieve the purpose and need for the project: (1) Timber harvest on approximately 6758 acres; (2) non-commercial mechanical vegetation treatments on about 2290 acres; (3) Prescribed burning on approximately 9550 acres; (4) temporary road construction (5 miles) and long-term specified road construction (6 miles); (5) Road decommissioning (116 miles), road storage (9 miles), and gate closure (6 miles); (6) Culvert replacements; (7) Restoration of selected stream segments; (8) Riparian vegetation planting; (9) Removal of a 500-foot segment of historic railroad grade that infringes on Cedar Creek; (10) Roadside weed spraying; (11) Development of an 8-mile ATV trail using primarily existing road prisms; (12) Construction of an equestrian trailhead for the Thompson Creek trail (#173); (13) Construction of a non-motorized trail from Mink Peak to Lost Lake; and (14) Change the travel management status on trails that are currently designated as both motorized and non-motorized to non-motorized only.
If, after the completion of the environmental analysis and review of public comments the Responsible Official decides to select an action alternative, implementation could begin in 2012 and would continue for several years.
The Forest Supervisor will decide whether to implement the proposed action, take an alternative action that meets the purpose and need, or take no action. The decision may include a site-specific amendment to the Lolo National Forest Plan to allow approximately 215 acres of fuel reduction treatments that would include the removal of commercial-sized trees within Management Area 11, in which the Forest Plan limits tree cutting to that required to eliminate safety hazards or permit trail construction.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. Information on the proposed action will be posted on the Forest Web site at:
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Forest Service, USDA.
Notice of meeting.
The Trinity County Resource Advisory Committee (RAC) will meet at the Trinity County schools office conference room on August 17, 2009 from 6:30 p.m. The purpose of this meeting is to discuss proposed projects under Title II of the Secure Rural Schools and Community Self-Determination Act of 2008.
Monday, August 17, 2009 at 6:30 p.m.
The meeting will be held at the Trinity County Office of Education, 201 Memorial Drive, Weaverville, CA 96093.
Resource Advisory Committee Coordinator John Heibel at 530-226-2524 or
The meeting is open to the public. Public input sessions will be provided and individuals will have the opportunity to address the Trinity County Resource Advisory Committee.
Forest Service, USDA.
Notice of meeting.
The Lake Tahoe Basin Federal Advisory Committee will hold a meeting on August 25, 2009 at The Chateau, 955 Fairway Blvd., Incline Village, NV 89451. This Committee, established by the Secretary of Agriculture on December 15, 1998 (64 FR 2876), is chartered to provide advice to the Secretary on implementing the terms of the Federal Interagency Partnership on the Lake Tahoe Region and other matters raised by the Secretary.
The meeting will be held August 25, 2009, beginning at 1 p.m. and ending at 4 p.m.
The meeting will be held at The Chateau, 955 Fairway Boulevard, Incline Village, NV 89451.
Linda Lind, Lake Tahoe Basin Management Unit, Forest Service, 35 College Drive, South Lake Tahoe, CA 96150, (530) 543-2787.
Items to be covered on the agenda include: (1) Discussion of the Tahoe Science Consortium review of capital projects for monitoring and adaptive management opportunities; (2) review of the Erosion Control Program process and priorities; and (3) Public Comment. All Lake Tahoe Basin Federal Advisory Committee meetings are open to the public. Interested citizens are encouraged to attend at the above address. Issues may be brought to the attention of the Committee during the open public comment period at the meeting or by filing written statements with the secretary for the Committee before or after the meeting. Please refer
Office of the Acting Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Acting Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services, are sponsoring a public meeting on September 2, 2009. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the 30th Session of the Codex Committee on Fish and Fishery Products (CCFFP) of the Codex Alimentarius Commission (Codex), which will be held in Agadir, Morocco from September 28 to October 2, 2009. The Acting Under Secretary for Food Safety and the FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 30th Session of the CCFFP and to address items on the agenda.
The public meeting is scheduled for Wednesday, September 2, 2009, from 1 p.m. to 4 p.m.
The public meeting will be held in the Harvey Wiley Federal Building, 5100 Paint Branch Parkway, College Park, Maryland 20740. The meeting room number is 1A001. Documents related to the 30th Session of the CCFFP will be accessible via the World Wide Web at the following address:
The U.S. Delegate to the 30th Session of the CCFFP, Mr. Donald Kraemer, Food and Drug Administration, invites interested U.S. parties to submit their comments electronically to the following e-mail address
To gain admittance to this meeting, individuals must present a photo ID for identification and also are required to pre-register. In addition, no cameras or videotaping equipment will be permitted in the meeting room. To pre-register, please send the following information to this e-mail address:
The Codex Alimentarius Commission (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade.
The CCFFP was established to elaborate codes, standards and related texts for fish and fishery products. The CCFFP is hosted by Norway.
The following items on the agenda for the 30th Session of the CCFFP will be discussed during the public meeting:
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the meeting. Members of the public may access copies of these documents at
At the September 2, 2009, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the U.S. Delegate for the 30th Session of the CCFFP, Mr. Donald Kraemer, at
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at
U.S. Agency for International Development (USAID)—is making efforts to reduce the paperwork burden. USAID invites the general public and other Federal agencies to take this opportunity to comment on the following proposed and/or continuing information collections, as required by the Paperwork Reduction Act for 1995, Comments are requested concerning: (a) Whether the proposed or continuing collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Submit comments on or before October 6, 2009.
Beverly Johnson, Bureau for Management. Office of Administrative Services, Information and Records Division, U.S. Agency for International Development, Room 2.07-106, RRB, Washington, DC 20523, (202) 712-1365 or via e-mail
Send comments via e-mail at
United States Agency for International Development.
Notice of significantly altered system of records.
The United States Agency for International Development (USAID) is issuing public notice of its intent to alter its system of records maintained in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended, entitled “USAID 029—Deployment Tracking System,” originally published in the
Public comments must be received on or before September 8, 2009. Unless comments are received that would require a revision, this update to the system of records will become effective on September 16, 2009.
You may submit comments:
General questions regarding this notice should be directed to Stephanie Getson, Office of Civilian Response, (202) 712-1372. Privacy Act related questions should be directed to Rhonda Turnbow, Deputy Chief Privacy Officer (202) 712-0106.
USAID is proposing to alter its system of records pursuant to the Privacy Act (5 U.S.C. 552a), entitled the Deployment Tracking System (DTS). This system was established to support USAID's responsibilities as part of an interagency effort led by the Department of State, known as the Civilian Response Corps (CRC). In order to participate as a partner agency, USAID must have mechanisms in place to identify, assign or employ personnel with appropriate skill sets and have the ability to mobilize these resources rapidly in response to stabilization crisis.
USAID is proposing to alter its “Deployment Tracking System Records” to increase the categories of records contained within the system of records.
Revise the categories of records covered by the system to read as follows:
This system will contain information relevant to the planning, administration, training, and management of CRC personnel. Categories of records include: Full name, date of birth, height/weight, hair/eye color, blood type, marital status, religion, citizenship, home address, home phone number, mobile phone number, personal e-mail address, emergency contact, next of kin, passport information, driver license information, military record, citizenship, social security number, medical clearance information and security clearance information.
Import Administration, International Trade Administration, Department of Commerce.
In response to timely requests by two manufacturers/exporters, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain stainless steel sheet and strip in coils (SSSSC) from Japan with respect to Hitachi Cable Ltd. (Hitachi Cable) and Nippon Kinzoku Co., Ltd. (NKKN). The review covers the period July 1, 2007, through June 30, 2008.
We preliminarily determine that NKKN and Hitachi Cable did not make sales below normal value (NV).
If the preliminary results are adopted in our final results of the administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
Kate Johnson or Rebecca Trainor, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4929 and (202) 482-4007, respectively.
In response to timely requests by two manufacturers/exporters, on August 26, 2008, the Department published in the
On September 4, 2008, we issued the antidumping duty questionnaire to Hitachi Cable and NKKN. We received responses to sections A, B, and C of the questionnaire from Hitachi Cable and NKKN in October and November 2008.
On November 12, and 25, 2008, the petitioners in the above-referenced administrative review (
During the period December 2008 through July 2009, we issued to Hitachi Cable and NKKN supplemental questionnaires with respect to sections A, B, C, and D of the original questionnaire. We received responses to these questionnaires during the period December 2008 through July 2009.
On March 9, 2009, pursuant to section 751(a)(3) of the Tariff Act of 1930, as amended (the Act), the Department postponed the preliminary results of this review until July 31, 2009.
Pursuant to section 782(i) of the Act, the Department conducted verifications of the questionnaire responses submitted by Hitachi Cable, NKKN, and one of NKKN's affiliated resellers, Nikkin Steel Co., Ltd. in May and June 2009.
For purposes of this order, the products covered are certain SSSSC. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under review is dispositive.
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
Flapper valve steel is also excluded from the scope of the order. This product is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1,700 Mpa and ultimate tensile strengths as high as 1,750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
The period of review (POR) is July 1, 2007, through June 30, 2008.
In comments submitted to the Department on November 12, 2008, February 2, 2009, and February 23, 2009, the petitioners alleged that Hitachi Cable's sole U.S. sale during the POR was not a
For the following reasons, we preliminarily determine that Hitachi Cable's sale to the United States is a
Therefore, based on the record information and our verification thereof, we preliminarily determine that Hitachi Cable's sale to the United States constitutes a
To determine whether sales of SSSSC from Japan to the United States were made at less than NV, we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Constructed Export Price/Export Price” and “Normal Value” sections of this notice, below. We made adjustments to the reported U.S. and home market sales data based on verification findings, as described in the Hitachi Calculation Memo and Memorandum to the File, “Nippon Kinzoku Ltd. Preliminary Results Margin Calculations” (July 31, 2009).
Pursuant to section 777A(d)(2) of the Act, for NKKN and Hitachi Cable we compared the EPs or CEPs, as appropriate, of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section, below.
In accordance with section 771(16) of the Act, we considered all products produced by NKKN and Hitachi Cable covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of SSSSC to sales of SSSSC made in the comparison market for NKKN and Hitachi Cable within the contemporaneous window period, which extends from three months prior to the month of the U.S. sales until two months after the U.S. sales. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales of SSSSC to sales of SSSSC of the most similar foreign like product made in the ordinary course of trade.
In making the product comparisons, we matched foreign like products based on the physical characteristics reported by the respondents in the following order: Grade of stainless steel, whether hot- or cold-rolled, gauge, surface finish, metallic coating, non-metallic coating, width, temper, and edge trim.
For certain U.S. sales made by NKKN we used EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to
For Hitachi Cable's U.S. sale and certain of NKKN's U.S. sales, we calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was sold for the account of NKKN and Hitachi Cable by their respective subsidiaries in the United States to unaffiliated purchasers.
In accordance with section 772(b) of the Act, we calculated CEP, as the subject merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.
We made deductions from the starting price for international freight expenses, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by Hitachi Cable and its U.S. affiliate on its sales of the subject merchandise in the United States and the profit associated with those sales.
In accordance with section 772(a) of the Act, we calculated EP for those sales where the merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States. We based EP on prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price, where appropriate, for foreign inland freight expenses, foreign inland insurance expenses, and foreign brokerage and handling expenses, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(b) of the Act, we calculated CEP for those sales where the merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter.
We made deductions from the starting price for movement expenses, in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight and insurance expenses, foreign brokerage and handling expenses, marine insurance expenses, international freight expenses, U.S. brokerage and handling expenses, and U.S. warehousing expenses.
In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by NKKN and its U.S. affiliate on its sales of the subject merchandise in the United States and the profit associated with those sales.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Based on this comparison, we determined that both NKKN and Hitachi Cable had viable home markets during the POR. Consequently, we based NV on home market sales for NKKN and Hitachi Cable.
During the POR, NKKN and Hitachi Cable sold the foreign like product to affiliated customers. To test whether these sales were made at arm's-length prices, we compared, on a product-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all applicable billing adjustments, discounts and rebates, movement charges, direct selling expenses, and packing expenses. Pursuant to 19 CFR 351.403(c) and in accordance with the Department's practice, where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise sold to unaffiliated parties, we determined that sales made to the affiliated party were at arm's length.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
Hitachi Cable made one CEP sale through the U.S. affiliate, HCA, to an end-user in the United States on a delivered basis. We examined the selling functions performed by Hitachi Cable for the sale, but not those performed by HCA, consistent with our normal practice for CEP sales.
In the Japanese market, Hitachi Cable made sales to end-users on a delivered basis. We found that Hitachi Cable performed the following selling functions for home market sales: invoicing, customer visits, finished goods storage, freight arrangements, and payment collection. As there was only one channel of distribution for home market sales, we find that there was one LOT in the home market. As the selling functions performed for U.S. and home market customers are identical, we preliminarily determine that the U.S. and home market sales were made at the same LOT during the POR. Consequently, we matched the CEP sale to comparison-market sales at the same LOT, and no LOT adjustment is warranted.
NKKN reported that it made EP and CEP sales to end-users in the United States through two channels of distribution. For EP sales, NKKN made sales to end-users on an FOB basis through an unaffiliated Japanese reseller with knowledge that the subject merchandise was destined for the United States (channel 2). For CEP sales, NKKN made sales to end-users through affiliated trading companies in Japan and the United States, on either an ex-warehouse or a delivered basis (channel 1).
We compared the selling activities performed for the two sales channels in the United States to determine whether they were indicative of different LOTs. For EP sales, NKKN performed the following selling functions: sales and marketing (
In the Japanese market, NKKN and its affiliated resellers made sales to unaffiliated trading companies and end-users through two channels of distribution (
Finally, we compared the U.S. LOT to the home-market LOT, and found that the selling functions performed for customers in both markets were virtually identical. Specifically, NKKN and/or its affiliates in Japan provided sales and marketing, freight and delivery services, and warranty claim processing at equal levels of intensity to both markets. The exception was print advertising, which NKKN performed at a low level of intensity in the home market only. As the performance of this selling function alone is not sufficient to establish a different LOT between sales made in the Japanese market and those made to the United States, we preliminarily determine that the sales to the U.S. and home market during the POR were made at the same LOT.
Based on our analysis of the petitioners' allegations, we found that there were reasonable grounds to believe or suspect that Hitachi Cable's and NKKN's sales of SSSSC in the home market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated sales-below-cost investigations to determine whether Hitachi Cable's and NKKN's sales were made at prices below their respective COPs.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COPs based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses.
The Department relied on the COP data submitted by Hitachi Cable and NKKN for the cost reporting period in their most recent supplemental section D questionnaire responses for the COP calculations, except for the following instances where the information was not appropriately quantified or valued.
1. The only product Hitachi Cable sold in the United States during the POR was produced within the POR but outside of the alternative cost reporting period (CRP).
2. We included certain non-operating income and expense items in the numerator of the G&A expense ratio calculation, which Hitachi had excluded from its calculation. Also, we used the cost of goods sold from Hitachi Cable's financial statements as the denominator in the calculation of the G&A expense ratio as opposed to the total COM plus beginning inventory, as calculated by Hitachi.
3. We estimated the consolidated packing expense based on Hitachi's unconsolidated packing expenses and removed it from the cost of goods sold, which is used as the denominator in the calculation of the financial expense ratio.
4. Hitachi did not provide a cost for one product. Thus, for the preliminary results, we used a similar product's cost as a surrogate cost.
1. We used the revised COM for the U.S. steel grades that NKKN provided at the Department's request after the cost verification.
2. We revised the reported COM to include the cost of re-slitting that was performed by affiliated resellers, consistent with the statute to treat such costs as a part of COM.
On a product-specific basis, we compared the weighted-average COP to the home market sales of the foreign like product, adjusted where applicable, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices, adjusted for any applicable billing adjustments, were exclusive of any applicable movement charges, rebates, discounts, and direct and indirect selling expenses, and packing expenses.
In determining whether to disregard comparison-market sales made at prices below the COP, we examine, in accordance with sections 773(b)(1)(A) and (B) or the Act: (1) whether, within an extended period of time, such sales were made in substantial quantities; and (2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's comparison-market sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales because: (1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and (2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices that would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain specific products, more than 20 percent of Hitachi Cable's and NKKN's comparison-market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We based NV for Hitachi Cable on prices to unaffiliated customers in the home market, or prices to affiliated customers in the home market that were determined to be at arm's length. Where appropriate, we made adjustments to the starting price for billing adjustments. We also made deductions for inland freight (plant/warehouse to customer), under section 773(a)(6)(B)(ii) of the Act, and home market credit expenses, pursuant to 773(a)(6)(C)(iii) of the Act.
Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
We also deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.
We based NV for NKKN on delivered prices to unaffiliated customers in the home market, or prices to affiliated customers in the home market that were determined to be at arm's length. Where appropriate, we made adjustments to the starting price for billing adjustments and rebates. We made deductions, where appropriate, for pre-sale warehousing expenses and inland freight (plant to internal or external warehouse, and plant to customer) and insurance expenses, under section 773(a)(6)(B)(ii) of the Act.
For home market price-to-EP comparisons, we made circumstance-of-sale adjustments for differences in credit expenses and warranty expenses, pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410.
For home market price-to-CEP comparisons, we made deductions for home market credit and warranty expenses, pursuant to 773(a)(6)(C) of the Act.
Furthermore, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
We also deducted home market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
We made currency conversions into U.S. dollars in accordance with section 773A of the Act and 19 CFR 351.415 based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period July 1, 2007, through June 30, 2008, as follows:
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.
Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration, Room 1870, 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.
The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
For Hitachi Cable's U.S. sales and the majority of NKKN's U.S. sales, we note that the respondents reported the entered value for the U.S. sales in question. We will calculate importer-specific
For some of NKKN's U.S. sales, we note that NKKN did not report the entered value for the U.S. sales in question. We will calculate importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, Department of Commerce.
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; telephone: (202) 482-2657 or (202) 482-0649, respectively.
On December 1, 2008, the Department of Commerce (the Department) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 245-day time limit for the preliminary results to a maximum of 365 days.
The Department has determined it is not practicable to complete this review within the statutory time limit because we require additional time to develop the record fully and analyze information related to Trust Chem's U.S. sales and the market economy purchases made by Nantong Longding Chemical Co. Ltd., the manufacturer which sold CVP 23 to Trust Chem. For these reasons, it is impracticable to complete the preliminary results of this administrative review within the originally-specified time limit. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than December 22, 2009, which is 356 days from the last day of the anniversary month. We intend to issue the final results no later than 120 days after publication of the preliminary results notice.
This notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from respondent, ThyssenKrupp Mexinox S.A. de C.V. (Mexinox S.A.) and Mexinox USA, Inc. (Mexinox USA) (collectively, Mexinox) and Petitioners,
We preliminarily determine that sales of S4 in coils from Mexico have been made below normal value (NV). The Department also finds that revocation of the order with respect to Mexinox is not warranted under 19 CFR 351.222(b)(2). If these preliminary results are adopted in our final results of this administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties based on the difference between the constructed export price (CEP) and NV. Interested parties are invited to comment on these preliminary results. Parties who submit argument in these proceedings are requested to submit with the argument: (1) A statement of the issues; (2) a brief summary of the argument; and (3) a table of authorities.
Patrick Edwards, Brian Davis, or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-8029, (202) 482-7924, or (202) 482-3019, respectively.
On July 27, 1999, the Department published in the
On July 30, 2008, Mexinox requested (1) revocation of the antidumping order on S4 in coils from Mexico with respect to Mexinox and (2) that the Department conduct an administrative review of Mexinox for the period from July 1, 2007, through June 30, 2008. On July 31, 2008, in accordance with 19 CFR 351.213(b)(1), Petitioners also requested that the Department conduct an administrative review of Mexinox for the period July 1, 2007, through June 30, 2008. On August 26, 2008, the Department published in the
The POR is July 1, 2007, through June 30, 2008.
On July 30, 2008, Mexinox requested that, pursuant to 19 CFR 351.222(b)(2), the Department revoke it from the antidumping duty order on S4 in coils from Mexico at the conclusion of this administrative review. Mexinox submitted along with its revocation request a certification stating that: (1) The company sold subject merchandise at not less than NV during the POR, and that in the future it would not sell such merchandise at less than NV; (2) the company has sold the subject merchandise to the United States in commercial quantities during each of the past three years, and (3) the company agrees to immediate reinstatement of the antidumping duty order, if the Department concludes that the company, subsequent to revocation, sold the subject merchandise at less than NV.
In determining whether or not to revoke an antidumping duty order with respect to a particular producer/exporter under 19 CFR 351.222(b)(2), the Department considers whether: (1) The producer/exporter has sold the subject merchandise at not less than NV for a period of at least three consecutive years; (2) the producer/exporter has agreed to immediate reinstatement of the order if the Department finds that it has resumed making sales at less than NV; and (3) the continued application of the order is not otherwise necessary to offset dumping.
In this case, our preliminary margin calculation shows that Mexinox sold the subject merchandise at less than NV during the current review period.
For purposes of the order, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36,
Excluded from the scope of the order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled; (2) sheet and strip that is cut to length; (3) plate (
In response to comments by interested parties, the Department has determined that certain specialty stainless steel products are also excluded from the scope of the order. These excluded products are described below.
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves for compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of the order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of the order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of the order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of the order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of the order. These include stainless steel strip in coils used in the production of textile cutting tools (
Mexinox reported the invoice date as the date of sale for certain sales made in all channels of distribution in both the home and U.S. markets. For all other sales in both the home market and the United States, Mexinox reported the date of the binding contract as the date of its sales made pursuant to these binding contracts. Specifically, due to volatile metal prices in recent years, Mexinox stated that it entered into binding contracts fixing prices and quantities for specified sales of subject merchandise for certain customers.
The Department normally uses invoice date as the date of sale, but may use a date other than the invoice date, if the Department is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.
Mexinox explained that other than sales under binding, fixed-price contracts, both home market and U.S. sales by Mexinox generally involve the placement of a purchase order by the customer.
In its SQR at page A-55, Mexinox states that the price and quantity for its sales made pursuant to the binding, fixed contracts are, “firmly established under the contract with the customer, and do not change between the contract date and the invoicing of material to the customer.” However, in reviewing the record, the Department preliminarily finds that the material terms of sale (
Lastly, if the respondent or other party wants the Department to use a different date than invoice date, it must submit information that supports the use of a different date. In the instant review, the Department, for purposes of these preliminary results, finds that Mexinox has not met its burden of proving that the material terms of its U.S. sales were set and were no longer subject to change prior to the invoice date. For a detailed discussion of our date of sale analysis,
Based on all of the above, we preliminarily determine that invoice date is the appropriate date of sale for all of Mexinox's home market and U.S. sales in this administrative review because it represents the date upon which the material terms of sale are established. This is consistent with previous administrative reviews of this order.
Mexinox USA, a wholly-owned subsidiary of Mexinox S.A., which in turn is a subsidiary of ThyssenKrupp Stainless AG (
Mexinox Trading, S.A. de C.V. (Mexinox Trading), a subsidiary of Mexinox S.A., resold the foreign like product, as well as other merchandise, in the home market during the POR.
To determine whether sales of S4 in coils from Mexico to the United States were made at less than fair value (LTFV), we compared CEP sales made in the United States by both Mexinox USA and Ken-Mac to unaffiliated purchasers to NV as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Tariff Act of 1930, as amended (the Act), we compared individual CEPs to monthly weighted-average NVs. For austenitic grade products where we are using a quarterly costing approach, as described in the “Normal Value” section below, we have not made price-to-price comparisons outside of a quarter to lessen the distortive effect of comparing non-contemporaneous sales prices during a period of significantly changing costs.
In accordance with section 771(16) of the Act, we considered all products produced by Mexinox S.A. covered by the description in the “Scope of the Order” section above, and sold in the home market during the POR, to be foreign like product for purposes of determining appropriate product comparisons to U.S. sales. We relied on nine characteristics to match U.S. sales of subject merchandise to comparison sales of the foreign like product (listed in order of priority): (1) Grade; (2) cold/hot rolled; (3) gauge; (4) surface finish; (5) metallic coating; (6) non-metallic coating; (7) width; (8) temper; and (9) edge trim. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's original September 2, 2008, questionnaire.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we base NV on sales made in the comparison market at the same level of trade (LOT) as the export transaction. The NV LOT is based on the starting price of sales in the home market or, when NV is based on constructed value (CV), that of the sales from which selling, general, and administrative (SG&A) expenses and profit are derived. With respect to CEP transactions in the U.S. market, the CEP LOT is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the customer.
We obtained information from Mexinox regarding the marketing stages involved in making its reported home market and U.S. sales to both affiliated and unaffiliated customers. Mexinox provided a description of all selling activities performed, along with a flowchart and tables comparing the LOTs among each channel of distribution and customer category for both markets.
Mexinox sold S4 in coils to end-users and retailers/distributors in the home market and to end-users and distributors/service centers in the United States. For the home market, Mexinox S.A. identified two channels of distribution described as follows: (1)
We then compared the NV LOT, based on the selling functions associated with the transactions between Mexinox S.A. and its customers in the home market, to the CEP LOT, which is based on the selling functions associated with the transaction between Mexinox S.A. and its affiliated importer, Mexinox USA. Our analysis indicates the selling functions performed for home market customers are either performed at a higher degree of intensity or are greater in number than the selling functions performed for Mexinox USA.
Because we found the home market and U.S. sales were made at different LOTs, we examined whether a LOT adjustment or a CEP offset may be appropriate in this review. As we found only one LOT in the home market, it was not possible to make a LOT adjustment to home market sales, because such an adjustment is dependent on our ability to identify a pattern of consistent price differences between the home market sales on which NV is based and home market sales at the LOT of the export transaction.
Mexinox indicated it made CEP sales through its U.S. affiliate, Mexinox USA, in the following four channels of distribution: (1) Direct shipments to unaffiliated customers; (2) stock sales from the San Luis Potosi factory; (3) sales to unaffiliated customers through Mexinox USA's warehouse inventory; and (4) sales through Ken-Mac.
In accordance with section 772(b) of the Act, CEP is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. We preliminarily find Mexinox properly classified all of its U.S. sales of subject merchandise as CEP transactions because such sales were made in the United States through Mexinox USA or Ken-Mac to unaffiliated purchasers. We based CEP on packed prices to unaffiliated purchasers in the United States sold by Mexinox USA or its affiliated reseller, Ken-Mac. We made adjustments for billing adjustments, discounts and rebates, where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act, including foreign inland freight, foreign brokerage and handling, inland insurance, U.S. customs duties, U.S. inland freight, U.S. brokerage and handling, and U.S. warehousing expenses. As directed by section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
For sales in which the material was sent to an unaffiliated U.S. processor, we made an adjustment based on the transaction-specific further-processing expenses incurred by Mexinox USA. In addition, the U.S. affiliated reseller, Ken-Mac, performed some further manufacturing for its sales to
The Department's normal practice is to calculate an annual weighted-average cost for the entire POR.
In prior cases, the Department established 25 percent as the threshold (between the high and low quarterly COM) for determining that the changes in COM are significant enough to warrant a departure from our standard annual costing approach.
As noted above, the Department preliminarily found cost changes to be significant in this administrative review; thus the Department subsequently evaluated whether there is evidence of linkage between the cost changes and the sales prices during the POR. The Department's definition of linkage does not require direct traceability between specific sales and their specific production cost, but rather relies on whether there are elements which would indicate a reasonable correlation between the underlying costs and the final sales prices levied by the company.
In the instant case, Mexinox employs an alloy surcharge mechanism. As articulated in
In light of the two factors discussed above, a significant change in COM between the high and low quarters exists and a reasonable linkage between cost and sales information exists through the alloy surcharge mechanism. Accordingly, we have preliminarily determined that a quarterly costing approach would lead to more appropriate comparisons in our antidumping duty calculations for austenitic products. Therefore, we preliminarily used quarterly indexed annual average direct material costs and annual weighted-average conversion
To determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
Sales to affiliated customers in the home market not made at arm's length prices are excluded from our analysis because we consider them to be outside the ordinary course of trade.
Because we disregarded sales of certain products made at prices below the COP in the most recently completed review of S4 in coils from Mexico (
Using Mexinox's reported quarterly cost database for austenitic grades of product, we measured the cost changes, in terms of a percentage, to develop the direct material indices for each quarter within a specific austenitic stainless steel grade. We used these indices to calculate an annual weighted-average COP for the POR and then restate that annual average COP to each respective quarter on an equivalent basis.
ThyssenKrupp Nirosta GmbH (TKN) and ThyssenKrupp AST, S.p.A. (TKAST), hot-rolled stainless steel coil producers affiliated with Mexinox, sold hot-rolled stainless steel coil to Mexinox USA, which in turn sold hot-rolled stainless steel coil to Mexinox S.A. Hot-rolled stainless steel coil is considered a major input to the production of S4 in coils. Section 773(f)(3) of the Act (the major input rule) states:
If in the case of a transaction between affiliated persons involving the production by one of such persons of a major input to the merchandise, the administering authority has reasonable grounds to believe or suspect that an amount represented as the value of such input is less than the cost of production of such input, then the administering authority may determine the value of the major input on the basis of the information available regarding such cost of production, if such cost is greater than the amount that would be determined for such input under paragraph (2).
A transaction directly or indirectly between affiliated persons may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration. If a transaction is disregarded under the preceding sentence and no other transactions are available for consideration, the determination of the amount shall be based on the information available as to what the amount would have been if the transaction had occurred between persons who are not affiliated.
For these preliminary results, we evaluated the transfer prices between Mexinox and its affiliated hot-rolled stainless steel coil suppliers on a grade-specific basis. For certain grades of hot-rolled stainless steel coil, all three elements of the major input analysis were available. These grades of hot-rolled stainless steel coil account for the majority of volume of hot-rolled stainless steel coil that Mexinox purchased from TKN and TKAST during the POR. As such, we find these purchases provide a reasonable basis for the Department to measure the preferential treatment, if any, given to Mexinox for purchases of hot-rolled stainless steel coil from TKN and TKAST during the POR. Therefore, we adjusted the reported costs to reflect the higher of transfer prices, COP, or market prices of hot-rolled stainless steel coil, where available. Additionally, if necessary, we relied on these results to adjust the reported cost for grades where all three elements of the major input were not available.
Because we have determined that shorter cost periods are appropriate for the COP analysis of austenitic grades, we have performed the major input analysis on a quarterly basis for all grades of austenitic hot-rolled stainless steel coil. For all other grades of hot-rolled stainless steel coil, we have performed the cost-based part of the major input analysis on a POR basis.
We revised Mexinox's G&A expenses to include employee profit sharing expenses and exclude gains on the sales of land and a warehouse. Further, we disallowed the offsets to the G&A expenses for the revenues earned from the recovery of accounts receivables, payments for certificate of material origin requested by customers, ECS fees, lease, travel expenses, and freight because the corresponding expense
In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether, within an extended period of time, such sales were made in substantial quantities, and whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. As noted in section 773(b)(1)(D) of the Act, prices are considered to provide for recovery of costs if such prices are above the weighted average per-unit COP for the period of investigation or review. In the instant case, we have relied on a quarterly costing approach for austenitic grades of merchandise. Similar to that used by the Department in cases of high-inflation (
Where less than 20 percent of the respondent's home market sales of a given model were at prices below the COP, we did not disregard any below-cost sales of that model because we determined that the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of the respondent's home market sales of a given model were at prices less than the COP, we disregarded the below-cost sales because: (1) They were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and (2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
Our cost test for Mexinox revealed that, for home market sales of certain models, less than 20 percent of the sales of those models were at prices below the COP. We therefore retained all such sales in our analysis and used them as the basis for determining NV. Our cost test also indicated that for home market sales of other models, more than 20 percent were sold at prices below the COP within an extended period of time and were at prices which would not permit the recovery of all costs within a reasonable period of time. Thus, in accordance with section 773(b)(1) of the Act, we excluded these below-cost sales from our analysis and used the remaining above-cost sales as the basis for determining NV.
In accordance with section 773(e) of the Act, we calculated CV based on the sum of Mexinox's material and fabrication costs, SG&A expenses, profit, and U.S. packing costs. We calculated the COP component of CV as described above in the “Cost of Production Analysis” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country.
We calculated NV based on prices to unaffiliated customers. Mexinox S.A. reported home market sales in Mexican pesos, but noted certain home market sales were invoiced in U.S. dollars during the POR.
We used Mexinox's home market adjustments and deductions as reported. For purposes of these preliminary results, we have accepted Mexinox's reporting of the handling expenses incurred by Mexinox's home market affiliate, Mexinox Trading and imputed credit expenses based on reported payment dates. However, in order to be consistent with past administrative reviews of this case, we intend to request additional information regarding these handling expenses and the actual date of payment for these sales after the issuance of these preliminary results, and address these issues in our final results.
Where we were unable to find a home market match of such or similar merchandise, in accordance with section 773(a)(4) of the Act, we based NV on CV. Where appropriate, we made adjustments to CV in accordance with section 773(a)(8) of the Act.
We made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of the U.S. sales, as certified by Dow Jones Reuters Business Interactive, LLC (trading as Factiva), in accordance with section 773A(a) of the Act.
As a result of our review, we preliminarily find that the following weighted-average dumping margin exists for the period July 1, 2007, through June 30, 2008:
The Department will disclose calculations performed within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Upon completion of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we will calculate importer-specific
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Furthermore, the following cash deposit requirements will be effective for all shipments of S4 in coils from Mexico entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the reviewed company will be the rate established in the final results of this review, except if the rate is less than 0.50 percent (
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on polyethylene terephthalate (PET) film, sheet and strip from India for the period January 1, 2007, through December 31, 2007. We preliminarily determine that subsidies are being provided on the production and export of PET film from India. See the “Preliminary Results of Administrative Review” section, below. If the final results remain the same as the preliminary results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties. Interested parties are invited to comment on the preliminary results of this administrative review.
August 7, 2009.
Elfi Blum, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0197.
On July 1, 2002, the Department published in the
On July 15, 2008, the Department received a timely request to conduct an administrative review of the PET Film Order from Jindal Poly Films Limited of India (Jindal), formerly named Jindal Polyester Limited, an Indian producer and exporter of subject merchandise. On August 26, 2008, the Department initiated an administrative review of the CVD order on PET film from India covering Jindal for the period January 1, 2007, through December 1, 2007.
The Department issued questionnaires to the Government of India (GOI) and Jindal on September 9, 2008. On October 23, 2008, the GOI submitted its questionnaire response. Jindal submitted its questionnaire response on October 30, 2008. The Department issued its first supplemental questionnaires to the GOI and Jindal on February 13, 2009. On March 9, 2009, the GOI submitted its first supplemental response, and Jindal submitted its first supplemental response on March 11, 2009.
On April 2, 2009, the Department extended the time limit for the preliminary results of the countervailing duty administrative review until July 31, 2009.
The Department issued a second supplemental questionnaire to the GOI and Jindal on July 6, 2009 and on June 23, 2009, respectively. Jindal filed its second supplemental response on July 14, 2009. On July 20, 2009, the GOI filed its response to the Department's second supplemental questionnaire.
For purposes of the order, the products covered are all gauges of raw, pretreated, or primed Polyethylene Terephthalate Film, Sheet and Strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00.90. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of this proceeding is dispositive.
Under 19 CFR § 351.524(d)(2)(i), we will presume the allocation period for non-recurring subsidies to be the average useful life (AUL) prescribed by the Internal Revenue Service (IRS) for renewable physical assets of the industry under consideration (as listed in the IRS's 1977 Class Life Asset Depreciation Range System, and as updated by the Department of the Treasury). This presumption will apply unless a party claims and establishes that these tables do not reasonably reflect the AUL of the renewable physical assets of the company or industry under investigation. Specifically, the party must establish that the difference between the AUL from the tables and the company-specific AUL or country-wide AUL for the industry under investigation is significant, pursuant to 19 CFR § 351.524(d)(2)(i) and (ii). For assets used to manufacture plastic film, such as PET film, the IRS tables prescribe an AUL of 9.5 years.
For programs requiring the application of a benchmark interest rate or discount rate, 19 CFR § 351.505(a)(1) states a preference for using an interest rate that the company could have obtained on a comparable loan in the commercial market. Also, 19 CFR § 351.505(a)(3)(i) stipulates that when selecting a comparable commercial loan that the recipient “could actually obtain on the market” the Department will normally rely on actual short-term and long-term loans obtained by the firm. However, when there are no comparable commercial loans, the Department may use a national average interest rate, pursuant to 19 CFR § 351.505(a)(3)(ii).
Pursuant to 19 CFR § 351.505(a)(2)(iv), if a program under review is a government provided, short-term loan program, the preference would be to use a company-specific annual average of the interest rates on comparable commercial loans during the year in which the government-provided loan was taken out, weighted by the principal amount of each loan. For this review, the Department required a rupee-denominated short-term loan benchmark rate to determine benefits received under the Pre-Shipment Export Financing and Post-Shipment Export Financing programs. For further information regarding this program,
In a prior review of this case, the Department determined that Inland Bill Discounting (IBD) loans are more comparable to pre-shipment and post-shipment export financing loans than other types of rupee-denominated short-term loans.
Jindal did not have any US dollar-denominated short-term loans during the POR. Therefore, in accordance with 19 CFR § 351.505(a)(3)(ii), the Department used a national average dollar-denominated short-term interest rate, as reported in the International Monetary Fund's publication International Financial Statistics (IMF Statistics) for Jindal.
Further, for those programs requiring a rupee-denominated discount rate or the application of a rupee-denominated long-term benchmark rate, we used, where available, company-specific, weighted-average interest rates on comparable commercial long-term, rupee-denominated loans. For this review, the Department required benchmarks to determine benefits received under the Export Promotion Capital Goods Scheme (EPCGS) and Export Oriented Units (EOU) programs. Jindal did not have comparable commercial long-term rupee-
The Reserve Bank of India (RBI), through commercial banks, provides short-term pre-shipment financing, or “packing credits,” to exporters. Upon presentation of a confirmed export order or letter of credit to a bank, companies may receive pre-shipment loans for working capital purposes (
Post-shipment export financing consists of loans in the form of discounted trade bills or advances by commercial banks. Exporters qualify for this program by presenting their export documents to the lending bank. The credit covers the period from the date of shipment of the goods to the date of realization of the proceeds from the sale to the overseas customer. Under the Foreign Exchange Management Act of 1999, exporters are required to realize proceeds from their export sales within 180 days of shipment. Post-shipment financing is, therefore, a working capital program used to finance export receivables. In general, post-shipment loans are granted for a period of not more than 180 days.
In the original investigation, the Department determined that the pre-shipment and post-shipment export financing programs conferred countervailable subsidies on the subject merchandise because: (1) the provision of the export financing constitutes a financial contribution pursuant to section 771(5)(D)(i) of the Act as a direct transfer of funds in the form of loans; 2) the provision of the export financing confers benefits on the respondents under section 771(5)(E)(ii) of the Act to the extent that the interest rates provided under these programs are lower than comparable commercial loan interest rates; and (3) these programs are specific under section 771(5A)(A) and (B) of the Act because they are contingent upon export performance.
Jindal reported that it did not receive any post-shipment export financing during the POR. However, it did report receiving pre-shipment export financing during the POR. With regard to pre-shipment loans, the benefit conferred is the difference between the amount of interest the company paid on the government loan and the amount of interest it would have paid on a comparable commercial loan (i.e., the short-term benchmark). Because pre-shipment loans are tied to a company's exports rather than exports of subject merchandise, we calculated the subsidy rate for these loans by dividing the total benefit by the value of Jindal's total exports during the POR.
Under the ALP, exporters may import, duty free, specified quantities of materials required to manufacture products that are subsequently exported. The exporting companies, however, remain contingently liable for the unpaid duties until they have fulfilled their export requirement. The quantities of imported materials and exported finished products are linked through standard input-output norms (SIONs) established by the GOI. During the POR, Jindal used advance licenses to import certain materials duty free.
In the 2005 administrative review of this proceeding, the GOI indicated that it had revised its Foreign Trade Policy and Handbook of Procedures for the ALP during that POR. The Department analyzed the changes introduced by the GOI to the ALP in 2005 and acknowledged that certain improvements to the ALP system were made. However, the Department found that systemic issues continued to exist in the ALP system during the POR.
Further, in that same review, the Department found that PET film producers “do not have to keep track of wastage since it is not recoverable for the production of PET film.”
In this review, Jindal, reporting the revisions addressed in the above referenced 2005 administrative review of the order, argued that the ALP “now meets the Department's criteria for being non-countervailable.”
Because the systemic deficiencies in the ALP system identified above still exist, the Department continues to find that the ALP confers a countervailable subsidy because: (1) a financial contribution, as defined under section 771(5)(D)(ii) of the Act, is provided under the program, as the GOI exempts the respondents from the payment of import duties that would otherwise be due; (2) the GOI does not have in place and does not apply a system that is reasonable and effective for the purposes intended in accordance with 19 CFR § 351.519(a)(4), to confirm which inputs, and in what amounts, are consumed in the production of the exported products, making normal allowance for waste nor did the GOI carry out an examination of actual inputs involved to confirm which inputs are consumed in the production of the exported product, and in what amounts; thus, the entire amount of the import duty deferral or exemption earned by the respondent constitutes a benefit under section 771(5)(E) of the Act; and, (3) this program is specific under section 771(5A)(A) and (B) of the Act because it is contingent upon exportation.
Pursuant to 19 CFR § 351.524(c)(1), the exemption of import duties normally provides a recurring benefit. Under this program, for 2007, Jindal did not have to pay certain import duties for inputs that were used in the production of subject merchandise. Thus, we are treating the benefit provided under the ALP as a recurring benefit.
Jindal received various ALP licenses, which it reported separately for the production of: (1) subject merchandise; (2) non-subject merchandise; and (3) in the case of invalidated licenses, both subject and non-subject merchandise. However, upon close examination of those exhibits, the Department was not able to determine whether certain licenses are in fact tied to the production of a particular product within the meaning of 19 CFR § 351.525(b)(5). The Department, after examining all original ALP licenses submitted in Exhibit S2-39 of
The EPCGS provides for a reduction or exemption of customs duties and excise taxes on imports of capital goods used in the production of exported products. Under this program, producers pay reduced duty rates on imported capital equipment by committing to earn convertible foreign currency equal to four to five times the value of the capital goods within a period of eight years. Once a company has met its export obligation, the GOI will formally waive the duties on the imported goods. If a company fails to meet the export obligation, the company is subject to payment of all or part of the duty reduction, depending on the extent of the shortfall in foreign currency earnings, plus a penalty interest.
In the investigation, the Department determined that import duty reductions provided under the EPCGS are countervailable export subsidies because the scheme: (1) provides a financial contribution pursuant to
The first benefit is the amount of unpaid import duties that would have to be paid to the GOI if accompanying export obligations are not met. The repayment of this liability is contingent on subsequent events, and in such instances, it is the Department's practice to treat any balance on an unpaid liability as a contingent liability interest-free loan, pursuant to 19 CFR § 351.505(d)(1).
Import duty exemptions under this program are provided for the purchase of capital equipment. The preamble to our regulations states that if a government provides an import duty exemption tied to major equipment purchases, “it may be reasonable to conclude that, because these duty exemptions are tied to capital assets, the benefits from such duty exemptions should be considered non-recurring . . .”
Jindal reported that they imported capital goods under the EPCGS in the years prior to and during the POR. Jindal received various EPCGS licenses, which it reported were for the production of: (1) subject merchandise, and (2) non-subject merchandise. However, information provided by Jindal indicates that some of the licenses were issued for the purchase of capital goods and materials used in the production of both subject and non-subject merchandise, or were reported as such in a prior review.
Jindal met the export requirements for certain EPCGS licenses prior to December 31, 2007, and the GOI has formally waived the relevant import duties. For most of its licenses, however, Jindal has not yet met its export obligation as required under the program. Therefore, although Jindal has received a deferral from paying import duties when the capital goods were imported, the final waiver on the obligation to pay the duties has not yet been granted for many of these imports.
To calculate the benefit received from the GOI's formal waiver of import duties on Jindal's capital equipment imports where its export obligation was met prior to December 31, 2007, we considered the total amount of duties waived (net of required application fees) to be the benefit. Further, consistent with the approach followed in the investigation, we determine the year of receipt of the benefit to be the year in which the GOI formally waived Jindal's outstanding import duties.
As noted above, import duty reductions that Jindal received on the imports of capital equipment for which they have not yet met export obligations may have to be repaid to the GOI if the obligations under the licenses are not met. Consistent with our practice and prior determinations, we will treat the unpaid import duty liability as an interest-free loan.
The amount of the unpaid duty liabilities to be treated as an interest-free loan is the amount of the import duty reduction or exemption for which the respondent applied, but, as of the end of the POR, had not been finally waived by the GOI. Accordingly, we find the benefit to be the interest that Jindal would have paid during the POR had it the full amount of the duty reduction or exemption at the time of importation.
As stated above, under the EPCGS program, the time period for fulfilling the export commitment expires eight years after importation of the capital good. As such, pursuant to 19 CFR § 351.505(d)(1), the benchmark for measuring the benefit is a long-term interest rate because the event upon which repayment of the duties depends (
The benefit received under the EPCGS is the total amount of: (1) the benefit attributable to the POR from the formally waived duties for imports of capital equipment for which respondents met export requirements by December 31, 2007, and/or (2) interest due on the contingent liability loans for imports of capital equipment that have not met export requirements. We then divided that total by Jindal's total exports to determine a subsidy of 4.06 percent
Companies that are designated as an EOU are eligible to receive various forms of assistance in exchange for committing to export all of the products they produce, excluding rejects and certain domestic sales, for five years. Companies designated as EOUs may receive the following benefits: (1) duty-free importation of capital goods and raw materials; (2) reimbursement of central sales taxes (CST) paid on capital goods and materials procured within India; (3) purchase of materials and other inputs free of central excise duty; and (4) receipt of duty drawback on furnace oil procured from domestic oil companies. Consistent with its previous administrative review, Jindal reported that it had been designated as an EOU.
The Department previously determined that the purchase of materials and/or inputs free of central excise duty is not countervailable.
In this review, Jindal reported also receiving benefits from the “EOU Duty Drawback on Furnace Oil Procured From Domestic Oil Companies” program and the “EOU Income Tax Exemption Scheme (Section 10B),” both programs previously reported as not used in prior reviews of this proceeding. We determined that the EOU Duty Drawback on Furnace Oil Procured From Domestic Oil Companies was countervailable in
Under this program, an EOU is entitled to import, duty-free, capital goods and raw materials for the production of exported goods in exchange for committing to export all of the products it produces over five years. The Department previously determined that the duty-free importation of capital goods and raw materials provides a financial contribution and confers benefits equal to the amount of exemptions of customs duties.
Based on the information provided by Jindal in the form of copies of its “Executed Legal agreement for EOU Unit” with the GOI, at Exhibits 26(b.i.), and 26(b.ii.), until an EOU demonstrates that it has fully met its export requirement, the company remains contingently liable for the import duties.
Pursuant to 19 CFR § 351.505(d)(1), the benchmark for measuring the benefit is a long-term interest rate because the event upon which repayment of the duties depends (
Further, for duty exemptions under this program that are tied to capital equipment purchases, in accordance with 19 CFR § 351.524(c)(2)(iii), we are treating these exemptions as non-recurring benefits and allocating those benefits over Jindal's company specific AUL.
For the duty free importation of capital goods, because Jindal did not fulfill any export obligation under the EOU program, we determined the benefit for each year is the total amount of interest that would have been paid if Jindal had received a loan to pay the duties. To calculate the benefit to Jindal under this program, we summed the amount of interest that would have been paid during the POR, and the duty exemptions on raw material inputs received during the POR. We then divided Jindal's total benefits under this program by its total export sales during the POR. On this basis, we determine the countervailable subsidy from this category of the program to be 1.09 percent ad valorem for Jindal.
Under this program, Jindal was also reimbursed for the CST it paid on raw materials and capital goods procured domestically. The Department previously determined that the reimbursement of CST paid on materials procured domestically provides a financial contribution and confers benefits equal to the amount of reimbursements of sales taxes pursuant to sections 771(5)(D)(ii) and (E) of the Act.
Normally, tax reimbursements, such as the CST, are considered to be recurring benefits. However, a portion of the benefit of this program is tied to the purchase of capital assets. As such, pursuant to 19 CFR § 351.524(c)(2)(iii), we would normally treat such reimbursements as non-recurring benefits. However, we performed the “0.5 percent test,” as prescribed under 19 CFR § 351.524(b)(2) and found that the amount of CST reimbursements tied to capital goods received during the POR was less than 0.5 percent of total export sales for 2007. We also performed the “0.5 percent test on Jindal's reimbursements of CST on its purchases of capital assets for the 2006 and 2005 review periods, and found that they were less than 0.5 percent of total export sales for the respective years. Therefore, the benefits under this program were expensed entirely in the year earned and the only benefit was from the CST reimbursements claimed under this program during the POR.
During the POR Jindal was reimbursed for duties paid on its furnace oil purchased from domestic oil companies. This duty drawback rate on furnace oil purchases is only available to EOUs. The “all-industry” rate is calculated in part, on the total cost of insurance and freight (CIF) value of oil imported by the two major Indian oil suppliers. This duty drawback on furnace oil is not tied to the production process of any particular industry or product, including the subject merchandise, but applies only to the overall import charges on furnace oil without taking into consideration how the furnace oil is used by an EOU, and even if it is consumed in the production process. An EOU's reimbursement is based on the FOB value of the invoice received from the Indian oil supplier, inclusive of the import duties paid by the Indian oil supplier.
As mentioned above, the Department previously determined that this program is limited to EOUs and therefore, is specific as an export subsidy under section 771(5A)(A) and (B) of the Act. In addition, the Department found that this program provides a financial contribution in accordance with section 771(5)(D)(ii) of the Act, in the amount of the reimbursement claimed. Finally, a benefit is conferred in accordance with section 771(5)(D)(ii) of the Act and section 771(5)(E) of the Act and 19 CFR § 351.519(a)(4)(ii) in the entire amount of the reimbursement claimed under this program, since the GOI does not have a system or procedure in place to confirm the amount of furnace oil consumed in the production of exports for purposes of claiming duty drawback.
To calculate the countervailable export subsidy for Jindal, we summed the amount of duty drawback claimed under this program during the POR, and divided this benefit by Jindal's total export sales during the POR. Thus, the countervailable subsidy is 0.07 percent
In the instant review, Jindal reported that, in accordance with Section 10B of the Income Tax Act, 1961, it was allowed to deduct its profits derived from the export sales as an EOU, as defined in the FTP, from its taxable income during the POR. Specifically, Section 10B states that:
Based on the information above, we preliminarily determine this program to be a countervailable export subsidy, because it is contingent upon export performance and, therefore, specific in accordance with section 771(5A)(A) and (B) of the Act. Pursuant to section 771(5)(D)(ii) of the Act, the GOI provides a financial contribution in the form of revenue forgone. The benefit equals the difference between the amount of income taxes that would be payable absent this program and the actual amount of taxes payable by Jindal, pursuant to section 771(5)(E) of the Act. We also determine that the EOU Income Tax Exemption Scheme (Section 10B) provides a recurring benefit under 19 CFR § 351.509(c) and 19 CFR § 351.524(c). We then divided this benefit by Jindal's total export sales during the POR, to determine a countervailable subsidy of 0.15 percent
According to the GOI, state governments in India grant exemptions to, or deferrals from, sales taxes in order to encourage regional development.
In the original CVD investigation, we determined that the operation of these types of state sales tax programs confer countervailable subsidies.
To calculate the benefit, we first calculated the total sales tax reduction or exemption the respondents received during the POR by subtracting taxes paid from the amount that would have been paid on their purchases during the POR absent these programs. We then divided this amount by Jindal's total sales during the POR to calculate a net countervailable subsidy of 0.35 percent
In the current review, Jindal argues that the sales tax law in the State of Maharashtra (SOM), under which Jindal did not pay or collect sales taxes, was repealed and a value-added tax (VAT) regime replaced it. Furthermore, Jindal states that the exemption of sales tax on purchases has not been replaced by any other scheme of the GOI. Thus, Jindal contends that this meets the requirements of a program-wide change under section 351.526 of the Department's regulations.
The GOI, in its original response confirms that the Bombay Sales Tax Act, 1959, has been repealed, and that a VAT regime (provided for under SOM VAT Rules, 2005) has been introduced. Further, the GOI argues that no benefits are available under the previous scheme.
Record evidence shows that the existing state sales tax incentive program provides residual benefits. Jindal does not have to collect sales taxes or VAT on its sales until May 26, 2011. Likewise, suppliers to Jindal are still exempted from collecting sales tax under the Package Scheme of Incentives for its sales to Jindal. Thus, Jindal is still benefiting from this scheme in the form of uncollected sales taxes from suppliers. Therefore, the Department preliminarily determines that the conditions of 19 CFR § 351.526(d)(1) have not been met, and no adjustment to the cash deposit rate is warranted. In addition, the Department intends to issue another questionnaire to Jindal and the GOI to further investigate the existence of an additional benefit through the reimbursement of the VAT, following these preliminary results of review.
We preliminarily determine that Jindal did not apply for or receive benefits during the POR under the programs listed below:
In its original questionnaire response Jindal points out that an Advance License is not transferable, in accordance with the Indian EXIM Policy 2002-2007 and the Foreign Trade Policy (FTP) 2004-2009. However, in accordance with Para 4.1.1(b) of the EXIM Policy, 2002-2007, and Para 4.13 of the Handbook of Procedures, 2002-2007, and Para 4.1.11 of the FTP 2004-2009, Jindal noted that an Advance License can be invalidated in favor of a domestic supplier.
According to Jindal, the issuance of an Advance Intermediate License to the supplier for the quantity and value of inputs against which the existing Advance License was reduced or invalidated, ensures that inputs imported duty free and consumed in the production of the intermediate product are consumed in the production of a final product for which the Advance License was issued, and that that product is ultimately exported. See Jindal's Original Questionnaire Response, at 73-74.
In response to the Department's request to explain under what circumstances Jindal will request that the GOI invalidate an Advance License, Jindal responded that this is based on its business decisions, such as availability of indigenous inputs, size of consignments and inventory. Jindal further explained that, based on its request to the GOI, the GOI will invalidate the requested quantity for direct import and will issue a corresponding invalidation letter to Jindal, specifying the quantity and value of the invalidated item, and includes the name of the domestic supplier obtaining the advance intermediate license, and the amount and value assigned to the advance intermediate license. In addition, Jindal points out that it does not have any information concerning the import of inputs on part of the domestic supplier against its
Further, Jindal reported that it purchased materials from such domestic suppliers who received Advance Intermediates Licenses from the GOI based on the quantity and value of Jindal's invalidated licenses during the POR. In its second supplemental questionnaire response, Jindal provided the Department with a detailed listing, reporting the date and value of its purchases from these domestic suppliers by invoice, exclusive of any excise tax or value added tax.
In its second supplemental response, the GOI explained that the decision of an Advance License holder to invalidate a license or parts thereof, is based on business or economic reasons, such as price, availability, or technical specifications of the input. The export obligation (EO) accompanying the Advance Intermediate License, according to the GOI, is monitored by the DGFT, which maintains the records in a master register. Like the holder of an Advance License, the holder of an Advance Intermediate License is required to separately fulfill its EO in correlation to the inputs this domestic supplier imports, and is required to file the requisite forms with the DGFT. The amount of inputs the holder of the Advance Intermediate License can import remains the same as was authorized in the original advance license.
The information provided on the record of this review by Jindal and the GOI indicates that both the benefit and the EO in the amount of the invalidation of the original license in quantity and value, are transferred to the recipient of the Advance Intermediate License (
At this time we do not have sufficient information from Jindal or the GOI to determine whether the GOI's invalidation of Jindal's Advanced Licenses provided a benefit to Jindal under under section 771(5)(E) of the Act. Specifically, the record is unclear as to what consideration, if any, that Jindal received from its suppliers in return for the license(s) invalidated by the GOI.
We intend to seek further information and issue an interim analysis describing our preliminary findings with respect to this program before the final determination, so that parties will have the opportunity to comment on our findings before the final results of review.
In accordance with 19 CFR § 351.221(b)(4)(i), we have calculated an individual subsidy rate for Jindal for the POR. We preliminarily determine the total countervailable subsidy to be 7.18 percent
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
Upon publication of the final results of this review, the Department shall determine, and Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries. Pursuant to 19 CFR § 351.212(b)(2), the Department will instruct CBP to assess countervailing duties by applying the rates included in the final results of the review to the entered value of the merchandise. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this review.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
We will disclose the calculations used in our analysis to parties to this segment of the proceeding within five days of the public announcement of this notice.
Pursuant to 19 CFR § 351.309, interested parties may submit written comments in response to these preliminary results. Unless the time period is extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice in the
Unless extended, the Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR § 351.221(b)(4).
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On June 15, 2009, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (74 FR 28221-28222) of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Addition to and Deletions From Procurement List.
The Committee is proposing to add to the Procurement List a service to 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.
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice for the service will be required to furnish the 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 service to the Government.
2. If approved, the action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following service is proposed for addition to the Procurement List for provision by the nonprofit agency listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to 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:
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 09-30 with attached transmittal, and policy justification.
Department of Defense.
Notice.
Pursuant to Section 10(a), Public Law 92-463, as amended, notice is hereby given of a forthcoming meeting of the Defense Department Advisory Committee on Women in the Services (DACOWITS). The purpose of the Committee meeting is to do a review and analysis of installation visits to consolidate data/findings for annual report recommendations. The meeting is open to the public, subject to the availability of space.
August 10-11, 2009, 8:30 a.m.-5 p.m.
Double Tree Hotel Crystal City National Airport, 300 Army Navy Drive, Arlington, VA 22202.
MSgt Robert Bowling, USAF, DACOWITS, 4000 Defense Pentagon, Room 2C548A, Washington, DC 20301-4000.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice of meeting.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meetings of the Defense Task Force on Sexual Assault in the Military Services (hereafter referred to as the Task Force) will take place:
Monday, August 17; Tuesday, August 18; and Wednesday, August 19, 2009 8 a.m. to 4:30 p.m. Eastern Daylight Time (hereafter referred to as EDT).
Windsor Room, Embassy Suites Hotel, 1900 Diagonal Road, Alexandria, Virginia 22314.
Michael Molnar, Deputy to the Executive Director; 2850 Eisenhower Avenue, Suite 100, Alexandria, Virginia 22314; phone (888) 325-6640; fax (703) 325-6710;
The public can view meeting updates at
All written statements shall be submitted to the Designated Federal Officer for the Defense Task Force on Sexual Assault in the Military Services, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Designated Federal Officer is provided in this notice or can be obtained from the GSA's FACA Database:
Written statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the listed address above no later than 7 a.m., EDT, Thursday, August 13, 2009. Written statements received after this date may not be provided to, or considered by, the Defense Task Force on Sexual Assault in the Military Services until its next meeting.
The Designated Federal Officer will review all timely submissions with the Defense Task Force on Sexual Assault in the Military Services Co-Chairs and ensure they are provided to all members of the Defense Task Force on Sexual Assault in the Military Services before the meeting that is the subject of this notice.
Defense Manpower Data Center, DoD.
Notice of a computer matching program.
Subsection (e)(12) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a) requires agencies to publish advance notice of any proposed or revised computer matching program by the matching agency for public comment. The DoD, as the matching agency under the Privacy Act is hereby giving notice to the record subjects of a computer matching program between the Department of Veterans Affairs (VA) and DoD that their records are being matched by computer. The purpose of this agreement is to verify an individual's continuing eligibility for VA benefits by identifying VA disability benefit recipients who return to active
This proposed action will become effective September 8, 2009 and matching may commence unless changes to the matching program are required due to public comments or by Congressional or by Office of Management and Budget objections. Any public comment must be received before the effective date.
Any interested party may submit written comments to the Director, Defense Privacy Office, 1901 South Bell Street, Suite 920, Arlington, VA 22202-4512.
Mr. Samuel P. Jenkins at telephone (703) 607-2943.
Pursuant to subsection (o) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a), the DMDC and VA have concluded an agreement to conduct a computer matching program between the agencies. The purpose of this agreement is to verify an individual's continuing eligibility for VA benefits by identifying VA disability benefit recipients who return to active duty and to ensure that benefits are terminated if appropriate.
The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of obtaining the information needed by the VA to identify ineligible VA disability compensation recipients who have returned to active duty. This matching agreement will identify those veterans who have returned to active duty, but are still receiving disability compensation. If this identification is not accomplished by computer matching, but is done manually, the cost would be prohibitive and it is possible that not all individuals would be identified.
A copy of the computer matching agreement between VA and DMDC is available upon request to the public. Requests should be submitted to the address caption above or to the Department of Veterans Affairs, Veterans Benefit Administration, 810 Vermont Avenue, NW., Washington, DC 20420.
Set forth below is the notice of the establishment of a computer matching program required by paragraph 6.c. of the Office of Management and Budget Guidelines on computer matching published in the
The matching agreement, as required by 5 U.S.C. 552a(r) of the Privacy Act, and an advance copy of this notice was submitted on July 23, 2009, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget pursuant to paragraph 4d of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records about Individuals,' February 8, 1996 (February 20, 1996, 61 FR 6427).
A.
B.
The VA will provide to DMDC identifying information on all VA recipients receiving a VA disability compensation or pension. DMDC will match the information with its reserve military pay data and provide for each match (hit) the number of training days, by fiscal year, for which the veteran was paid. The VA will use this information to make, where appropriate, necessary VA payment adjustments.
C.
D.
The VA will use the system of records identified as “VA Compensation, Pension and Education and Vocational Rehabilitation Records—VA (58 VA 21/22/28),” republished in its entirety at 74 FR 14865 (April 1, 2009). Attachment 3 is a copy of the system notice with the appropriate routine use,
DoD will use the system of records identified as DMDC 01, entitled, “Defense Manpower Data Center Data Base,” published at 73 FR 5820, January 31, 2008. Attachment 5 is a copy of the system notice with the appropriate routine use,
E.
The hits will be furnished to VA which will be responsible for verifying and determining that the data in the DMDC electronic files is consistent with the VA files and for resolving any discrepancies or inconsistencies on an individual basis. VA will initiate actions to obtain an election by the individual of which pay he or she wishes to receive and will be responsible for making final determinations as to positive identification, eligibility for, or amounts of pension or disability compensation benefits, adjustments thereto, or any recovery of overpayments, or such other action as authorized by law.
The electronic file provided by VA will contain information on approximately 2.9 pension and disability compensation recipients.
The DMDC computer database file contains approximately 832,000 DoD and 8,000 USCG reservists who receive pay in allowance for performing authorized duty.
The VA will furnish DMDC the name and SSN of all VA pension and disability compensation recipients and
F.
G.
Defense Logistics Agency, DoD.
Notice to Amend a System of Records.
The Defense Logistics Agency is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective without further notice on September 8, 2009 unless comments are received which would result in a contrary determination.
Chief Privacy and FOIA Officer, Headquarters Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Mr. Lewis Oleinick at (703) 767-6194.
The Defense Logistics Agency's system of record notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Employee Relations under Negotiated Grievance Procedures (October 18, 1999, 64 FR 56198).
Delete entry and replace with “S375.20.”
Delete entry and replace with “Defense Logistics Agency Human Resources Center (DHRC), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
Defense Logistics Agency Human Resources Center-Columbus (DHRC-C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213-0919.
Defense Logistics Agency Human Resources Center-New Cumberland (DHRC-N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070-5042.
Defense Logistics Agency Human Resources Center-Department of Defense (DHRC-D), 3990 East Broad Street, Building 306, Columbus, OH 43218-25260.”
Delete entry and replace with “The file includes name, addresses, phone numbers and details pertaining to the discipline, grievance, complaint, or appeal.
Equal Employment Opportunity (EEO) complaints filed under statutory Equal Employment Opportunity Commission procedures are covered under EEOC/GOVT-1, entitled “Equal Employment Opportunity in the Federal Government Complaint and Appeal Records.”
Delete entry and replace with “Public Law 92-261; 5 U.S.C. Chapter 33, Examination, Selection, and Placement; 5 U.S.C. Chapter 75, Adverse Actions; 5 U.S.C. Chapter 71, Labor-Management Relations, and 29 U.S.C. Chap. 14, Age Discrimination Employment.”
Delete entry and replace with “Director, Defense Logistics Agency Human Resources Center (DHRC), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
Director, Defense Logistics Agency Human Resources Center-Columbus (DHRC-C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213-0919.
Director, Defense Logistics Agency Human Resources Center-New Cumberland (DHRC-N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070-5042.
Director, Defense Logistics Agency Human Resources Center-Department of Defense (DHRC-D), 3990 East Broad Street, Building 306, Columbus, OH 43218-25260.”
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 the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221. Inquiry should contain the subject individual's full name.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Inquiry should contain the subject individual's full name.”
Delete entry and replace with “The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.”
Delete entry and replace with “Supervisors or other appointed
Employee Relations under Negotiated Grievance Procedures.
Defense Logistics Agency Human Resources Center (DHRC), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
Defense Logistics Agency Human Resources Center-Columbus (DHRC-C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213-0919.
Defense Logistics Agency Human Resources Center-New Cumberland (DHRC-N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070-5042.
Defense Logistics Agency Human Resources Center-Department of Defense (DHRC-D), 3990 East Broad Street, Building 306, Columbus, OH 43218-25260.
Current and former civilian employees and applicants on whom discipline, grievance, complaint or appeal records exist.
The file includes name, addresses, phone numbers and details pertaining to the discipline, grievance, complaint, or appeal.
Equal Employment Opportunity (EEO) complaints filed under statutory Equal Employment Opportunity Commission procedures are covered under EEOC/GOVT-1, entitled “Equal Employment Opportunity in the Federal Government Complaint and Appeal Records.
Public Law 92-261; 5 U.S.C. Chapter 33, Examination, Selection, and Placement; 5 U.S.C. Chapter 75, Adverse Actions; 5 U.S.C. Chapter 71, Labor-Management Relations, and 29 U.S.C. Chap. 14, Age Discrimination Employment.
Records are used to process, administer and adjudicate discipline, grievance, complaints, and appeal actions. Records are also used for litigation and program evaluation purposes.
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:
Representatives of the Office of Personnel Management (OPM) on matters relating to the inspection, survey, audit or evaluation of civilian personnel management programs or personnel actions, or such other matters under the jurisdiction of the OPM.
Appeals authority for the purpose of conducting hearings in connection with employee's appeals from adverse actions and formal discrimination complaints.
The DoD “Blanket Routine Uses” also apply to this system of records.
Records may be stored on paper and/or on electronic storage media.
Records are retrieved by the subject individual's name.
Records are maintained in areas accessible only to DLA personnel who must access the records to perform their duties. The computer files are password protected with access restricted to authorized users. Records are secured in locked or guarded buildings, locked offices, or locked cabinets during non duty hours.
Records are destroyed four years after case is closed.
Director, Defense Logistics Agency Human Resources Center (DHRC), 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221.
Director, Defense Logistics Agency Human Resources Center-Columbus (DHRC-C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213-0919.
Director, Defense Logistics Agency Human Resources Center-New Cumberland (DHRC-N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070-5042.
Director, Defense Logistics Agency Human Resources Center-Department of Defense (DHRC-D), 3990 East Broad Street, Building 306, Columbus, OH 43218-25260.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Inquiry should contain the subject individual's full name.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Inquiry should contain the subject individual's full name.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Supervisors or other appointed officials designated for this purpose, Human Resource specialists, and grievant.
None.
Defense Logistics Agency, DoD.
Notice to Amend a System of Records.
The Defense Logistics Agency is amending a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
Send comments to the Privacy Act Officer, Headquarters, Defense Logistics Agency, ATTN: DP, 8725 John J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060-6221.
Mr. Lewis Oleinick at (703) 767-6194.
The Defense Logistics Agency systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its 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.
Voluntary Leave Transfer Program Records (June 12, 2006, 71 FR 33728).
Delete entry and replace with “Human Resources Policy and Information, Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6231, Fort Belvoir, VA 22060-6221, and the Human Resources Offices of the Defense Logistics Agency (DLA) Primary Level field activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.”
Delete entry and replace with “Records may be stored on paper and/or on electronic storage media.”
Delete entry and replace with “Staff Director, Human Resources Policy and Information, Defense Logistics Agency, ATTN: J-1, 8725 John J. Kingman Road, Stop 6231, Fort Belvoir, VA 22060-6221, and the Human Resources Officers of the DLA Primary Level field activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221 or to the Human Resources Office of the DLA Primary Level field activity involved. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual should provide full name and Social Security Number (SSN).”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221 or to the Human Resources Office of the DLA Primary Level field activity involved. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual should provide full name and Social Security Number (SSN).”
Delete entry and replace with “The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.”
Voluntary Leave Transfer Program Records.
Human Resources Policy and Information, Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6231, Fort Belvoir, VA 22060-6221, and the Human Resources Offices of the Defense Logistics Agency (DLA) Primary Level field activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individuals who have volunteered to participate in the leave transfer program as either a donor or a recipient.
Leave recipient records contain the individual's name, organization, office telephone number, Social Security Number, position title, grade, pay level, leave balances, brief description of the medical or personal hardship which qualifies the individual for inclusion in the program, the status of that hardship, and a statement that selected data elements may be used in soliciting donations.
The file may also contain medical or physician certifications and agency approvals or denials.
Donor records include the individual's name, organization, office telephone number, Social Security Number (SSN), position title, grade, and pay level, leave balances, number of hours donated and the name of the designated recipient.
5 U.S.C. 301, Departmental Regulations; 5 U.S.C. Chapter 63, sections 6331-6339, Leave; Public Law 103-103, Federal Employees Leave Sharing Act of 1993; 5 CFR Part 630, Absence and Leave, Subpart I, Voluntary Leave Transfer Program; and E.O. 9397 (SSN), as amended.
Records are used to manage the DLA Voluntary Leave Transfer Program. The recipient's name, position data, organization, and a brief hardship description are published internally for passive solicitation purposes. The Social Security Number (SSN) is sought to effectuate the transfer of leave from the donor's account to the recipient's account.
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:
To the Department of Labor in connection with a claim filed by an employee for compensation due to a job-connected injury or illness; where leave donor and leave recipient are employed by different Federal agencies, to the personnel and pay offices of the Federal agency involved to effectuate the leave transfer.
The DoD “Blanket Routine Uses” apply to this system of records.
Records may be stored on paper and/or on electronic storage media.
Records are retrieved by name or Social Security Number (SSN).
Records are maintained in areas accessible only to DLA personnel who must use the records to perform their duties. The computer files are password protected with access restricted to authorized users. Records are secured in locked or guarded buildings, locked offices, or locked cabinets during non-duty hours.
Records are destroyed one year after the end of the year in which the file is closed.
Staff Director, Human Resources Policy and Information, Defense Logistics Agency, ATTN: J-1, 8725 John J. Kingman Road, Stop 6231, Fort Belvoir, VA 22060-6221, and the Human Resources Officers of the DLA Primary Level field activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221 or to the Human Resources Office of the DLA Primary Level field activity involved. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual should provide full name and Social Security Number (SSN).
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221 or to the Human Resources Office of the DLA Primary Level field activity involved. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individual should provide full name and Social Security Number (SSN).
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Record subject; personnel and leave records; and medical certification and similar data.
None.
Defense Logistics Agency, DoD.
Notice to Amend a System of Records.
The Defense Logistics Agency is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective without further notice on September 8, 2009 unless comments are received which would result in a contrary determination.
Chief Privacy and FOIA Officer, Headquarters Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Mr. Lewis Oleinick at (703) 767-6194.
The Defense Logistics Agency's system of record notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Government Telephone Use Records (September 8, 2003, 68 FR 52909).
Replace entry with “S284.89.”
Delete entry and replace with “Records are located at Defense Logistics Agency, Enterprise Support Installations Management Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, and at the telephone control offices within the DLA Primary Level Field Activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.”
Delete entry and replace with “10 U.S.C. 133, Under Secretary of Defense for Acquisition, Technology, and Logistics; 44 U.S.C. 3501
Delete entry and replace with “Staff Director, Defense Logistics Agency, Enterprise Support Installations Management Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, and the Telecommunications Control Officers of the DLA Primary Level Field Activities. Official mailing addresses are published
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221. Individuals need to provide their full name and the DLA facility or activity where employed at the time the records were created or processed.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221. Individuals need to provide their full name and the DLA facility or activity where employed at the time the records were created or processed.”
Delete entry and replace with “The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.”
Government Telephone Use Records.
Records are located at Defense Logistics Agency, Enterprise Support Installations Management, Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, and at the telephone control offices of the DLA Primary Level Field Activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
DLA employees, military members, contractors, and individuals authorized to use government telephone systems, including cellular telephones, pagers, and telecommunications devices for the deaf or speech impaired and wireless air cards. The records also cover individuals who have been issued telephone calling cards.
The records include individual's name and physical location; duty telephone, cell, and pager numbers; billing account codes; government issued telephone calling card account number; equipment and calling card receipts and turn-in documents; and details of telephone use to include dates and times of telephone calls made or received, numbers called or called from, city and State, duration of calls, and assessed costs.
10 U.S.C. 133, Under Secretary of Defense for Acquisition, Technology, and Logistics; 44 U.S.C. 3501
Records are maintained to verify that telephones are used for official business or authorized purposes; to identify inappropriate calls and the persons responsible, and to collect the costs of those calls from those responsible. These records may be used as a basis for disciplinary action against offenders.
Records are also maintained to ensure proper certification and payment of bills; to safeguard telecommunications assets; for internal management control; for reporting purposes; and to forecast future telecommunications requirements and costs.
Statistical data, with all personal identifiers removed, may be used by management officials for purposes of conducting studies, evaluations, and assessments.
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:
Information may be released to telecommunications service providers to permit servicing the account. The DoD “Blanket Routine Uses” also apply to this system of records.
Records may be stored on paper and on electronic storage media.
Records are retrieved by individual's name, billing account code, or telephone number.
Access to the data is limited to those who require the records in the performance of their official duties. The electronic records employ user identification and password protocols. Physical entry is restricted by the use of locks, guards, and administrative procedures. Employees are periodically briefed on the consequences of improperly accessing restricted databases or records.
Records are destroyed when 3 years old. Initial telephone use reports may be destroyed earlier if the information needed to identify abuse has been captured in other records.
Staff Director, Defense Logistics Agency, Enterprise Support Installations Management Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Stop 6220, Fort Belvoir, VA 22060-6221, and the Telecommunications Control Officers of DLA Primary Level Field Activities. Official mailing addresses are published as an appendix to DLA's compilation of systems of records notices.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Individuals need to provide their full name and the DLA facility or activity where employed at the time the records were created or processed.
Individuals seeking access to information about themselves contained
Individuals need to provide their full name and the DLA facility or activity where employed at the time the records were created or processed.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Data is supplied by the telephone user, telecommunications service providers, and DLA management.
None.
Defense Manpower Data Center, DoD.
Notice of a computer matching program.
Subsection (e)(12) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a) requires agencies to publish advance notice of any proposed or revised computer matching program by the matching agency for public comment; however, this notification will be completed by the DoD, the source agency. The DoD, as the source agency under the Privacy Act is hereby giving notice to the record subjects of a computer matching program between the Office of Personnel Management (OPM) and Defense Manpower Data Center (DMDC) that their records are being matched by computer. The purpose of this agreement is for disclosure of Federal Employees Health Benefits (FEHB) Program and Federal employment information to DMDC. This disclosure by OPM will provide the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRICARE Reserve Select (TRS) program.
This proposed action will become effective September 8, 2009 and matching may commence unless changes to the matching program are required due to public comments or by Congressional or Office of Management and Budget objections. Any public comment must be received before the effective date.
Any interested party may submit written comments to the Director, Defense Privacy Office, 1901 South Bell Street, Suite 920, Arlington, VA 22202-4512.
Mr. Samuel P. Jenkins at telephone (703) 607-2943.
Pursuant to subsection (o) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a), the DMDC and OPM have concluded an agreement to conduct a computer matching program between the agencies. The purpose of this agreement is to verify an individual's continuing eligibility for the TRICARE Reserve Select (TRS) program.
The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of obtaining the information needed by the OPM to identify individual's ineligible to continue the TRICARE Reserve Select Program. If this identification is not accomplished by computer matching, but is done manually, the cost would be prohibitive and it is possible that not all individuals would be identified.
A copy of the computer matching agreement between OPM and DMDC is available upon request to the public. Requests should be submitted to the address caption above or to the Office of Personnel Management, 1900 E Street, NW., Room 5415, Washington, DC 20415.
Set forth below is the notice of the establishment of a computer matching program required by paragraph 6.c. of the Office of Management and Budget Guidelines on computer matching published in the
The matching agreement, as required by 5 U.S.C. 552a(r) of the Privacy Act, and an advance copy of this notice was submitted on July 28, 2009, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget pursuant to paragraph 4d of Appendix I to OMB Circular No. A-130, `Federal Agency Responsibilities for Maintaining Records about Individuals,' dated February 8, 1996 (61 FR 6435).
A.
B.
C.
The John Warner National Defense Authorization Act of 2007 (NDAA of 2007) established the enhanced TRICARE Reserve Select program as of Oct. 1, 2007. Selected Reserve members, who are eligible for FEHB under chapter 89 of title 5, U.S.C. are ineligible for TRICARE Reserve Select. This agreement implements the additional
D.
OPM will use the system of records identified as OPM/GOVT-1 entitled “General Personnel Records,” at 71 FR 35342 (June 19, 2006).
DoD will use the SOR identified as DMDC 02 DoD, entitled “Defense Enrollment Eligibility Reporting System (DEERS), (April 22, 2009, 74 FR 18356).” SSNs of DoD TRS Sponsors will be released to OPM pursuant to the routine use “22” set forth in the system notice, which provides that data may be released to OPM “for support of the DEERS enrollment process and to identify individuals not entitled to health care under TRS.”
E.
OPM agrees to conduct a semi-annual computer match of the SSNs of Selected Reservists enrolled in TRS provided by DMDC against the information found in OPM's personnel system of record. OPM will validate the identification of the Selected Reserve record that matches against the name, SSN and date of birth provided by DMDC. OPM will provide an FEHB Plan Code, a multiple record indicator and a DOB match indicator. OPM will forward a response file to DMDC within 30 business days following the receipt of the initial finder file and for any subsequent files submitted.
F.
G.
Defense Intelligence Agency, DoD.
Notice to Delete Systems of Records.
The Defense Intelligence Agency is deleting a system of records notice from its existing inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a) as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
DIA Privacy Act Coordinator, Records Management Section, 200 McDill Blvd, Washington DC 20340.
Ms. Theresa Lowery at (202) 231-1193.
The Defense Intelligence Agency systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The Defense Intelligence Agency is proposing to delete a system of records notice from its existing inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a) as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Alcohol and Drug Abuse Reporting Program (February 22, 1993, 58 FR 10613).
The records contained in this system of records have been migrated into the Employee Assistance Program Case Records (EAP), an approved DIA SORN (LDIA 06-0001).
Defense Logistics Agency, DoD.
Notice to Amend a System of Records.
The Defense Logistics Agency is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective without further notice on September 8, 2009 unless comments are received which would result in a contrary determination.
Chief Privacy and FOIA Officer, Headquarters Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221
Mr. Lewis Oleinick at (703) 767-6194.
The Defense Logistics Agency's system of record notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Congressional, Executive, and Political Inquiry Records (September 4, 2007, 72 FR 506668).
Delete entry and replace with “Records contain representative's name, constituent's name, details surrounding the issue being researched and control number. The records may also contain the constituent's home address, home telephone number, or related personal information provided by the constituent/representative making the inquiry.”
Delete entry and replace with “5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 133, Under Secretary of Defense for Acquisition and Technology; and DOD Directive 5400.04, Provision of Information to Congress.”
Delete entry and replace with “Records are maintained in a secure, limited access, or monitored work area. Physical entry by unauthorized persons is restricted by the use of locks, guards, or administrative procedures. Access to personal information is restricted to those who require the records in the performance of their official duties. Access to computer records is further restricted to DL staff only. All personnel whose official duties require access to the information are trained in the proper safeguarding and use of the information.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the DLA Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Individuals should provide their name, home address, and representative's name.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the DLA Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Individuals should provide their name, home address, and representative's name.”
Congressional, Executive, and Political Inquiry Records.
Office of Legislative Affairs, Headquarters Defense Logistics Agency, 8725 John J. Kingman Road, Suite 2545, Fort Belvoir, VA, 22060-6221, and the DLA Primary Level Field Activities. Mailing addresses for the DLA Primary Level Field Activities may be obtained from the System manager.
Individuals, organizations, and other entities who have requested Members of State and Federal Legislative and Executive Branches of Government make inquiries on their behalf.
Records contain representative's name, constituent's name, details surrounding the issue being researched and control number. The records may also contain the constituent's home address, home telephone number, or related personal information provided by the constituent/representative making the inquiry.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 133, Under Secretary of Defense for Acquisition and Technology; and DOD Directive 5400.04, Provision of Information to Congress.
Information is collected to reply to inquiries and to determine the need for and course of action to be taken for resolution. Information may be used by the DLA Director, Chief of Staff, DLA Senior Leadership and DLA Primary Level Field Activity Commanders and decision makers as a basis to institute policy or procedural changes.
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:
Information is furnished to Members/Staff of State and Federal Legislative and Executive Branches of Government who wrote to DLA on behalf of the constituent and who use it to respond to the constituent, or for other related purposes.
To Federal and local government agencies having cognizance over or authority to act on the issues involved.
The DoD “Blanket Routine Uses” apply to this system of records.
Records are stored in paper and electronic form.
Retrieved by constituent name, representative name, or control number.
Records are maintained in a secure, limited access, or monitored work area. Physical entry by unauthorized persons is restricted by the use of locks, guards, or administrative procedures. Access to personal information is restricted to those who require the records in the performance of their official duties. Access to computer records is further restricted to DL staff only. All personnel whose official duties require access to the information are trained in the proper safeguarding and use of the information.
Records are destroyed after eight years.
Director, Legislative Affairs, Headquarters, Defense Logistics Agency, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-6221, and the DLA Primary Level Field Activity Commanders.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the DLA Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Individuals should provide their name, home address, and representative's name.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the DLA Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Individuals should provide their name, home address, and representative's name.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the DLA Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060-6221.
Information is provided by constituent, the constituent's representative, and from agency files.
None.
Office of the Secretary, DoD.
Notice to Alter a System of Records.
The Office of the Secretary of Defense is proposing to alter a systems of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
Send comments to the Privacy Act Officer, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Mrs. Cindy Allard at (703) 588-6830.
The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 17, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, 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 February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Enrollment Eligibility Reporting System (DEERS) (April 22, 2009)
Delete entry and replace with “5 U.S.C. 301, Departmental Regulations; 10 U.S.C. Chapter 53, Miscellaneous Rights and Benefits, Chapter 54, Commissary and Exchange Benefits, Chapter 55 Medical and Dental Care, Chapter 58 Benefits and Services for Members being Separated or Recently Separated, and Chapter 75 Deceased Personnel; 10 U.S.C. 136 Under Secretary of Defense for Personnel Readiness; 20 U.S.C. 1070a (f)(4), Higher Education Opportunity Act; 31 U.S.C. 3512(c) Executive Agency Accounting and Other Financial Management; 50 U.S.C. Chapter 23, Internal Security; DoD Directive 1341.1, Defense Enrollment/Eligibility Reporting System; DoD Instruction 1341.2, DEERS Procedures; 5 U.S.C. App. 3 (Pub. L. 95-452, as amended Inspector General Act of 1978; Pub. L. 106-265, Federal Long-Term Care Insurance; and 10 U.S.C. 2358, Research and Development Projects; 42 U.S.C., Chapter 20, Subchapter I-G, Registration and Voting by Absent Uniformed Services Voters and Overseas Voters in Elections for Federal Office, Sec. 1973ff, Federal responsibilities and DoD Directive 1000.4, Federal Voting Assistance Program (FVAP); Homeland Security Presidential Directive 12, Policy for a common Identification Standard for Federal Employees and Contractors; 38 CFR part 9.20, Traumatic injury protection, Servicemembers' Group Life Insurance and Veterans' Group Life Insurance; and E.O. 9397 (SSN) as amended.”
Delete entry and replace with “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:
1. To the Social Security Administration (SSA) to perform computer data matching against the SSA Wage and Earnings Record file for the purpose of identifying employers of Department of Defense (DoD) beneficiaries eligible for health care. This employer data will in turn be used to identify those employed beneficiaries who have employment-related group health insurance, to coordinate insurance benefits provided by DoD with those provided by the other insurance. This information will also be used to perform computer data matching against the SSA Master Beneficiary Record file for the purpose of identifying DoD beneficiaries eligible for health care who are enrolled in the Medicare Program, to coordinate insurance benefits provided by DoD with those provided by Medicare.
2. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
3. To other Federal agencies and State, local and territorial governments to identify fraud and abuse of the Federal agency's programs and to identify debtors and collect debts and overpayment in the DoD health care programs.
4. To each of the fifty States and the District of Columbia for the purpose of conducting an on going computer matching program with State Medicaid agencies to determine the extent to which State Medicaid beneficiaries may be eligible for Uniformed Services health care benefits, including CHAMPUS, TRICARE, and to recover Medicaid monies from the CHAMPUS program.
5. To provide dental care providers assurance of treatment eligibility.
6. To Federal agencies and/or their contractors, in response to their requests, for purposes of authenticating the identity of individuals who, incident to the conduct of official business, present the Common Access Card or similar identification as proof of identity to gain physical or logical access to government and contractor facilities, locations, networks, or systems.
7. To State and local child support enforcement agencies for purposes of providing information, consistent with the requirements of 29 U.S.C. 1169(a), 42 U.S.C. 666(a)(19), and E.O. 12953 and in response to a National Medical Support Notice (NMSN) (or equivalent notice if based upon the statutory authority for the NMSN), regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD health care coverage.
8. To the Department of Health and Human Services (HHS):
a. For purposes of providing information, consistent with the requirements of 42 U.S.C. 653 and in response to an HHS request, regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD healthcare coverage.
b. For purposes of providing information so that specified Medicare determinations, specifically late enrollment and waiver of penalty, can be made for eligible (1) DoD military retirees and (2) spouses (or former spouses) and/or dependents of either military retirees or active duty military personnel, pursuant to section 625 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2002 (as codified at 42 U.S.C. 1395p and 1395r).
c. To the Office of Child Support Enforcement, Federal Parent Locator Service, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; the relationship to a child receiving benefits provided by a third party and the name and SSN of those third party providers who have a legal responsibility. Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
d. For purposes of providing information to the Centers for Medicare and MEDICAID Services (CMS) to account for the impact of DoD healthcare on local reimbursement rates for the Medicare Advantage program as required in 42 CFR 422.306.
9. To the American Red Cross for purposes of providing emergency notification and assistance to members of the Armed Forces, retirees, family members or survivors.
10. To the Department of Veterans Affairs (DVA):
a. To provide military personnel, pay and wounded, ill and injured identification data for present and former military personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968) and for DVA to administer the Traumatic Servicemember's Group Life Insurance (TSGLI) (Traumatic Injury Protection Rider to Servicemember's Group Life Insurance (TSGLI), 38 CFR part 9.20).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension Program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purposes of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting overpayment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (Title 10 U.S.C., Chapter 1606—Selected Reserve and Title 38 U.S.C., Chapter 30—Active Duty), the REAP educational benefit (Title 10 U.S.C., Chapter 1607), and the National Call to Service enlistment educational benefit (Title 10, Chapter 510). The Post-9/11 GI Bill (Title 38 U.S.C., Chapter 33) and The Transferability of education assistance to family members. The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support National Guard/Reserve military personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
11. To DoD Civilian Contractors and grantees for the purpose of performing research on manpower problems for statistical analyses.
12. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
13. To Defense contractors to monitor the employment of former DoD employees and military members subject to the provisions of 41 U.S.C. 423.
14. To Federal and Quasi Federal agencies, territorial, State, and local
15. To Federal and Quasi Federal agencies, territorial, State and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well-being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) in emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipients' understanding of, and willingness to abide by these provisions.
16. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
17. To Federal and State agencies to validate demographic data (
18. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
19. To the Federal voting program to provide unit and e-mail addresses for the purpose of notifying the military members where to obtain absentee ballots.
20. To the Department of Homeland Security for the conduct of studies related to the health and well-being of Coast Guard members and to authenticate and identify Coast Guard personnel.
21. To Coast Guard recruiters in the performance of their assigned duties.
22. To Federal Agencies, to include OPM, Postal Service, Executive Office of the President and Administrative Office of the Courts; to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
a. Providing all reserve military members eligible for TRICARE Reserve Select (TRS) to be matched against the Federal agencies for providing those reserve military members that are also Federal civil service employees. This disclosure by the Federal agencies will provide the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRS program. Only those reservists not eligible for FEHB are eligible for TRS (Section 1076d of title 10).
b. Providing all reserve military members to be matched against the Federal agencies for the purpose of identifying the Reserve Forces who are also employed by the Federal Government in a civilian position, so that reserve status can be terminated if necessary. To accomplish an emergency mobilization, individuals occupying critical civilian positions cannot be mobilized as Reservists.
c. To the Department of Education for the purpose of identifying dependent children of those military members killed in Operation Iraq Freedom and Operation Enduring Freedom (OIF/OEF), Afghanistan Only, for possible benefits.”
Defense Enrollment Eligibility Recording System (DEERS)
EDS—Service Management Center, 1075 West Entrance Drive, Auburn Hills, MI 48326-2723.
Active duty members and other Uniformed Servicemembers,
Computer files containing beneficiary's name; Service or Social Security Number; enrollment number; relationship of beneficiary to sponsor; residence address of beneficiary or sponsor; date of birth of beneficiary; sex of beneficiary; branch of Service of sponsor; dates of beginning and ending eligibility; number of family members of sponsor; primary unit duty location of
Catastrophic Cap and Deductible (CCD) transactions, including monetary amounts; CHAMPUS/TRICARE claim records containing enrollee, participant and health care facility, provider data such as cause of treatment, amount of payment, name and Social Security or tax identification number of providers or potential providers of care; citizenship data/country of birth; civil service employee employment information (agency and bureau, pay plan and grade, nature of action code and nature of action effective date, occupation series, dates of promotion and expected return from overseas, service computation date); claims data; compensation data; contractor fee payment data; date of separation of former enlisted and officer personnel; demographic data (kept on others beyond beneficiaries) date of birth, home of record State, sex, race, education level; Department of Veterans Affairs disability payment records; digital signatures where appropriate to assert validity of data; e-mail (home/work); emergency contact information; immunization data; Information Assurance (IA) Workforce information; language data; military personnel information (rank, assignment/deployment, length of service, military occupation, education, and benefit usage); pharmacy benefits; reason leaving military service or DoD civilian service; Reserve member's civilian occupation and employment information; education benefit eligibility and usage; special military pay information; SGLI/FGLI; stored documents for proving identity and association; workforce information (
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. Chapters 53, Miscellaneous Rights and Benefits, Chapter 54, Commissary and Exchange Benefits, Chapter 55 Medical and Dental Care, Chapter 58 Benefits and Services for Members being Separated or Recently Separated, and Chapter 75 Deceased Personnel; 10 U.S.C. 136 Under Secretary of Defense for Personnel Readiness; 20 U.S.C. 1070a(f)(4), Higher Education Opportunity Act; 31 U.S.C. 3512(c) Executive Agency Accounting and Other Financial Management; 50 U.S.C. Chapter 23, Internal Security; DoD Directive 1341.1, Defense Enrollment/Eligibility Reporting System; DoD Instruction 1341.2, DEERS Procedures; 5 U.S.C. App. 3 (Pub. L. 95-452, as amended Inspector General Act of 1978; Pub. L. 106-265, Federal Long-Term Care Insurance; and 10 U.S.C. 2358, Research and Development Projects; 42 U.S.C., Chapter 20, Subchapter I-G, Registration and Voting by Absent Uniformed Services Voters and Overseas Voters in Elections for Federal Office, Sec. 1973ff, Federal responsibilities and DoD Directive 1000.4, Federal Voting Assistance Program (FVAP); Homeland Security Presidential Directive 12, Policy for a common Identification Standard for Federal Employees and Contractors; 38 CFR part 9.20, Traumatic injury protection, Servicemembers' Group Life Insurance and Veterans' Group Life Insurance; and E.O. 9397 (SSN), as amended.
The purpose of the system is to provide a database for determining eligibility to DoD entitlements and privileges; to support DoD health care management programs; to provide identification of deceased members; to record the issuance of DoD badges and identification cards,
To authenticate and identify DoD affiliated personnel (
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:
1. To the Social Security Administration (SSA) to perform computer data matching against the SSA Wage and Earnings Record file for the purpose of identifying employers of Department of Defense (DoD) beneficiaries eligible for health care. This employer data will in turn be used to identify those employed beneficiaries who have employment-related group health insurance, to coordinate insurance benefits provided by DoD with those provided by the other insurance. This information will also be used to perform computer data matching against the SSA Master Beneficiary Record file for the purpose of identifying DoD beneficiaries eligible for health care who are enrolled in the Medicare Program, to coordinate insurance benefits provided by DoD with those provided by Medicare.
2. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
3. To other Federal agencies and State, local and territorial governments to identify fraud and abuse of the Federal agency's programs and to identify debtors and collect debts and overpayment in the DoD health care programs.
4. To each of the fifty States and the District of Columbia for the purpose of conducting an on going computer matching program with State Medicaid agencies to determine the extent to which State Medicaid beneficiaries may be eligible for Uniformed Services health care benefits, including CHAMPUS, TRICARE, and to recover Medicaid monies from the CHAMPUS program.
5. To provide dental care providers assurance of treatment.
6. To Federal agencies and/or their contractors, in response to their requests, for purposes of authenticating the identity of individuals who, incident to the conduct of official business, present the Common Access Card or similar identification as proof of identity to gain physical or logical access to government and contractor facilities, locations, networks, or systems.
7. To State and local child support enforcement agencies for purposes of providing information, consistent with the requirements of 29 U.S.C. 1169(a), 42 U.S.C. 666(a)(19), and E.O. 12953 and in response to a National Medical Support Notice (NMSN) (or equivalent notice if based upon the statutory authority for the NMSN), regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD health care coverage.
8. To the Department of Health and Human Services (HHS):
a. For purposes of providing information, consistent with the requirements of 42 U.S.C. 653 and in response to an HHS request, regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD healthcare coverage.
b. For purposes of providing information so that specified Medicare determinations, specifically late enrollment and waiver of penalty, can be made for eligible (1) DoD military retirees and (2) spouses (or former spouses) and/or dependents of either military retirees or active duty military personnel, pursuant to section 625 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2002 (as codified at 42 U.S.C. 1395p and 1395r).
c. To the Office of Child Support Enforcement, Federal Parent Locator Service, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; the relationship to a child receiving benefits provided by a third party and the name and SSN of those third party providers who have a legal responsibility. Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
d. For purposes of providing information to the Centers for Medicare and MEDICAID Services (CMS) to account for the impact of DoD healthcare on local reimbursement rates for the Medicare Advantage program as required in 42 CFR 422.306.
9. To the American Red Cross for purposes of providing emergency notification and assistance to members of the Armed Forces, retirees, family members or survivors.
10. To the Department of Veterans Affairs (DVA):
a. To provide military personnel, pay and wounded, ill and injured identification data for present and former military personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968) and for DVA to administer the Traumatic Servicemember's Group Life Insurance (TSGLI) (Traumatic Injury Protection Rider to Servicemember's Group Life Insurance (TSGLI), 38 CFR part 9.20).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension Program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purposes of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (Title 10 U.S.C., Chapter 1606—Selected Reserve and Title 38 U.S.C., Chapter 30—Active Duty), the REAP educational benefit (Title 10 U.S.C., Chapter 1607), and the National Call to Service enlistment educational benefit (Title 10, Chapter 510). The Post 9/11 GI Bill (Title 38 U.S.C., Chapter 33) and The Transferability of education assistance to family members. The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support National Guard/Reserve military personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
11. To DoD Civilian Contractors and grantees for the purpose of performing research on manpower problems for statistical analyses.
12. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
13. To Defense contractors to monitor the employment of former DoD employees and military members subject to the provisions of 41 U.S.C. 423.
14. To Federal and Quasi Federal agencies, territorial, State, and local governments to support personnel functions requiring data on prior military service credit for their employees or for job applications. To determine continued eligibility and help eliminate fraud and abuse in benefit programs and to collect debts and over payments owed to these programs. Information released includes name, Social Security Number, and military or civilian address of individuals. To
15. To Federal and Quasi Federal agencies, territorial, State and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) in emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipients' understanding of, and willingness to abide by these provisions.
16. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
17. To Federal and State agencies to validate demographic data (
18. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
19. To the Federal voting program to provide unit and e-mail addresses for the purpose of notifying the military members where to obtain absentee ballots.
20. To the Department of Homeland Security for the conduct of studies related to the health and well-being of Coast Guard members and to authenticate and identify Coast Guard personnel.
21. To Coast Guard recruiters in the performance of their assigned duties.
22. To Federal Agencies, to include OPM, Postal Service, Executive Office of the President and Administrative Office of the Courts; to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
a. Providing all reserve military members eligible for TRICARE Reserve Select (TRS) to be matched against the Federal agencies for providing those reserve military members that are also Federal civil service employees. This disclosure by the Federal agencies will provide the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRS program. Only those reservists not eligible for FEHB are eligible for TRS (Section 1076d of title 10).
b. Providing all reserve military members to be matched against the Federal agencies for the purpose of identifying the Reserve Forces who are also employed by the Federal Government in a civilian position, so that reserve status can be terminated if necessary. To accomplish an emergency mobilization, individuals occupying critical civilian positions cannot be mobilized as Reservists.
c. To the Department of Education for the purpose of identifying dependent children of those military members killed in Operation Iraq Freedom and Operation Enduring Freedom (OIF/OEF), Afghanistan Only, for possible benefits.
The DoD “Blanket Routine Uses” published at the beginning of OSD's compilation of systems of records notices apply to this system.
Records are maintained on magnetic tapes and disks, and are housed in a controlled computer media library.
Records about individuals are retrieved by an algorithm which uses name, Social Security Number, date of birth, rank, and duty location as possible inputs. Retrievals are made on summary basis by geographic characteristics and location and demographic characteristics. Information about individuals will not be distinguishable in summary retrievals. Retrievals for the purposes of generating address lists for direct mail distribution may be made using selection criteria based on geographic and demographic keys.
Computerized records are maintained in a controlled area accessible only to authorized personnel. Entry to these areas is restricted to those personnel with a valid requirement and authorization to enter. Physical entry is restricted by the use of locks, guards, and administrative procedures (
Access to personal information is restricted to those who require the records in the performance of their official duties, and to the individuals who are the subjects of the record or their authorized representatives. Access to personal information is further restricted by the use of passwords, which are changed periodically. All individuals granted access to this system of records are to have received Information Assurance and Privacy Act training.
Data is destroyed when superseded or when no longer needed for operational purposes, whichever is later.
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Deputy
Written requests should contain the full name, Social Security Number (SSN), date of birth, and current address and telephone number of the individual.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the OSD/JS FOIA Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the name and number of this system of records notice along with the full name, Social Security Number (SSN), date of birth, and current address and telephone number of the individual and be signed.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Individuals, personnel, pay, and benefit systems of the military and civilian departments and agencies of the Defense Department, the Coast Guard, the Public Health Service, the National Oceanic and Atmospheric Administration, Department of Veterans Affairs, and other Federal agencies.
None.
Defense Finance and Accounting Service, DoD.
Notice to Amend a System of Records.
The Defense Finance and Accounting Service (DFAS) is proposing to amend systems of records notices in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which would result in a contrary determination.
Send comments to the Defense Finance and Accounting Service, FOIA/PA Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Ms. Linda Krabbenhoft at (303) 589-3510.
The Defense Finance and Accounting Service systems of notices 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.
Junior Reserve Officer Training Corps Payment Reimbursement System (April 28, 2000, 65 FR 24935).
Delete entry and replace with “Defense Finance and Accounting Service, 8899 East 56th Street, Indianapolis, IN 46269-0002.”
Delete entry and replace with “10 U.S.C. 2031, as amended, Junior Reserve Officers' Training Corps, Reserve Officers' Training Corps Program for Secondary Educational Institutions; DoD Instruction 1205.13, Junior Reserve Officers Training Corps Program; DoDFMR 7000.14-R, Volume 10, Chapter 21; Headquarters, Defense Finance and Accounting Service, Memorandum of April 10, 1996; (Department of the Navy, Headquarters, U.S. Marine Corps, Memorandum of April 26, 1996; Department of the Navy, Office of the Assistant Secretary, Memorandum of June 21, 1996; Department of the Navy, Office of the Assistant Secretary, Memorandum of June 21, 1996, and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “The purpose of this system is as follows:
To accomplish payroll computations and the reimbursement portion of the Junior Reserve Officer Training Corps Instructor Program.
To provide statements and/or reports to each instructor and school/school district.
To answer inquiries from applicable Services and/or financial institution where funds were distributed.
To provide information required by an auditor during an audit of the program.
To assist the Services with audit of individual instructor, school, and/or school district.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the school/school district to provide information regarding the instructor's computed minimum instructor pay, and the amount being reimbursed by the applicable Military Service.
To the Treasury Department to provide information on check issues and electronic funds transfers.
To the Federal Reserve Banks to distribute payments made through the direct deposit system to financial organizations or their processing agents authorized by individuals to receive and deposit payments in their accounts.
The DoD “Blanket Routine Uses” published at the beginning of the DFAS compilation of systems of records notices also apply to this system.
Delete entry and replace with “The records are hard copy documents or electronic storage media.”
Delete entry and replace with “Name and Social Security Number.”
Delete entry and replace with “Records are stored in an office building protected by guards, controlled screening, use of visitor registers, electronic access, and/or locks. Access
Delete entry and replace with “Records are cut off at the end of each month or the end of each fiscal year and then maintained for 1 year or up to 6 years and 3 months from date of cutoff. Destruction is by tearing, shredding, pulping, macerating, or burning.”
Delete entry and replace with “Deputy Director, Air Force Military Pay Operations, Defense Finance and Accounting Service, 8899 East 56th Street, Indianapolis, IN 46249-0002.”
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 the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Individuals should furnish full name, Social Security Number, current address, telephone number.”
Delete entry and replace with “Individuals seeking access to information about them contained in this system of records should address written inquiries to the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Individuals should furnish full name, Social Security Number, current address, telephone number.”
Delete entry and replace with “The DFAS rules for accessing records, for contesting contents and appealing initial agency determinations are published in DFAS Regulation 5400.11-R; 32 CFR part 324; or may be obtained from the Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.”
Delete entry and replace with “Individuals; school/school district offices; applicable Military Services; and the Defense Retiree and Annuitant (Pay) System (DRAS).”
Junior Reserve Officer Training Corps Payment Reimbursement System.
Defense Finance and Accounting Service, 8899 East 56th Street, Indianapolis, IN 46269-0002.
All military retirees who participate in the Junior Reserve Officer Training Corps (JROTC) Instructor Program at selected high schools within the continental United States and various overseas locations.
Personal information regarding name, Social Security Number, school/school district name and address, applicable active duty entitlement amounts, and current gross retired pay amounts. Military Services' applicable contribution percentage, gross and net contribution percentage, gross and net contribution amounts, and current employment period beginning and closing dates.
10 U.S.C. 2031, as amended, Junior Reserve Officers' Training Corps, Reserve Officers' Training Corps Program for Secondary Educational Institutions; DoD Instruction 1205.13, Junior Reserve Officers Training Corps Program; DoDFMR 7000.14-R, Volume 10, Chapter 21; Headquarters, Defense Finance and Accounting Service, Memorandum of April 10, 1996; (Department of the Navy, Headquarters, U.S. Marine Corps, Memorandum of April 26, 1996; Department of the Navy, Office of the Assistant Secretary, Memorandum of June 21, 1996; Department of the Navy, Office of the Assistant Secretary, Memorandum of June 21, 1996, and E.O. 9397 (SSN), as amended.
The purpose of this system is as follows:
To accomplish payroll computations and the reimbursement portion of the Junior Reserve Officer Training Corps Instructor Program.
To provide statements and/or reports to each instructor and school/school district.
To answer inquiries from applicable Services and/or financial institution where funds were distributed.
To provide information required by an auditor during an audit of the program.
To assist the Services with audit of individual instructor, school, and/or school district.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the school/school district to provide information regarding the instructor's computed minimum instructor pay, and the amount being reimbursed by the applicable Military Service.
To the Treasury Department to provide information on check issues and electronic funds transfers.
To the Federal Reserve Banks to distribute payments made through the direct deposit system to financial organizations or their processing agents authorized by individuals to receive and deposit payments in their accounts.
The DoD “Blanket Routine Uses” published at the beginning of the DFAS compilation of systems of records notices also apply to this system.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act, 15 U.S.C. 1681a(f) or the Federal Claims Collection Act of 1966, 31 U.S.C. 3701(a)(3). The purpose of the disclosure is to aid in the collection of outstanding debts owed to the Federal Government; typically, to provide an incentive for debtors to repay delinquent Federal Government debts by making these debts part of their credit records.
The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number); the amount, status, and history of the claim; and the agency or program under which the claim arose.
The records are hard copy documents or electronic storage media.
Name and Social Security Number.
Records are stored in an office building protected by guards, controlled screening, use of visitor registers, electronic access, and/or locks. Access to records is limited to authorized individuals who are properly screened and cleared on a need-to-know basis in the performance of their official duties. Passwords and digital signatures are used to control access to the system data, and procedures are in place to deter and detect browsing and unauthorized access. Physical and electronic access are limited to persons responsible for servicing and authorized to use the system.
Records are cut off at the end of each month or the end of each fiscal year and then maintained for 1 year or up to 6 years and 3 months from date of cut off. Destruction is by tearing, shredding, pulping, macerating, or burning.
Deputy Director, Air Force Military Pay Operations, Defense Finance and Accounting Service, 8899 E. 56th Street, Indianapolis, IN 46249-0002.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Individuals should furnish full name, Social Security Number, current address, telephone number.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Defense Finance and Accounting Service, Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Individuals should furnish full name, Social Security Number, current address, telephone number.
The DFAS rules for accessing records, for contesting contents and appealing initial agency determinations are published in DFAS Regulation 5400.11-R; 32 CFR part 324; or may be obtained from the Freedom of Information/Privacy Act Program Manager, Corporate Communications and Legislative Liaison, 8899 E. 56th Street, Indianapolis, IN 46249-0150.
Individuals; school/school district offices; applicable Military Services; and the Defense Retiree and Annuitant (Pay) System (DRAS).
None.
Defense Threat Reduction Agency, DoD.
Notice to Add a System of Records.
The Defense Threat Reduction Agency is proposing to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This action will be effective without further notice on September 8, 2009 unless comments are received that would result in a contrary determination.
Send comments to the Freedom of Information and Privacy Office, Defense Threat Reduction Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060-6201.
Ms. Brenda Carter at (703) 767-1771.
The Defense Threat Reduction Agency 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 proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 20, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, 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 February 8, 1996 (February 20, 1996, 61 FR 6427).
National Nuclear Weapon Stockpile Accountability Records.
Headquarters, Defense Threat Reduction Agency, Nuclear Support Directorate,
Individuals affiliated with DoD and Department of Energy Agencies who perform maintenance actions on the national nuclear weapon stockpile.
System access request forms and records of maintenance actions performed on the national nuclear stockpile. The records contain individual's name, Employee Identification Number or Social Security Number (SSN), affiliation (military, civilian, or contractor), military rank, physical and electronic duty addresses, duty telephone numbers, security clearance and read-in information, system access information.
42 U.S.C. 2121, the Atomic Energy Act of 1954; DoDD 5210.41, Security Policy for Protecting Nuclear Weapons; CJCSI 3150.04, Nuclear Weapons Stockpile Logistics Management and Nuclear Weapons Reports under the Joint Reporting Structure, DOE-DTRA Technical Publication (TP) 35-7, Inspection Records and E.O. 9397 (SSN).
To provide accountability by reporting maintenance actions on nuclear weapons in the national nuclear weapon stockpile in peacetime, crisis, and wartime to authorized DoD and Department of Energy personnel.
In addition to those disclosures generally permitted under 5 U.S.C. 552(a) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To officials and employees of United States Federal Government agencies in the performance of their official duties related to the accountability of the national nuclear weapons stockpile.
Paper records and electronic storage media.
Individual's name, user code, last four digits of Social Security Number (SSN), location, weapon serial number, system access level.
Records are maintained in secure, limited access areas approved for classified processing. Servers, workstations and laptops are password protected. Data transmission is encrypted. Hardcopy files are classified documents when complete and protected as such, either in certified open storage areas or kept in secured, classified safes.
Nuclear weapons maintenance records are permanent records. Hard copy user access request forms will be retained for at least six years or longer if needed for investigative or security purposes. Electronic user identification, profiles, authorizations are permanent records for accountability; accounts will be deactivated when no longer in use.
Branch Chief, Defense Threat Reduction Agency, Nuclear Support Directorate, Stockpile Operations Branch (DTRA/NSPO), 8725 John J. Kingman Rd, Stop 6201, Ft. Belvoir, VA 22060-6201.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Defense Threat Reduction Agency, Nuclear Support Directorate,
Individuals should furnish full name, last four digits of the Social Security Number (SSN), the duty locations where system access was granted, current address, and telephone number.
Individuals seeking to access records about themselves contained in this system of records should address written inquiries to Defense Threat Reduction Agency, Nuclear Support Directorate,
Individuals should furnish full name, last four digits of the Social Security Number (SSN), the duty locations where system access was granted, current address, and telephone number.
The DTRA rules for contesting contents are published in 32 CFR part 318, or may be obtained from the System Manager.
Individual, individual's security manager and supervisor.
None.
Office of the Secretary, DoD.
Notice to Alter a System of Records.
The Office of the Secretary of Defense is proposing to alter a systems of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
Send comments to the Privacy Act Officer, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Mrs. Cindy Allard at (703) 588-6830.
The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 17, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, 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 February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Manpower Data Center Data Base. (January 31, 2008, 73 FR 5820).
Delete entry and replace with: “5 U.S.C. 301, Departmental Regulations; 5 U.S.C. App. 3 (Pub. L. 95-452, as amended (Inspector General Act of 1978)); 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 1562, Database on Domestic Violence Incidents; 20 U.S.C. 1070a(f)(4), Higher Education Opportunity Act; Public Law 106-265, Federal Long-Term Care Insurance; 10 U.S.C. 2358, Research and Development Projects; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with: “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:
1. To the Department of Veteran Affairs (DVA):
a. To provide military personnel and pay data for present and former military personnel for the purpose of evaluating use of veterans benefits, validating
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (Title 10 U.S.C., Chapter 1606—Selected Reserve and Title 38 U.S.C., Chapter 30—Active Duty). The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support National Guard/Reserve military personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
2. To the Office of Personnel Management (OPM):
a. Consisting of personnel/employment/financial data for the purpose of carrying out OPM's management functions. Records disclosed concern pay, benefits, retirement deductions and any other information necessary for those management functions required by law (Pub. L. 83-598, 84-356, 86-724, 94-455 and 5 U.S.C. 1302, 2951, 3301, 3372, 4118, 8347).
b. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a) for the purpose of:
(1) Exchanging personnel and financial data to identify individuals who are improperly receiving military retired pay and credit for military service in their civil service annuities, or annuities based on the “guaranteed minimum” disability formula. The match will identify and/or prevent erroneous payments under the Civil Service Retirement Act (CSRA) 5 U.S.C. 8331 and the Federal Employees' Retirement System Act (FERSA) 5 U.S.C. 8411. DOD's legal authority for monitoring retired pay is 10 U.S.C. 1401.
(2) Exchanging civil service and Reserve military personnel data to identify those individuals of the Reserve forces who are employed by the Federal government in a civilian position. The purpose of the match is to identify those particular individuals occupying critical positions as civilians and cannot be released for extended active duty in the event of mobilization. Employing Federal agencies are informed of the reserve status of those affected personnel so that a choice of terminating the position or the reserve assignment can be made by the individual concerned. The authority for conducting the computer match is contained in E.O. 11190, Providing for the Screening of the Ready Reserve of the Armed Services.
c. Matching for administrative purposes to include updated employer addresses of Federal civil service employees who are reservists and demographic data on civil service employees who are reservists.
3. To the Internal Revenue Service (IRS) for the purpose of obtaining home addresses to contact Reserve component members for mobilization purposes and for tax administration. For the purpose of conducting aggregate statistical analyses on the impact of DoD personnel of actual changes in the tax laws and to conduct aggregate statistical analyses to lifestream earnings of current and former military personnel to be used in studying the comparability of civilian and military pay benefits. To aid in administration of Federal Income Tax laws and regulations, to identify non compliance and delinquent filers.
4. To the Department of Health and Human Services (DHHS):
a. To the Office of the Inspector General, DHHS, for the purpose of identification and investigation of DoD employees and military members who may be improperly receiving funds under the Aid to Families of Dependent Children Program.
b. To the Office of Child Support Enforcement, Federal Parent Locator Service, DHHS, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; and for conducting computer matching as authorized by E.O. 12953 to facilitate the enforcement of child support owed by delinquent obligors within the entire civilian Federal government and the Uniformed Services work force (active and retired). Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
Information requested by DHHS is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
Quarterly wage information is not disclosed for those individuals performing intelligence or counter intelligence functions and a determination is made that disclosure could endanger the safety of the individual or compromise an ongoing investigation or intelligence mission (42 U.S.C. 653(n)).
c. To the Health Care Financing Administration (HCFA), DHHS for the purpose of monitoring HCFA
d. To the Center for Disease Control and the National Institutes of Mental Health, DHHS, for the purpose of conducting studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of determining continued eligibility and help eliminate fraud and abuse in benefit programs by identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
5. To the Social Security Administration (SSA):
a. To the Office of Research and Statistics for the purpose of
(1) conducting statistical analyses of impact of military service and use of GI Bill benefits on long term earnings, and
(2) obtaining current earnings data on individuals who have voluntarily left military service or DoD civil employment so that analytical personnel studies regarding pay, retention and benefits may be conducted.
Earnings data obtained from the SSA and used by DoD does not contain any information that identifies the individual about whom the earnings data pertains.
b. To the Bureau of Supplemental Security Income for the purpose of verifying information provided to the SSA by applicants and recipients/beneficiaries, who are retired members of the Uniformed Services or their survivors, for Supplemental Security Income (SSI) or Special Veterans' Benefits (SVB). By law (42 U.S.C. 1006 and 1383), the SSA is required to verify eligibility factors and other relevant information provided by the SSI or SVB applicant from independent or collateral sources and obtain additional information as necessary before making SSI or SVB determinations of eligibility, payment amounts, or adjustments thereto.
c. To the Client Identification Branch for the purpose of validating the assigned Social Security Number for individuals in DoD personnel and pay files, using the SSA Enumeration Verification System (EVS).
d. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
6. To the Selective Service System (SSS) for the purpose of facilitating compliance of members and former members of the Armed Forces, both active and reserve, with the provisions of the Selective Service registration regulations (50 U.S.C. App. 451 and E.O. 11623).
7. To the Department of Labor (DOL) to reconcile the accuracy of unemployment compensation payments made to former DoD civilian employees and military members by the states. To the Department of Labor to survey military separations to determine the effectiveness of programs assisting veterans to obtain employment.
8. To Federal and Quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior military service credit for their employees or for job applications. Information released includes name, Social Security Number, and military or civilian address of individuals. To detect fraud, waste and abuse pursuant to the authority contained in the Inspector General Act of 1978, as amended (Pub. L. 95-452) for the purpose of determining eligibility for, and/or continued compliance with, any Federal benefit program requirements.
9. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
10. To state and local law enforcement investigative agencies to obtain criminal history information for the purpose of evaluating military service performance and security clearance procedures (10 U.S.C. 2358).
11. To Federal and Quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) Establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) In emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipient's understanding of, and willingness to abide by these provisions.
12. To the Educational Testing Service, American College Testing, and like organizations for purposes of obtaining testing, academic, socioeconomic, and related demographic data so that analytical personnel studies of the Department of Defense civilian and military workforce can be conducted.
Data obtained from such organizations and used by DoD does not contain any information that identifies the individual about whom the data pertains.
13. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
14. To Federal and state agencies for purposes of validating demographic data (
15. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
16. To Federal and State agencies, as well as their contractors and grantees, for purposes of providing military wage, training, and educational information so that Federal-reporting requirements, as mandated by statute, such as the Workforce Investment Act (29 U.S.C. 2801,
17. To Federal Agencies, including the Department of Education, to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of identifying dependent children of those military members killed in Operation Iraq Freedom and Operation Enduring Freedom (OIF/OEF) Afghanistan Only for possible benefits.
The DoD “Blanket Routine Uses” set forth at the beginning of the OSD compilation of systems of records notices apply to this system.
Military drug test information involving individuals participating in a drug abuse rehabilitation program shall be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd-2. This statute takes precedence over the Privacy Act of 1974, in regard to accessibility of such records except to the individual to whom the record pertains. The DoD “”Blanket Routine Uses' do not apply to these types records.
Delete entry and replace with: “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the name and number of this system of records notice along with the full name, Social Security Number (SSN), date of birth, current address, telephone number of the individual, and be signed.”
Delete entry and replace with: “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.”
Defense Manpower Data Center Data Base.
Naval Postgraduate School Computer Center, Naval Postgraduate School, Monterey, CA 93943-5000.
All Army, Navy, Air Force, and Marine Corps officer and enlisted personnel who served on active duty from July 1, 1968, and after or who have been a member of a reserve component since July 1975; retired Army, Navy, Air Force, and Marine Corps officer and enlisted personnel; active and retired Coast Guard personnel; active and retired members of the commissioned corps of the National Oceanic and Atmospheric Administration; active and retired members of the commissioned corps of the Public Health Service; participants in Project 100,000 and Project Transition, and the evaluation control groups for these programs. All individuals examined to determine eligibility for military service at an Armed Forces Entrance and Examining Station from July 1, 1970, and later.
Current and former DoD civilian employees since January 1, 1972. All veterans who have used the GI Bill education and training employment services office since January 1, 1971. All veterans who have used GI Bill education and training entitlements, who visited a state employment service office since January 1, 1971, or who participated in a Department of Labor special program since July 1, 1971. All individuals who ever participated in an educational program sponsored by the U.S. Armed Forces Institute and all individuals who ever participated in the Armed Forces Vocational Aptitude Testing Programs at the high school level since September 1969.
Participants in the Department of Health and Human Services National Longitudinal Survey.
Survivors of retired military personnel who are eligible for or currently receiving disability payments or disability income compensation from the Department of Veterans Affairs; surviving spouses of active or retired deceased military personnel; 100% disabled veterans and their survivors; survivors of retired Coast Guard personnel; and survivors of retired officers of the National Oceanic and Atmospheric Administration and the Public Health Service who are eligible for or are currently receiving Federal payments due to the death of the retiree.
Individuals receiving disability compensation from the Department of Veterans Affairs or who are covered by a Department of Veterans Affairs insurance or benefit program; dependents of active and retired members of the Uniformed Services, selective service registrants.
Individuals receiving a security background investigation as identified in the Defense Central Index of Investigation. Former military and civilian personnel who are employed by DoD contractors and are subject to the provisions of 10 U.S.C. 2397.
All Federal civilian retirees.
All non appropriated funded individuals who are employed by the Department of Defense.
Individuals who were or may have been the subject of tests involving chemical or biological human subject testing; and individuals who have inquired or provided information to the Department of Defense concerning such testing.
Individuals who are authorized Web access to DMDC computer systems and databases.
Computerized personnel/employment/pay records consisting of name, Service Number, Selective Service Number, Social Security Number (SSN), citizenship data, compensation data, demographic information such as home town, age, sex, race, and educational level; civilian occupational information; performance ratings of DoD civilian employees and military members; reasons given for leaving military service or DoD civilian service; civilian and military acquisition work force warrant location, training and job specialty information; military personnel information such as rank, assignment/deployment, length of service, military occupation, aptitude scores, post service education, training, and employment information for veterans; participation in various in-service education and training programs; date of award of certification of military experience and training; military hospitalization and medical treatment, immunization, and pharmaceutical dosage records; home and work addresses; and identities of individuals involved in incidents of child and spouse abuse, and information about the nature of the abuse and services provided.
CHAMPUS claim records containing enrollee, patient and health care facility, provided data such as cause of treatment, amount of payment, name and Social Security or tax identification
Selective Service System registration data.
Index fingerprints of Military Entrance Processing Command (MEPCOM) applicants.
Privacy Act audit logs.
Department of Veteran Affairs disability payment records. Credit or financial data as required for security background investigations.
Criminal history information on individuals who subsequently enter the military.
Office of Personnel Management (OPM) Central Personnel Data File (CPDF), an extract from OPM/GOVT-1, General Personnel Records, containing employment/personnel data on all Federal employees consisting of name, Social Security Number (SSN), date of birth, sex, work schedule (full time, part time, intermittent), annual salary rate (but not actual earnings), occupational series, position occupied, agency identifier, geographic location of duty station, metropolitan statistical area, and personnel office identifier. Extract from Office of Personnel Management (OPM) OPM/CENTRAL-1, Civil Service Retirement and Insurance Records, including postal workers covered by Civil Service Retirement, containing Civil Service Claim number, date of birth, name, provision of law retired under, gross annuity, length of service, annuity commencing date, former employing agency and home address. These records provided by OPM for approved computer matching.
Non appropriated fund employment/personnel records consist of Social Security Number (SSN), name, and work address.
Military drug test records containing the Social Security Number (SSN), date of specimen collection, date test results reported, reason for test, test results, base/area code, unit, service, status (active/reserve), and location code of testing laboratory.
Names of individuals, as well as DMDC assigned identification numbers, and other user-identifying data, such as organization, Social Security Number (SSN), e-mail address, phone number, of those having Web access to DMDC computer systems and databases, to include dates and times of access.
5 U.S.C. 301, Departmental Regulations; 5 U.S.C. App. 3 (Pub. L. 95-452, as amended (Inspector General Act of 1978)); 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 1562, Database on Domestic Violence Incidents; 20 U.S.C. 1070(f)(4), Higher Education Opportunity Act; Pub. L. 106-265, Federal Long-Term Care Insurance; 10 U.S.C. 2358, Research and Development Projects; and E.O. 9397 (SSN), as amended.
The purpose of the system of records is to provide a single central facility within the Department of Defense to assess manpower trends, support personnel and readiness functions, to perform longitudinal statistical analyses, identify current and former DoD civilian and military personnel for purposes of detecting fraud and abuse of pay and benefit programs, to register current and former DoD civilian and military personnel and their authorized dependents for purposes of obtaining medical examination, treatment or other benefits to which they are qualified.
To collect debts owed to the United States Government and state and local governments.
Information will be used by agency officials and employees, or authorized contractors, and other DoD Components in the preparation of studies and policy as related to the health and well-being of current and past military and DoD affiliated personnel; to respond to Congressional and Executive branch inquiries; and to provide data or documentation relevant to the testing or exposure of individuals.
Military drug test records will be maintained and used to conduct longitudinal, statistical, and analytical studies and computing demographic reports on military personnel. No personal identifiers will be included in the demographic data reports. All requests for Service specific drug testing demographic data will be approved by the Service designated drug testing program office. All requests for DoD wide drug testing demographic data will be approved by the DoD Coordinator for Drug Enforcement Policy and Support, 1510 Defense Pentagon, Washington, DC 20301-1510.
DMDC Web usage data will be used to validate continued need for user access to DMDC computer systems and databases, to address problems associated with web access, and to ensure that access is only for official purposes.
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:
1. To the Department of Veteran Affairs (DVA):
a. To provide military personnel and pay data for present and former military personnel for the purpose of evaluating use of veterans benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (Title 10 U.S.C., Chapter 1606—Selected Reserve and Title 38 U.S.C., Chapter 30—Active Duty). The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
2. To the Office of Personnel Management (OPM):
a. Consisting of personnel/employment/financial data for the purpose of carrying out OPM's management functions. Records disclosed concern pay, benefits, retirement deductions and any other information necessary for those management functions required by law (Pub. L. 83-598, 84-356, 86-724, 94-455 and 5 U.S.C. 1302, 2951, 3301, 3372, 4118, 8347).
b. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a) for the purpose of:
(1) Exchanging personnel and financial data to identify individuals who are improperly receiving military retired pay and credit for military service in their civil service annuities, or annuities based on the “guaranteed minimum” disability formula. The match will identify and/or prevent erroneous payments under the Civil Service Retirement Act (CSRA) 5 U.S.C. 8331 and the Federal Employees' Retirement System Act (FERSA) 5 U.S.C. 8411. DOD's legal authority for monitoring retired pay is 10 U.S.C. 1401.
(2) Exchanging civil service and Reserve military personnel data to identify those individuals of the Reserve forces who are employed by the Federal government in a civilian position. The purpose of the match is to identify those particular individuals occupying critical positions as civilians and cannot be released for extended active duty in the event of mobilization. Employing Federal agencies are informed of the reserve status of those affected personnel so that a choice of terminating the position or the reserve assignment can be made by the individual concerned. The authority for conducting the computer match is contained in E.O. 11190, Providing for the Screening of the Ready Reserve of the Armed Services.
c. Matching for administrative purposes to include updated employer addresses of Federal civil service employees who are reservists and demographic data on civil service employees who are reservists.
3. To the Internal Revenue Service (IRS) for the purpose of obtaining home addresses to contact Reserve component members for mobilization purposes and for tax administration. For the purpose of conducting aggregate statistical analyses on the impact of DoD personnel of actual changes in the tax laws and to conduct aggregate statistical analyses to lifestream earnings of current and former military personnel to be used in studying the comparability of civilian and military pay benefits. To aid in administration of Federal Income Tax laws and regulations, to identify non compliance and delinquent filers.
4. To the Department of Health and Human Services (DHHS):
a. To the Office of the Inspector General, DHHS, for the purpose of identification and investigation of DoD employees and military members who may be improperly receiving funds under the Aid to Families of Dependent Children Program.
b. To the Office of Child Support Enforcement, Federal Parent Locator Service, DHHS, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; and for conducting computer matching as authorized by E.O. 12953 to facilitate the enforcement of child support owed by delinquent obligors within the entire civilian Federal government and the Uniformed Services work force (active and retired). Identifying delinquent obligors will allow State Child Support Enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
Information requested by DHHS is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
Quarterly wage information is not disclosed for those individuals performing intelligence or counter intelligence functions and a determination is made that disclosure could endanger the safety of the individual or compromise an ongoing investigation or intelligence mission (42 U.S.C. 653(n)).
c. To the Health Care Financing Administration (HCFA), DHHS for the purpose of monitoring HCFA reimbursement to civilian hospitals for Medicare patient treatment. The data will ensure no Department of Defense physicians, interns, or residents are counted for HCFA reimbursement to hospitals.
d. To the Center for Disease Control and the National Institutes of Mental Health, DHHS, for the purpose of conducting studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of determining continued eligibility and help eliminate fraud and abuse in benefit programs by identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
5. To the Social Security Administration (SSA):
a. To the Office of Research and Statistics for the purpose of
(1) Conducting statistical analyses of impact of military service and use of GI Bill benefits on long term earnings, and
(2) Obtaining current earnings data on individuals who have voluntarily left military service or DoD civil employment so that analytical personnel studies regarding pay, retention and benefits may be conducted.
Earnings data obtained from the SSA and used by DoD does not contain any information that identifies the individual about whom the earnings data pertains.
b. To the Bureau of Supplemental Security Income for the purpose of verifying information provided to the SSA by applicants and recipients/beneficiaries, who are retired members of the Uniformed Services or their survivors, for Supplemental Security Income (SSI) or Special Veterans' Benefits (SVB). By law (42 U.S.C. 1006 and 1383), the SSA is required to verify eligibility factors and other relevant information provided by the SSI or SVB applicant from independent or collateral sources and obtain additional information as necessary before making SSI or SVB determinations of eligibility, payment amounts, or adjustments thereto.
c. To the Client Identification Branch for the purpose of validating the
d. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
6. To the Selective Service System (SSS) for the purpose of facilitating compliance of members and former members of the Armed Forces, both active and reserve, with the provisions of the Selective Service registration regulations (50 U.S.C. App. 451 and E.O. 11623).
7. To the Department of Labor (DOL) to reconcile the accuracy of unemployment compensation payments made to former DoD civilian employees and military members by the states. To the Department of Labor to survey military separations to determine the effectiveness of programs assisting veterans to obtain employment.
8. To Federal and Quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior military service credit for their employees or for job applications. Information released includes name, Social Security Number, and military or civilian address of individuals. To detect fraud, waste and abuse pursuant to the authority contained in the Inspector General Act of 1978, as amended (Pub. L. 95-452) for the purpose of determining eligibility for, and/or continued compliance with, any Federal benefit program requirements.
9. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
10. To state and local law enforcement investigative agencies to obtain criminal history information for the purpose of evaluating military service performance and security clearance procedures (10 U.S.C. 2358).
11. To Federal and Quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) Establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) In emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipient's understanding of, and willingness to abide by these provisions.
12. To the Educational Testing Service, American College Testing, and like organizations for purposes of obtaining testing, academic, socioeconomic, and related demographic data so that analytical personnel studies of the Department of Defense civilian and military workforce can be conducted.
Data obtained from such organizations and used by DoD does not contain any information that identifies the individual about whom the data pertains.
13. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
14. To Federal and state agencies for purposes of validating demographic data (
15. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108-136, Section 1701, and E.O. 13269, Expedited Naturalization).
16. To Federal and State agencies, as well as their contractors and grantees, for purposes of providing military wage, training, and educational information so that Federal-reporting requirements, as mandated by statute, such as the Workforce Investment Act (29 U.S.C. 2801,
17. To Federal Agencies, including the Department of Education, to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of identifying dependent children of those military members killed in Operation Iraqi Freedom and Operation Enduring Freedom (OIF/OEF) Afghanistan Only for possible benefits.
The DoD “Blanket Routine Uses” set forth at the beginning of the OSD compilation of systems of records notices apply to this system.
Military drug test information involving individuals participating in a drug abuse rehabilitation program shall be confidential and be disclosed only for the purposes and under the circumstances expressly authorized in 42 U.S.C. 290dd-2. This statute takes precedence over the Privacy Act of 1974, in regard to accessibility of such records except to the individual to whom the record pertains. The DoD “Blanket Routine Uses” do not apply to these types records.
Electronic storage media.
Retrieved by name, Social Security Number (SSN), occupation, or any other data element contained in system.
Access to personal information is restricted to those who require the records in the performance of their official duties. Access to personal information is further restricted by the use of Common Access Cards (CAC). Physical entry is restricted by the use of locks, guards, and administrative procedures. All individuals granted access to this system of records are to have taken Information Assurance and Privacy Act training; all have been
The records are used to provide a centralized system within the Department of Defense to assess manpower trends, support personnel functions, perform longitudinal statistical analyses, and conduct scientific studies or medical follow-up programs and other related studies/analyses. Records are retained as follows:
(1) Input/source records are deleted or destroyed after data have been entered into the master file or when no longer needed for operational purposes, whichever is later. Exception: Apply NARA-approved disposition instructions to the data files residing in other DMDC data bases.
(2) The Master File is retained permanently. At the end of the fiscal year, a snapshot is taken and transferred to the National Archives in accordance with 36 CFR part 1228.270 and 36 CFR part 1234.
(3) Outputs records (electronic or paper summary reports) are deleted or destroyed when no longer needed for operational purposes.
(4) System documentation (codebooks, record layouts, and other system documentation) are retained permanently and transferred to the National Archives along with the master file in accordance with 36 CFR part 1228.270 and 36 CFR part 1234.
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955-6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Officer, Office of Freedom of Information, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Written requests should contain the name and number of this system of records notice along with the full name, Social Security Number (SSN), date of birth, current address, and telephone number of the individual 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.
Record sources are individuals via survey questionnaires, the military services, the Department of Veteran Affairs, the U.S. Coast Guard, the National Oceanic and Atmospheric Administration, the Public Health Service, the Office of Personnel Management, Environmental Protection Agency, Department of Health and Human Services, Department of Energy, Executive Office of the President, and the Selective Service System.
None.
Department of the Air Force, DoD.
Notice to add a system of records.
The Department of the Air Force proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective on September 8, 2009, unless comments are received that would result in a contrary determination.
Send comments to the Air Force Privacy Act Officer, Office of Warfighting Integration and Chief Information Officer, SAF/XCPPI, 1800 Air Force Pentagon, Washington, DC 20330-1800.
Mr. Ben Swilley at (703) 696-6489.
The Department of the Air Force's 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 proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 17, 2009, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, 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 February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Enterprise Accounting and Management System (DEAMS).
Defense Information Systems Agency Montgomery, 401 East Moore Drive, Building 857, Maxwell-AFB, Gunter Annex, Montgomery, AL 36114-3001, and Air Force installations financial management offices.
Government civilians, suppliers, customers, Active Duty Air Force, Air Force Reserve, and Air National Guard military personnel.
Data includes name, date of birth, mailing address, service work location (duty station), job order number, Air Force Specialty Code (AFSC), rank, grade, employee number, Social Security Number (SSN), personal bank account number, information concerning individual records of appointment or assignment; official authenticated time and attendance records, individual leave records, information on employee's federal, state and local tax withholding and allotments.
5 U.S.C. 301, Departmental Regulations; Department of Defense Financial Management Regulation (DoDFMR) 7000.14-R Vol. 4; 5 U.S.C. Sections 5335, General Schedule Pay Rates; 5531, Government Organization and Employees; and 5533, Dual Pay and Dual Employment; and E.O. 9397 (SSN), as amended.
This system replaces the financial accounting legacy systems with a new system. DEAMS provides an integrated solution maintaining general ledger, accounts payable, accounts receivable, financial reporting, and billing information for the government.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the Department of Defense as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The “DoD Blanket Routine Uses” published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Paper records and electronic storage media.
Personal information is retrieved by name, Social Security Number (SSN), or employee number.
System data is maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, and is accessible only to authorized personnel. Access to records is limited to person(s) responsible for servicing the record in performance of their official duties and who are properly screened and cleared for a need-to-know. User access is managed by the Common Access Card authentication and valid Personal Identification Number.
All records and data in the system will be retained based on the schedules defined in Defense Finance and Accounting Service 5015.2-M, Records Disposition Schedule. Paper records and DVDs are shredded, electronic records are degaussed.
Program Manager, Director Enterprise Finance, 554 ELSG/ED, Bldg. 266, Rm S230, 4225 Logistics Ave., Wright-Patterson AFB, OH 45433-5769.
Individuals seeking to determine whether this system of records contains information on themselves should address written inquiries to Director, Enterprise Finance, 554 ELSG/ED, Bldg. 266, Rm S230, 4225 Logistics Ave., Wright-Patterson AFB, OH 45433-5769.
Request must contain full name, Social Security Number (SSN), current mailing address, and signature.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to Director, Enterprise Finance, 554 ELSG/ED, Bldg. 266, Rm S230, 4225 Logistics Ave., Wright-Patterson AFB, OH 45433-5769.
Request must contain full name, Social Security Number (SSN), current mailing address, date of birth, service number and signature must be certified or attested to (the validity of a signature on a document) by a notary public.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37132, Controlling Internal, Public, and Interagency Air Force Information Collections; 32 CFR part 806b; or may be obtained from the system manager.
DEAMS receives data from personnel records.
None.
Department of the Air Force, DoD.
Notice to amend four systems of records.
The Department of the Air Force proposes to amend four systems of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on September 8, 2009 unless comments are received that would result in a contrary determination.
Send comments to the Air Force Privacy Act Officer, Office of Warfighting Integration and Chief Information Officer, SAF/XCISI, 1800 Air Force Pentagon, Suite 220, Washington, DC 20330-1800.
Mr. Ben Swilley at (703) 696-6648.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record systems being amended are set forth below followed by the notice, as amended, published in its 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.
Complaint/Incident Reports (June 11, 1997, 62 FR 31793).
Change System ID to “F031 AF SF C”.
Delete entry and replace with “Includes the incident or complaint report, statements by the subject or witness which includes their name, Social Security Number (SSN), status/grade, date and place of birth, local and permanent address, home phone, and their sponsor's name and social security number (SSN); information on seized or acquired property, if applicable, copies of forms referring cases to other agencies for final disposition, and other forms or reports required to complete basic report. Also includes an individual incident reference record.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.”
Delete entry and replace with “Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119. Official mailing addresses are published as an appendix to the Air Force's compilation of record systems notices.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to the Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
When requesting information in writing, individual should include full name, Social Security Number (SSN), military status, and home address. For a personal visit, individual must have a military ID, if applicable, a valid driver's license, or other appropriate proof of identity.”
Delete entry and replace with “Individuals seeking to access records about themselves contained in this system should address requests to the Headquarters Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
When requesting information in writing, individual should include full name, Social Security Number (SSN), military status, and home address. For a personal visit, individual must have a military ID, if applicable, a valid driver's license, or other appropriate proof of identity.”
Complaint/Incident Reports.
Kept by the Chief of Security Forces at the installation where an individual becomes involved in an incident or complaint and by the Chief of Security Forces at the installation where an individual is assigned if the incident occurs at a different location.
Information copies of a report are kept at the individual's organization and other organizations which have an interest in a particular incident. Official mailing addresses are published as an appendix to the Air Force's compilation of record systems notices.
Persons who become involved in complaints or incidents on Air Force installations or Air Force active duty personnel who become involved in incidents regardless of the location.
Includes the incident or complaint report, statements by the subject or witness which includes their name, Social Security Number (SSN), status/grade, date and place of birth, local and permanent address, home phone, and their sponsor's name and Social Security Number (SSN); information on seized or acquired property, if applicable, copies of forms referring cases to other agencies for final disposition, and other forms or reports required to complete basic report. Also includes an individual incident reference record.
10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.
Used to record information on individual involvement in incidents or criminal activity. Reports are used to provide information to the appropriate individual within an organization who ensures corrective action is taken.
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’ published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained in file folders and card files.
Retrieved by name.
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties. Records are accessed by authorized personnel who are properly screened and cleared for need-to-know. Records are stored in security file containers/cabinets. Records are stored in locked cabinets or rooms.
Individual incident records are retained by the office of the Chief of Security Forces and destroyed three years after close of year in which last entry was made. Information copies at other activities are destroyed when no longer needed. Records are destroyed by tearing into pieces, shredding, pulping, macerating or burning.
Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to the Headquarters Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
When requesting information in writing, individual should include full name, Social Security Number (SSN), military status, and home address. For a personal visit, individual must have a military ID, if applicable, a valid driver's license, or other appropriate proof of identity.
Individuals seeking to access records about themselves contained in this system should address requests to the Headquarters Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
When requesting information in writing, individual should include full name, Social Security Number (SSN), military status, and home address. For a personal visit, individual must have a military ID, if applicable, a valid driver's license, or other appropriate proof of identity.
The Air Force rules for accessing records, and for contesting contents and appealing initial determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Information obtained from police and investigating officers, witnesses and from persons registering complaints or who become victims of a crime.
None.
Field Interview Card (June 11, 1997, 62 FR 31793).
Change System ID to “F031 AF SF D.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.”
Delete entry and replace with “Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.”
Field Interview Card.
Air Force installations.
Active duty military personnel and civilian employees, Air Force Reserve personnel, dependents of military personnel, and civilians not affiliated with DoD.
Field interview card which contains name, address, telephone number, physical description, age, date of birth, description of clothing worn, if an automobile is involved, the make, year, decal number license and style and color.
10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.
Purpose of system is to obtain and record information on the presence of individuals in a given location at specific time and date.
Information is used by the Chief of Security Police and Security Police investigators at base level as an investigative tool in the identification of crime suspects and witnesses.
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” published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained in file folders.
Retrieved by name.
Records are accessed by custodian of the record system and by person(s) responsible for servicing the record system in performance of their official duties that are properly screened and cleared for need-to-know. Records are stored in security file containers/cabinets, and locked cabinets or rooms and are controlled by personnel screening.
Retained in office files for three months after monthly cut-off, and then destroyed by tearing into pieces, shredding, pulping, macerating, or burning.
Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to or visit the Chief of Security Police at base concerned.
Required information from individual will be name and address. Requester may visit the office of the Chief of Security Police at base concerned and must provide a current military identification card, or civilian identification card or driver's license.
Individuals seeking access to information about themselves contained in this system should address written inquiries to or visit the Chief of Security Police at the base concerned.
Required information from individual will be name and address. Requester may visit the office of the Chief of Security Police at base concerned and must provide a current military identification card, or civilian identification card or driver's license.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Source of information is individual interviewed, witnesses and interviewing security policemen.
None.
Notification Letters to Persons Barred From Entry to Air Force Installations (June 11, 1997, 62 FR 31793).
Change System ID to “F031 AF SF F”.
Delete entry and replace with “Chief of Security Forces at the installation where an individual is barred entry. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.”
Delete entry and replace with “Maintained in file folders/cabinets and/or electronic storage media.''
Delete entry and replace with “Headquarters Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.”
Notification Letters to Persons Barred From Entry to Air Force Installations.
Chief of Security Forces at the installation where an individual is barred entry. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Persons prohibited from entering U.S. military installations for cause.
Copies of the letter(s) to the individuals barring them from entry to a particular installation.
10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.
Record provides a list of personnel who have been barred from entry to the installation.
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” published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained in file folders/cabinets and/or electronic storage media.
Retrieved by name.
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties and are properly screened and cleared for need-to-know. Records are stored in locked cabinets or rooms and protected by guards.
Retained for three years after removal from barred list; then destroyed by tearing into pieces, shredding, pulping, macerating or burning.
Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
Individuals seeking to determine whether information about themselves is contained in this system should address inquiries to or visit the installation Chief of Security Forces. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Individuals should include full name, Social Security Number (SSN), and home address. During a personal visit individuals must provide a valid driver's license or other appropriate proof of identity.
Individuals seeking access to information about themselves contained in this system should address written inquiries to or visit the installation Chief of Security Forces. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Individuals should include full name, Social Security Number (SSN), and home address. During a personal visit individuals must provide a valid driver's license or other appropriate proof of identity.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Information obtained from police and investigating officers.
None
Pickup or Restriction Order (June 11, 1997, 62 FR 31793).
Change System ID to “F031 AF JF G.”
Delete entry and replace with “Chief of Security Forces at the installation where an individual is barred entry. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.”
Delete entry and replace with “Maintained in file folders/cabinets and/or electronic storage media.”
Delete entry and replace with “Headquarters, Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to or visit the Chief of Security Forces at the installation where the order was issued or to the member's unit commander at that installation.
Written inquiries or visitors requesting information must provide proof of identity (
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to or visit the Chief of Security Forces at the installation where the order was issued or to the member's unit commander at that installation.
Written inquiries or visitors requesting information must provide proof of identity (
Pickup or Restriction Order.
Chief of Security Forces at those installations where the order was issued. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Any Air Force member whose actions result in the unit commander issuing a pickup or restriction order. Some examples of actions that warrant an
The record provides a complete physical description of the individual as well as his name, rank, Social Security Number, organization and date of birth. It also includes the reason for the order being issued.
10 U.S.C. 8013, Secretary of the Air Force and Air Force Manual 31-201, Volume 7, Security Forces Administration and Reports.
The purpose of the record is to document the identity of a member of the Armed Forces whose actions justify the picking up or restriction of the member by his unit commander. The record is used as a notification bulletin for the pickup or restriction by Security Forces until disposition is made by the member's unit commander.
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” published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Records from this system of records may be provided to other law enforcement agencies to assist in pickup of individuals.
Maintained in file folders/cabinets and/or Electronic storage media.
Retrieved by name.
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties. Records are stored in locked cabinets or rooms and protected by guards.
Record is retained until member is picked up or until the order is canceled by the issuing authority, at which time all copies are destroyed by tearing into pieces, shredding, pulping or burning.
Headquarters Air Force Security Forces Center, 1517 Billy Mitchell Boulevard, Lackland Air Force Base, Texas 78236-0119.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to or visit the Chief of Security Forces at the installation where the order was issued or to the member's unit commander at that installation.
Written inquiries or visitors requesting information must provide proof of identity (
Individuals seeking access to information about themselves contained in this system should address written inquiries to or visit the Chief of Security Forces at the installation where the order was issued or to the member's unit commander at that installation.
Written inquiries or visitors requesting information must provide proof of identity (
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Information obtained from police and investigating officers, from witnesses and from source documents such as reports.
None.
Department of the Air Force, DoD.
Notice to amend a system of records.
The Department of the Air Force 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.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
Department of the Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information Officer,
Mr. Ben M. Swilley, U.S. Air Force Privacy Officer, (703) 696-6172, DSN 426-6172.
The Department of the Air Force systems of records notices 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.
Military Affiliate Radio System (MARS) Member Records (April 12, 1999, 64 FR 17636)
Delete entry and replace with “Paper records and electronic storage media.”
Delete entry and replace with “Records are accessed by authorized personnel in the course of their official duties who are properly screened and cleared for need-to-know. Records are also stored in locked file cabinets and password protected electronic media.”
Delete entry and replace with “Director of Enterprise Services, HQ
Delete entry and replace with “Individuals seeking to determine whether this system of record contains information on themselves should address written inquires to the Director of Enterprise Services, HQ AFNIC/ESLI, 203 W. Losey Street, Room 3100, Scott Air Force Base, IL 62225-5222.”
Individuals seeking information on this system should provide the individual name's, MARS call sign, amateur call sign, mailing address, Federal Communications license class, military status, telephone number, and date of birth.
Delete entry and replace with “Individuals seeking to access records about themselves contained in this system should address written requests to the Director of Enterprise Services, HQ AFNIC/ESLI, 203 W. Losey Street, Room 3100, Scott Air Force Base, IL 62225-5222.
Written request should include the individual's name, MARS call sign, amateur call sign, mailing address, Federal Communications license class, military status, telephone number, and date of birth.”
Delete entry and replace with “The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 33-332; 32 CFR part 806b; or may be obtained from the system manager.”
Military Affiliate Radio System (MARS) Member Records.
Air Force Network Integration Center (AFNIC), Air Force installations and Military Affiliate Radio System (MARS) member stations. Official mailing addresses are published as an appendix to the Air Force compilation of systems of records notices.
Amateur Radio Operators licensed by United States Air Force (USAF) Military Affiliate Radio System.
MARS Personnel Action Notification and Applications of Membership in Military Affiliate Radio System. Information includes individual name, Military Affiliate Radio System call sign, amateur call sign, mailing address, Federal Communications license class, military status, telephone number, and date of birth.
10 U.S.C. 8013, Secretary of Air Force, powers and duties; delegation by; as implemented by Air Force Instruction 33-106, Managing High Frequency Radios, Personal Wireless Communication Systems, and the Military Affiliate Radio System.
To identify Military Affiliate Radio System members, to describe and update information concerning members, to assign call signs and designator, mailing address, amateur license, telephone number, and responsibilities.
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 “Blanket Uses” published at the beginning of the Air Force's compilation of systems of record notices apply to this system.
Paper records and electronic storage media.
Retrieved by name, by call sign, or designator and geographic location.
Records are accessed by authorized personnel in the course of their official duties who are properly screened and cleared for need-to-know. Records are also stored in locked file cabinets and password protected electronic media.
Retained until reassignment or termination of membership, and then destroyed by tearing to pieces, shredding, pulping, macerating or burning.
Director of Enterprise Services, HQ AFNIC/ESLI, 203 W. Losey Street, Room 3100, Scott Air Force Base, IL 62225-5222.
Individuals seeking to determine whether this system of record contains information on themselves should address written inquires to the Director of Enterprise Services, HQ AFNIC/ESLI, 203 W. Losey Street, Room 3100, Scott Air Force Base, IL 62225-5222.
Individuals seeking information on this system should provide the individual name's, MARS call sign, amateur call sign, mailing address, Federal Communications license class, military status, telephone number, and date of birth.
Individuals seeking to access records about themselves contained in this system should address written requests to the Director of Enterprise Services, HQ AFNIC/ESLI, 203 W. Losey Street, Room 3100, Scott Air Force Base, IL 62225-5222.
Written request should include the individual's name, MARS call sign, amateur call sign, mailing address, Federal Communications license class, military status, telephone number, and date of birth.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 33-332; 32 CFR part 806b; or may be obtained from the system manager.
Individual members and Military Affiliate Radio System officials.
None.
Department of the Air Force, DoD.
Notice to Delete a System of Records.
The Department of the Air Force proposes to delete a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on September 8, 2009 unless comments are received which result in a contrary determination.
Send comments to the Air Force Privacy Act Officer, Office of Warfighting Integration and Chief Information Officer, SAF/XCPPI, 1800 Air Force Pentagon, Suite 220, Washington, DC 20330-1800.
Mr. Ben Swilley at (703) 696-6648.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Department of the Air Force proposes to delete one system of records notice from its inventory of recorded systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974, (U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Deletion:
Manhour Accounting System (MAS). (June 11, 1997, 62 FR 31793).
The records are no longer maintained in this system. Therefore, this notice should be deleted.
Department of the Army, DoD.
Notice.
This amended notice provides information regarding the properties that have been determined surplus to the United States needs in accordance with the Defense Base Closure and Realignment Act of 1990, Public Law 101-510, as amended, and the 2005 Base Closure and Realignment Commission Report, as approved, and following screening with Federal agencies and Department of Defense components. This Notice amends the Notice published in the
Effective August 7, 2009, by adding the following surplus property.
Headquarters, Department of the Army, Assistant Chief of Staff for Installation Management, Base Realignment and Closure (BRAC) Division, Attn: DAIM-BD, 600 Army Pentagon, Washington, DC 20310-0600, (703) 601-2418. For information regarding the specific property listed below, contact the Army BRAC Division at the mailing address above or at
Under the provisions of the Federal Property and Administrative Services Act of 1949, as amended, the Defense Base Closure and Realignment Act of 1990, as amended, and other public benefit conveyance authorities, this surplus property may be available for conveyance to State and local governments and other eligible entities for public benefit purposes. Notices of interest from representatives of the homeless, and other interested parties located in the vicinity of any listed surplus property should be submitted to the recognized Local Redevelopment Authority (LRA). Additional information for this or any Army BRAC 2005 surplus property may be found at
This action is authorized by the Defense Base Closure and Realignment Act of 1990, Title XXIX of the National Defense Authorization Act for Fiscal Year 1991, Public Law 101-510; the Base Closure Community Redevelopment and Homeless Assistance Act of 1994, Public Law 103-421; and 10 U.S.C. 113.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Boralex Fort Fairfield LP (Boralex FF), formerly known as Aroostook Valley Electric Company (AVEC), and its affiliate, Boralex Ashland LP (Boralex Ashland), jointly applied to voluntarily transfer the authority to export electric energy from the United States to Canada issued to AVEC, to Boralex Ashland pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before September 8, 2009.
Comments, protests, or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-8008).
Ellen Russell (Program Office) 202-586-9624 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C. 824a(e)).
On July 27, 2001, DOE issued Order No. EA-239 authorizing AVEC to transmit electric energy from the United States to Canada. In that Order AVEC
On February 22, 2002, DOE was informed that AVEC had changed its name to Boralex Fort Fairfield Inc. (BFF), and in 2006 BFF was converted from a Maine corporation to a Delaware limited partnership, and become Boralex FF.
On May 12, 2009, Boralex FF and Boralex Ashland jointly applied to DOE to voluntarily transfer the electricity export authority issued to AVEC in Order No. EA-239 to Boralex Ashland and to increase the authorized rate of export from 31 megawatts (MW) to 34 MW.
Comments on this proceeding should be clearly marked with Docket No. EA-353. Additional copies are to be filed directly with Sylvain Aird, Vice President, Legal Affairs and Corporate Secretary, Boralex Inc., 770 Sherbrooke Street West, Suite 160, Montreal, Quebec H3A 1G1, Canada and Andrew B. Young, William M. Keyser, K&L Gates LLP, 1601 K Street, NW., Washington, DC 20006-1600. A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Constellation Energy Commodities Group, Inc. (Constellation) applied to renew its authority to export electric energy from the United States to Canada for a period of five years pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before September 8, 2009.
Comments, protests, or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-8008).
Ellen Russell (Program Office) 202-586-9624 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C.824a(e)).
On January 23, 1998, DOE issued Order No. EA-164 authorizing Constellation to transmit electric energy from the United States to Canada as a power marketer using international transmission facilities located at the United States border with Canada for a period of two years. DOE has twice renewed Constellation's authority to export for five-year terms. The most recent authorization in Order No. EA-164-B will expire on January 31, 2010. On July 27, 2009, Constellation filed an application with DOE to renew the export authority contained in Order No. EA-164-B for an additional five-year term.
Constellation does not own any electric transmission facilities nor does it hold a franchised service area. The electric energy which Constellation proposes to export to Canada would be surplus energy purchased from electric utilities, Federal power marketing agencies, and other entities within the United States, and exported using international transmission facilities that have previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the Constellation Energy Commodities Group, Inc. application to export electric energy to Canada should be clearly marked with Docket No. EA-164-C. Additional copies are to be filed directly with Lael Campbell, Constellation Energy Commodities Group, Inc., 111 Market Place, Suite 500, Baltimore, Maryland 21202. A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Federal Energy Regulatory Commission.
Notice of proposed information collection and request for comments.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A) (2006), the Federal Energy Regulatory Commission (FERC or Commission) is soliciting public comment on the proposed information collection described below.
Comments on the proposed collection of information are due 60 days after publication in the
Comments may be filed either electronically (e-Filed) or in paper format, and should refer to Docket No. IC09-731-000. Documents must be prepared in an acceptable filing format and in compliance with Commission submission guidelines at
Comments may be eFiled. The eFiling option under the Documents & Filings tab on the Commission's home Web page (
Commentors filing electronically should not make a paper filing. Commentors that are not able to file electronically must send an original and 14 paper copies of the filing to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426.
Parties interested in receiving automatic notification of activity in this docket may do so through eSubscription. The eSubscription option under the Documents & Filings tab on the Commission's home Web page directs users to the eSubscription Web page. Users submit the docket numbers of the filings they wish to track and will subsequently receive an e-mail notification each time a filing is made under the submitted docket numbers. First-time users will need to establish a user name and password before eSubscribing.
Filed comments and FERC issuances may be viewed, printed and downloaded remotely from the Commission's Web site. The eLibrary link found at the top of most of the Commission's Web pages directs users to FERC's eLibrary. From the eLibrary Web page, choose General Search, and in the Docket Number space provided, enter IC09-731, then click the Submit button at the bottom of the page. For help with any of the Commission's electronic submission or retrieval systems, contact FERC Online Support via e-mail at:
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
In order to meet the requirements of Section 1252(e)(3) of the Energy Policy Act of 2005, the Commission proposes to conduct a survey with a response deadline of April 30, 2010, and publish a report on the results in 2010. The proposed survey is necessary to update the 2006 and 2008 advanced metering and demand response information collected on previous Commission surveys. A copy of the survey, instructions, and glossary are attached and part of this document, but they are not being printed in the
Section 1252(e)(3) of the Energy Policy Act of 2005,
(A) Saturation and penetration rate of advanced meters and communications technologies, devices and systems;
(B) Existing demand response programs and time-based rate programs;
(C) The annual resource contribution of demand resources;
(D) The potential for demand response as a quantifiable, reliable resource for regional planning purposes;
(E) Steps taken to ensure that, in regional transmission planning and operations, demand resources are provided equitable treatment as a quantifiable, reliable resource relative to the resource obligations of any load-serving entity, transmission provider, or transmitting party; and
(F) Regulatory barriers to improved customer participation in demand response, peak reduction and critical period pricing programs.
In 2006 and 2008, the Commission designed and used Office of Management and Budget (OMB) approved collections FERC-727,
In addition to creating the demand response and advanced metering requirements, EPAct 2005 enacted section 215 of the Federal Power Act (FPA) titled “Electric Reliability,” authorizing the Commission to approve and enforce reliability standards for the reliability of the interstate grid.
The Energy Information Administration (EIA) collects aggregated information on energy efficiency and load management as well as advanced metering data in its EIA-861,
Therefore, because the alternatives will not provide data in a timely manner for the 2010 report, the Commission proposes to conduct a survey (attached) with a response deadline of April 30, 2010. This survey has been designed to be consistent with the NERC's data collection such that, in future years, the Commission may be able to use the NERC data when it becomes available, phase-out the FERC demand response survey and still comply with EPAct 2005 Section 1252(e)(3).
FERC staff has designed a survey that will impose minimal burden on respondents by providing respondents with an easy-to-complete, fillable form that will include such user friendly features as pre-populated fields and drop-down menus, make use of the data that is becoming available from reliable sources, and provide it with the information necessary to draft and file the report that is required by Congress. It is a streamlined and simplified version of past surveys and can be electronically filed. A paper version of the survey will be available for those who are unable to file electronically.
The Commission is proposing to collect the demand response and advanced metering information via a voluntary survey from the nation's entities that serve wholesale and retail customers. The information will be used to draft and file the report that is required by Congress. Industry cooperation is important for us to obtain as accurate and up-to-date information as possible to respond to Congress, as well as to provide information to states and other market participants. We, therefore, strongly encourage all potential survey respondents to complete the survey.
In summary, the Commission seeks public comment on the proposed survey (FERC-731, “Demand Response/Time-Based Rate Programs and Advanced Metering”) and the related estimated burden. FERC also requests OMB approval to administer the survey and to collect the information on demand response and advanced metering.
The estimated total cost to respondents is $838,865.00 [13,600 hours divided by 2,080 hours
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 respondent's cost estimate is based on 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.
Comments are invited on: (1) Problems in measuring data elements collected; (2) regulatory or other barriers to gathering the information; (3) terms and definitions in the survey and glossary; (4) other sources of information on advanced metering and demand response programs; (5) the accuracy of the agency's burden estimate of the proposed collection of information, including the validity of the methodology and assumptions used; (6) ways to enhance the quality, utility and clarity of the information to be collected; and, (7) ways to minimize respondent information collection burden.
The Attachments (survey, instructions, and glossary) will not be printed in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. The deadline for filing comments, recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice and reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted and is ready for environmental analysis at this time.
l.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must: (1) Bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at
n. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
m. The application is not ready for environmental analysis at this time.
n. The proposed project would utilize the existing U.S. Army Corps of Engineers' Flannagan dam, intake tower, outlet works, and 1,145-acre reservoir and would consist of the following proposed facilities: (1) Two new turbine generator units located within the Corps' existing intake tower having a total installed capacity of 3 megawatts; (2) a new control booth on the intake tower; (3) a new substation near the Corps' existing service bridge; (4) new transmission leads connecting the generator units to Appalachian Power Company's existing transmission line; and (5) appurtenant facilities. The average annual generation is estimated to be 9.5 gigawatt-hours.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Virginia State Historic Preservation Officer (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36, CFR, at 800.4.
q.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following electric reliability filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed on or before 5 p.m. Eastern time on the specified comment date. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed on or before 5 p.m. Eastern time on the specified comment date. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the natural gas pipeline facilities proposed by Dominion Transmission, Inc. (DTI) in the above-referenced docket.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act of 1969. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects resulting from the construction and operation of DTI's proposed Dominion Hub III Project. The DTI Hub III Project would involve the construction of approximately 9.78 miles of 24-inch-diameter natural gas pipeline and associated aboveground facilities in Greene County, Pennsylvania. The proposed project also includes modifications to the existing Mockingbird Hill Compressor Station in Wetzel County, West Virginia.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Copies of the EA have been mailed to federal, state, and local agencies, newspapers, landowners in proposed area, interested individuals and groups, and parties to this proceeding.
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission
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 in your comments so that they will be received in Washington, DC on or before September 8, 2009.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP09-18-000) with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at 202-502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located on the Commission's internet Web site at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's internet Web site at
(3) You may file your comments via mail to the Commission by sending an original and two copies of your letter to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
Label one copy of the comments for the attention of Gas Branch 2, PJ11.2. Mail your comments promptly, so that they will be received in Washington, DC on or before September 8, 2009.
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now 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
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) on the natural gas facilities proposed by Dominion Transmission, Inc. (DTI) in the above-referenced docket.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act of 1969. The staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects of the construction and operation of the proposed Dominion Hub II Project. DTI's proposal would abandon in-place one of three existing 5,800-horsepower (hp) compressor units and install one 10,310-hp natural gas-driven compressor unit as its replacement at the Borger Compressor Station in Tompkins County, New York. The project is the result of an agreement between DTI and the New York State Department of Environmental Control in which DTI agreed to install a new compressor with lower nitrogen oxide emissions.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426.
Copies of the EA have been mailed to federal and state agencies; elected officials; newspapers and libraries in the project area; parties to this proceeding; and those who have expressed an interest in this project by returning the Mailing List Form attached to the May 1, 2009
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments as specified below. Please carefully follow these instructions below to ensure that your comments are received in time and properly recorded.
You can make a difference by providing us with your specific comments or concerns about the Dominion Hub II 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
For your convenience, there are three methods in which you can use to submit your comments to the Commission. In all instances please reference the project docket number CP09-83-000 with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at 202-502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located on the Commission's Internet Web site at
(2) You may file your comments electronically by using the
(3) You may file your comments via mail to the Commission by sending an original and two copies of your letter to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1A, Washington, DC 20426.
Label one copy of the comments for the attention of the Gas Branch 1, PJ-11.1.
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs at 1-866-208-FERC or on the FERC Internet 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 notifications of these filings, document summaries and direct links to the documents. Go to
Take notice that on July 13, 2009, the Northern California Power Agency filed changes regarding its partial waiver granted in 1988,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Duke Energy Arlington Valley, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 19, 2009.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Exempt:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before September 8, 2009.
Submit your comments, referencing Docket ID No. EPA-HQ-SFUND-2006-0361, to (1) EPA online using
Sicy Jacob, Office of Emergency Management, 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-8019; fax number: (202) 564-2625; E-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 27, 2009 (74 FR 8937), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-SFUND-2006-0361, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before September 8, 2009.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2008-0278, to (1) EPA online using
Learia Williams, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 30, 2008 (73 FR 31088), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2008-0278, which is available for public viewing online at
Use EPA's electronic docket and comment system at
These standards apply to stationary sources, which process mercury ore to recover mercury, use mercury chlor-alkali cells to produce chlorine gas and alkali metal hydroxide, and either incinerate or dry wastewater treatment plant sludge. Approximately 107 sources (100 sludge incineration and drying plants and 7 mercury-cell chlor-alkali plants) are currently subject to the standard; and no additional sources are expected to become subject to the standard in the next three years. Mercury is the pollutant regulated under this standard. This information is being collected to ensure compliance with 40 CFR part 61, subpart E.
Owners or operators of affected facilities must make the following one-time only notification; date of construction or reconstruction, anticipated and actual dates of startup; physical or operational change to an existing facility; date of initial performance test; and results of initial performance test. These facilities must also maintain records of performance test results, and startup, shutdowns, and malfunctions. In order to ensure compliance with the standards, adequate recordkeeping and reporting is necessary. This information enables the Agency to identify the sources subject to the standard, ensure initial compliance with emission limits, and verify continuous compliance with the standard and all other information needed to determine compliance with the applicable standards.
Any owner or operator subject to the provisions of this subpart must maintain a file of these measurements, and retain the file for at least two years following the collection of such measurements, maintenance reports, and records. All reports are sent to the delegated state or local authority. In the event that there
Since there are no changes in the regulatory requirements and there is no significant industry growth, the labor hours and cost figures in the previous ICR are used in this ICR, and there is no change in burden to industry.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7146.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated July 17, 2009 (74 FR 34754).
Environmental Protection Agency (EPA).
Notice.
Notice of Availability and request for public comment on a draft Environmental Impact Statement (EIS) to designate a permanent ocean dredged material disposal site (ODMDS) off Apra Harbor, Guam. EPA has the authority to designate ODMDS under Section 102 of the Marine Protection, Research and Sanctuaries Act (MPRSA) of 1972 (33 U.S.C. 1401
Public comments on this draft EIS evaluation will be accepted until October 6, 2009.
Submit comments to: Mr. Allan Ota, U.S. Environmental Protection Agency, Region 9, Dredging and Sediment Management Team (WTR-8), 75 Hawthorne Street, San Francisco, California 94105-3901,
Mr. Allan Ota, U.S. Environmental Protection Agency, Region 9, Dredging and Sediment Management Team (WTR-8), 75 Hawthorne Street, San Francisco, California 94105-3901,
EPA requests public comments and intends to conduct a public meeting in Guam to collect comments on the draft EIS, titled “Designation of an Ocean Dredged Material Disposal Site Offshore of Guam”. Copies of this draft EIS may be viewed at the following locations:
1. Guam EPA's Main Office, 17-3304 Mariner Avenue, Tiyan, Guam 96913.
2. Nieves M. Flores Memorial Public Library, 254 Martyr Street, Hagatna, Guam 96910.
3. Barrigada Public Library, 177 San Roque Drive, Barrigada, Guam 96913.
4. Dededo Public Library, 283 West Santa Barbara Avenue, Dededo, Guam 96929.
5. Maria R. Aguigui Memorial Library (Agat Public Library), 376 Cruz Avenue, Guam 96915.
6. Rosa Aguigui Reyes Memorial Library (Merizo Public Library), 376 Cruz Avenue, Merizo, Guam 96915.
7. Yona Public Library, 265 Sister Mary Eucharita Drive, Yona, Guam 96915.
8. U.S. Environmental Protection Agency (EPA) Library, 75 Hawthorne Street, 13th Floor, San Francisco, CA 94105.
9. U.S. EPA Web site:
10. U.S. Army Corps of Engineers' Web site:
Comments were received during the scoping comment period and a public scoping meeting was held at the Weston Resort Guam on December 6, 2007. Revisions were made to the field sampling and data collection program (conducted in 2008) and to the analysis presented in the draft EIS to address these comments.
Responsible Official:
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on August 13, 2009, from 9 a.m. until such time as the Board concludes its business.
Roland E. Smith, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
This meeting of the Board will be open to the public (limited space available). In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
Federal Communications Commission.
Notice.
In this document, the Commission, via the Consumer and Governmental Affairs Bureau (Bureau), seeks to refresh the record on a petition filed by various consumer groups requesting that the Commission initiate a rulemaking to make Captioned Telephone Relay Service (CTS) a mandatory form of telecommunications relay service (TRS). This issue has been raised again in a recently filed supplement to the petition, and comment is sought on the supplement as well.
Comments are due on or before July 27, 2009. Reply comments are due on or before August 10, 2009.
Interested parties may submit comments and reply comments identified by [CG Docket No. 03-123], by any of the following methods:
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• By filing paper copies.
Commercial mail and electronic media sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
Thomas Chandler, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 418-1475 (voice), (202) 418-0597 (TTY), or e-mail:
This is a summary of the Commission's public notice in document DA 09-1436. Pursuant to 47 CFR 1.1206, this proceeding will be conducted as a permit-but-disclose proceeding in which
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
CTS is a form of TRS that permits persons with a hearing disability to simultaneously listen to what the other party is saying and read captions of what the other party is saying on the same device. In 2003, the Commission recognized CTS as a form of TRS eligible for compensation from the Interstate TRS Fund, but did not make it a mandatory service.
In 2005, a petition was filed by various consumer groups requesting that the Commission initiate a rulemaking to make CTS a mandatory form of TRS. The Bureau released a Public Notice seeking comment on the petition.
On June 10, 2009, some of the parties to the original petition filed a supplement reiterating their request for rulemaking to make CTS a mandatory service.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 3, 2009.
The companies listed in this notice have given notice under section 4 of the
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 24, 2009.
Board of Governors of the Federal Reserve System, August 4, 2009.
The CBAE program developed a program-specific performance measure in response to the PART review (a process by which the Office of Management and Budget analyzes and rates a Federal program's procedures and strategies for evaluating its effectiveness), for which the program received a rating of Adequate. In an effort to gather program-specific data on rates of abstinence pre- and post-program participation, ACF and the Office of Management and Budget determined that a program-specific performance measure should be developed to assess key outcomes among program participants. The CBAE office convened a panel of abstinence education experts to gather input on the measure, and, based on the input provided, the CBAE office developed the measure. CBAE grantees will be required to ask twelve questions of the youth served in a pre- and post-survey, as well as a representative sample of the youth served in a follow-up survey.
The questions were carefully constructed by experienced evaluators to measure initiation and discontinuation of sexual intercourse as well as two key predictors of initiation: Sexual values and behavioral intentions.
The program office will collect and compile data to establish baselines and ambitious targets for the program-specific performance measure. The data will be aggregated and results will be shared with the public as they become available.
Estimated Total Annual Burden Hours: 625,000.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447,
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Center for Medicare and Medicaid Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
CMS is requesting OMB review and approval of this collection by September 21, 2009, with a 180-day approval period. Written comments and recommendation will be considered from the public if received by the individuals designated below by the noted deadline below.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by September 8, 2009:
1.
2.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration's (SAMHSA), Center for Mental Health Services (CMHS) has implemented the Jail Diversion and Trauma Recovery Program (JDTR)—Priority to Veterans to support local implementation and State-wide expansion of trauma-integrated jail diversion programs to reach individuals with post-traumatic stress disorder (PTSD) and trauma-related disorders involved in the justice system. JDTR requires grantees to implement a State infrastructure program linked to a local pilot criminal justice diversion project. At the State level, the State Mental Health Authority (SMHA) will convene a State Advisory Committee that provides oversight of pilot projects' training, diversion, service delivery and local project evaluation, as well as design and implement plans to disseminate knowledge about effective pilot projects and to replicate them in other communities in the State. CMHS is requesting approval from the Office of Management and Budget (OMB) to implement a data collection document, the Semi-Annual Progress Report (SAPR), to evaluate the implementation, expansion, and sustainability of jail diversion and trauma-informed services developed under the JDTR program.
The current proposal requests implementing the Semi-Annual Progress Report (SAPR) to collect information in the following areas:
a. Document the State and pilot level goals for the project;
b. Describe the project environment, including changes that have helped or hindered implementation;
c. Estimate project spending on State, pilot, and evaluation activities;
d. Describe activities and progress on State level infrastructure change components, including barriers to progress;
e. Report on pilot project progress, including activities related to the pilot program, changes to program plans, and barriers to implementation;
f. Describe any project accomplishments, including documenting numbers and types of trainings, as well as any policy changes; and
g. Describe and update progress in meeting cross-site client evaluation requirements.
This information would be collected twice a year: In March and September. Six grantees were awarded 5-year grants in FY 2008 and six more 5-year grants are anticipated in 2009. The six FY 2008 grantees began data collection in March of FY 2009. Six additional possible future grantees awarded on September 30, 2009 would commence data collection in March of FY 2010. The burden estimate for completing the SAPR is as follows:
Send comments to Summer King, SAMHSA Reports Clearance Officer, OAS, Room 7-1044, One Choke Cherry Road, Rockville, MD 20857 and e-mail her a copy at
Substance Abuse and Mental Health Services Administration, HHS.
Notice of intent to award a Single Source Grant to Link2Health Solutions, Inc.
This notice is to inform the public that the Substance Abuse and Mental Health Services Administration (SAMHSA) intends to award approximately $1,038,000 (total costs) for up to one year to Link2Health Solutions, Inc. This is not a formal request for applications. Assistance will be provided only to Link2Health Solutions, Inc based on the receipt of a satisfactory application that is approved by an independent review group.
Link2Health Solutions is in the unique position to carry out the activities of this grant announcement because it is the current recipient of SAMHSA's cooperative agreement to manage the National Suicide Prevention Lifeline. As such, Link2Health Solutions has been maintaining the network communications system and has an existing relationship with the networked crisis centers.
The crisis centers that comprise the National Suicide Prevention Lifeline are a critical part of the nation's mental health safety net. Many crisis centers are experiencing significant increases in calls. The National Suicide Prevention Lifeline crisis centers require assistance to continue to play their critical role in providing support as well as emergency services to suicidal callers during these challenging economic times. In addition, the National Suicide Prevention Lifeline crisis centers are community resources that need to be utilized to reach out to those in their communities most at risk, including those currently impacted severely by the economy.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Pharmaceutical Components at Risk for Melamine Contamination.” This guidance provides recommendations that will help pharmaceutical manufacturers of finished products, repackers, other suppliers, and pharmacists who engage in drug compounding avoid the use of components that are at risk for melamine contamination. As of the date of this announcement, FDA is not aware of any pharmaceutical components that are contaminated with melamine.
Submit written or electronic comments on the guidance by October 6, 2009. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993-0002; or the Communications Staff (HFV-12), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
FDA is announcing the availability of a guidance for industry entitled “Pharmaceutical Components at Risk for Melamine Contamination.” This guidance provides recommendations that will help pharmaceutical manufacturers of finished products, repackers, other suppliers, and pharmacists who engage in drug compounding to better control their use of at-risk components that might be contaminated with melamine. The guidance explains that the agency is recommending that at-risk components be properly tested for melamine contamination before they are used in the manufacture or preparation of drugs or drug products. This recommendation applies to nitrogen-based components.
As discussed in the guidance, FDA has posted on its Web site methods for measuring melamine contamination in foods using liquid chromatography triple quadrupole tandem mass spectrometry (LC-MS/MS) and gas chromatography/mass spectrometry (GC-MS). Although these methods have been evaluated using dry protein materials, they can also be applicable to other material, including at-risk components. Manufacturers are encouraged to validate test methods that
As explained in detail in the guidance, there have been repeated instances of melamine contamination in food articles, including in the U.S. market. In 2007, FDA learned that certain pet foods were sickening and killing cats and dogs. In September 2008, FDA received reports of melamine-contaminated infant formula in China. These two incidents share the following similarities:
• Melamine, a nitrogen-based compound, was apparently added to bolster the apparent protein content in foods or in ingredients used in processed food products intended to contain protein.
• The recipients of the ingredients using a test for nitrogen content would not have been able to distinguish between melamine and the desired protein.
• Melamine contamination became public only after numerous adverse health events, including deaths, were reported and associated with the use of contaminated products.
These incidents illustrate the potential for drug components to be contaminated with melamine; therefore, it is important for drug manufacturers to be diligent in assuring that no component used in the manufacture of any drug is contaminated with melamine. As of the date of this guidance, FDA is not aware of any pharmaceuticals that are contaminated with melamine. However, because of the potential risk of drug contamination, it is important that manufacturers take steps to ensure that susceptible components are not contaminated with melamine.
We are issuing this level 1 guidance for immediate implementation, consistent with FDA's good guidance practices regulation (21 CFR 10.115). The agency is not seeking comment before implementing this guidance because of the potential for a serious public health impact if melamine-contaminated pharmaceuticals were to enter the domestic market. The guidance represents the agency's current thinking on this issue. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Privacy Office; DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security is giving notice that it proposes to consolidate into one new system its inventory of record systems entitled, Federal Emergency Management Agency Grant Management Information Files. This system will enable the Department of Homeland Security to better administer the Federal Emergency Management Agency Disaster Recovery Assistance Program. Many Federal Emergency Management Agency grant programs collect a minimum amount of contact and grant project proposal information. The information contained in the Federal Emergency Management Agency's Grant Management Information Files is collected in order to determine awards for both disaster and non disaster grants and for the issuance of awarded funds.
The established system of records will be effective September 8, 2009. Written comments must be submitted on or before September 8, 2009.
You may submit comments, identified by DHS-2008-0159 by one of the following methods:
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For general questions please contact: Alisa Turner (202-646-3102), Branch Chief, Disclosure Office, Federal Emergency Management Agency, Washington, DC 20472. 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.
The goal of FEMA's grant programs is to provide funding to enhance the capacity of state and local jurisdictions to prevent, respond to, and recover from disaster and non disaster incidents including cyber attacks. FEMA's grant programs currently provide funds to all 50 states, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Commonwealth of Northern Mariana Islands, Guam, and the U.S. Virgin Islands. FEMA grant programs are directed at a broad spectrum of state and local emergency responders, including firefighters, emergency medical services, emergency management agencies, law enforcement, and public officials. The source of the information that FEMA is collecting generally comes from state, local, and tribal partners seeking grant funding. Additional sources of information may include private and non private organizations. The nature of the collected data should illustrate organizations' familiarity with the national preparedness architecture (i.e. Federal Investment Strategy), identify how elements of this architecture have been incorporated into their regional/state/local planning, operations, and investments, and the demonstrated need for the grant funds.
Many of FEMA's grant programs implement objectives addressed in a series of post-9/11 laws, strategy documents, plans, and Homeland Security Presidential Directives (HSPDs). FEMA management requirements are incorporated into the application processes and reflect changes mandated in the Implementing Recommendations of the 9/11 Commission Act of 2007 (the “9/11 Act”), enacted in August 2007, as well as the FY 2008 Consolidated Appropriations Act.
Consistent with DHS's information sharing mission, information stored in the Grants Management Information Files may be shared with other DHS components, as well as appropriate federal, state, local, tribal, foreign, or international government agencies. This sharing will take place only 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.
The information contained in the FEMA Grant Management Information Files is collected in order to determine awards for both disaster and non-disaster grants and for the issuance of awarded funds.
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 personally identifiable information. 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 legal 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 each agency to publish in the
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/FEMA-004 Grant Management Information Files.
Unclassified and sensitive.
Records are maintained at Federal Emergency Management Agency Headquarters in Washington, DC and field offices.
Categories of entities covered by this system include: Recipients (grantees) of grant funds. These include state, territorial, tribal officials, port authorities, transit authorities, non-profit organizations, and, in rare instances, private companies.
Categories of records in this system include:
• Organizational Name;
• Employer Identification Number (EIN);
• Name of Organization's Designated Point of Contact (POC);
• POC work address;
• POC work phone number;
• POC cellphone number;
• POC fax number;
• POC work e-mail address;
• Organization's Bank Routing Number;
• Organization's Bank Account Number; and
• Grant related information.
Legal authority includes, but is not limited to:
• The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5133
• The National Flood Insurance Act, 42 U.S.C. 4104c
• Section 2003(a) of the Homeland Security Act of 2002 (6 U.S.C. 101
• Section 2004(a) of the Homeland Security Act of 2002 (6 U.S.C. 101
• Section 1809 of the Homeland Security Act of 2002 (6 U.S.C. 571
• The Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 723)
• Title III of Division D of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329)
• Section 614 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196c), as amended by Section 202, Title II of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-053)
• Title III of Division E of the Consolidated Appropriations Act, 2008 (Pub. L. 110-161)
• Section 1406, Title XIV of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-053)
• Section 1513, Title XV of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-053)
• Section 1532(a), Title XV of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-053)
• 46 U.S.C. 70107
• Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107)
The purpose of this system is to assist in determining awards for both disaster and non-disaster grants and for the issuance of awarded funds and allow DHS to contact individuals to ensure completeness and accuracy of grants and applications.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when:
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) that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate Federal, State, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To an individual's employer or affiliated organization to the extent necessary to verify employment or membership status.
I. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.
Records may be retrieved by name of organization or contact person covered by this system.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. The system maintains a real-time auditing function of individuals who access the system. Additional safeguards may vary by component and program.
In accordance with the Federal records retention requirements, Grant administrative records and hard copies of unsuccessful grant applications files are destroyed when two years old (Government Records Schedule (GRS) No. 3, Procurement, Supply, and Grant Records, Item 14). Electronically received and processed copies of unsuccessful grant application files are destroyed three years after rejection or withdrawal (GRS No. 3, Procurement, Supply, and Grant Records, Item 13). Grant Project Records are maintained for three years after the end of the fiscal year that the grant or agreement is finalized or when no longer needed, whichever is sooner. These records are disposed of IAW FEMA Records Schedule N1-311-95-1, Item 1. Grant Final Reports are retired to the Federal Records Center three years after cutoff, and then transferred to National Archives 20 years after cutoff. These records are maintained IAW FEMA Records Schedule N1-311-95-1, Item 3. All other grant (both disaster and non disaster) records are maintained for six years and three months after the end of the fiscal year when grant or agreement is completed or closed. These records are disposed of according to IAW FEMA Records Schedule N1-311-95-1, Item 2; N1-311-01-8, Item 1; and N1-311-04-1, Item 1.
Deputy Assistant Administrator, Grant Program Directorate, FEMA, 500 C Street, SW., Washington, DC 20472.
Individuals or entities 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 component's FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Director, Disclosure and FOIA,
• 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,
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) will 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.
Records are obtained by grantees, applicants for award, and grant program monitors.
None.
Bureau of Indian Affairs, Interior.
Notice of submission of information collection renewal to the Office of Management and Budget.
In compliance with the Paperwork Reduction Act, the Bureau of Indian Affairs (BIA) is submitting the following information collections to the Office of Management and Budget (OMB) for renewal: Class III Gaming Procedures 25 CFR 291, 1076-0149; Tribal Revenue Allocation Plans 25 CFR 290, 1076-0152; and Gaming On Trust Lands Acquired After October 17, 1988, 25 CFR 292, 1076-0158. The current approvals for the first two collections (1076-1049 and 1076-0152) expire August 31, 2009 and the current approval for the third collection (1076-0158) expires February 28, 2010. Renewal will allow us to continue to collect the information necessary to comply with the Indian Gaming Regulatory Act (IGRA).
Submit comments on or before September 8, 2009.
Submit comments on the information collection to the Desk Officer for the Department of the Interior, OIRA, Office of Management and Budget, by fax at (202) 395-5806 or e-mail at
Please send a copy of your comments to: Paula L. Hart, Office of Indian Gaming, Mail Stop 3657-MIB, 1849 C Street, NW., Washington, DC 20240, Facsimile: (202) 273-3153.
You may request further information or obtain copies of the proposed information collection request from Paula L. Hart, Telephone: (202) 219-4066.
This information collection is necessary for the BIA, Office of Indian Gaming, to ensure that the applicable requirements for IGRA, 25 U.S.C. 2701
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) ways we could enhance the quality, utility and clarity of the information to be collected; and (d) ways we could minimize the burden of the collection of the information on respondents, such as through the use of automated collection techniques or other forms of information technology.
Please note that an agency may not sponsor or conduct an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
OMB has up to 60 days to make a decision on the submission for renewal, but may make the decision after 30 days. Therefore, to receive the best consideration of your comments, you should submit them by the due date (see
It is our policy to make all comments available to the public for review at the Office of Indian Gaming, Room 3657 MIB, 1849 C Street, NW., Washington, DC during the hours of 9 a.m. to 4 p.m., EDT, Monday through Friday except for legal holidays. Before including your address, phone number, e-mail address or other personally identifiable information, be advised that your entire comment—including your personally identifiable information—may be made public at any time. While you may request that we withhold your personally identifiable information, we cannot guarantee that we will be able to do so.
National Park Service, Department of the Interior.
Notice of Availability of the Final Environmental Impact Statement for the Fire Management Plan, Grand Canyon National Park.
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 Final Environmental Impact Statement for the Fire Management Plan for Grand Canyon National Park, Arizona. The document describes and analyzes the environmental impacts of several action alternatives, including the preferred alternative for management of fire in Grand Canyon National Park. The
The National Park Service will execute a Record of Decision (ROD) no sooner than 30 days following publication by the Environmental Protection Agency of the Notice of Availability of the Final Environmental Impact Statement.
Information will be available for public inspection online at
Chris Marks, Project Lead, Fire Management Plan, PO Box 129, Grand Canyon, Arizona, 86023, 928-606-1050,
Department of the Interior, National Park Service.
Notice of Availability of the Draft Environmental Impact Statement for the General Management Plan, Harpers Ferry National Historical Park.
The National Park Service announces the availability of the Draft Environmental Impact Statement for the General Management Plan for Harpers Ferry National Historical Park, West Virginia. This document will be available for public review and comment pursuant to Section 102(2)(C) of the National Environment Policy Act of 1969, 42 U.S.C. 4332(2)(C).
A 60-day public comment period will begin with the Environmental Protection Agency's publication of its Notice of Availability in the
Copies of the Draft Environmental Impact Statement and the General Management Plan are available at Harpers Ferry National Historical Park, P.O. Box 65, Harpers Ferry, West Virginia 25425. An electronic copy of the Draft Environmental Impact Statement and General Management Plan is also available on the National Park Service Web site at
Rebecca Harriett, Superintendent, Harpers Ferry National Historical Park, at Harpers Ferry National Historical Park, P.O. Box 65, Harpers Ferry, West Virginia 25425, or by telephone at (304) 535-6224. The responsible official for the Draft Environmental Impact Statement is Margaret O'Dell, Regional Director, National Capital Region, National Park Service, 1100 Ohio Drive, SW., Washington, DC 20242.
The document provides a framework for management, use, and development options for Harpers Ferry National Historical Park by the National Park Service for the next 15 to 20 years. The document describes three management alternatives for consideration, including a no-action alternative, and analyzes the environmental impacts of those alternatives for all units of Harpers Ferry National Historical Park.
The National Park Service preferred alternative would continue the use of several buildings for park headquarters, rehabilitate the historic Shipley School, increase preservation of historic resources throughout the park, consolidate visitor information and education in a new visitor center on Cavalier Heights, provide increased bus service and new trail services, and incorporate new visitor amenities.
The public is welcome to comment on the Draft Environmental Impact Statement and General Management Plan at
Before including your address, phone number, e-mail address or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This document was received at the Office of the Federal Register on August 4, 2009.
Fish and Wildlife Service, Interior.
Notice of public meeting.
We, the U.S. Fish and Wildlife Service (Service), will host a Wind Turbine Guidelines Advisory Committee (Committee) meeting September 1-3, 2009. The meeting is open to the public. The meeting agenda will include reports from the Legal and Synthesis Subcommittees, and discussion of the current draft Recommendations to the Secretary.
The meeting is scheduled for September 1-3, 2009. The sessions will be 8 a.m. to 5:30 p.m. September 1-2, and 8 a.m. to 3:30 p.m. September 3.
We will hold the meeting at the U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Rooms 200A & B, Arlington, Virginia, 22203. For more information, see “Meeting Location Information.”
Rachel London, Division of Habitat and Resource Conservation, U.S. Fish and Wildlife Service, (703) 358-2161.
On October 24, 2007, the Secretary of the Interior (Secretary) established the Committee to provide advice and recommendations to the Secretary on developing effective measures to avoid or minimize impacts to wildlife and their habitats related to land-based wind energy facilities. The Committee is made up of 22 members representing the varied interests associated with wind energy development and its potential impacts to wildlife species and their habitats. All Committee meetings are open to the public.
Please note that the meeting location is accessible to wheelchair users. If you require additional accommodations, please notify us at least 2 weeks in advance of the meeting.
Persons planning to attend the meeting must register at
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to reverse the conclusion reached in the Remand Determination (“RID”) issued by the presiding administrative law judge (“ALJ”) in the above-captioned investigation that the only remaining asserted claim of U.S. Patent No. 5,559,276 (“the `276 patent”) is not obvious. The Commission finds that the claim would have been obvious to one of ordinary skill in the art and is therefore invalid. The Commission affirms the RID's conclusion that the asserted claim was not anticipated.
Paul M. Bartkowski, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on December 31, 2007, based on a complaint filed by INEOS Fluor Holdings Ltd., INEOS Fluor Ltd., and INEOS Fluor Americas L.L.C. (collectively, “Ineos”). 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 R-134a coolant (otherwise known as 1,1,1,2-tetrafluoroethane) by reason of infringement of various claims of United States Patent No. 5,744,658. Complainants subsequently added allegations of infringement with regard to United States Patent Nos. 5,382,722 and the `276 patent, but only claim 1 of the `276 patent remains at issue in this investigation. The complaint named two respondents, Sinochem Modern Environmental Protection Chemicals (Xi'an) Co., Ltd. and Sinochem Ningbo Ltd. Two additional respondents were subsequently added: Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd. and Sinochem (U.S.A.) Inc. The four respondents are collectively referred to as “Sinochem.”
On December 1, 2008, the ALJ issued his final ID, finding that Sinochem had violated section 337. He concluded that respondents' accused process infringed claim 1 of the `276 patent and that the domestic industry requirement had been met. He also found that claim 1 was not invalid and that it was not unenforceable. The Commission determined to review the ALJ's final ID with regard to the effective filing date of the asserted claim, anticipation, and obviousness. By order dated January 30, 2009, the Commission supplemented the ALJ's reasoning regarding the effective filing date, and remanded the investigation to the ALJ to conduct further proceedings related to anticipation and obviousness. To accommodate the remand, the Commission extended the target date to June 1, 2009 and instructed the ALJ to issue the RID by April 1, 2009.
The ALJ issued the RID on April 1, 2009. The RID concluded that Sinochem's arguments concerning anticipation and obviousness were waived under the ALJ's ground rules and, alternatively, that the arguments were without merit. Sinochem filed a petition for review of the RID. The Commission investigative attorney (“IA”) and Ineos opposed Sinochem's petition.
On June 1, 2009, the Commission determined to review the RID in its entirety and requested briefing on certain questions. The Commission determined to extend the target date to August 3, 2009, to accommodate its review.
Having examined the record of this investigation, including the ALJ's RID and the submissions of the parties, the Commission has determined to reverse the conclusion of nonobviousness of claim 1 of the `276 patent in the RID. In so finding, the Commission has determined to rely on certain party admissions and other evidence as to the state of the prior art. The Commission has determined to take no position on the RID's conclusions relating to obviousness arguments based on prior art references identified in the Commission's remand instructions, including the RID's conclusions on whether arguments as to those references have been waived. The Commission has also determined not to rely on the RID's conclusions as to anticipation and waiver of anticipation arguments. The Commission has further determined to deny Sinochem's motion to strike portions of Ineos's response to its written submission and for leave to file a reply to that submission. The Commission has determined also to deny Sinochem's motion to conform pleadings to evidence taken. These findings terminate the Commission's investigation.
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 Rule 210.45 of the Commission's Rules of Practice and Procedure (19 CFR Part 210.45).
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 2, 2009, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of eInstruction Corporation of Denton, Texas. Supplements to the complaint were filed on July 10, 2009 and July 23, 2009. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain collaborative system products and components thereof by reason of infringement of certain claims of U.S. Patent No. 6,930,673. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and a cease and desist order.
The complaint and supplements, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Aarti Shah, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2657.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2008).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on August 3, 2009, ordered that—
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain collaborative system products or components thereof that infringe one or more of claims 1-3, 6-10, 13-18, and 21-24 of U.S. Patent No. 6,930,673, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—eInstruction Corporation, 308 N. Carroll Boulevard, Denton, Texas 76201.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: QOMO HiteVision, LLC, 28265 Beck Road, Suite C-1, Wixom, Michigan 48393.
(c) The Commission investigative attorney, party to this investigation, is Aarti Shah, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern, Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Notice is hereby given that on August 4, 2009, a proposed Consent Decree in
The Consent Decree would resolve claims for injunctive relief and the assessment of civil penalties asserted by the United States; the States of Idaho, Illinois, Indiana, Michigan, Ohio, Tennessee, and West Virginia; the Commonwealths of Kentucky and Virginia; the Oklahoma Department of Environmental Quality; and the Maricopa County Air Quality Department (collectively, “Plaintiffs”) against Aleris International, Inc. and 13 of its subsidiaries (collectively, “Aleris”) pursuant to Sections 113(b) and 304(a)(1) of the Clean Air Act, 42 U.S.C. 7413(b) and 7604(a)(1).
Aleris processes aluminum scrap and dross to produce various secondary aluminum products, a process that results in emissions of regulated air pollutants, including dioxins and furans, hydrogen chloride, particulate matter, and hydrocarbons. The Plaintiffs' Amended Complaint, filed concurrently with the Consent Decree, alleges that Aleris violated Section 112 of the Clean Air Act, 42 U.S.C. 7412; the National Emissions Standards for Hazardous Air Pollutants (“NESHAP”)
The Consent Decree would require Aleris to improve its capture of emissions at each emission unit, retest every emission unit using model test protocols, adopt new monitoring practices, use model recordkeeping and reporting documents, and install an additional control device and monitoring equipment at particular facilities. The Consent Decree would also provide for a $4.6 million civil penalty, to be allowed as a prepetition general unsecured claim in Aleris's pending bankruptcy proceeding in the United States Bankruptcy Court for the District of Delaware.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, Northern District of Ohio, 801 W. Superior Avenue, Suite 400, Cleveland, OH 44113, and at the United States Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Notice is hereby given that on August 4, 2009, a proposed Consent Decree in
The Consent Decree is identical to one lodged on June 1, 2009, in the same matter (“original decree”), except that it eliminates one settling party, General Motors Corporation, due to its pending bankruptcy. The Consent Decree resolves the United States' claims against 35 parties at the Breslube Penn Superfund Site, located in Coraopolis, Moon Township, Pennsylvania. Those claims were brought under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607. The Settling Defendants consist of two groups, eight Performing Defendants and 27 Non-Performing Defendants. The Commonwealth of Pennsylvania has signed the Consent Decree and has filed a separate complaint.
The Consent Decree requires that Performing Defendants fund and perform the remedy selected in EPA's August 2007 Record of Decision. The estimated cost of the remedy is $8,070,000, and may increase to $12,610,000 if EPA decides two contingent remedies are necessary. The settlement also recovers past costs of the United States ($3,037,491.61), past costs of the Commonwealth ($41,356.04), and includes an agreement to pay all future response costs.
The Department of Justice published notice of the original decree in the
The Decree may be examined at U.S. EPA Region 3, 1650 Arch Street, Philadelphia, PA 19103. During the public comment period, the Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on August 3, 2009, a proposed Amendment to Consent Decree (“Amendment”), pertaining to
The proposed Amendment (1) substitutes and/or adds parties as Settling Defendants under the 2003 Decree and this Amendment, taking into account several corporate reorganizations and other transactions and events that have occurred since entry of the 2003 Decree; and (2) resolves, in a manner consistent with the ongoing remedial process at the Site, certain claims of the United States of America (“United States”) and the Commonwealth of Pennsylvania (“Commonwealth”) for Natural Resource Damages (“NRD”) under Sections 107(a)(4)(C) and 107(f) of CERCLA, 42 U.S.C. 9607(a)(4)(C) and (f), Sections 311(f)(4) and (5) of the Clean Water Act (“CWA”), 33 U.S.C. 1321(f)(4) and (5), and Section 702(a) of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), 35 P.S. § 6020.702(a).
Under the terms of the Amendment, the Defendants will make a payment of $9.875 million to be used to restore, replace, or acquire the equivalent of natural resources injured as a result of releases of hazardous substances at the Palmerton Zinc site. The Defendants will also pay $2.5 million for damage assessment costs. In addition, the Defendants will transfer twelve hundred acres of valuable property to the Pennsylvania Game Commission and discharge a mortgage on a nature center located at the Lehigh Gap.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the Amendment. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
U.S. Department of Justice, Federal Bureau of Prisons.
Notice.
Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality Regulations (40 Code of Federal Regulations [CFR] parts 1500-1508), the Federal Bureau of Prisons (BOP) intends to prepare a Draft Environmental Impact Statement (DEIS) and conduct Public Scoping Meetings for the proposed housing of inmates under the District of Columbia (DC) III solicitation, at a facility in Winton, North Carolina or Princess Anne, Maryland.
The mission of the United States Department of Justice, BOP, is to protect society by confining offenders in the controlled environments of prison and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. The BOP accomplishes its mission through the appropriate use of community correction, detention, and correctional facilities that are either: federally-owned and operated; federally owned and non-federally operated; and non-federally owned and operated.
The BOP is facing a period of unprecedented growth in its inmate population. Projections show the Federal inmate population increasing from approximately 201,600 inmates at the end of fiscal year 2008 to 212,000 inmates by the end of fiscal year 2010. As such, the demand for bed space within the Federal prison system continues to grow at a significant rate. To accommodate a portion of the growing inmate population, the BOP proposes to contract with a contractor owned and operated correctional facility that can house approximately 1,380 low-security, adult male inmates, that are predominantly District of Columbia sentenced felons and criminal aliens.
Proposals received by the BOP from private contractors include an existing facility in Winton, Hertford County, North Carolina and new construction at a site in Princess Anne, Somerset County, Maryland. The BOP has preliminarily evaluated these proposals and determined that the prospective facility/sites appear to be of sufficient size to provide space for inmate housing, programs, administrative services and other support facilities associated with the correctional facility. The DEIS to be prepared by the BOP will analyze the potential impacts of correctional facility construction and/or operation at these locations.
In the process of evaluating the sites, several aspects will receive detailed examination including, but not limited to: Topography, geology/soils, hydrology, biological resources, utility services, transportation services, cultural resources, land uses, socio-economics, hazardous materials, and air and noise quality, among others.
In developing the DEIS, the options of “no action” and “alternative sites” for the proposed facility will be fully and thoroughly examined.
During the preparation of the DEIS, there will be opportunities for public involvement in order to determine the issues to be examined in the DEIS. A Public Scoping Meeting will be held at 7 p.m. August 27, 2009 at the County Commissioners Meeting Room in the County Office Building, located at 704 King Street in Winton, North Carolina.
In addition, a Public Scoping meeting will be held at 7 p.m., September 1, 2009 at the Washington Academy High School, located at 10902 Old Princess Anne Road in Princess Anne, Maryland. The meeting locations, dates, and times will be well publicized and have been arranged to allow for public involvement, as well as interested agencies and organizations to attend. The meetings are being held to allow interested persons to formally express their views on the scope and significant issues to be studied as part of the DEIS process. The meetings will provide for timely public comments and understanding of Federal plans and programs with possible environmental consequences as required by the NEPA of 1969, as amended, and the National Historic Preservation Act of 1966, as amended.
Public notice will be given concerning the availability of the DEIS for public review and comment at a later date.
All are encouraged to provide comments on the proposed action and alternatives at either Public Scoping Meetings and anytime during the 30-day public scoping period, which ends September 15, 2009. There are two ways in which comments may be submitted: (1) By attending one of the scoping meetings or (2) by mail. All written comments concerning the proposed action should be postmarked no later than September 15, 2009.
Comments submitted by mail or questions concerning the proposed action and the DEIS may be directed to: Richard A. Cohn, Chief or Issac J. Gaston, Site Selection Specialist, Capacity Planning and Site Selection Branch, Federal Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. Tel: 202-514-6470/Fax: 202-616-6024/E-mail:
National Aeronautics and Space Administration.
Notice of meeting.
The National Aeronautics and Space Administration (NASA) announces a meeting of the Earth Science 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, August 31, 2009, 1 p.m. to 3 p.m
NASA Headquarters, 300 E Street, SW., Room 8R40, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4452, fax (202) 358-4118, or
The meeting will be open to the public up to the capacity of the room. 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. 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 7 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 Marian Norris via e-mail at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the Review of U.S. Human Space Flight Plans Committee. This is a contingency public meeting if required by the committee and is subject to cancellation on short notice. For the most up-to-date information, refer to the Committee Web site (
Monday, August 24, 2009, 1 p.m.-5:30 p.m.
JW Marriott Hotel, Grand Ballroom, 1331 Pennsylvania Avenue, Washington, DC 20004, phone: 202-626-6906.
Mr. Philip R. McAlister, Office of Program Analysis and Evaluation, National Aeronautics and Space Administration, Washington, DC 20546, at 202-358-0712.
The agenda topics for the meeting include Committee deliberations on the Final Report. The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Nuclear Regulatory Commission.
Notice of public meeting and request for information.
The U.S. Nuclear Regulatory Commission (NRC) staff is conducting a public meeting to gather information to assess the effect of a lack of access to low-level waste (LLW) disposal facilities on those who use radioactive sources or materials in conducting research such as universities and hospitals. The purpose of this information gathering is to identify important research that has been impacted and/or stopped because of a lack of disposal options for radioactive sources or materials. This information will be provided to the Commission to inform future Commission decisionmaking. The NRC is planning to host a public meeting on this topic at its Rockville, MD Headquarters on the morning of October 7, 2009.
The public is invited to provide information related to the above topic until October 20, 2009. Comments submitted by mail should be postmarked by that date to ensure consideration. Comments received after that date will be considered to the extent practical. The NRC is planning to host a public meeting at its Rockville, MD Headquarters to solicit public input on the questions identified below on October 7, 2009. Because of anticipated interest, the meeting will be Web cast. Please check the NRC public Web site at
Members of the public are invited and encouraged to submit comments by any of the following methods. Please include Docket ID NRC-2009-0346 in the subject line of your comments/responses. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site Regulations.gov. Because your comments/responses will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.
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 notice using the following methods:
Mr. James Shaffner, Project Manager, Low-Level Waste Branch, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Rockville, MD 20852. Telephone: (301) 415-5496; fax number: (301) 415-5369; e-mail:
The NRC staff briefed the Commission on the status of the LLW program on April 17, 2009. External stakeholders who briefed the Commission noted that the use of radioactive material in nuclear medicine biomedical research needed cost effective disposal for low-level radioactive waste and that key radionuclide research products are no longer available due to high radiological waste disposal costs. Following the briefing, the Commission directed the staff to work with stakeholders to develop a list or catalog of important research that has been impacted and/or stopped because of a lack of disposal options for radioactive sources. In its approach to complying with Commission direction, the staff decided to expand its inquiry to include the use of other radioactive material as well. Therefore, the NRC staff is requesting information and soliciting public comment to identify and catalog important research that has been impacted or stopped because of a lack of disposal options for sealed sources or radioactive materials. The staff is requesting that persons consider and address the following 13 questions as they develop and provide their remarks.
1. Are you involved in research involving the use of radioactive sources or materials, and if so, in what specific area (medical, academic, medical administration,
2. If you answered yes to question no. 1, please describe the research procedure(s) that is performed, or was performed prior to disposal access limitations.
3. Have alternative technologies taken the place of radioactive materials because of LLW disposal access, and if so, what have been the impacts, both positive and negative?
4. In what State and LLW Compact is the research facility that you're addressing located?
5. What kind of licensee uses the radioactive sources or materials that are being addressed (university, hospital, private research, other)?
6. How do you or did you disposition the spent sources or radioactive materials?
a. LLW disposal facility
b. Store onsite
c. Return to manufacturer
d. Other, explain
7. Have you historically disposed of spent sources or radioactive materials at a low-level waste disposal facility?
8. If your answer to question no. 7 was yes, has your research been affected by the lack of access to a low-level waste disposal facility for either spent radioactive sources or radioactive materials? If so, please explain.
9. Are you currently storing onsite radioactive sources or materials that would have been disposed of offsite had disposal access been available?
10. Has the lack of disposal access for either radioactive sources or materials caused you to re-evaluate research needs and techniques?
11. What adaptations have you made to reduce waste volume and improve the management of low-level radioactive waste disposal?
a. Increased onsite storage capacity
b. Increased use of nonradioactive sources
c. Limit number of authorized users
d. Reduce volume of waste shipped
12. Has the cost of low-level radioactive waste disposal affected your research? If so, describe how.
13. Provide any additional comments.
In conjunction for this request for information, the NRC staff plans to enhance information gathering on this topic by providing the public with the opportunity to participate via Web cast. Please refer to NRC's public Web site,
The April 17, 2009 Commission Brief can be viewed via the NRC Web cast archive:
For the Nuclear Regulatory Commission.
Office of Personnel Management.
30-day notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management intends to submit to the Office of Management and Budget a request for clearance to revise information collection Combined Federal Campaign Applications OMB Control No. 3206-0131, which include OPM Forms 1647 A-E. Combined Federal Campaign Eligibility Applications are used to review the eligibility of national, international, and local charitable organizations that wish to participate in the Combined Federal Campaign. The proposed revisions reflect changes in eligibility guidance from the Office of Personnel Management and recommendations from a review conducted by the Government Accountability Office. On June 5, 2009, we published a 60-day notice and request for comments. We received no comments.
We estimate 20,000 responses to this information collection annually. Each form takes approximately three hours to complete. The annual estimated burden is 60,000 hours.
Comments are particularly invited on: whether this information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the appropriate use of technological collection techniques or other forms of information technology.
Comments on this information collection should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—
The Railroad Retirement Board is making corrections to the July 23, 2009 document appearing on page 36540, FR Doc. E9-17510 titled, Agency Forms Submitted for OMB Review. Specifically, the Request for Comments for Information Collection Review (ICR); Application for Survivor Insurance Annuities (OMB 3220-0030) which was published with errors regarding the annual burden computation for the information collection.
In the table titled “Estimate of Annual Respondent Burden”, the AA-17b total burden hours should be 204 (not 270) and the total annual responses should be 3,722 (not 4,022).
Under the Information Collection Request (ICR) heading, the “Estimated annual number of respondents” should be 3,722 (not 4,022) and the “Total annual responses” should be 3,722 (not 4,022).
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-4 (17 CFR 269.4) is used to apply for an exemption pursuant to Section 304(c) (15 U.S.C. 77ddd (c)) of the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-1 (17 CFR 269.1) is a statement of eligibility and qualification under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-2 (17 CFR 269.2) is a statement of eligibility of an individual trustee to serve under an indenture relating to debt securities offered publicly. The information is used to determine whether the trustee is qualified to serve under the indenture. Form T-2 takes approximately 9 hours per response to prepare and is filed by 36 respondents. We estimate that 25% of the 9 burden hours (2 hours per responses) is prepared by the filer for a total reporting burden of 72 hours (2 hours per response × 36 responses).
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form T-3 (17 CFR 269.3) is an application for qualification of an indenture under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Form N-6 (17 CFR 239.17c and 274.11d) under the Securities Act of 1933 (15 U.S.C. 77a
The Commission estimates that there are approximately 250 separate accounts registered as unit investment trusts and offering variable life insurance policies that file registration statements on Form N-6. The Commission estimates that there are 95 initial registration statements on Form N-6 filed annually. The Commission estimates that approximately 813 registration statements (718 post-effective amendments plus 95 initial registration statements) are filed on Form N-6 annually. The Commission estimates that the hour burden for preparing and filing a post-effective amendment on Form N-6 is 67.5 hours. The total annual hour burden for preparing and filing post-effective amendments is 48,465 hours (718 post-effective amendments annually times 67.5 hours per amendment). The estimated hour burden per portfolio for preparing and filing an initial registration statement on Form N-6 is 770.25 hours. The estimated annual hour burden for preparing and filing initial registration statements is 73,174 hours (95 initial registration statements annually times 770.25 hours per registration statement). The frequency of response is annual. The total annual hour burden for Form N-6, therefore, is estimated to be 121,639 hours (48,465 hours for post-effective amendments plus 73,174 hours for initial registration statements).
The information collection requirements imposed by Form N-6 are mandatory. Responses to the collection of information will not be kept confidential. 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 control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, August 6, 2009 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and(10), permit consideration of the scheduled matters at the Closed Meeting.
Chairman Schapiro, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting scheduled for Thursday, August 6, 2009 will be:
institution and settlement of injunctive actions;
institution and settlement of an administrative proceeding; and
other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend its fees related to orders routed to NASDAQ via the Options Intermarket Linkage (“Linkage”). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Web site
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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to extend a Linkage Fee Pilot Program that is currently in place through July 31, 2009. The proposal will enable the pilot to remain effective through July 31, 2010. The proposed rule change makes no substantive changes to the pilot currently in place.
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act
The NASDAQ Exchange 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.
Because the foregoing proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2009-073. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt FINRA Rule 6480 on a pilot basis to address the use of multiple Market Participant Symbols (“MPIDs”) when quoting or trading OTC Equity Securities.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA has two rules governing the use of multiple MPIDs on FINRA facilities: Rule 6160 (Multiple MPIDs for Trade Reporting Facility Participants) and Rule 6170 (Primary and Additional MPIDs for Alternative Display Facility Participants). The proposed rule change would adopt, on a pilot basis, a rule for the use of multiple MPIDs when quoting OTC Equity Securities or reporting
Like Rule 6160, proposed Rule 6480 provides that any member that wishes to use more than one MPID for purposes of quoting an OTC Equity Security or reporting trades to the OTC Reporting Facility must submit a written request to, and obtain approval from, FINRA Operations for such additional MPIDs. The rule also states that a member that posts a quotation in an OTC Equity Security and reports to a FINRA system a trade resulting from such posted quotation must utilize the same MPID for reporting purposes. In addition, Supplementary Material to the rule states that FINRA considers the issuance of, and trade reporting with, multiple MPIDs to be a privilege and not a right. When requesting an additional MPID(s), a member must identify the purpose(s) and system(s) for which the multiple MPIDs will be used. If FINRA determines that the use of multiple MPIDs is detrimental to the marketplace, or that a member is using one or more additional MPIDs improperly or for purposes other than the purpose(s) identified by the member, FINRA staff retains full discretion to limit or withdraw its grant of the additional MPID(s) to such member.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, such that FINRA can implement the proposed rule change immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
FINRA has requested that the Commission waive the 30-day operative delay so that it may immediately extend the use of multiple MPIDs to the OTC market on a pilot basis. The Commission has determined that waiving the 30-day operative delay of FINRA's proposal is consistent with the protection of investors and the public interest because FINRA's proposed system for extending the use of multiple MPIDs to the OTC market is comparable to the pilot program currently in place for exchange-listed securities, which the Commission previously approved.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to modify the haircuts applied to Eligible Clearing Fund Securities and Eligible Participant Fund Securities.
In its filing with the Commission, FICC 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. FICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
Under the Rules of the Government Securities Division (“GSD”) and the Mortgage-Backed Securities Division (“MBSD”) (“Rules”), GSD Members and MBSD Participants are required to deposit to the GSD Clearing Fund and MBSD Participants Fund, respectively, the amount of each Member's or Participant's required deposit, which is established by FICC in accordance with formulas specified in the Rules (“Required Deposit”).
A Member or Participant may satisfy its Required Deposit with cash, and FICC may permit a portion of the Member's or Participant's deposit to be evidenced by an open account indebtedness secured by Eligible Clearing Fund Securities for the GSD and Eligible Participants Fund Securities for the MBSD. Eligible Clearing Fund Securities and Eligible Participants Fund Securities consist of certain Treasury, agency, and mortgage-backed securities.
For reasons set forth in a companion rule filing, FICC's affiliate, National Securities Clearing Corporation (“NSCC”), has increased haircuts on Clearing Fund collateral.
Therefore, FICC proposes to modify the GSD's Schedule of Haircuts for Eligible Clearing Fund Securities and the MBSD's Schedule of Haircuts for Eligible Participants Fund Securities to update the correlating range of haircuts applied to the types of Eligible Clearing Fund Securities and Eligible Participants Fund Securities. Specifically, FICC proposes to increase the haircut on: (i) Interest bearing Treasuries with terms greater than 10 years but less than 15 years from the current 5 percent to 6 percent and (ii) zero coupon obligations of U.S. Treasury and Agency Securities from the current 2 to 10 percent based on term to 5 to 12 percent based on term.
A complete listing of the haircut schedule, showing modifications, is as follows (deletions are in brackets and additions are italicized):
These changes will become effective as of August 3, 2009.
FICC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
FICC does not believe that the proposed rule change will have any impact on or impose any burden on competition.
No written comments relating to the proposed rule change have been solicited or received. FICC will notify the Commission of any written comments received by FICC.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(iii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt NASD Rule 3330 (Payment Designed to Influence Market Prices, Other than Paid Advertising) as FINRA Rule 5230 in the consolidated FINRA rulebook, with several changes to clarify the scope of the rule.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
NASD Rule 3330 provides that no member may, “directly or indirectly, give, permit to be given, or offer to give, anything of value to any person for the purpose of influencing or rewarding the action of such person in connection with the publication or circulation in any newspaper, investment service, or similar publication, of any matter which has, or is intended to have, an effect upon the market price of any security.* * *” The rule includes an exception for any matter that is “clearly distinguishable as paid advertising.”
As part of transferring NASD Rule 3330 into the Consolidated FINRA Rulebook, FINRA is proposing two changes to the rule to modernize its terms and clarify its scope. First, the proposed rule change updates the list of media to which the rule refers. Because NASD Rule 3330 has not been amended for over 60 years, it refers only to matters published or circulated in any “newspaper, investment service, or similar publication.” The proposed rule change updates this language to include electronic and other types of media, including magazines, Web sites, and television programs.
Second, the proposed rule change expands the exceptions in the rule beyond paid advertising to also include compensation paid in connection with research reports and communications published in reliance on Section 17(b) of the Securities Act of 1933.
FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-FINRA-2009-048. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of reporting requirements submitted for OMB review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before September 8, 2009. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to:
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Nebraska (FEMA-1853-DR), dated 07/31/2009.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 07/31/2009, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 11837B and for economic injury is 11838B.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Florida dated 07/29/2009.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 11825 B and for economic injury is 11826 0.
The State which received an EIDL Declaration # is Florida.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law (Pub. L.) 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions and extensions of OMB-approved information collections and a new collection.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and the SSA Director for Reports Clearance to the addresses or fax numbers shown below.
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than October 6, 2009. Individuals can obtain copies of the collection instrument by calling the SSA Director for Reports Clearance at 410-965-0454 or by writing to the email address we list above.
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II. SSA has submitted the information collections we list below to OMB for clearance. Your comments on the information collections would be most
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Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans), pursuant to 23 USC 327.
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
For Caltrans: Sarah Gassner, Chief, Southern Sierra Environmental Branch, Caltrans, 2015 East Shields Avenue, Suite 100, Fresno, California 93726 Monday through Friday 8 a.m. to 5 p.m. (559) 243-8243 or
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. Notice is hereby given that the Caltrans has taken final agency actions subject to 23 U.S.C. 139(
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA)/Finding of No Significant Impact (FONSI) for the project, approved on October 30, 2008. The EA/FONSI and other documents are available by contacting Caltrans at the addresses provided above. The Caltrnas EA/FONSI can be viewed and downloaded from the project Web site at:
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; and Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].
2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].
3. Land: Landscape and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].
4. Wetlands and Water Resources: Safe Drinking Water Act [42 U.S.C. 300(f)-300(j)(6)]; and Wetlands Mitigation [23 U.S.C. 103(b)(6)(m) and 133(b)(11)].
5. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)]; and Migratory Bird Treaty Act [16 U.S.C. 703-712].
6. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f)
7. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; Farmland Protection Policy Act [7 U.S.C. 4201-4209]; and The Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended.
8. Hazardous Materials: Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601-9675]; Superfund Amendments and Reauthorization Act of 1986; and Resource Conservation and Recovery Act [42 U.S.C. 6901-6992(k)].
9. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O.12898 Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of the Cultural
23 U.S.C. 139(
The Department of the Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the publication date of this notice. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before September 8, 2009 to be assured of consideration.
The Department of the Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, and 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2009-52, Election of Investment Tax Credit in Lieu of Production Tax Credit; Coordination With Department of Treasury Grants for Specified Energy Property in Lieu of Tax Credits.
Written comments should be received on or before October 6, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Evelyn J. Mack, (202) 622-7381, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 13797, Tribal Evaluation of Filing and Accuracy Compliance (TEFAC)—Compliance Check Report.
Written comments should be received on or before October 6, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Dawn Bidne, (202) 622-3933, at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5434, Application for Enrollment, and Form 5434-A, Application for Renewal of Enrollment.
Written comments should be received on or before October 6, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Dawn Bidne at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3933, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5884, Work Opportunity Credit.
Written comments should be received on or before October 6, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Evelyn J. Mack, (202) 622-7381, Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning TD 9452, Application of Separate Limitations to Dividends From Concontrolled Section 902 Corporations.
Written comments should be received on or before October 6, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Evelyn J. Mack, (202) 622-7381, at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one individual whose property and interests in property had been unblocked pursuant to Executive Order 12978 of October 21, 1995,
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the individual identified in this notice whose property and interests in property was blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on July 30, 2009.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2420.
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of the Treasury, in consultation with the Attorney General and Secretary of State: (a) To play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the Order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to the Order.
On July 30, 2009, the Director of OFAC removed from the SDN List one individual listed below, whose property and interests in property was blocked pursuant to the Order.
The listing of the unblocked individual follows:
DUQUE JARAMILLO, German, c/o APOYOS DIAGNOSTICOS S.A., Tulua, Valle, Colombia; DOB 20 Apr 1951; POB Tulua, Valle, Colombia; citizen Colombia; nationality Colombia; Cedula No. 14972076 (Colombia) (individual) [SDNT].
Department of Veterans Affairs.
Notice.
As required by the “Department of Veterans Affairs Health
Lauren Kuiper-Rocha, Director, Compensation and Classification Service (055), Office of Human Resources Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7804. This is not a toll-free number.
Under 38 U.S.C. 7431(e)(1)(A), not less often than once every two years, the Secretary must prescribe for Department-wide applicability the minimum and maximum amounts of annual pay that may be paid to VHA physicians and dentists. Further, 38 U.S.C. 7431(e)(1)(B) allows the Secretary to prescribe separate minimum and maximum amounts of pay for a specialty or assignment. In construction of the annual pay ranges, 38 U.S.C. 7431(c)(4)(A) requires the consultation of two or more national surveys of pay for physicians and dentists, as applicable, whether prepared by private, public, or quasi-public entities in order to make a general assessment of the range of pays payable to physicians and dentists. Lastly, 38 U.S.C. 7431(e)(1)(C) states amounts prescribed under paragraph 7431(e) shall be published in the
The “Department of Veterans Affairs Health Care Personnel Enhancement Act of 2004” (Pub. L. 108-445) was signed by the President on December 3, 2004. The major provisions of the law established a new pay system for Veterans Health Administration (VHA) physicians and dentists consisting of base pay, market pay, and performance pay. While the base pay component is set by statute, market pay is intended to reflect the recruitment and retention needs for the specialty or assignment of a particular physician or dentist at a facility. Further, performance pay is intended to recognize the achievement of specific goals and performance objectives prescribed annually. These three components create a system of pay that is driven by both market indicators and employee performance, while recognizing employee tenure in VHA.
VA identified and utilized salary survey data sources which most closely represent VA comparability in the areas of practice setting, employment environment, and hospital/healthcare system. The Association of American Medical Colleges (AAMC), Hospital and Healthcare Compensation Service (HHCS), Sullivan, Cotter, and Associates (S&C), Physician Executive Management Center (PEMC), and the Survey of Dental Practice published by the American Dental Association (ADA) were collectively utilized as benchmarks from which to prescribe annual pay ranges for physicians and dentists across the scope of assignments/specialties within the Department. While aggregating the data, a preponderance of weight was given to those surveys which most directly resembled the environment of the Department.
In constructing annual pay ranges to accommodate the more than thirty specialties that currently exist in the VA system, VA continued the practice of grouping specialties into consolidated pay ranges. This allows VA to use multiple sources that yield a high number of physician salary data which helps to minimize disparities and aberrations that may surface from data involving smaller numbers of physicians and dentists for comparison and from sample change from year to year. Thus, by aggregating multiple survey sources into like groupings, greater confidence exists that the average compensation reported is truly representative. In addition, aggregation of data provides for a large enough sample size and provides pay ranges with maximum flexibility for pay setting for the more than 16,000 VHA physicians and dentists.
In developing the annual pay ranges, a few distinctive principles were factored into the compensation analysis of the data. The first principle is to ensure that both the minimum and maximum salary is at a level that accommodates special employment situations, from fellowships and medical research career development awards to Nobel Laureates, high-cost areas, and internationally renowned clinicians. The second principle, to attempt to establish a rate ra nge of ± 25 percent of the mean, is imperative to provide ranges large enough to accommodate career progression, geographic differences, sub-specialization, and special factors. This principle is also the standard recommended by World@Work for professional compensation ranges.
All clinical specialties for VHA physicians and dentists were reviewed against relevant private sector data. The specialties are grouped into five clinical pay ranges that reflect comparable complexity in salary, recruitment, and retention considerations. Two additional pay ranges apply to VHA Chiefs of Staff and physicians and dentists in executive level administrative assignments at the facility, network, or headquarters level.
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.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7266, 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 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Rita, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule updates the payment rates for inpatient rehabilitation facilities (IRFs) for Federal fiscal year (FY) 2010 (for discharges occurring on or after October 1, 2009 and on or before September 30, 2010) as required under section 1886(j)(3)(C) of the Social Security Act (the Act). Section 1886(j)(5) of the Act requires the Secretary to publish in the
We are revising existing policies regarding the IRF PPS within the authority granted under section 1886(j) of the Act.
Susanne Seagrave, (410) 786-0044, for information regarding the payment policies.
Julie Stankivic, (410) 786-5725, for general information regarding the proposed rule.
Jeanette Kranacs, (410) 786-9385, for information regarding the wage index.
Because of the many terms to which we refer by acronym in this final rule, we are listing the acronyms used and their corresponding terms in alphabetical order below.
Section 4421 of the Balanced Budget Act of 1997 (BBA), Public Law 105-33, as amended by section 125 of the Medicare, Medicaid, and SCHIP (State Children's Health Insurance Program) Balanced Budget Refinement Act of 1999 (BBRA), Public Law 106-113, and by section 305 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA), Public Law 106-554, provides for the implementation of a per discharge prospective payment system (PPS) under section 1886(j) of the Social Security Act (the Act) for inpatient rehabilitation hospitals and inpatient rehabilitation units of a hospital (hereinafter referred to as IRFs).
Payments under the IRF PPS encompass inpatient operating and capital costs of furnishing covered rehabilitation services (that is, routine, ancillary, and capital costs) but not direct graduate medical education costs, costs of approved nursing and allied health education activities, bad debts, and other services or items outside the scope of the IRF PPS. Although a complete discussion of the IRF PPS provisions appears in the original FY 2002 IRF PPS final rule (66 FR 41316) and the FY 2006 IRF PPS final rule (70 FR 47880), we are providing below a general description of the IRF PPS for fiscal years (FYs) 2002 through 2009.
Under the IRF PPS from FY 2002 through FY 2005, as described in the FY 2002 IRF PPS final rule (66 FR 41316), the Federal prospective payment rates were computed across 100 distinct case-mix groups (CMGs). We constructed 95 CMGs using rehabilitation impairment categories (RICs), functional status (both motor and cognitive), and age (in some cases, cognitive status and age may not be a factor in defining a CMG). In addition, we constructed five special CMGs to account for very short stays and for patients who expire in the IRF.
For each of the CMGs, we developed relative weighting factors to account for a patient's clinical characteristics and expected resource needs. Thus, the weighting factors accounted for the relative difference in resource use across all CMGs. Within each CMG, we created tiers based on the estimated effects that certain comorbidities would have on resource use.
We established the Federal PPS rates using a standardized payment conversion factor (formerly referred to as the budget neutral conversion factor). For a detailed discussion of the budget neutral conversion factor, please refer to our FY 2004 IRF PPS final rule (68 FR 45684 through 45685). In the FY 2006 IRF PPS final rule (70 FR 47880), we discussed in detail the methodology for determining the standard payment conversion factor.
We applied the relative weighting factors to the standard payment conversion factor to compute the unadjusted Federal prospective payment rates under the IRF PPS from FYs 2002 through 2005. Within the structure of the payment system, we then made adjustments to account for interrupted stays, transfers, short stays, and deaths. Finally, we applied the applicable adjustments to account for geographic variations in wages (wage index), the percentage of low-income patients, location in a rural area (if applicable), and outlier payments (if applicable) to the IRF's unadjusted Federal prospective payment rates.
For cost reporting periods that began on or after January 1, 2002 and before October 1, 2002, we determined the final prospective payment amounts using the transition methodology prescribed in section 1886(j)(1) of the Act. Under this provision, IRFs transitioning into the PPS were paid a blend of the Federal IRF PPS rate and the payment that the IRF would have received had the IRF PPS not been implemented. This provision also allowed IRFs to elect to bypass this blended payment and immediately be paid 100 percent of the Federal IRF PPS rate. The transition methodology expired as of cost reporting periods beginning on or after October 1, 2002 (FY 2003), and payments for all IRFs now consist of 100 percent of the Federal IRF PPS rate.
We established a CMS Web site as a primary information resource for the IRF PPS. The Web site URL is
Section 1886(j) of the Act confers broad statutory authority upon the Secretary to propose refinements to the IRF PPS. In the FY 2006 IRF PPS final rule (70 FR 47880) and in correcting amendments to the FY 2006 IRF PPS final rule (70 FR 57166) that we published on September 30, 2005, we finalized a number of refinements to the IRF PPS case-mix classification system (the CMGs and the corresponding relative weights) and the case-level and facility-level adjustments. These refinements included the adoption of OMB's Core-Based Statistical Area (CBSA) market definitions, modifications to the CMGs, tier comorbidities, and CMG relative weights, implementation of a new teaching status adjustment for IRFs, revision and rebasing of the IRF market basket, and updates to the rural, low-income percentage (LIP), and high-cost outlier adjustments. Any reference to the FY 2006 IRF PPS final rule in this proposed rule also includes the provisions effective in the correcting amendments. For a detailed discussion of the final key policy changes for FY 2006, please refer to the FY 2006 IRF PPS final rule (70 FR 47880 and 70 FR 57166).
In the FY 2007 IRF PPS final rule (71 FR 48354), we further refined the IRF PPS case-mix classification system (the CMG relative weights) and the case-level adjustments, to ensure that IRF PPS payments would continue to reflect as accurately as possible the costs of care. For a detailed discussion of the FY 2007 policy revisions, please refer to the FY 2007 IRF PPS final rule (71 FR 48354).
In the FY 2008 IRF PPS final rule (72 FR 44284), we updated the Federal prospective payment rates and the outlier threshold, revised the IRF wage index policy, and clarified how we determine high-cost outlier payments for transfer cases. For more information on the policy changes implemented for FY 2008, please refer to the FY 2008 IRF PPS final rule (72 FR 44284), in which we published the final FY 2008 IRF Federal prospective payment rates.
After publication of the FY 2008 IRF PPS final rule (72 FR 44284), section 115 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, Public Law 110-173 (MMSEA), amended section 1886(j)(3)(C) of the Act to apply a zero percent increase factor for FYs 2008 and 2009, effective for IRF discharges occurring on or after April 1, 2008. Section 1886(j)(3)(C) of the Act requires the Secretary to develop an increase factor to update the IRF Federal prospective payment rates for each FY. Based on the legislative change to the increase factor, we revised the FY 2008 Federal prospective payment rates for IRF discharges occurring on or after April 1, 2008. Thus, the final FY 2008 IRF Federal prospective payment rates that were published in the FY 2008 IRF PPS final rule (72 FR 44284) were effective for discharges occurring on or after October 1, 2007 and on or before March 31, 2008; and the revised FY 2008 IRF Federal prospective payment rates were effective for discharges occurring on or after April 1, 2008 and on or before September 30, 2008. The
In the FY 2009 IRF PPS final rule (73 FR 46370), we updated the CMG relative weights, the average length of stay values, and the outlier threshold; clarified IRF wage index policies regarding the treatment of “New England deemed” counties and multi-campus hospitals; and revised the regulation text in response to section 115 of the MMSEA to set the IRF compliance percentage at 60 percent (“the 60 percent rule”) and continue the practice of including comorbidities in the calculation of compliance percentages. We also applied a zero percent increase factor for FY 2009. For more information on the policy changes implemented for FY 2009, please refer to the FY 2009 IRF PPS final rule (73 FR 46370), in which we published the final FY 2009 IRF Federal prospective payment rates.
As described in the FY 2002 IRF PPS final rule, upon the admission and discharge of a Medicare Part A fee-for-service patient, the IRF is required to complete the appropriate sections of a patient assessment instrument (PAI), the Inpatient Rehabilitation Facility-Patient Assessment Instrument (IRF-PAI). All required data must be electronically encoded into the IRF-PAI software product. Generally, the software product includes patient classification programming called the GROUPER software. The GROUPER software uses specific IRF-PAI data elements to classify (or group) patients into distinct CMGs and account for the existence of any relevant comorbidities.
The GROUPER software produces a five-digit CMG number. The first digit is an alpha-character that indicates the comorbidity tier. The last four digits represent the distinct CMG number. Free downloads of the Inpatient Rehabilitation Validation and Entry (IRVEN) software product, including the GROUPER software, are available on the CMS Web site at
Once a patient is discharged, the IRF submits a Medicare claim as a Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, compliant electronic claim or, if the Administrative Simplification Compliance Act (ASCA), Public Law 107-105, permits, a paper claim (a UB-04 or a CMS-1450 as appropriate) using the five-digit CMG number and sends it to the appropriate Medicare fiscal intermediary (FI) or Medicare Administrative Contractor (MAC). Claims submitted to Medicare must comply with both ASCA and HIPAA.
Section 3 of the ASCA amends section 1862(a) of the Act by adding paragraph (22) which requires the Medicare program, subject to section 1862(h) of the Act, to deny payment under Part A or Part B for any expenses for items or services “for which a claim is submitted other than in an electronic form specified by the Secretary.” Section 1862(h) of the Act, in turn, provides that the Secretary shall waive such denial in situations in which there is no method available for the submission of claims in an electronic form or the entity submitting the claim is a small provider. In addition, the Secretary also has the authority to waive such denial “in such unusual cases as the Secretary finds appropriate.” For more information we refer the reader to the final rule, “Medicare Program; Electronic Submission of Medicare Claims” (70 FR 71008, November 25, 2005). CMS instructions for the limited number of Medicare claims submitted on paper are available at:
Section 3 of the ASCA operates in the context of the administrative simplification provisions of HIPAA, which include, among others, the requirements for transaction standards and code sets codified in 45 CFR parts 160 and 162, subparts A and I through R (generally known as the Transactions Rule). The Transactions Rule requires covered entities, including covered healthcare providers, to conduct covered electronic transactions according to the applicable transaction standards. (
The Medicare FI or MAC processes the claim through its software system. This software system includes pricing programming called the “PRICER” software. The PRICER software uses the CMG number, along with other specific claim data elements and provider-specific data, to adjust the IRF's prospective payment for interrupted stays, transfers, short stays, and deaths, and then applies the applicable adjustments to account for the IRF's wage index, percentage of low-income patients, rural location, and outlier payments. For discharges occurring on or after October 1, 2005, the IRF PPS payment also reflects the new teaching status adjustment that became effective as of FY 2006, as discussed in the FY 2006 IRF PPS final rule (70 FR 47880).
As discussed in the FY 2010 IRF PPS proposed rule (74 FR 21052), we proposed updates to the IRF PPS, revisions to existing regulations text for the purpose of providing greater clarity, new regulations text to improve calculation of compliance with the “60 percent” rule, and rescission of an outdated Health Care Financing Administration (HFCA) Ruling (HCFAR 85-2-1). These proposals are as follows:
• Update the FY 2010 IRF PPS relative weights and average length of stay values using the most current and complete Medicare claims and cost report data in a budget neutral manner, as discussed in section III of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21055 through 21059).
• Update the FY 2010 IRF facility-level adjustments (rural, LIP, and teaching status adjustments) using the most current and complete Medicare claims and cost report data in a budget neutral manner, as discussed in section IV of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21059 through 21062).
• Update the FY 2010 IRF PPS payment rates by the proposed market basket, as discussed in section V.A of the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21062).
• Update the FY 2010 IRF PPS payment rates by the proposed wage index and the labor-related share in a budget neutral manner, as discussed in section V.A and V.B of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21062 through 21063).
• Update the outlier threshold amount for FY 2010, as discussed in section VI.A of the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21066).
• Relocate and revise the criteria for admission to an inpatient rehabilitation hospital found at existing § 412.23(b)(3) through (b)(7) that describe requirements relating to preadmission screening, close medical supervision, a director of rehabilitation, the plan of care, and a coordinated multidisciplinary team approach. Redesignate paragraphs (b)(8) and (b)(9) of § 412.23 as paragraphs (b)(3) and
• Revise the section heading at § 412.29 to include inpatient rehabilitation hospitals, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071).
• Relocate and revise the existing requirements at § 412.29(b) through (f) that describe the admission requirements relating to preadmission screening, close medical supervision, a director of rehabilitation, the plan of care, and a coordinated multidisciplinary team approach, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071).
• Revise the section heading at § 412.30, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071).
• Revise the regulation text in § 412.604, § 412.606, § 412.610. § 412.614 and § 412.618 to require the collection of inpatient rehabilitation facility patient assessment instrument data on Medicare Part C (Medicare Advantage) patients in IRFs for use in the 60 percent rule compliance percentage calculations, as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Remove § 412.614(a)(3) that provides for an exception in the transmission of IRF-PAI data to CMS, as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Revise the heading at § 412.614(d) to “Consequences of failure to submit complete and timely IRF-PAI data, as required under paragraph (c) of this section,” as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Revise the heading at § 412.614(d)(1) to “Medicare Part A fee-for-service data,” as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Make a technical correction to the paragraph formerly designated as § 412.614(d)(1) and assign the revised language to a new paragraph § 412.614(d)(1)(a), as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Redesignate paragraph § 412.614(d)(2) as § 412.614(d)(1)(b), as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
• Revise § 412.29, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071), to include the requirements for admission to an IRF.
• Add a new introductory paragraph at § 412.30 that includes the requirements previously found in § 412.29(a) (describing the admission requirements for new and converted rehabilitation units), as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071).
• Revise § 412.610(f) to require that the IRF provide a copy of the electronic computer file format of the IRF-PAI to the contractor upon request, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21067 through 21071).
• Add a new paragraph § 412.614(d)(2) to indicate that failure of an IRF to submit IRF-PAI data on all of its Medicare Part C (Medicare Advantage) patients will result in forfeiture of the IRF's ability to have any of its Medicare Part C (Medicare Advantage) data used in the compliance calculations, as described in section VIII of the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073).
Rescind HCFA Ruling 85-2-1 entitled “Medicare Criteria for Medicare Coverage of Inpatient Hospital Rehabilitation Services” and set forth new coverage guidance to implement the new regulations adopted under this final rule, as described in section VII of the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21071).
We received approximately 686 timely responses, many of which contained multiple comments on the FY 2010 IRF PPS proposed rule (74 FR 21052) from the public. We received comments from various trade associations, inpatient rehabilitation facilities, individual physicians, therapists, clinicians, health care industry organizations, and health care consulting firms. The following section, arranged by subject area, includes a summary of the public comments that we received, and our responses.
As specified in 42 CFR 412.620(b)(1), we calculate a relative weight for each CMG that is proportional to the resources needed by an average inpatient rehabilitation case in that CMG. For example, cases in a CMG with a relative weight of 2, on average, will cost twice as much as cases in a CMG with a relative weight of 1. Relative weights account for the variance in cost per discharge due to the variance in resource utilization among the payment groups, and their use helps to ensure that IRF PPS payments support beneficiary access to care as well as provider efficiency.
In the FY 2010 IRF PPS proposed rule (74 FR 21052, 21055 through 21059), we proposed to update the CMG relative weights and average length of stay values for FY 2010 using the most recent available data (at that time, FY 2007 IRF claims and cost report data) to ensure that IRF PPS payments fully reflect recent changes in IRF utilization due to the 60 percent rule and medical review activities. To ensure that IRF PPS payments continue to reflect as accurately as possible the current costs of care in IRFs, we are updating the CMG relative weights and average length of stay values for FY 2010 in this final rule using FY 2008 IRF claims and FY 2007 IRF cost report data. These data are the most current and complete data available at this time. At this time, only about 20 percent of the FY 2008 IRF cost report data are available for analysis, but the majority of the FY 2008 IRF claims data are available for analysis.
We have used the same methodology that we used to update the CMG relative weights and average length of stay values in the FY 2009 IRF PPS final rule (73 FR 46370). In calculating the CMG relative weights, we use a hospital-specific relative value method to estimate operating (routine and ancillary services) and capital costs of IRFs. The process used to calculate the CMG relative weights for this final rule follows below:
Step 1. We calculate the CMG relative weights by estimating the effects that comorbidities have on costs.
Step 2. We adjust the cost of each Medicare discharge (case) to reflect the effects found in the first step.
Step 3. We use the adjusted costs from the second step to calculate CMG relative weights, using the hospital-specific relative value method.
Step 4. We normalize the FY 2010 CMG relative weights to the same average CMG relative weight from the
Consistent with the way we implemented changes to the IRF classification system in the FY 2006 IRF PPS final rule (70 FR 47880 and 70 FR 57166), the FY 2007 IRF PPS final rule (71 FR 48354), and the FY 2009 IRF PPS final rule (73 FR 46370), we are revising the CMG relative weights for FY 2010 in such a way that total estimated aggregate payments to IRFs for FY 2010 are estimated to be the same with or without the changes (that is, in a budget neutral manner) by applying a budget neutrality factor to the standard payment amount. To calculate the appropriate budget neutrality factor for use in updating the FY 2010 CMG relative weights, we use the following steps:
Step 1. Calculate the estimated total amount of IRF PPS payments for FY 2010 (with no changes to the CMG relative weights).
Step 2. Apply the changes to the CMG relative weights (as discussed above) to calculate the estimated total amount of IRF PPS payments for FY 2010.
Step 3. Divide the amount calculated in step 1 by the amount calculated in step 2 to determine the budget neutrality factor (1.0020) that maintains the same total estimated aggregate payments in FY 2010 with and without the changes to the CMG relative weights.
Step 4. Apply the budget neutrality factor (1.0020) to the FY 2009 IRF PPS standard payment amount after the application of the budget-neutral wage adjustment factor.
In section VI.C of this final rule, we discuss the methodology for calculating the standard payment conversion factor for FY 2010.
Note that the budget neutrality factor that we use to update the CMG relative weights for FY 2010 changed from 1.0004 in the proposed rule to 1.0020 in this final rule due to the use of updated FY 2008 IRF claims data in this final rule.
We received 7 comments on the proposed updates to the CMG relative weights and average length of stay values, which are summarized below.
Further, as we stated in the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21059), the updates are generally expected to result in some increases and some decreases to the CMG relative weight values. Changes in the relative weights are, by definition, distributional and, therefore, the fact that the updates shown in Table 1 increase IRF payments to some diagnoses and decrease IRF payments to other diagnoses is to be expected. The intent of these changes is to ensure that the relative payments assigned to the CMGs and tiers continue to reflect the relative costs of caring for different types of patients in IRFs.
Section 1886(j)(3)(A)(v) of the Act confers broad authority upon the Secretary to adjust the per unit payment rate “by such * * * factors as the Secretary determines are necessary to properly reflect variations in necessary costs of treatment among rehabilitation facilities.” For example, we adjust the Federal prospective payment amount associated with a CMG to account for facility-level characteristics such as an IRF's LIP percentage, teaching status, and location in a rural area, if applicable, as described in § 412.624(e).
In the FY 2010 IRF PPS proposed rule (74 FR 21052, 21059 through 21062), we proposed to update the adjustment factors for calculating the rural, LIP, and teaching status adjustments based on the most recent three years worth of IRF claims data (at that time, FY 2005, FY 2006, and FY 2007) and the most recent available corresponding IRF cost report data. Note that, for each IRF claim, we used the corresponding year's cost report data, when available. In the rare instances in which the corresponding year's cost report data were not available, we used the most recent available cost report data. For example, since cost report years are determined by the start date of the cost report, a hypothetical IRF's cost reporting period from July 1, 2007 through June 30, 2008 would be referred to as an “FY 2007” cost report. However, the data from this FY 2007 cost report would appropriately be matched to IRF discharges occurring from October 1, 2007 through June 30, 2008 (i.e., during FY 2008) because these claims would fall during the period of time covered by the IRF's “FY 2007” cost report year. In the case of FY 2008 claims that would appropriately match to an IRF's FY 2008 cost report year, we used the FY 2008 cost report data when available. In instances in which the matching FY 2008 cost report data were not available, we used the most recent available data, which in these cases was the FY 2007 cost report data.
For this final rule, as many commenters suggested, we are updating the rural, LIP, and teaching status adjustment factors using more recent data (FY 2006, FY 2007, and FY 2008 claims data and the corresponding year's cost report data or, if unavailable, the most recent available cost report data). We note, however, that we only have about 20 percent of the IRF cost reports from FY 2008 available for analysis at this time, so although we did use the FY 2008 cost report data that we had available, in some cases we had to use a prior year's cost report data to match to some of the FY 2008 IRF claims, as discussed above. Although the adjustment factors for the rural and LIP adjustments that we estimate in this final rule using updated data (18.4 percent and 0.4613, respectively) do not differ substantially from the adjustment factors that we calculated using the methods set forth in the proposed rule (18.27 percent and 0.4372, respectively), the teaching status adjustment factor that we calculate in this final rule using updated data (0.6876) is significantly lower than the teaching status adjustment factor that we calculated in the proposed rule (1.0494). This is due to the relatively large year-to-year fluctuations in the teaching status adjustment factor noted in the proposed rule (74 FR 21052 at 21061).
We believe that it is necessary to update these adjustment factors at this time because the adjustment factors that are being used currently to calculate the rural, LIP, and teaching status adjustments are based on FY 2003 data (as finalized in the FY 2006 IRF PPS final rule (70 FR 47880, 47928 through 47934)), and the FY 2003 data do not reflect recent changes in IRF patient populations resulting from the 60 percent rule and medical review activities.
The current adjustment factors for the rural, LIP, and teaching status adjustments in the FY 2006 IRF PPS final rule (70 FR 47928 through 47934) are based on regression analysis by the RAND Corporation (RAND) using FY 2003 IRF claims and cost report data. In the FY 2010 IRF PPS proposed rule (74 FR 21052, 21059 through 21062), we proposed to use the same methodology RAND used in computing these
We received 12 comments on the proposed updates to the rural, LIP, and teaching status adjustment factors for FY 2010, which are summarized below.
Further, we believe that the estimated decrease in the rural adjustment factor for FY 2010 (from 21.3 percent to 18.4 percent) is, in part, the result of improvements we made to the IRF classification system in the FY 2006 and FY 2007 IRF PPS final rules (70 FR 47880, 47886 through 47904 and 71 FR 48354, 48373 through 48374). Those improvements were designed to account more appropriately for the variation in costs among different types of IRF patients. To the extent that some of the differences in costs that we previously observed between rural and urban IRFs were the result of differences in patient populations, better accounting for the variations in costs among patients may have reduced the need to account for differences in costs between rural and urban IRFs.
However, to mitigate the impact on payments of annual fluctuations in the facility-level adjustment factors, we have proposed to use and, by this rule, adopt a three-year moving average approach instead of using only one year's worth of data to calculate the rural, LIP, and teaching status adjustment factors for FY 2010. Using the 3-year moving average approach and updated IRF claims data from FYs 2006 through 2008, we calculate a teaching status adjustment factor for this final rule of 0.6876, which is less than the factor 0.9012 that was applied to IRF PPS payments from FY 2006 through FY 2009. Since the teaching status adjustment factor for this final rule is lower than the current factor, we do not believe that it is necessary to consider the alternative “capping” methodologies suggested by MedPAC at this time. However, we will continue to monitor the data and work with MedPAC to analyze the reasons for the year-to-year fluctuations.
[Steps 1 and 2 are performed independently for each of three years of IRF claims data: FY 2006, FY 2007, and FY 2008]
Step 1. Calculate the average cost per case for each IRF in the IRF claims data using the corresponding year's cost report data or, if unavailable, the most recent available cost report data, as described above.
Step 2. Use logarithmic regression analysis on average cost per case to compute the coefficients for the rural, LIP, and teaching status adjustments.
Step 3. Calculate a simple mean for each of the coefficients across the three years of data using logarithms for the LIP and teaching status adjustment coefficients (because they are continuous variables) but not using logarithms for the rural adjustment coefficient (because the rural variable is 1 if the facility is rural and zero otherwise). To compute the LIP and teaching status adjustment factors, we convert these factors back out of the logarithmic form.
Consistent with the way that we implemented changes to the IRF facility-level adjustment factors (the rural, LIP, and teaching status adjustment factors) in the FY 2006 IRF PPS final rule (70 FR 47880 and 70 FR 57166), which was the only year in which we updated these adjustment factors, we are updating the rural, LIP, and teaching status adjustment factors for FY 2010 in such a way that total estimated aggregate payments to IRFs for FY 2010 will be the same with or without the updates (that is, in a budget neutral manner) by applying budget neutrality factors for each of these three changes to the standard payment amount. To calculate the budget neutrality factors used to update the rural, LIP, and teaching status adjustment factors, we used the following steps:
Step 1. Using the most recent available data (currently FY 2008), calculate the estimated total amount of IRF PPS payments that would be made in FY 2010 (without applying the update to the rural, LIP, or teaching status adjustment factors).
Step 2. Calculate the estimated total amount of IRF PPS payments that would be made in FY 2010 if the update to the rural adjustment factor were applied.
Step 3. Divide the amount calculated in step 1 by the amount calculated in step 2 to determine the budget neutrality factor (1.0023) that would maintain the same total estimated aggregate payments in FY 2010 with and without the update to the rural adjustment factor.
Step 4. Calculate the estimated total amount of IRF PPS payments that would be made in FY 2010 if the update to the LIP adjustment factor were applied.
Step 5. Divide the amount calculated in step 1 by the amount calculated in step 4 to determine the budget neutrality factor (1.0192) that would maintain the same total estimated aggregate payments in FY 2010 with and without the update to the LIP adjustment factor.
Step 6. Calculate the estimated total amount of IRF PPS payments that would be made in FY 2010 if the update to the teaching status adjustment factor were applied.
Step 7. Divide the amount calculated in step 1 by the amount calculated in step 6 to determine the budget neutrality factor (1.0037) that would maintain the same total estimated aggregate payments in FY 2010 with and without the update to the teaching status adjustment factor.
Step 8. Apply the budget neutrality factors for the updates to the rural, LIP, and teaching status adjustment factors to the FY 2009 IRF PPS standard payment amount after the application of the budget neutrality factors for the wage adjustment and the CMG relative weights.
The budget neutrality factors for the updates to the rural, LIP, and teaching status adjustment factors in this final rule differ from those described in the proposed rule (74 FR 21052, 21061 through 21062) due to the use of updated data for the analysis in this final rule.
In section VI.C of this final rule, we discuss the methodology for calculating the final standard payment conversion factor for FY 2010.
Section 1886(j)(3)(C) of the Act requires the Secretary to establish an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services included in the covered IRF services, which is referred to as a market basket index. According to section 1886(j)(3)(A)(i) of the Act, the increase factor shall be used to update the IRF Federal prospective payment rates for each FY. Section 115 of the MMSEA amended section 1886(j)(3)(C) of the Act to apply a zero percent increase factor for FYs 2008 and 2009, effective for IRF discharges occurring on or after April 1, 2008. In the absence of any such amendment for FY 2010, we are updating IRF PPS payments by a market basket increase factor based upon the most current data available in accordance with section 1886(j)(3)(A)(i) of the Act.
Beginning with the FY 2006 IRF PPS final rule (70 FR 47908 through 47917), the market basket index used to update IRF payments is a 2002-based market basket reflecting the operating and
For this final rule, we have used the same methodology described in the FY 2006 IRF PPS Final Rule (70 FR 47908 through 47917) to compute the FY 2010 market basket increase factor and labor-related share. Using this method and the IHS Global Insight, Inc. forecast for the second quarter of 2009 of the 2002-based RPL market basket, the FY 2010 IRF market basket increase factor is 2.5 percent. IHS Global Insight is an economic and financial forecasting firm that contracts with CMS to forecast the components of providers' market baskets.
Also, using the methodology described in the FY 2006 IRF PPS final rule (70 FR 47880, 47908 through 47917), we are updating the IRF labor-related share for FY 2010. Using this method and the IHS Global Insight, Inc. forecast for the second quarter of 2009 of the 2002-based RPL market basket, the IRF labor-related share for FY 2010 is the sum of the FY 2010 relative importance of each labor-related cost category. This figure reflects the different rates of price change for these cost categories between the base year (FY 2002) and FY 2010. Consistent with our proposal to update the labor-related share with the most recent available data, the labor-related share for this final rule reflects IHS Global Insight's second quarter 2009 forecast of the 2002-based RPL market basket. As shown in Table 2, the FY 2010 labor-related share is 75.779 percent.
We received 10 comments on the proposed updates to the IRF market basket increase factor and labor-related share for FY 2010, which are summarized below.
Those suggestions included:
1. To survey a random sample of facilities to assess the presence of the array of rehabilitation services that may be available through the freestanding IRF as compared to a hospital-based IRF.
2. To conduct detailed interviews of the Chief Financial Officers (CFOs) of freestanding versus hospital based units to understand the differences in the ways IRF costs are accounted for in cost reports.
• To examine the cost differences between freestanding and hospital-based IRFs, as well as the differences between IRFs and other hospitals such as Inpatient Psychiatric Hospitals (IPFs) and Long Term Care Facilities.
• To determine to what extent fewer economies-of-scale and cost allocation differences account for cost differences between freestanding and hospital-based IRFs.
• To determine whether different classes of IRFs have different provider-to-patient ratios.
• To investigate if differences in patient severity exist between the two classes of facilities and if so, to what extent does higher severity correlate with higher nursing and rehabilitation costs.
The commenter supports the American Hospital Association's (AHA's) suggestion that CMS should make the required market basket adjustments without revising the price proxies used in the calculation which indicate potentially lower costs to the hospitals.
Additionally, the commenter noted that IRFs have more patients without insurance and are likely to incur a higher level of bad debt. This comment is outside the scope of the market basket update, since bad debt is reimbursed outside of the market basket update factor.
Lastly, we think the commenter may have confused the AHA comments with regard to the IPPS market basket and the revision of various price proxies. IRF facilities will continue to receive a market basket update based on the RPL market basket. We have not made any technical changes to the composition of the RPL market basket. As such, the commenter's request that CMS should not revise the price proxies for this market basket is not applicable.
Regarding the 60-percent rule, we are sensitive to the potential impact that the implementation of this rule may have on the cost structures of certain providers. As noted in a previous comment, we have focused our recent efforts on comparing and contrasting the costs and cost structures of freestanding and hospital-based IRFs. We will be continuing that analysis, as well as exploring the appropriateness of rebasing and revising the market basket used to update IRF payments whether that is in the form of the RPL market basket or a stand-alone IRF market basket.
As we noted in the proposed rule (74 FR 21052 at 21062), we are interested in exploring the possibility of creating a stand-alone IRF market basket that reflects the cost structures of only IRF providers. As part of our consideration of a stand-alone IRF market basket, we solicited information from the public in the proposed rule that might help us to better understand the underlying reasons for the variations in cost structure between freestanding and hospital-based IRFs. Due to the need for further research regarding the differences in costs and cost structures between hospital-based IRFs and freestanding IRFs, we are not pursuing a stand-alone IRF market basket at this time.
Section 1886(j)(6) of the Act requires the Secretary to adjust the proportion (as estimated by the Secretary from time to time) of rehabilitation facilities' costs attributable to wages and wage-related costs by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the rehabilitation facility compared to the national average wage level for those facilities. The Secretary is required to update the IRF PPS wage index on the basis of information available to the Secretary on the wages and wage-related costs to furnish rehabilitation services. Any adjustments or updates made under section 1886(j)(6) of the Act for a FY are made in a budget neutral manner.
In the FY 2009 IRF PPS final rule (73 FR 46370 at 46378), we maintained the methodology described in the FY 2006 IRF PPS final rule to determine the wage index, labor market area definitions, and hold harmless policy consistent with the rationale outlined in the FY 2006 IRF PPS final rule (70 FR 47880, 47917 through 47933).
In the FY 2010 IRF PPS proposed rule (74 FR 21052, 21062 through 21063), we proposed to maintain the policies and methodologies described in the FY 2009 IRF PPS final rule relating to the labor market area definitions and the wage index methodology for areas with wage data. Thus, we proposed to use the CBSA labor market area definitions and the pre-reclassification and pre-floor hospital wage index data based on 2005 cost report data.
The labor market designations made by the Office of Management and Budget (OMB) include some geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the IRF PPS wage index. We proposed to continue to use the same methodology discussed in the FY 2008 IRF PPS final rule (72 FR 44284 at 44299) to address those geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the FY 2010 IRF PPS wage index.
Additionally, we proposed to incorporate the CBSA changes published in the most recent OMB bulletin that applies to the hospital wage data used to determine the current IRF PPS wage index. The changes were nominal and did not represent substantive changes to the CBSA-based designations. Specifically, OMB added or deleted certain CBSA numbers and revised certain titles. The OMB bulletins are available online at
To calculate the wage-adjusted facility payment for the payment rates set forth in this final rule, we multiply the unadjusted Federal payment rate for IRFs by the FY 2010 RPL labor-related share (75.779 percent) to determine the labor-related portion of the standard payment amount. We then multiply the labor-related portion by the applicable IRF wage index from the tables in the addendum to this final rule. Table 1 is for urban areas, and Table 2 is for rural areas.
Adjustments or updates to the IRF wage index made under section 1886(j)(6) of the Act must be made in a budget neutral manner. We calculate a budget neutral wage adjustment factor as established in the FY 2004 IRF PPS final rule (68 FR 45674 at 45689), codified at § 412.624(e)(1), as described in the steps below. We use the listed steps to ensure that the FY 2010 IRF standard payment conversion factor reflects the update to the wage indexes (based on the FY 2005 hospital cost report data) and the labor-related share in a budget neutral manner:
Step 1. Determine the total amount of the estimated FY 2009 IRF PPS rates, using the FY 2009 standard payment conversion factor and the labor-related share and the wage indexes from FY 2009 (as published in the FY 2009 IRF PPS final rule (73 FR 46370 at 44301, 44298, and 44312 through 44335, respectively)).
Step 2. Calculate the total amount of estimated IRF PPS payments using the FY 2009 standard payment conversion factor and the FY 2010 labor-related share and CBSA urban and rural wage indexes.
Step 3. Divide the amount calculated in step 1 by the amount calculated in step 2. The resulting quotient is the FY 2010 budget neutral wage adjustment factor of 1.0011.
Step 4. Apply the FY 2010 budget neutral wage adjustment factor from step 3 to the FY 2009 IRF PPS standard payment conversion factor after the application of the estimated market basket update to determine the FY 2010 standard payment conversion factor.
We received 3 comments on the proposed FY 2010 IRF PPS wage index, which are summarized below.
In addition, we reviewed the Medicare Payment Advisory Commission's (MedPAC) wage index recommendations as discussed in MedPAC's June 2007 report titled, “Report to Congress: Promoting Greater Efficiency in Medicare.” Although some commenters recommended that we adopt the IPPS wage index policies such as reclassification and floor policies, we note that MedPAC's June 2007 report to Congress recommends that Congress “repeal the existing hospital wage index statute, including reclassification and exceptions, and give the Secretary authority to establish new wage index systems.” We believe that adopting the IPPS wage index policies, such as reclassification or floor, would not be prudent at this time because MedPAC suggests that the reclassification and exception policies in the IPPS wage index alters the wage index values for one-third of IPPS hospitals. In addition, MedPAC found that the exceptions may lead to anomalies in the wage index. By adopting the IPPS reclassifications and exceptions at this time, the IRF PPS wage index could be vulnerable to similar issues that MedPAC identified in the June 2007 Report to Congress. However, we will continue to review and consider MedPAC's recommendations on a refined or an alternative wage index methodology for the IRF PPS in future years.
In addition, we have research currently under way to examine alternatives to the wage index methodology, including the issues the commenters mentioned about ensuring that the wage index minimizes fluctuations, matches the costs of labor in the market, and provides for a single wage index policy. Section 106(b)(2) of the MIEA-TRHCA instructed the Secretary of Health and Human Services to take into account MedPAC's recommendations on the Medicare wage index classification system and to include in the FY 2009 IPPS proposed rule one or more proposals to revise the wage index adjustment applied under section 1886(d)(3)(E) of the Act for purposes of the IPPS. The proposal (or proposals) were to consider each of the following:
• Problems associated with the definition of labor markets for the wage index adjustments.
• The modification or elimination of geographic reclassifications and other adjustments.
• The use of Bureau of Labor Statistics data or other data or methodologies to calculate relative wages for each geographic area.
• Minimizing variations in wage index adjustments between and within MSAs and statewide rural areas.
• The feasibility of applying all components of CMS's proposal to other settings.
• Methods to minimize the volatility of wage index adjustments while maintaining the principle of budget neutrality.
• The effect that the implementation of the proposal would have on health care providers in each region of the country.
• Methods for implementing the proposal(s), including methods to phase in such implementations.
• Issues relating to occupational mix, such as staffing practices and any evidence on quality of care and patient safety, including any recommendations for alternative calculations to the occupational mix.
To assist us in meeting the requirements of section 106(b)(2) of Public Law 109-432, in February 2008 we awarded a contract to Acumen, LLC. The contractor conducted a study of both the current methodology used to construct the Medicare wage index and the recommendations reported to Congress by MedPAC. Part 1 of Acumen's final report, which analyses the strengths and weaknesses of the data sources used to construct the CMS and MedPAC indexes, is available online at
To calculate the final standard payment conversion factor for FY 2010, as illustrated in Table 4 below, we begin by applying the estimated market basket increase factor for FY 2010 (2.5 percent) to the standard payment conversion factor for FY 2009 ($12,958), which would equal $13,282. Then, we apply the budget neutrality factor for the FY 2010 wage index and labor related share of 1.0011, which would result in a standard payment amount of $13,297. Then, we apply the budget neutrality factor for the revised CMG relative weights of 1.0020, which would result in a standard payment amount of $13,324. Finally, we apply the budget neutrality factors for the updates to the rural, LIP, and IRF teaching status adjustments of 1.0023, 1.0192, and 1.0037, respectively, which would result in the final FY 2010 standard payment conversion factor of $13,661.
After the application of the CMG relative weights described in section IV of this final rule, the resulting unadjusted IRF prospective payment rates for FY 2010 are shown below in Table 4, “FY 2010 Payment Rates.”
We received 4 comments on the proposed standard payment conversion factor and payment rates for FY 2010, which are summarized below.
Table 5 illustrates the methodology for adjusting the Federal prospective payments (as described in sections VI.A through VI.C of this final rule). The examples below are based on two hypothetical Medicare beneficiaries, both classified into CMG 0110 (without comorbidities). The unadjusted Federal prospective payment rate for CMG 0110 (without comorbidities) appears in Table 4 above.
One beneficiary is in Facility A, an IRF located in rural Spencer County, Indiana, and another beneficiary is in Facility B, an IRF located in urban Harrison County, Indiana. Facility A, a rural non-teaching hospital has a DSH percentage of 5 percent (which would result in a LIP adjustment of 1.0228), a wage index of 0.8473, and a rural adjustment of 18.4 percent. Facility B, an urban teaching hospital, has a DSH percentage of 15 percent (which would result in a LIP adjustment of 1.0666), a wage index of 0.9249, and a teaching status adjustment of 0.0610.
To calculate each IRF's labor and non-labor portion of the Federal prospective payment, we begin by taking the unadjusted Federal prospective payment rate for CMG 0110 (without comorbidities) from Table 4 above. Then, we multiply the estimated labor-related share (75.779) described in section VI.A of this final rule by the unadjusted Federal prospective payment rate. To determine the non-labor portion of the Federal prospective payment rate, we subtract the labor portion of the Federal payment from the unadjusted Federal prospective payment.
To compute the wage-adjusted Federal prospective payment, we multiply the labor portion of the Federal payment by the appropriate wage index found in the addendum in Tables 1 and 2. The resulting figure is the wage-adjusted labor amount. Next, we compute the wage-adjusted Federal payment by adding the wage-adjusted labor amount to the non-labor portion.
Adjusting the wage-adjusted Federal payment by the facility-level adjustments involves several steps. First, we take the wage-adjusted Federal prospective payment and multiply it by the appropriate rural and LIP adjustments (if applicable). Second, to determine the appropriate amount of additional payment for the teaching status adjustment (if applicable), we multiply the teaching status adjustment (1.0706, in this example) by the wage-adjusted and rural-adjusted amount (if applicable). Finally, we add the additional teaching status payments (if applicable) to the wage, rural, and LIP-adjusted Federal prospective payment rates. Table 5 illustrates the components of the adjusted payment calculation.
Thus, the adjusted payment for Facility A would be $31,057.56 and the adjusted payment for Facility B would be $30,841.87.
Section 1886(j)(4) of the Act provides the Secretary with the authority to make payments in addition to the basic IRF prospective payments for cases incurring extraordinarily high costs. A case qualifies for an outlier payment if the estimated cost of the case exceeds the adjusted outlier threshold. We calculate the adjusted outlier threshold by adding the IRF PPS payment for the case (that is, the CMG payment adjusted by all of the relevant facility-level adjustments) and the adjusted threshold amount (also adjusted by all of the relevant facility-level adjustments). Then, we calculate the estimated cost of a case by multiplying the IRF's overall cost-to-charge ratio (CCR) by the Medicare allowable covered charge. If the estimated cost of the case is higher than the adjusted outlier threshold, we make an outlier payment for the case equal to 80 percent of the difference between the estimated cost of the case and the outlier threshold.
In the FY 2002 IRF PPS final rule (66 FR 41316, 41362 through 41363), we discussed our rationale for setting the outlier threshold amount for the IRF PPS so that estimated outlier payments would equal 3 percent of total estimated payments. For the 2002 IRF PPS final rule, we analyzed various outlier policies using 3, 4, and 5 percent of the total estimated payments, and we concluded that an outlier policy set at 3 percent of total estimated payments would optimize the extent to which we could reduce the financial risk to IRFs of caring for high-cost patients, while still providing for adequate payments for all other (non-high cost outlier) cases.
Subsequently, we updated the IRF outlier threshold amount in the FYs 2006, 2007, 2008, and 2009 IRF PPS final rules (70 FR 47880, 70 FR 57166,
In the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21066), we proposed to use updated data for calculating the high-cost outlier threshold amount. Specifically, we proposed to use FY 2007 claims data using the same methodology that we used to set the initial outlier threshold amount in the FY 2002 IRF PPS final rule (66 FR 41316, 41362 through 41363), which is also the same methodology that we used to update the outlier threshold amounts for FYs 2006 through 2009.
Updated analysis of FY 2008 claims data using the same methodology that we used to set the initial outlier threshold amount in FY 2002 shows that IRF outlier payments as a percentage of total estimated payments are 3 percent in FY 2009. Therefore, since we estimate that we have achieved the target percentage in FY 2009, we are adjusting the outlier threshold amount in this final rule solely to account for the 2.5 percent market basket adjustment for FY 2010 (as discussed in section VI.A of this rule) and the FY 2010 updates to the facility-level adjustments (as discussed in section V of this rule) so that we will continue to maintain estimated outlier payments at 3 percent of total estimated aggregate IRF payments for FY 2010.
In accordance with the methodology stated in the FY 2004 IRF PPS final rule (68 FR 45674, 45692 through 45694), we apply a ceiling to IRFs' cost-to-charge ratios (CCRs). Using the methodology described in that final rule, we proposed in the FY 2010 IRF PPS proposed rule (74 FR 21052, 21066 through 21067) to update the national urban and rural CCRs for IRFs, as well as the national CCR ceiling for FY 2010, based on analysis of the most recent data that is available. We apply the national urban and rural CCRs in the following situations:
• New IRFs that have not yet submitted their first Medicare cost report.
• IRFs whose overall CCR is in excess of the national CCR ceiling for FY 2010, as discussed below.
• Other IRFs for which accurate data to calculate an overall CCR are not available.
Specifically, for FY 2010, we estimated a national average CCR of 0.622 for rural IRFs, which we calculate by taking an average of the CCRs for all rural IRFs using their most recently submitted cost report data. Similarly, we estimate a national CCR of 0.494 for urban IRFs, which we calculate by taking an average of the CCRs for all urban IRFs using their most recently submitted cost report data. We apply weights to both of these averages using the IRFs' estimated costs, meaning that the CCRs of IRFs with higher costs factor more heavily into the averages than the CCRs of IRFs with lower costs. For this final rule, we have used the most recent available cost report data (FY 2007). This includes all IRFs whose cost reporting periods begin on or after October 1, 2006, and before October 1, 2007. If, for any IRF, the FY 2007 cost report was missing or had an “as submitted” status, we used data from a previous fiscal year's settled cost report for that IRF. However, we do not use cost report data from before FY 2004 for any IRF because changes in IRF utilization since FY 2004 resulting from the 60 percent rule and IRF medical review activities suggest that these older data do not adequately reflect the current cost of care.
In addition, in light of the analysis described below, we are setting the national CCR ceiling at 3 standard deviations above the mean CCR. The national CCR ceiling is set at 1.61 for FY 2010. This means that, if an individual IRF's CCR exceeds this ceiling of 1.61 for FY 2010, we would replace the IRF's CCR with the appropriate national average CCR (either rural or urban, depending on the geographic location of the IRF). We calculated the national CCR ceiling by:
Step 1. Taking the national average CCR (weighted by each IRF's total costs, as discussed above) of all IRFs for which we have sufficient cost report data (both rural and urban IRFs combined);
Step 2. Estimating the standard deviation of the national average CCR computed in step 1;
Step 3. Multiplying the standard deviation of the national average CCR computed in step 2 by a factor of 3 to compute a statistically significant reliable ceiling; and
Step 4. Adding the result from step 3 to the national average CCR of all IRFs for which we have sufficient cost report data, from step 1.
We received 4 comments on the proposed update to payments for high-cost outliers under the IRF PPS, which are summarized below.
In the FY 2010 proposed rule (74 FR 21052, 21067 through 21071), we proposed IRF coverage requirements and technical revisions to certain other IRF requirements to reflect changes that have occurred in medical practice during the past 25 years and the implementation of the IRF PPS. In light of those proposals, we also proposed to rescind the outdated HCFA Ruling 85-2. We also noted that we anticipated issuing new manual provisions to provide further guidance on the proposed rules if the changes were ultimately finalized, and expressly welcomed comments on the draft of those manual provisions on our Web site.
As we discussed in the proposed rule, the policies that currently govern IRFs were developed more than 25 years ago, and were designed to provide coverage criteria for a small subset of providers furnishing intensive and complex therapy services in a fee-for-service environment to a small segment of patients whose rehabilitation needs could only be safely furnished at a hospital level of care. In recognition of the need to provide new coverage criteria, CMS assembled an internal workgroup in June 2007 to determine how best to clarify the criteria. The workgroup enlisted the advice of medical directors from within CMS, from several of the fiscal intermediaries, from one of the qualified independent contractors (QICs), and from the National Institutes of Health. These individuals, including general physicians, physiatrists, and therapists, considered how best to identify those patients for whom IRF coverage was intended (that is, patients who both require complex rehabilitation in a hospital environment and could most reasonably be expected to benefit from IRF services). We also considered comments that we received from industry groups in response to the FY 2009 IRF PPS proposed rule (73 FR 22674) and in response to industry input solicited by CMS contractors who are preparing the IRF Report to Congress mandated by section 115(c)(1) of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), Public Law 110-173.
After carefully considering all of the input that we received from the workgroup and from stakeholders, we proposed a number of changes to the regulation text in § 412.23 and § 412.29, which were designed to clarify our expectations regarding IRF coverage criteria. We discussed our proposals and suggested regulatory text to implement those proposals.
Unfortunately, though we never intended for these criteria to be used in determining whether facilities could be classified as IRFs, the combining of § 412.23 and § 412.29 and the placement of the proposed IRF coverage requirements in § 412.29, which discusses the requirements for rehabilitation units to be excluded from the IPPS and instead be paid under the IRF PPS, led several commenters to incorrectly conclude that the proposed coverage requirements would affect classification of an IRF. This was not our intent. To respond to these comments and to eliminate confusion on this point, we are creating a new regulatory section at newly created § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5), in which we will place the new IRF coverage requirements that will be used to determine whether individual IRF claims are for reasonable and necessary services under section 1862(a)(1) of the Act. These new coverage requirements will not be used to determine whether a facility can be paid under the IRF PPS. However, certain of the requirements in the newly created § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5) mirror the concepts
We received 58 comments on our overall approach to updating the IRF coverage requirements, which are summarized below.
To eliminate any further confusion regarding this point, we are creating § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5), which contain the new coverage criteria regulations that are adopted under this rule.
Further, we agree with the commenters that the IRF coverage criteria and the IRF classification requirements are different and are based on different statutory authority. We also agree that the IRF coverage criteria are not used to determine IRF classification. To be clear, in this final rule we are adopting new regulatory IRF coverage criteria. We do not intend for any IRF to lose its classification status because an individual patient does not meet the IRF coverage criteria. Failure to meet the coverage criteria in a particular case will only result in the denial of the IRF's claim for the services provided to that patient, not in a change in the classification of the facility.
Although we understand the commenters' concerns about the need for stakeholder input into these policies, we have already incorporated substantial input from the public in the development of these policies. As we noted in the FY 2010 proposed rule (74 FR 21052 at 21067), we received substantial input from the public on the medical necessity criteria from a town hall meeting and Technical Expert Panel that we conducted in February 2009 in response to the mandated analysis of IRF access and utilization issues
We do not publish comprehensive lists of the numerous employees who participate in the collaborative policy development process. We do, however, indicate the names of the lead analysts. Please see the section labeled “For Further Information Contact” at the beginning of this final rule for the names and contact information of the lead analysts on this rule. Please contact the lead analysts for further information.
As discussed in the FY 2010 proposed rule, we believe that a comprehensive preadmission screening process is the key factor in initially identifying appropriate candidates for IRF care. For this reason, we proposed to clarify our expectations regarding the scope of the preadmission assessment and to require documentation of the clinical evaluation process that forms the basis of the admission decision.
In addition, to ensure that IRF patients receive close medical supervision, we proposed to require an evaluation of each patient's risk for clinical and rehabilitation complications as part of the preadmission screening.
To capture the preadmission screening information as close as possible to the actual time of the IRF admission, we proposed to require that the preadmission screening be conducted by qualified clinicians designated by a rehabilitation physician within the 48 hours immediately preceding the IRF admission, and we proposed to require that the preadmission screening documentation be retained in the patient's medical record.
We also proposed to require that a rehabilitation physician review and document his or her concurrence with the findings and results of the preadmission screening.
Finally, we proposed to eliminate the 3 to 10 day post-admission assessment, which was used under the guidance documents that predated the regulations adopted under this rule for after-the-fact proof of medical necessity.
We received 27 comments on the proposed requirement for the preadmission screening, which are summarized below.
We agree that the assessment would best be performed by the rehabilitation physician or IRF clinical staff designated by the rehabilitation physician. We believe that the commenter may have misunderstood our proposal in that we do not expect the acute care hospital staff to be performing the preadmission screenings for the IRF.
We do not believe that permitting the entire preadmission screening to be conducted within the 96 hours immediately preceding the IRF admission, without the benefit of a more recent update, would provide sufficiently current information on the patient's medical and functional status to allow the rehabilitation physician to make an appropriate admission decision.
In addition, we believe that, in today's clinical environment, licensed physicians with training and experience in rehabilitation are able to assess a patient prior to admission to an IRF and determine whether there is a reasonable expectation that the patient can participate in and benefit from treatment in an IRF. In the unusual instance that the rehabilitation physician's reasonable expectation prior to admission is not realized once the patient is admitted to the IRF, we are allowing the IRF to begin making arrangements to transfer the patient to another setting of care and to receive the short stay outlier payment for IRF stays of 3 days or less (instead of having the entire claim denied), as long as the reasons for the change in the patient's status before and after admission are well-documented in the patient's medical record.
We proposed to add a requirement for a post-admission evaluation by a rehabilitation physician within 24 hours of admission. The purpose of the proposed post-admission evaluation would be to document the patient's status on admission to the IRF, compare it to that noted in the preadmission screening documentation, and begin development of the patient's expected course of treatment that would be completed with input from all of the interdisciplinary team members in the overall plan of care. We also proposed to require that this document be retained in the patient's medical record.
We received 21 comments on the proposed requirement for a post-admission physician evaluation, which are summarized below.
As we indicated in the FY 2010 proposed rule (74 FR 21052 at 21070), we believe that rehabilitation therapy services should begin as soon as possible after a patient is admitted to an IRF, thereby increasing the patient's potential for achieving functional goals. For this reason, we believe that it is necessary for a patient to be seen by a rehabilitation physician within 24 hours of the patient's admission. Therefore, we disagree that the post-admission physician evaluation should be allowed to occur 36 hours or 3 days later. If there are no changes in the patient since the preadmission screening, then the patient's condition should be relatively easy for the rehabilitation physician to document. However, if there have been changes in the patient's medical or functional status, or any other changes in the patient's condition or status, from that noted in the preadmission screening, documentation of these changes and the reasons for these changes is important in determining the continued appropriateness of the IRF admission.
The overall plan of care is essential to providing high-quality care in IRFs. Comprehensive planning of the patient's course of treatment in the early stages of the IRF stay leads to a more coordinated delivery of services to the patient, and such coordinated care is a critical aspect of the care provided in IRFs. Thus, we proposed to require that an individualized overall plan of care be developed for each IRF admission by a rehabilitation physician with input from the interdisciplinary team within 72 hours of the patient's admission to the IRF, and be retained in the patient's medical record.
We received 17 comments on the proposed requirement for an individualized overall plan of care, which are summarized below.
In the FY 2010 proposed rule (74 FR 21052 at 21069), we also proposed to require that the comprehensive preadmission screening include an evaluation of the following proposed requirements that a patient must meet to be admitted to an IRF:
1. Whether the patient's condition is sufficiently stable to allow the patient to actively participate in an intensive rehabilitation program.
2. Whether the patient has the appropriate therapy needs for placement in an IRF, meaning that the patient requires the active and ongoing therapeutic intervention of at least two therapy disciplines (physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics therapy), one of which must be physical or occupational therapy.
3. Whether the patient requires the intensive services of an inpatient rehabilitation setting, which is typically measured by whether the patient generally requires and can reasonably be expected to actively participate in at least 3 hours of therapy per day at least 5 days per week, and be expected to make measurable improvement that will be of practical value to improve the patient's functional capacity or adaptation to impairments.
We received 58 comments on the proposed requirements for evaluating the appropriateness of an IRF admission, which are summarized below.
By order of the Court in
We agree with several of the commenters that the intensity of therapy provided in IRFs could also be demonstrated by the provision of 15 hours of therapy per week (that is, in a 7-consecutive day period starting from the date of admission). For example, if a hypothetical IRF patient was admitted to an IRF for a hip fracture, but was also undergoing chemotherapy for an unrelated issue, the patient might not be able to tolerate therapy on a predictable basis due to the chemotherapy. Thus, this hypothetical patient might be more effectively served by the provision of 4 hours of therapy 3 days per week and 1
In addition, we note that we will provide guidance in our manuals on additional instances in which we might find that the patient is receiving intensive rehabilitation therapy services despite not receiving the generally expected intensity of therapy services for a brief period of time.
Further, we do not believe that it is appropriate to mandate that all IRFs provide recreational therapy, music therapy, or respiratory therapy services to all IRF patients, as such services may be beneficial to some, but not all, patients as an
Since an interdisciplinary approach to care is such a hallmark of the care provided in the IRF setting, we proposed to modify the terminology that we use throughout the IRF requirements to specify an “interdisciplinary” approach to care rather than a “multidisciplinary” approach. Further, since the length of many IRF stays has decreased significantly in recent years, we proposed to require that the interdisciplinary team meetings occur at least once per week throughout each IRF stay (instead of at least once every two weeks, as the previous regulations stated).
Also, to improve the effectiveness and coordination of the care provided to IRF patients and to better reflect best practices in IRFs, we proposed to broaden the requirements regarding the professional personnel that are expected to participate in the interdisciplinary team meetings. We proposed that, at a minimum, the interdisciplinary team must consist of professionals from the following disciplines (each of whom must have current knowledge of the beneficiary as documented in the medical record):
• A rehabilitation physician with specialized training and experience in rehabilitation services;
• A registered nurse with specialized training or experience in rehabilitation;
• A social worker or a case manager (or both); and
• A licensed or certified therapist from each therapy discipline involved in treating the patient.
Although the purpose of the proposed requirement for interdisciplinary team meetings is to allow the exchange of information from all of the different disciplines involved in the patient's care, we indicated in the proposed rule that we believe that it is important to designate one person, specifically the rehabilitation physician, to be responsible for making the final decisions regarding the patient's IRF care. Thus, we proposed to require that the rehabilitation physician document concurrence with all decisions made by the interdisciplinary team at each meeting.
As discussed above, we also proposed to require that the interdisciplinary team include registered nurses with specialized training or experience in rehabilitation. However, we proposed to eliminate the requirement that IRFs demonstrate that the patients need 24-hour rehabilitation nursing care because we believe that the patient's need for this care would already be identified by the clinical risk factors documented in the patient's medical record. However, as discussed below, several of the commenters misinterpreted our proposed elimination of this admission criterion as an indication that CMS was no longer valuing rehabilitation nursing in IRFs. We emphasize that it was not our intention to diminish the value of rehabilitation nursing in IRFs; we merely believe that this requirement should be a facility requirement rather than an IRF admission criterion.
We received 10 comments on the proposed requirements for the interdisciplinary team meetings, which are summarized below.
One of the primary reasons for a patient to receive rehabilitation therapy services in an inpatient hospital (that is, IRF) setting is that the patient's medical conditions require close medical supervision. In the past, the definition of close medical supervision has been vague. During the past 25 years, it was often assumed that “close medical supervision” was demonstrated by frequent changes in orders due to a patient's fluctuating medical status. Currently, however, patients' medical conditions can be more effectively managed so that they are less likely to
In addition, the medical complexity of rehabilitation patients has increased over time and they often require the services of multiple physicians to manage their medical conditions and ensure that they are able to maximize their rehabilitation potential in the IRF. Therefore, while multiple specialists may visit the patient at the IRF, we believe that it is the unique responsibility of the rehabilitation physician to coordinate the patient's medical needs with his or her functional rehabilitation needs while in the facility. Thus, we proposed to require that a rehabilitation physician conduct face-to-face visits with the patient at least 3 days per week throughout the patient's IRF stay to assess the patient both medically and functionally, as well as to modify the course of treatment as needed to maximize the patient's capacity to benefit from the intensive rehabilitation program provided in the IRF.
We received 7 comments on the proposed requirement for physician supervision, which are summarized below.
In addition to the proposed regulatory changes discussed above, we proposed to require that the required therapy treatments begin within 36 hours after the patient's admission to the IRF.
We received 9 comments on the proposed requirement regarding the initiation of therapy services, which are summarized below.
Thus, our intent is to require IRFs to initiate rehabilitation therapies as soon as possible after admission to the IRF. We had proposed to require that IRFs initiate therapy no later than 36 hours after a patient's admission to the IRF. However, some commenters suggested that this would mean that patients admitted to IRFs at 4 p.m. on Friday would need to being therapy by 4 a.m. on Sunday, and that this would effectively require IRFs to begin therapies on Saturday. As it was not our intention to be this restrictive, we are instead requiring that IRFs initiate therapies for all patients within 36 hours from midnight of the day of admission. So, for example, a hypothetical patient admitted to the IRF at 4 p.m. on Friday would need to begin therapies by noon on Sunday.
As we discussed in the FY 2010 proposed rule (74 FR 21052, 21070 through 21071), another critical aspect of IRF care is that rehabilitation therapy services are generally provided to each patient by a licensed or certified therapist working directly with the patient, more commonly known as one-on-one therapy. It has come to our attention that some IRFs are providing essentially all “group therapy” to their patients. We believe that group therapies may have a role in patient care in an IRF, but that they should be used in IRFs primarily as an adjunct to one-on-one therapy services which should be the standard of care in therapy service provided to IRF patients. We believe that group therapy should be considered as a supplement to the intensive individual therapy services generally provided in an IRF. To improve our understanding of when group therapy may be appropriate in IRFs, we specifically solicited comments on the types of patients for which group therapy may be appropriate, and the specific amounts of group therapies instead of one-on-one therapies that may be beneficial for these types of patients. We stated that we anticipated using this information to assess the appropriate use of group therapies in IRFs and that we might create standards for group therapies in IRFs.
We received 32 comments regarding our request for comments on the types of patients for which group therapy may be appropriate, and the specific
In the FY 2010 proposed rule (74 FR 21052, 21080 through 21081), we proposed revisions to § 412.23 and § 412.29 to combine the facility classification requirements for rehabilitation hospitals and rehabilitation units of acute care hospitals into one section at § 412.29, and to add the new coverage requirements to § 412.29. However, upon reviewing the comments that we received on the proposed rule, we realized that combining the requirements for hospital-based and freestanding IRFs into one section, and including coverage requirements in that same section, resulted in some confusion about whether and to what extent the facility requirements were being altered, and whether we were making coverage criteria a classification requirement. To eliminate this confusion, we are retaining the separate sections at § 412.23 and § 412.29 (governing facility requirements for rehabilitation hospitals and rehabilitation units, respectively) and making conforming changes to these two sections to mirror the new coverage criteria, which appear in the new sections § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5). However, the facility criteria requirements, as modified, will be retained in § 412.23 and § 412.29. These facility criteria will not be used to determine whether individual IRF claims are for services that are reasonable and necessary under section 1862(a)(1) of the Act. The conforming changes, which we are making to the identical text in both § 412.23 and § 412.29 are:
• To remove the words “or assessment” from § 412.23(b)(3) and § 412.29(b) to indicate that we are no longer providing for a 3 to 10 day inpatient assessment period after admission to assess the appropriateness of the IRF admission, as discussed above.
• To amend paragraphs § 412.23(b)(4) and § 412.29(c) to require that IRFs “furnish, through the use of qualified personnel, rehabilitation nursing, physical therapy, and occupational therapy, plus, as needed, speech-language pathology, social services, psychological services (including neuropsychological services), and orthotic and prosthetic services.” This amendment is in response to comments, as discussed above. To replace the word “multidisciplinary” with the word “interdisciplinary” in § 412.23(b)(7) and § 412.29(e) to make the terminology consistent with the new IRF coverage criteria in the newly created § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5). To require, in both § 412.23(b)(7) and § 412.29(e), that the interdisciplinary team meetings occur at least once per week to be consistent with the new IRF coverage criteria in the newly created § 412.622(a)(3), § 412.622(a)(4), and § 412.622(a)(5).
To eliminate any further confusion about whether we are promulgating new IRF coverage requirements or new facility classification requirements in this final rule, we are withdrawing all other proposed changes to § 412.23 and § 412.29 at this time.
As noted previously, the HCFAR is outdated and inconsistent with the IRF PPS. The adoption of the proposed coverage criteria would establish a new legal framework. These new regulatory requirements would not mirror the provisions in HCFAR 85-2. Therefore, to prevent further confusion over which document provides instructions on the IRF PPS regulations, we proposed that HCFAR 85-2 would be rescinded and new manual provisions offering guidance on the new regulatory coverage criteria would be issued. In light of the adoption of a new regulatory framework under this final rule, it is appropriate to rescind HCFAR 85-2. We now realize, however, that the rescission needs to be done through issuance of a notice in the
We received 14 comments on the proposed rescission of HCFAR 85-2, which are summarized below.
We are adding requirements to § 412.622(a) as shown in the regulatory text of this final rule.
In order to be excluded from the acute care inpatient hospital PPS specified in § 412.1(a)(1) and instead be paid under the IRF PPS, rehabilitation hospitals and units must meet, among other things, the requirements in § 412.23(b)(2). According to this section, at least 60 percent of an IRF's total inpatient population must require intensive rehabilitative services for treatment of one or more of 13 specified conditions.
The instructions that we provide to Medicare contractors in Chapter 3, section 140 of the Medicare Claims Processing Manual, Internet-Only Manual (IOM) Pub. 100-04, provide for two methodologies that Medicare contractors may use to determine whether an IRF's patient population meets the requirements in § 412.23(b)(2). We refer to the first of these two methodologies as the “presumptive methodology.” This methodology uses the IRF-PAI information that is submitted for Medicare Part A fee-for-service inpatients under § 412.604 and § 412.618. It is “presumptive” in that, while § 412.23(b)(2) specifies that an IRF's total inpatient population must meet the 60 percent rule requirements, this method examines only the Medicare patient data and extrapolates from this the compliance percentage for the IRF's entire inpatient population. The presumptive methodology uses computer software to examine each IRF-PAI for the presence of particular diagnostic codes that indicate whether a patient has one of the 13 medical conditions listed in § 412.23(b)(2)(ii). If the computer software determines that the patient has one or more of the diagnostic codes that represent one of the 13 medical conditions listed in § 412.23(b)(2)(ii), then that patient is counted in the presumptive methodology calculation of that IRF's compliance percentage; otherwise, the patient is not counted. Once the computer software has examined all of the IRF-PAIs submitted by a particular IRF, the computer software computes the presumptive compliance percentage for that IRF. The percentage that the software computes is equal to the total number of IRF-PAIs with one or more diagnostic codes representing the 13 medical conditions listed in § 412.23(b)(2)(ii) divided by the total number of IRF-PAIs submitted by the IRF. This becomes the IRF's presumptive compliance percentage, which is then compared with the required minimum compliance percentage to determine whether the IRF has met the required minimum compliance percentage for the designated compliance review period.
In accordance with IOM instructions in Chapter 3, section 140 of the Medicare Claims Processing Manual, the presumptive methodology described above is used when the Medicare contractor has verified that the IRF's Medicare Part A fee-for-service inpatient population is representative of the facility's total inpatient population. For this to be the case, the IOM instructions specify that the IRF's Medicare Part A fee-for-service inpatient population must be at least 50 percent or more of the IRF's total inpatient population. If the IRF's Medicare Part A fee-for-service inpatient population is less than 50 percent of the IRF's total inpatient population, then we cannot verify that the IRF-PAI data are representative of the IRF's total inpatient population. Therefore, in these situations, we require the Medicare contractors to use the second of the 2 methodologies to determine the IRF's compliance percentage.
The second methodology is commonly known as the “medical review” methodology. This methodology requires the Medicare contractor to review a sample of medical records from the IRF's total inpatient population (which may consist of all of the IRF's medical records if the IRF has 100 or fewer inpatients during the review period) to determine the IRF's compliance percentage. The medical review methodology may be used at any time at the discretion of the Medicare contractor, but we specifically require its use if the IRF's Medicare Part A fee-for-service inpatient population is less than 50 percent of the IRF's total inpatient population (as described above) or if the IRF fails to meet the minimum compliance percentage using the presumptive methodology.
As described above, the presumptive methodology relies on the IRF-PAI data that is submitted under § 412.604 and § 412.618. To use the presumptive methodology, the Medicare Part A fee-for-service inpatient population must make up at least 50 percent or more of the IRF's total inpatient population.
Since 2004, however, increasing numbers of Medicare beneficiaries in many areas of the country have been enrolling in Medicare Advantage (MA) plans rather than remaining in the traditional Medicare Part A fee-for-service program. This, in turn, has led to decreases in the number of Medicare Part A fee-for-service inpatients in certain IRFs across the country and has resulted in a reduction in the number of IRFs for whom the presumptive methodology can be used.
Thus, although we have not required IRFs to submit IRF-PAI data on MA patients until now, we proposed in the FY 2010 IRF PPS proposed rule (74 FR 21052, 21071 through 21073) to revise the regulation text in § 412.604, § 412.606, § 412.610, § 412.614, and § 412.618 to require that IRFs submit IRF-PAI data on all of their MA patients to facilitate better calculations under the 60 percent rule. Where an IRF fails to submit all MA IRF PAIs, we proposed that CMS would not count the MA patients in the compliance percentage for that IRF. In addition, to ensure that we receive all IRF-PAI data for all Medicare patients, whether Part A or Part C, we proposed to remove § 412.614(a)(3) of the regulations that formerly allowed IRFs not to submit IRF-PAI's for Medicare patients for whom they were not seeking payment from Medicare. However, we specifically solicited comments on whether requiring IRFs to submit IRF-PAI data on all of their MA patients would be the best way to ensure the integrity of the compliance review process.
Requiring IRFs to submit IRF-PAIs for all of their MA inpatients, in addition to all of their Medicare Part A fee-for-service inpatients, will allow Medicare contractors to begin using the presumptive methodology to determine IRFs' compliance percentages when the Part A fee-for-service and MA inpatient populations combined are more than 50 percent of their total inpatient populations. We proposed to preserve the long-standing 5-year record retention requirement for the IRF-PAIs completed on Medicare Part A fee-for-service patients, as currently required in § 412.610(f), but we proposed a 10-year record retention requirement for IRF-PAIs completed on Medicare Part C (Medicare Advantage) patients to maintain consistency with the record retention requirements for Medicare Part C data specified in § 422.504(d).
We received 21 comments on the proposed revisions to the regulation text to require IRFs to submit patient
• In § 412.604(c), we are adding the following sentence to the end of the paragraph: “IRFs must also complete a patient assessment instrument in accordance with § 412.606 for each Medicare Part C (Medicare Advantage) patient admitted to or discharged from an IRF on or after October 1, 2009.” Thus, the paragraph would read as follows: “For each Medicare Part A fee-for-service patient admitted to or
• In § 412.606(b), we are adding the phrase “and Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatients.” The paragraph reads as follows: “An inpatient rehabilitation facility must use the CMS inpatient rehabilitation facility patient assessment instrument to assess Medicare Part A fee-for-service and Medicare Part C (Medicare Advantage) inpatients who—”
• In § 412.606(c)(1), we are adding a sentence at the end of the existing paragraph that reads as follows: “IRFs must also complete a patient assessment instrument in accordance with § 412.606 for each Medicare Part C (Medicare Advantage) patient admitted to or discharged from an IRF on or after October 1, 2009.”
• In § 412.610(a), we are adding the phrase “and Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatient.” The paragraph reads as follows: “For each Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) inpatient, an inpatient rehabilitation facility must complete a patient assessment instrument as specified in § 412.606 that covers a time period that is in accordance with the assessment schedule specified in paragraph (c) of this section.”
• In § 412.610(b), we are adding the phrase “or Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatient.” The paragraph reads as follows: “The first day that the Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) inpatient is furnished Medicare-covered services during his or her current inpatient rehabilitation facility hospital stay is counted as day one of the patient assessment schedule.”
• In § 412.610(c), we are adding the phrase “or Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “patient's.” The paragraph reads as follows: “The inpatient rehabilitation facility must complete a patient assessment instrument upon the Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) patient's admission and discharge as specified in paragraphs (c)(1) and (c)(2) of this section.”
• In § 412.610(c)(1)(i)(A), we are adding the phrase “or Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “hospitalization.” The paragraph reads as follows: “Time period is a span of time that covers calendar days 1 through 3 of the patient's current Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) hospitalization; * * *”
• In § 412.610(c)(2)(ii)(B), we are adding the phrase “or Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatient,” so that the resulting paragraph reads as follows: “The patient stops being furnished Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) inpatient rehabilitation services.”
• In § 412.610(f), we are adding the phrase “and Medicare Part C (Medicare Advantage) patients within the previous 10 years” after “5 years” and before “either,” and also adding the phrase “and produce upon request to CMS or its contractors” after “obtain.” The paragraph reads as follows: “An inpatient rehabilitation facility must maintain all patient assessment data sets completed on Medicare Part A fee-for-service patients within the previous 5 years and Medicare Part C (Medicare Advantage) patients within the previous 10 years either in a paper format in the patient's clinical record or in an electronic computer file format that the inpatient rehabilitation facility can easily obtain and produce upon request to CMS or its contractors.” This maintains consistency with the 5-year record retention requirements for IRF-PAIs completed on Medicare Part A fee-for-service patients specified in § 412.610(f) and the 10-year record retention requirements for Medicare Part C (Medicare Advantage) records specified in § 422.504(d)(1)(ii).
• In § 412.614(a), we are adding the phrase “and Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatient,” the paragraph reads as follows: “The inpatient rehabilitation facility must encode and transmit data for each Medicare Part A fee-for-service and Medicare Part C (Medicare Advantage) inpatient—”
• We are removing § 412.614(a)(3).
• In § 412.614(b)(1), we are adding the phrase “and Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “inpatient,” the paragraph reads as follows: “Electronically transmit complete, accurate, and encoded data from the patient assessment instrument for each Medicare Part A fee-for-service and Medicare Part C (Medicare Advantage) inpatient to our patient data system in accordance with the data format specified in paragraph (a) of this section; and * * *”
• We are revising § 412.614(d) to read, “Consequences of failure to submit complete and timely IRF-PAI data, as required under paragraph (c) of this section.”
• We are revising § 412.614(d)(1) to read, “Medicare Part A fee-for-service data.”
• We are making a technical correction to the paragraph formerly designated as § 412.614(d)(1) and assigning the revised language to a new paragraph § 412.614(d)(1)(a), which reads as follows: “We assess a penalty when an inpatient rehabilitation facility does not transmit all of the required data from the patient assessment instrument for its Medicare Part A fee-for-service patients to our patient data system in accordance with the transmission timeline in paragraph (c) of this section.”
• We are redesignating paragraph § 412.614(d)(2) as § 412.614(d)(1)(b).
• We are adding a new paragraph § 412.614(d)(2), which reads as follows: “Medicare Part C (Medicare Advantage) data. Failure of the inpatient rehabilitation facility to transmit all of the required patient assessment instrument data for its Medicare Part C (Medicare Advantage) patients to our patient data system in accordance with the transmission timeline in paragraph (c) of this section will result in a forfeiture of the facility's ability to have any of its Medicare Part C (Medicare Advantage) data used in the calculations for determining the facility's compliance with the regulations at § 412.23(b)(2).”
• We are revising the second sentence in paragraph § 412.614(e). The sentence reads as follows “Only CMS can determine if a situation encountered by an inpatient rehabilitation facility is extraordinary and qualifies as a situation for waiver of the penalty specified in paragraph (d)(1)(ii) of this section or for waiver of the forfeiture specified in paragraph (d)(2) of this section.”
• In the introductory paragraph of § 412.618, we are adding the phrase “or Medicare Part C (Medicare Advantage)” after “fee-for-service” and before “patient.” The paragraph reads as follows: “For purposes of the patient assessment process, if a Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) patient has an interrupted stay, as defined under § 412.602, the following applies: * * *”
Thus, we believe that, in rescinding the prior standard (HCFAR 85-2) in a future notice to be issued in the
In this final rule, we are adopting the provisions as set forth in the FY 2010 IRF proposed rule (74 FR 21052), except as noted elsewhere in the preamble. Specifically:
• We will update the FY 2010 IRF PPS relative weights and average length of stay values using the most current and complete Medicare claims and cost report data in a budget neutral manner, as discussed in section IV of this final rule.
• We will update the FY 2010 IRF facility level adjustments (rural, LIP, and teaching status adjustments) using the most current and complete Medicare claims and cost report data in a budget neutral manner, as discussed in section V of this final rule.
• We will update the FY 2010 IRF PPS payment rates by the proposed market basket, as discussed in section VI.A of this final rule.
• We will update the FY 2010 IRF PPS payment rates by the wage index and labor-related share in a budget neutral manner, as discussed in sections VI.A and B of this final rule.
• We will update the outlier threshold amount for FY 2010, as discussed in section VII.A of this final rule.
• We will update the cost-to-charge ratio ceiling and the national average urban and rural cost-to-charge ratios for purposes of determining the outlier payments under the IRF PPS for FY 2010, as discussed in section VII.B of this final rule.
• We will remove the words “or assessment” from § 412.23(b)(3) and § 412.29(b) to indicate that we are no longer providing for a 3 to 10 day inpatient assessment period after admission to an IRF to assess the appropriateness of the IRF admission, as discussed in section VIII.A of this final rule.
• We will amend paragraphs § 412.23(b)(4) and § 412.29(c) to require that IRFs “furnish, through the use of qualified personnel, rehabilitation nursing, physical therapy, and occupational therapy, plus, as needed, speech-language pathology, social services, psychological services (including neuropsychological services), and orthotic and prosthetic services,” as discussed in section VIII.I of this final rule.
• We will replace the word “multidisciplinary” with the word “interdisciplinary” in § 412.23(b)(7) and § 412.29(e) to make the terminology consistent with the new IRF coverage criteria in § 412.622(a), as discussed in section VIII.E of this final rule.
• We will require, in both § 412.23(b)(7) and § 412.29(e), that the interdisciplinary team meetings occur at least once per week (rather than once every two weeks) to be consistent with the new IRF coverage criteria in § 412.622(a), as discussed in section VIII.E of this final rule.
• We will add new paragraphs (3), (4), and (5) to § 412.622(a) to implement new IRF coverage requirements, as discussed in section VIII of this final rule.
• With respect to § 412.604, § 412.606, § 412.610, § 412.614 and § 412.618, we will revise the regulation text as described in section IX.B of this final rule.
• With respect to § 412.614(a), we will remove subparagraph (3) as described in section IX.B of this final rule.
• With respect to § 412.614(d), we are making a technical correction to the paragraph formerly designated as paragraph (1) and assigning the revised language to a new paragraph (1)(a), redesignating paragraph (2) as (1)(b), and adding a new paragraph (2), as described in section IX.B of this final rule.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Therefore, we are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements:
Section 412.604(c) states that for each Medicare Part A fee-for-service patient admitted to or discharged from an IRF on or after January 1, 2002, the IRF must complete a patient assessment instrument in accordance with § 412.606. IRFs must also complete a patient assessment instrument in accordance with § 412.606 for each Medicare Part C (Medicare Advantage) patient admitted to or discharged from an IRF on or after October 1, 2009.
The burden associated with this requirement is the time and effort put forth by each IRF to complete an average of approximately 38 additional patient assessment instruments each year associated with its Medicare Part C patients. We obtained the estimated average number of Medicare Part C patients in each IRF from the American Medical Rehabilitation Providers Association (AMRPA), based on AMRPA's own analysis of the eRehabData® policy database. CMS currently estimates that it takes the IRF 0.75 of an hour to complete a single patient assessment instrument. Therefore, the annual hour burden for each IRF to complete approximately 38 additional patient assessment instruments is 28.5 hours (38 × 0.75). The total annual hour burden for all 1,205 IRFs is 34,342.5 hours (28.5 hours × 1,205 IRFs). The burden estimate for using the patient assessment instrument for Medicare Part A is currently approved under 0938-0842. CMS will revise this currently approved package as necessary to include any additional burden placed on the IRF for submitting the patient assessment instrument for Medicare Advantage patients.
Section 412.606 states that an IRF must use the CMS inpatient rehabilitation facility patient assessment instrument to assess Medicare Part A fee-for-service and Medicare Part C (Medicare Advantage) inpatients.
The burden for completing the patient assessment instrument for Medicare Part A is currently approved under 0938-0842. CMS will revise this currently approved package as necessary to include any additional burden placed on IRFs for submitting the patient assessment instrument for Medicare Advantage patients.
Section 412.610(f) states that an IRF must maintain all patient assessment data sets completed on Medicare Part A fee-for-service patients within the previous 5 years and Medicare Part C (Medicare Advantage) patients within the previous 10 years either in a paper format in the patient's clinical record or in an electronic computer file format that the inpatient rehabilitation facility can easily obtain and produce upon request to CMS or its contractors.
The burden for maintaining the patient assessment instrument for Medicare Part A is currently approved under OMB# 0938-0842. CMS will revise this currently approved package as necessary to include any additional burden placed on IRFs for maintaining the patient assessment instrument for Medicare Advantage patients.
Section 412.614(a) requires that the IRF must encode and transmit patient assessment data to CMS.
The burden associated with this requirement is the time staff must take to transmit the data. CMS currently estimates that it takes the IRF 0.10 of an hour to transmit a single patient assessment instrument. Therefore, the annual hour burden to transmit an average of approximately 38 additional patient assessment instruments per IRF is 3.8 hours (38 × 0.10). The total annual hour burden for all 1,205 IRFs is 4,579 hours (3.8 hours × 1,205 IRFs). The burden estimate for transmitting the patient assessment instrument for Medicare Part A is currently approved under 0938-0842. CMS will revise this currently approved package as necessary to include any additional burden placed on the IRF for transmitting the patient assessment instrument for Medicare Advantage patients.
Section 412.622(a)(4)(i) requires that a comprehensive screening meet all of the requirements in paragraphs (A) through (E). Section 412(a)(4)(i)(D) requires the physician to document his or her concurrence with the findings and results of the preadmission screening. Section 412(a)(4)(i)(E) requires that the preadmission screening be retained in the patient's medical record.
The burden associated with these requirements is the time and effort put forth by the rehabilitation physician to document his or her concurrence with the preadmission findings and the results of the preadmission screening and retain the information in the patient's medical record. The burden associated with these requirements is in keeping with the “Condition of Participation: Medical record services,” that are already applicable to Medicare participating hospitals. The burden associated with these requirements is currently approved under OMB# 0938-0328. As stated in the approved Hospital CoPs Supporting Statement, we believe that these requirements reflect customary and usual business and medical practice. Thus, in accordance with section 1320.3(b)(2) of the Act, the burden is not subject to the PRA.
Section 412.622(a)(4)(ii) is consistent with the existing Hospital CoP requirement at § 482.24(c)(2) which requires the facility to have and utilize a post-admission evaluation process. The post-admission evaluation process requires that a rehabilitation physician complete a post-admission evaluation for each patient within 24 hours of that patient's admission to the IRF, compare it to that noted in the preadmission screening documentation, and begin development of the overall individualized plan of care. Similarly, § 482.24(c)(2) requires that the post-admission physician evaluation be retained in the patient's medical record in keeping with the Hospital CoPs.
The burden associated with these requirements is the time and effort put forth by the rehabilitation physician to document the patient's status on admission to the IRF, compare it to that noted in the preadmission screening document, begin development of the care plan, and retain the information in the patient's medical record. The burden associated with these requirements is consistent with the “Condition of Participation: Medical record services,” that is already applicable to Medicare participating hospitals. The burden associated with this requirement is currently approved under OMB# 0938-0328. As stated in the approved Hospital CoPs Supporting Statement, we believe that these requirements reflect customary and usual business and medical practice. Thus, in accordance with section
The requirements in section 412.622 (a)(4)(iii) regarding an individualized plan of care are consistent with the existing Hospital CoPs at § 482.56(b) to develop an overall plan of care for each IRF admission. Similarly, the individualized plan of care required by 412.622(a)(4)(iii)(A) would be required to be retained in the patient's medical record, as currently required by the Hospital CoPs at § 482.24(c)(2).
The burden associated with these requirements is the time and effort put forth by the rehabilitation physician to develop the individualized overall plan of care and retain the individualized overall plan of care in the patient's medical record. The burden associated with these requirements is in keeping with the “Condition of Participation: Medical record services,” and “Condition of Participation: Rehabilitation services. Standard: Delivery of Services” that are already applicable to Medicare participating hospitals. The burden associated with these requirements is currently approved under OMB# 0938-0328. As stated in the approved Hospital CoPs Supporting Statement, we believe that these requirements reflect customary and usual business and medical practice. Thus, in accordance with section 1320.3(b)(2) of the Act, the burden is not subject to the PRA.
Section 412.622(a)(5) requires the interdisciplinary team to meet at least once per week throughout the duration of the patient's stay to implement appropriate treatment services; review the patient's progress toward stated rehabilitation goals; identify any problems that could impede progress towards those goals; and, where necessary, reassess previously established goals in light of impediments, revise the treatment plan in light of new goals, and monitor continued progress toward those goals. It also requires that the rehabilitation physician document his or her concurrence with the results and findings of the team meeting and that documentation of the weekly meetings be retained in the patient's medical record.
The burden associated with these requirements is the time spent documenting the weekly meetings and the concurrence of the rehabilitation physician with the results and findings of the team meeting and retaining the information in the patient's medical record. The burden associated with these proposed requirements is consistent with the “Condition of Participation: Medical record services,” that are already applicable to Medicare participating hospitals. The burden associated with these requirements is currently approved under OMB# 0938-0328. As stated in the approved “Hospital CoPs Supporting Statement,” we believe that the proposed requirements reflect customary and usual business and medical practice. Thus, in accordance with section 1320.3(b)(2) of the Act, the burden is not subject to the PRA.
You may submit comments on these information collection and recordkeeping requirements in one of the following ways (please choose only one of the ways listed):
1. Submit your comments electronically as specified in the
2. Submit your written comments to the Office of Information and Regulatory Affairs, Office of Management and Budget,
We have examined the impacts of this final rule as required by Executive Order 12866 (September 30, 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA, September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs 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). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). This final rule is a major rule, as defined in Title 5, United States Code, section 804(2), because we estimate the impact to the Medicare program, and the annual effects to the overall economy, will be more than $100 million. We estimate that the total impact of these changes for estimated FY 2010 payments compared to estimated FY 2009 payments will be an increase of approximately $145 million due to the update to the payment rates.
The Regulatory Flexibility Act (RFA) requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IRFs and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7 million to $34.5 million in any one year. (For details, see the Small Business Administration's final rule that set forth size standards for health care industries, at 65 FR 69432 at
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. As discussed in detail below, the rates and policies set
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2009, that threshold level is approximately $133 million. This final rule will not impose spending costs on State, local, or tribal governments, in the aggregate, or by the private sector, of $133 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a final rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. As stated above, this final rule will not have a substantial effect on State and local governments, preempt State law, or otherwise have a Federalism implication.
This final rule sets forth updates of the IRF PPS rates contained in the FY 2009 final rule and updates to the CMG relative weights and length of stay values, the facility-level adjustments, the wage index, and the outlier threshold for high-cost cases.
We estimate that the FY 2010 impact will be a net increase of $145 million in payments to IRF providers. The impact analysis in Table 7 of this final rule represents the projected effects of the final policy changes in the IRF PPS for FY 2010 compared with estimated IRF PPS payments in FY 2009 without the policy changes. We determine the effects by estimating payments while holding all other payment variables constant. We use the best data available, but we do not attempt to predict behavioral responses to these changes, and we do not make adjustments for future changes in such variables as number of discharges or case-mix.
We note that certain events may combine to limit the scope or accuracy of our impact analysis, because such an analysis is future-oriented and, thus, susceptible to forecasting errors because of other changes in the forecasted impact time period. Some examples could be legislative changes made by the Congress to the Medicare program that would impact program funding, or changes specifically related to IRFs. Although some of these changes may not necessarily be specific to the IRF PPS, the nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon IRFs.
In updating the rates for FY 2010, we are implementing a number of standard annual revisions and clarifications mentioned elsewhere in this final rule (for example, the update to the wage and market basket indexes used to adjust the Federal rates). We estimate that these revisions would increase payments to IRFs by approximately $145 million (all due to the update to the market basket index, since the update to the wage index is done in a budget neutral manner—as required by statute—and therefore neither increases nor decreases aggregate payments to IRFs).
The effects of the changes that impact IRF PPS payment rates are shown in Table 7. The following changes that affect the IRF PPS payment rates are discussed separately below:
• The effects of the update to the outlier threshold amount, consistent with section 1886(j)(4) of the Act.
• The effects of the annual market basket update (using the RPL market basket) to IRF PPS payment rates, as required by section 1886(j)(3)(A)(i) and section 1886(j)(3)(C) of the Act.
• The effects of applying the budget-neutral labor-related share and wage index adjustment, as required under section 1886(j)(6) of the Act.
• The effects of the budget-neutral changes to the CMG relative weights and length of stay values, under the authority of section 1886(j)(2)(C)(i) of the Act.
• The effects of the budget-neutral changes to the facility-level adjustment factors, as permitted under section 1886(j)(3)(A)(v) of the Act.
• The total change in estimated payments based on the FY 2010 policy changes relative to estimated FY 2009 payments without the policy changes.
The table below categorizes IRFs by geographic location, including urban or rural location, and location with respect to CMS's nine census divisions (as defined on the cost report) of the country. In addition, the table divides IRFs into those that are separate rehabilitation hospitals (otherwise called freestanding hospitals in this section), those that are rehabilitation units of a hospital (otherwise called hospital units in this section), rural or urban facilities, ownership (otherwise called for-profit, non-profit, and government), and by teaching status. The top row of the table shows the overall impact on the 1,181 IRFs included in the analysis.
The next 12 rows of Table 7 contain IRFs categorized according to their geographic location, designation as either a freestanding hospital or a unit of a hospital, and by type of ownership; all urban, which is further divided into urban units of a hospital, urban freestanding hospitals, and by type of ownership; and all rural, which is further divided into rural units of a hospital, rural freestanding hospitals, and by type of ownership. There are 976 IRFs located in urban areas included in our analysis. Among these, there are 776 IRF units of hospitals located in urban areas and 200 freestanding IRF hospitals located in urban areas. There are 205 IRFs located in rural areas included in our analysis. Among these, there are 184 IRF units of hospitals located in rural areas and 21 freestanding IRF hospitals located in rural areas. There are 390 for-profit IRFs. Among these, there are 321 IRFs in urban areas and 69 IRFs in rural areas. There are 724 non-profit IRFs. Among these, there are 603 urban IRFs and 121 rural IRFs. There are 67 government-owned IRFs. Among these, there are 52 urban IRFs and 15 rural IRFs.
The remaining three parts of Table 7 show IRFs grouped by their geographic location within a region and by teaching status. First, IRFs located in urban areas are categorized with respect to their location within a particular one of the nine CMS geographic regions. Second, IRFs located in rural areas are categorized with respect to their location within a particular one of the nine CMS geographic regions. In some cases, especially for rural IRFs located in the New England, Mountain, and Pacific regions, the number of IRFs represented is small. Finally, IRFs are grouped by teaching status, including non-teaching IRFs, IRFs with an intern and resident to average daily census (ADC) ratio less than 10 percent, IRFs with an intern and resident to ADC ratio greater than or equal to 10 percent and less than or equal to 19 percent, and IRFs with an intern and resident to ADC ratio greater than 19 percent.
The estimated impacts of each change to the facility categories listed above are shown in the columns of Table 7. The description of each column is as follows:
Column (1) shows the facility classification categories described above.
Column (2) shows the number of IRFs in each category in our FY 2008 analysis file.
Column (3) shows the number of cases in each category in our FY 2008 analysis file.
Column (4) shows the estimated effect of the adjustment to the outlier threshold amount.
Column (5) shows the estimated effect of the market basket update to the IRF PPS payment rates.
Column (6) shows the estimated effect of the update to the IRF labor-related share and wage index, in a budget neutral manner.
Column (7) shows the estimated effect of the update to the CMG relative weights and average length of stay values, in a budget neutral manner.
Column (8) shows the estimated effect of the update to the facility-level adjustment factors (rural, LIP, and teaching status), in a budget neutral manner.
Column (9) compares our estimates of the payments per discharge, incorporating all of the changes reflected in this final rule for FY 2010, to our estimates of payments per discharge in FY 2009(without these changes).
The average estimated increase for all IRFs is approximately 2.5 percent, which is entirely due to the market basket update. Since the update to the outlier threshold amount does not impact aggregate payments this year, and since we are making the remainder of the changes outlined in this final rule in a budget-neutral manner, the other changes being made in this final rule will not affect total estimated IRF payments in the aggregate. However, as described in more detail in each section, they will affect the estimated distribution of payments among providers.
The outlier threshold adjustment is presented in column 4 of Table 7. We estimate that IRF outlier payments as a percentage of total estimated IRF payments are 3 percent in FY 2009. Therefore, since we estimate that we have achieved the target percentage in FY 2009, we are adjusting the outlier threshold amount in this final rule solely to account for the 2.5 percent market basket adjustment for FY 2010 (as discussed in section VI.A of this final rule) and the FY 2010 updates to the facility-level adjustments (as discussed in section V of this final rule) so that we will continue to maintain estimated outlier payments at 3 percent of total estimated aggregate IRF payments for FY 2010.
Since we estimate that we achieved the 3 percent target in FY 2009, and that estimated outlier payments will continue to equal 3 percent of total estimated payments in FY 2010, there is no overall impact on FY 2010 aggregate payments from this update. However, we estimate slight impacts on individual groups of IRFs, which are so small that they round to 0.0 percent. However, Medicare pays an unusually high percentage of outlier payments (8.3 percent) to rural IRFs in the Pacific region. Thus, the estimated impact of the update to the outlier threshold amount for FY 2010 just rounds to 0.1 percent for these 5 IRFs.
The market basket update to the IRF PPS payment rates is presented in column 5 of Table 7. In the aggregate the update would result in a 2.5 percent increase in overall estimated payments to IRFs.
In column 6 of Table 7, we present the effects of the budget neutral update of the wage index and labor-related share. The changes to the wage index and the labor-related share are discussed together because the wage index is applied to the labor-related share portion of payments, so the changes in the two have a combined effect on payments to providers. As discussed in section VI.A of this final rule, the labor-related share increased from 75.464 percent in FY 2009 to 75.779 percent in FY 2010.
In the aggregate and for all urban IRFs, we do not estimate that these changes will affect overall estimated payments to IRFs. However, we estimate that these changes will have small distributional effects. We estimate a 0.1 percent increase in payments to rural IRFs, with the largest increase in payments of 1.4 percent for urban IRFs in the Pacific region. We estimate the largest decrease in payments from the update to the CBSA wage index and labor-related share to be a 0.8 percent decrease for IRFs with an intern and resident to ADC ratio greater than or equal to 10 percent and less than or equal to 19 percent.
In column 7 of Table 7, we present the effects of the budget neutral update of the CMG relative weights and average length of stay values. In the aggregate we do not estimate that these changes will affect overall estimated payments to IRFs. However, these changes have small distributional effects, with the largest effect being a decrease in payments of 0.3 percent to IRFs in the Rural Pacific region.
In column 8 of Table 7, we present the effects of the budget neutral update to the rural, LIP, and teaching status adjustment factors. In the aggregate, we do not estimate that these changes will affect overall estimated payments to IRFs. However, we estimate that these changes will have small distributional effects. We estimate the largest increase in payments to be a 0.7 percent increase for urban IRFs in the East South Central region. We estimate the largest decrease in payments to be a 6.3 percent decrease for teaching IRFs with a resident to ADC ratio greater than 19 percent. The estimated decrease in payments for teaching IRFs, of between 0.9 percent and 6.3 percent depending on the IRF's intern and resident to average daily census ratio, is caused by the decrease in the teaching status adjustment factor from 0.9012 to 0.6876, as discussed in section V of this final rule. We also estimate decreases in payments to rural IRFs due to the decrease in the rural adjustment from 21.3 percent in FY 2009 to 18.4 percent in FY 2010, and slight distributional effects among facilities due to the decrease in the LIP adjustment factor from 0.6229 in FY 2009 to 0.4613 in FY 2010. Both the rural and the LIP adjustment factors are discussed in section V.A of this final rule.
Because we have determined that this final rule would have a significant economic impact on IRFs and on a substantial number of small entities, we will discuss the alternative changes to the IRF PPS that we considered.
Section 1886(j)(3)(C) of the Act requires the Secretary to update the IRF PPS payment rates by an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services included in the covered IRF services. As noted in section V of this final rule, in the absence of statutory direction on the FY 2010 market basket increase factor, it is our understanding that the Congress requires a full market basket increase factor based upon current data. Thus, we did not consider alternatives to updating payments using the estimated RPL market basket increase factor (currently 2.5 percent) for FY 2010.
We considered maintaining the existing CMG relative weights and average length of stay values for FY 2010. However, several commenters on the FY 2009 IRF PPS proposed rule (73 FR 46373) suggested that the data that we used for FY 2009 to update the CMG relative weights and average length of stay values did not fully reflect recent changes in IRF utilization that have occurred because of changes in the IRF compliance percentage and the consequences of recent IRF medical necessity reviews. In light of recently available data and our desire to ensure that the CMG relative weights and average length of stay values are as reflective as possible of these recent changes and that IRF PPS payments continue to reflect as accurately as possible the current costs of care in IRFs, we believe that it is appropriate to update the CMG relative weights and average length of stay values at this time.
We also considered maintaining the existing rural, LIP, and teaching status adjustment factors for FY 2010. However, the current rural, LIP, and teaching status adjustment factors are based on RAND's analysis of FY 2003 data, which are not reflective of recent changes in IRF utilization that have occurred because of changes in the IRF compliance percentage and the consequences of recent IRF medical necessity reviews. Thus, we believe that it is important to update these adjustment factors at this time to ensure that payments to IRFs reflect as accurately as possible the current costs of care in IRFs.
In estimating the updates to the rural, LIP, and teaching status adjustment
We considered maintaining the existing outlier threshold amount for FY 2010. However, we needed to update the outlier threshold amount to account for the 2.5 percent market basket increase to IRF PPS payments and the effects of the changes to the facility-level adjustment factors to maintain estimated outlier payments at 3 percent of estimated total payments for FY 2010. Thus, we believe that this update is appropriate for FY 2010.
In addition, we considered maintaining the existing coverage requirements for IRFs, without clarification. However, these coverage requirements have not been updated in over 20 years and no longer reflect current medical practice or changes that have occurred in IRF utilization and payments as a result of the implementation of the IRF PPS in 2002. We believe that the clarifications would benefit IRFs and Medicare's contractors (including fiscal intermediaries, Medicare Administrative Contractors, and Recovery Audit Contractors) by promoting a more consistent understanding of CMS's IRF coverage policies among stakeholders, thereby leading to fewer disputed IRF claims denials.
Finally, we considered maintaining our current policy of requiring that an IRF's Medicare Part A inpatient population consist of at least 50 percent or more of the facility's total inpatient population before the presumptive methodology can be used to calculate the IRF's compliance percentage under the 60 percent rule. However, increasing numbers of Medicare beneficiaries in many areas of the country have been enrolling in Medicare Advantage (MA) plans rather than remaining in the traditional Medicare Part A fee-for-service program. This, in turn, has led to decreases in the number of Medicare Part A fee-for-service inpatients in certain IRFs across the country and has resulted in a reduction in the number of IRFs that can benefit from the presumptive methodology. We did not anticipate this result when the policy was implemented. In light of these recent trends, we believe that it is appropriate at this time to include the Medicare Advantage patients in the calculations for the purposes of using the presumptive methodology to determine IRFs' compliance with the 60 percent rule requirements.
As required by OMB Circular A-4 (available at
Overall, the estimated payments per discharge for IRFs in FY 2010 are projected to increase by 2.5 percent, compared with those in FY 2009, as reflected in column 9 of Table 7. IRF payments are estimated to increase 2.7 percent in urban areas and 1.1 percent in rural areas, per discharge compared with FY 2009. Payments to rehabilitation units in urban areas are estimated to increase 2.5 percent per discharge. Payments to rehabilitation freestanding hospitals in urban areas are estimated to increase 2.9 percent per discharge. Payments to rehabilitation units in rural areas are estimated to increase 1.2 percent per discharge, while payments to freestanding rehabilitation hospitals in rural areas are estimated to increase 1.0 percent per discharge.
Overall, the largest payment increase is estimated at 3.6 percent for urban IRFs in the Mountain region. Teaching IRFs with a resident to ADC ratio greater than 19 percent are estimated to have the largest decrease of 3.8 percent in payments.
We received 1 comment on the regulatory impact analysis, which is summarized below.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
Sections 1102, 1862, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395y, and 1395hh).
The revisions read as follows:
(b) * * *
(3) Have in effect a preadmission screening procedure under which each prospective patient's condition and medical history are reviewed to determine whether the patient is likely to benefit significantly from an intensive inpatient hospital program.
(4) Ensure that the patients receive close medical supervision and furnish, through the use of qualified personnel, rehabilitation nursing, physical therapy, and occupational therapy, plus, as needed, speech-language pathology, social services, psychological services (including neuropsychological services), and orthotic and prosthetic services.
(7) Use a coordinated interdisciplinary team approach in the rehabilitation of each inpatient, as documented by the periodic clinical entries made in the patient's medical record to note the patient's status in relationship to goal attainment, and that team conferences are held at least once per week to determine the appropriateness of treatment.
The revisions read as follows:
(b) Have in effect a preadmission screening procedure under which each prospective patient's condition and medical history are reviewed to determine whether the patient is likely to benefit significantly from an intensive inpatient hospital program.
(c) Ensure that the patients receive close medical supervision and furnish, through the use of qualified personnel, rehabilitation nursing, physical therapy, and occupational therapy, plus, as needed, speech-language pathology, social services, psychological services (including neuropsychological services), and orthotic and prosthetic services.
(e) Use a coordinated interdisciplinary team approach in the rehabilitation of each inpatient, as documented by the periodic clinical entries made in the patient's medical record to note the patient's status in relationship to goal attainment, and that team conferences are held at least once per week to determine the appropriateness of treatment.
(c)
The revisions read as follows:
(b)
(c) * * *
(1) A clinician of the inpatient rehabilitation facility must perform a comprehensive, accurate, standardized, and reproducible assessment of each Medicare Part A fee-for-service inpatient using the inpatient rehabilitation facility patient assessment instrument specified in paragraph (b) of this section as part of his or her patient assessment in accordance with the schedule described in § 412.610. IRFs must also complete a patient assessment instrument in accordance with § 412.606 for each Medicare Part C (Medicare Advantage) patient admitted to or discharged from an IRF on or after October 1, 2009.
The revisions read as follows:
(a)
(b)
(c)
(1) * * *
(i) * * *
(A) Time period is a span of time that covers calendar days 1 through 3 of the patient's current Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) hospitalization;
(2) * * *
(ii) * * *
(B) The patient stops being furnished Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) inpatient rehabilitation services.
(f)
The revisions read as follows:
(a)
(b) * * *
(1) Electronically transmit complete, accurate, and encoded data from the patient assessment instrument for each Medicare Part A fee-for-service and Medicare Part C (Medicare Advantage) inpatient to our patient data system in accordance with the data format specified in paragraph (a) of this section; and
(d)
(1)
(i) We assess a penalty when an inpatient rehabilitation facility does not transmit all of the required data from the patient assessment instrument for its Medicare Part A fee-for-service patients to our patient data system in accordance with the transmission timeline in paragraph (c) of this section.
(ii) If the actual patient assessment data transmission date for a Medicare Part A fee-for-service patient is later than 10 calendar days from the transmission date specified in paragraph (c) of this section, the patient assessment data is considered late and the inpatient rehabilitation facility receives a payment rate than is 25 percent less than the payment rate associated with a case-mix group.
(2)
(e)
For purposes of the patient assessment process, if a Medicare Part A fee-for-service or Medicare Part C (Medicare Advantage) patient has an interrupted stay, as defined under § 412.602, the following applies:
(a) * * *
(3)
(i) Requires the active and ongoing therapeutic intervention of multiple therapy disciplines (physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics therapy), one of which must be physical or occupational therapy.
(ii) Generally requires and can reasonably be expected to actively participate in, and benefit from, an intensive rehabilitation therapy program. Under current industry standards, this intensive rehabilitation therapy program generally consists of at least 3 hours of therapy (physical therapy, occupational therapy, speech-language pathology, or prosthetics/orthotics therapy) per day at least 5 days per week. In certain well-documented cases, this intensive rehabilitation therapy program might instead consist of at least 15 hours of intensive rehabilitation therapy within a 7 consecutive day period, beginning with the date of admission to the IRF. Benefit from this intensive rehabilitation therapy program is demonstrated by measurable improvement that will be of practical value to the patient in improving the patient's functional capacity or adaptation to impairments. The required therapy treatments must begin within 36 hours from midnight of the day of admission to the IRF.
(iii) Is sufficiently stable at the time of admission to the IRF to be able to actively participate in the intensive rehabilitation therapy program that is described in paragraph (a)(3)(ii) of this section.
(iv) Requires physician supervision by a rehabilitation physician, defined as a licensed physician with specialized training and experience in inpatient rehabilitation. The requirement for medical supervision means that the rehabilitation physician must conduct face-to-face visits with the patient at least 3 days per week throughout the patient's stay in the IRF to assess the patient both medically and functionally, as well as to modify the course of treatment as needed to maximize the patient's capacity to benefit from the rehabilitation process.
(4)
(i) A comprehensive preadmission screening that meets all of the following requirements—
(A) It is conducted by a licensed or certified clinician(s) designated by a rehabilitation physician described in paragraph (a)(3)(iv) of this section within the 48 hours immediately preceding the IRF admission. A preadmission screening that includes all of the required elements, but that is conducted more than 48 hours immediately preceding the IRF admission, will be accepted as long as an update is conducted in person or by telephone to update the patient's medical and functional status within the
(B) It includes a detailed and comprehensive review of each patient's condition and medical history.
(C) It serves as the basis for the initial determination of whether or not the patient meets the requirements for an IRF admission to be considered reasonable and necessary in paragraph (a)(3) of this section.
(D) It is used to inform a rehabilitation physician who reviews and documents his or her concurrence with the findings and results of the preadmission screening.
(E) It is retained in the patient's medical record at the IRF.
(ii) A post-admission physician evaluation that meets all of the following requirements—
(A) It is completed by a rehabilitation physician within 24 hours of the patient's admission to the IRF.
(B) It documents the patient's status on admission to the IRF, includes a comparison with the information noted in the preadmission screening documentation, and serves as the basis for the development of the overall individualized plan of care.
(C) It is retained in the patient's medical record at the IRF.
(iii) An individualized overall plan of care for the patient that meets all of the following requirements—
(A) It is developed by a rehabilitation physician, as defined in paragraph (a)(3)(iv) of this section, with input from the interdisciplinary team within 4 days of the patient's admission to the IRF.
(B) It is retained in the patient's medical record at the IRF.
(5)
(A) The team meetings are led by a rehabilitation physician as defined in paragraph (a)(3)(iv) of this section, and further consist of a registered nurse with specialized training or experience in rehabilitation; a social worker or case manager (or both); and a licensed or certified therapist from each therapy discipline involved in treating the patient. All team members must have current knowledge of the patient's medical and functional status.
(B) The team meetings occur at least once per week throughout the duration of the patient's stay to implement appropriate treatment services; review the patient's progress toward stated rehabilitation goals; identify any problems that could impede progress towards those goals; and, where necessary, reassess previously established goals in light of impediments, revise the treatment plan in light of new goals, and monitor continued progress toward those goals.
(C) The results and findings of the team meetings, and the concurrence by the rehabilitation physician with those results and findings, are retained in the patient's medical record.
(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program).
The following addendum will not appear in the Code of Federal Regulations.
In this addendum, we provide the wage index tables referred to throughout the preamble to this proposed rule. The tables presented below are as follows:
Table 1.—Inpatient Rehabilitation Facility Wage Index for Urban Areas for Discharges Occurring from October 1, 2009 through September 30, 2010
Table 2.—Inpatient Rehabilitation Facility Wage Index for Rural Areas for Discharges Occurring from October 1, 2009 through September 30, 2010
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission is proposing for comment a new rule under the Investment Advisers Act of 1940 that would prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees make a contribution to certain elected officials or candidates. The new rule would also prohibit an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party for a solicitation of advisory business from any government entity on behalf of such adviser. Additionally, the new rule would prevent an adviser from soliciting from others, or coordinating, contributions to certain elected officials or candidates or payments to political parties where the adviser is providing or seeking government business. The Commission also is proposing rule amendments that would require a registered adviser to maintain certain records of the political contributions made by the adviser or certain of its executives or employees. The new rule and rule amendments would address “pay to play” practices by investment advisers.
Comments should be received on or before October 6, 2009.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Melissa A. Roverts, Attorney-Adviser, Matthew N. Goldin, Senior Counsel, Daniel S. Kahl, Branch Chief, or Sarah A. Bessin, Assistant Director, at (202) 551-6787 or
The Commission is requesting public comment on proposed rule 206(4)-5 [17 CFR 275.206(4)-5] and proposed amendments to rules 204-2 [17 CFR 275.204-2] and 206(4)-3 [17 CFR 275.206(4)-3] under the Investment Advisers Act of 1940 [15 U.S.C. 80b] (“Advisers Act” or “Act”).
Investment advisers provide a wide variety of advisory services to State and local governments.
Most of the public funds managed by investment advisers fund State and municipal pension plans.
Public pension plan assets are held, administered and managed by elected officials who often are responsible for selecting investment advisers to manage the funds they oversee. Pay to play practices undermine the fairness of the selection process when advisers seeking to do business with the governments of States and municipalities make political contributions to elected officials or candidates, hoping to influence the selection process. In other cases, political contributions may be solicited from advisers, or it is simply understood that only contributors will be considered for selection. Contributions, in this circumstance, may not always guarantee an award of business to the contributor, but the failure to contribute will guarantee that another is selected. Hence the term “pay to play.”
Elected officials who allow political contributions to play a role in the management of these assets violate the public trust by rewarding those who make political contributions. Similarly, investment advisers that seek to influence the award of advisory contracts by public entities, by making or soliciting political contributions to those officials who are in a position to influence the awards, compromise their fiduciary obligations. Pay to play practices can distort the process by which investment advisers are selected and can harm advisers' public pension plan clients, and the pension plan beneficiaries, which may receive inferior advisory services and pay higher fees because, for instance, advisers must recoup contributions, or because contract negotiations are not handled on an arm's-length basis. Pay to play practices also may manipulate the market for advisory services by creating an uneven playing field among investment advisers. These practices also may hurt smaller advisers that cannot afford the required contributions. We believe that advisers' participation in pay to play practices is inconsistent with the high standards of ethical conduct required of them under the Advisers Act.
Pay to play practices are rarely explicit: participants do not typically let it be publicly known that contributions or payments are made or accepted for the purpose of influencing the selection of an adviser. As one court noted, in its decision upholding one of the rules on which the proposed rule is modeled, “[w]hile the risk of corruption is obvious and substantial, actors in this field are presumably shrewd enough to structure their relations rather indirectly.”
The rule we are proposing today is modeled on rules G-37 and G-38 of the Municipal Securities Rulemaking Board (“MSRB”),
Following the adoption of MSRB rule G-37, we were increasingly concerned that the very success of the rule may have caused pay to play practices to migrate to an area not covered by the MSRB rules—the management of public pension plans.
In response to these concerns, in 1999 we proposed a rule under the Advisers Act, modeled substantially on MSRB rule G-37, that was designed to prevent advisers from participating in pay to play practices affecting the management of public pension plans.
Since then, it has become increasingly clear that pay to play is a significant problem in the management of public funds by investment advisers. In recent years, we and criminal authorities have brought a number of actions charging investment advisers with participating in pay to play schemes. We recently brought a civil action in Federal court charging former New York State officials, as well as a “placement agent,” with engaging in a fraudulent scheme to extract kickbacks from investment advisers seeking to manage assets of the New York State Common Retirement Fund.
Recognizing the harm pay to play practices cause in the management of public funds, several States, counties, localities, and even individual public pension funds, have undertaken to prohibit or regulate these practices in recent years.
These developments indicate that investment advisers may be playing an increasing role in pay to play activities. We therefore believe it is time for us to act with respect to investment advisers who may engage in such activities.
Section 206(1) of the Advisers Act prohibits an investment adviser from “employ[ing] any device, scheme, or artifice to defraud any client or prospective client.”
Investment advisers that seek to influence the award of advisory contracts by public pension plans, by making political contributions to or soliciting them for those officials who are in a position to influence the awards, compromise their fiduciary obligations to the public pension plans.
We believe that play to play is inconsistent with the high standards of ethical conduct required of fiduciaries under the Advisers Act. We have authority under section 206(4) of the Act to adopt rules “reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive or manipulative.”
The rule we are proposing today is designed to protect public pension plans from the consequences of pay to play practices by preventing advisers' participation in such practices. As a result, advisers and government officials may attempt to structure their transactions in a manner intended to hide the true purpose of a contribution or a payment. For that reason, our proposed pay to play restrictions would capture not only direct political contributions by advisers, but also other ways that advisers may engage in pay to play arrangements. Rule 206(4)-5 would accomplish this through three measures. First, the rule would make it unlawful for an adviser to receive compensation for providing advisory services to a government entity for a two-year period after the adviser or any of its covered associates makes a political contribution to a public official of a government entity that is in a position to influence the award of advisory business.
Second, the rule would prohibit advisers from paying third parties to solicit government entities for advisory business.
We recognize that we cannot anticipate all of the ways advisers and government officials may structure pay to play arrangements to attempt to evade the prohibitions of our proposed rule. For that reason, we are also proposing to include a provision that would make it unlawful for an adviser or any of its covered associates to do anything indirectly which, if done directly, would result in a violation of the proposed rule. Finally, for purposes of the proposed rule, an investment adviser to certain pooled investment vehicles in which a government entity invests or is solicited to invest would be treated as though the adviser were providing or seeking to provide investment advisory services directly to the government entity.
Although today's proposal is similar to the one we made in 1999, we are proposing a few critical changes in response to intervening developments that we highlight in the discussion below. We have made these changes to conform our proposal to measures undertaken in recent years to curtail pay to play activities by the MSRB and various State and local authorities and to deter circumvention of the restrictions through the use of third-party placement agents or through an adviser obtaining government clients indirectly by soliciting investment in funds it manages.
Proposed rule 206(4)-5 would apply to any investment adviser registered (or required to be registered) with the Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of the Advisers Act [15 U.S.C. 80b-3(b)(3)].
We note that proposed rule 206(4)-5 would regulate the activities of investment advisers—business organizations over which we have clear regulatory authority under the Advisers Act. The rule would have no effect on State laws, codes of ethics or other rules governing the activities of State and municipal officials or employees of
As discussed above, we modeled proposed rule 206(4)-5 on MSRB rules G-37 and G-38, which we believe have successfully addressed pay to play in the municipal bond market. This approach should minimize the compliance burdens on firms that would be subject to both rule regimes because firms that are already subject to MSRB rules would already have developed policies and systems for compliance that could be adapted to meet investment adviser requirements. Certain provisions of our proposed rule, however, are somewhat different in ways that reflect the different statutory framework under which the rule would be adopted and the differences between municipal underwriting and asset management. Comment is requested on whether we should use rules G-37 and G-38 as the models for proposed rule 206(4)-5.
We understand many advisers have established restrictions on pay to play practices in their codes of ethics and compliance policies. Instead of, or in addition to, adopting a new rule to address pay to play practices, should we amend our code of ethics rule
In 1999, we considered proposing a different approach to address pay to play, which would have required an adviser to disclose information about its political contributions to officials of government entities to which it provided or was seeking to provide investment advisory services. We decided not to propose such an approach at that time because we thought that disclosure would not be effective to protect public pension plan clients.
Proposed rule 206(4)-5(a)(1) would prohibit investment advisers from providing advice for compensation to a “government entity”
Investment advisers making contributions covered by the proposed rule would not be prohibited from providing advisory services to a government client, even after triggering the two-year time out. Instead, an adviser would be prohibited from
We note that the two-year time out in MSRB rule G-37 operates to prohibit a broker, dealer or municipal securities dealer from engaging in
The prohibitions in the rule would be triggered by a contribution to an “official” of a “government entity.” Government entities under the proposed rule include all State and local governments, their agencies and instrumentalities, and all public pension plans and other collective government funds.
We request comment on our proposed definition of “official.” For instance, a candidate for Federal office may be an “official” under the rule, just as such a person may be under MSRB rule G-37, not because of the office he or she is running for, but as a result of an office he or she currently holds.
The proposed rule covers “contributions” made by an investment adviser and its covered associates. The proposed rule uses the same definition of contribution as MSRB rule G-37.
Contributions made to influence the selection process are typically made not by the firm itself, but by officers and employees of the firm who have a direct economic stake in the business relationship with the government client. For this reason, MSRB rule G-37 limits its prohibitions to contributions made by “municipal finance professionals” employed by a broker-dealer. No group analogous to municipal finance professionals, however, exists within the typical investment advisory firm. In many of the pay to play enforcement actions we have brought involving investment advisers, we have alleged that political contributions or other payments were made to influence the selection of the advisory firm by executives of the adviser or persons who solicit government clients on behalf of the adviser.
Under the proposed rule, the term “executive officer”
Contributions by non-executive employees (other than those who solicit government entity clients) would not trigger the rule's prohibitions, unless the adviser or any of its covered associates used the person to indirectly make a contribution.
As noted above, the Commission has drafted the proposed rule so that its prohibitions are triggered by political contributions by persons who, in the context of an advisory firm, are likely to have an economic incentive to make contributions to influence the advisory firm's selection and the categories of executives and employees of an adviser that we have seen, most typically, to make political contributions and payments in pay to play situations. We are mindful of the burdens the proposed rule would place on advisory firms and on the ability of persons associated with an adviser to participate in civic affairs. We thus have narrowly tailored the rule to achieve our goal of preventing adviser participation in pay to play practices.
We request comment on the scope of the proposed rule and, in particular, those persons associated with the advisers whose political contributions would trigger the application of the two-year “time out” and would be prohibited from soliciting political contributions from others. Have we included persons most likely to have an economic incentive to make political contributions for the purpose of influencing the selection of the adviser?
Have we covered too many persons? If so, how should we narrow the rule? For example, are there certain executive officers of the adviser we should not include? The proposed rule would cover all executive officers who, as part of their regular duties, perform investment advisory services or supervise someone who performs them. Should we instead limit the scope to a subset of such officers? If so, how should we define that subset?
Have we too narrowly drawn the rule to achieve our goals? Should we, for example, include employees of companies that are related persons of an adviser who solicit government entity clients for the investment adviser? As discussed further below, we propose permitting payments to these persons under the proposed ban on payments to third parties because we recognize that an adviser may rely on them to assist it in seeking government clients.
Under the proposed rule, the two-year time out would continue in effect after the covered associate who made the triggering contribution left the advisory firm. Moreover, a contribution made by a covered associate of an adviser would be attributed to any other adviser that employs or engages the person who made the contribution within two years after the date the contribution was made.
Proposed rule 206(4)-5 contains a
We are proposing a second exception from the two-year compensation ban intended to address situations in which the adviser triggers the ban inadvertently.
To ensure that the exception for certain returned contributions does not encourage an investment adviser to relax its efforts to promote compliance with the rule's prohibitions, no adviser would be entitled to rely on the exception more than twice per 12-month period.
We request comment on the proposed criteria for, and limitations on, the exception for certain returned contributions. Are the various time periods we proposed (discovery of contribution within four months of it being made, return of contribution within 60 days of discovery, and limitation of reliance on the exception twice per adviser per 12-month period) reasonable? Would they be effective? Are there other circumstances under which an adviser should be able to avail itself of an exception? Alternatively, should we require that an adviser institute special supervisory procedures (after it relies on the exception for certain returned contributions) for the covered associate making the contribution, including requiring pre-clearance of all contributions, for a specified period of time?
After the adoption of rule G-37 in 1994, the MSRB observed that municipal securities dealers sought to circumvent rule G-37 by hiring third-party consultants to solicit government clients on their behalf.
We are concerned that our adoption of a rule addressing pay to play practices by advisers would lead to a similar use of consultants or solicitors by investment advisers to circumvent the rule. Indeed, we have alleged that third-party solicitors have played a central role in each of the enforcement actions against investment advisers that we have brought in the past several years involving pay to play schemes.
In our 1999 proposal, contributions to a government official by an adviser's third-party solicitor, engaged by the adviser to obtain clients, would have triggered a two-year “time out” for the adviser.
In light of these considerations, including the apparent difficulties for advisers to monitor the activities of their third-party solicitors, we are proposing to prohibit investment advisers from using third-party solicitors to obtain government clients.
Although the terms are sometimes used interchangeably, “finders” typically locate buyers and/or sellers for a security on behalf of a broker-dealer, “solicitors” typically locate investment advisory clients on behalf of an investment adviser, and “placement agents” typically specialize in finding investors (often institutional investors or high net worth investors) that are willing and able to invest in a private offering of securities on behalf of the issuer of such privately offered securities.
The proposed rule would only apply to “third-party” solicitors who solicit government entities for investment advisory services.
We would broadly define “solicit” to mean: (i) With respect to investment advisory services, to communicate, directly or indirectly, for the purpose of obtaining or retaining a client for, or referring a client to, an investment adviser; and (ii) with respect to a contribution or payment, to communicate, directly or indirectly, for the purpose of obtaining or arranging a contribution or payment. We are proposing this definition to capture the types of communications in which an investment adviser might engage that we believe should trigger application of the rule's prohibitions—communications for the purpose of obtaining or retaining a client or a contribution.
We request comment on our proposal to prohibit the use of third-party solicitors of government business. Is our proposed prohibition on the use of third-party solicitors an appropriate means to deter pay to play practices? We propose to prohibit only third-party solicitors as likely posing a significant threat to investor protection; certain related-party solicitors would, instead, be subject to the time out limitations of proposed rule 206(4)-5(a)(1). Is this differentiation appropriate? If not, should we instead subject advisers to the two-year time out for contributions made by their third party solicitors although, as noted above, commenters in 1999 indicated that such a requirement may impose significant compliance challenges?
Another way an adviser can attempt to influence the selection process is by coordinating contributions for an elected official or payments to a political party, or by soliciting others to make contributions to an elected official or payments to a political party.
Proposed rule 206(4)-5(a)(2)(ii) would also prohibit advisers from seeking to influence the selection process by, for example, “bundling”
We request comment on this aspect of the proposed rule, including our proposed definitions. Is it appropriate to differentiate between “contributions” to officials and “payments” to political parties? Are there alternative approaches that would effectively deter these types of indirect pay to play arrangements? Do commenters believe that our proposed inclusion of payments to State and local political parties closes an important gap in which contributions might be made indirectly to officials for the purposes of influencing their choice of investment advisers? Alternatively, do commenters believe that our proposed inclusion of political parties is unnecessary?
Rule 206(4)-5(d) would also prohibit acts done indirectly, which, if done directly, would result in a violation of the rule.
Pay to play activities in the context of investment pools
• When an investment adviser to a pooled investment vehicle makes a contribution to a government official and the government official directs that public monies (
• When an investment adviser to a pooled investment vehicle makes a contribution to a government official and that government official chooses that investment adviser to be an adviser to a government sponsored plan, such as a “529 plan;”
• When an investment adviser to a pooled investment vehicle makes a contribution to a government official and that government official chooses that adviser's pooled investment vehicle as an investment option in a government sponsored plan, such as a “529 plan,”
Pay to play activities can harm public pension plans and their beneficiaries. Such activities can cause competition in the market for investments to be manipulated, which can distort the process by which investment decisions regarding public investments are made, and can result in public pension plans making inferior investments. In addition, the pension plan may pay higher fees because advisers must recoup the contributions, or because the contract negotiations are not handled on an arm's-length basis.
An adviser's participation in pay to play activities may also defraud other investors in a pooled investment vehicle. For example, in a pay to play kickback scheme, the government investor in the pooled vehicle would receive a kickback payment from the adviser while other investors in the pool may pay higher advisory fees as a result of the adviser trying to recoup the cost of the kickback. As another example, a government investor that has engaged in a pay to play scheme with an investment adviser may leverage the fact of the adviser's payment to obtain additional benefits for itself that may operate as a fraud on other investors in the pooled vehicle.
Therefore, the proposed prophylactic rule seeks to address pay to play practices by advisers managing pooled investment vehicles.
The proposed rule's prohibitions would be applicable only with respect to an adviser that manages a
Our 1999 proposal would have applied the rule only to advisers managing private funds, such as hedge funds and private equity funds,
Government-sponsored savings plans have grown enormously in recent years.
Under the rule, each of the pay to play prohibitions (with one exception discussed below) would be equally applicable to an investment adviser that manages assets of a government entity through the entity's investment in a covered investment pool managed by that adviser. For example, if an investment adviser subject to our rule makes a campaign contribution to an official of a government entity in a position to influence the decision to invest government assets in a private equity fund managed by that adviser, the investment adviser would be prohibited from receiving compensation with respect to the government entity's investment in the private equity fund.
In the case of an adviser to a publicly-offered registered investment company, however, we propose to apply the two-year “time out” provision only when the investment company is included in a plan or program of a government entity (
We believe it is appropriate, however, to apply the other two substantive prohibitions of the proposed rule
For example, an investment adviser subject to our proposed rule that manages a registered investment company would be prohibited from compensating a third party to solicit an investment by a government entity in the fund or soliciting others to make contributions to officials of a government entity that the adviser seeks to have invest in the fund. For purposes of the two-year time out, however, a mutual fund adviser would
We note that a firm retained by a government entity to distribute interests in a 529 plan (
We request comment on the definition of covered investment pool under the proposed rule. Should we also apply the rule in the context of government investments in structured finance vehicles in which public funds may invest?
If a government entity is an investor in a covered investment pool at the time the contribution triggering a two-year “time out” is made, the proposed rule would require the adviser to forgo any compensation related to the assets invested or committed by that government entity.
In the case of a private fund, the adviser typically could waive or rebate the related fees and any performance allocation or carried interest.
The options for restricting compensation involving government investors in registered investment companies are more limited, due to both Investment Company Act provisions and potential tax consequences.
An adviser to a covered investment pool that serves as an investment option in a government program such as a 529 plan might seek to eliminate its investment pool as an option in order to comply with or mitigate costs arising from the rule's two-year “time out.” As a result, plan investors may be denied an appropriate investment alternative. Would elimination of the option be an inappropriate consequence we should seek to prevent? Have we appropriately applied the rule to curb pay to play activities (that may be effectuated, for example, through revenue sharing arrangements) while still permitting funds to be marketed and distributed to government entities in the ordinary course of business through compensated third parties, such as registered broker-dealers?
We are proposing a provision under which an adviser may apply to us for an order exempting it from the two-year compensation ban.
In determining whether to grant an exemption from the two-year compensation ban, we would take into account the varying facts and circumstances that each application presents. Further, we would consider: (i) Whether the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Advisers Act; (ii) whether the investment adviser, (A) before the contribution resulting in the prohibition was made, adopted and implemented policies and procedures reasonably designed to prevent violations of this section; (B) prior to or at the time the contribution which resulted in such prohibition was made, had no actual knowledge of the contribution; and (C) after learning of the contribution, (1) has taken all available steps to cause the contributor involved in making the contribution which resulted in such prohibition to obtain a return of the contribution; and (2) has taken such other remedial or preventive measures as may be appropriate under the circumstances; (iii) whether, at the time of the contribution, the contributor was a covered associate or otherwise an employee of the investment adviser, or was seeking such employment; (iv) the timing and amount of the contribution which resulted in the prohibition; (v) the nature of the election (
These factors are similar to those considered by FINRA and the appropriate bank regulators in determining whether to grant an exemption under MSRB rule G-37(i).
We are also proposing amendments to rule 204-2
The proposed amendments would require an adviser to make and keep the following records: (i) The names, titles and business and residence addresses of all covered associates of the investment adviser; (ii) all government entities for which the investment adviser or any of its covered associates is providing or seeking to provide investment advisory services, or which are investors or are solicited to invest in any covered investment pool to which the investment adviser provides investment advisory services, as applicable;
Should we exclude
To manage compliance with the proposed rule effectively, we would expect that the adviser would adopt sufficient internal procedures—which would include keeping certain records—to prevent the rule's prohibitions from being triggered.
We are also proposing a technical amendment to rule 206(4)-3 under the Advisers Act, the “cash solicitation rule.” That rule makes it unlawful, except under specified circumstances and subject to certain conditions, for an investment adviser to make a cash payment to a person who directly or indirectly solicits any client for, or refers any client to, an investment adviser.
Because paragraph (iii) of rule 206(4)-3 contains provisions regarding more general restrictions on third-party solicitors that would cover solicitation activities directed at any client—whether a government entity client or not—our proposed technical amendment would be designed to note the specialized provisions prohibiting payments by an adviser to third-party solicitors of government clients that are contained in proposed rule 206(4)-5. Specifically, we propose to add a new paragraph (e) to rule 206(4)-3 to alert advisers and others that special prohibitions apply to solicitation activities involving government entity clients under our proposed pay to play rule.
The prohibition and recordkeeping requirements under the proposed rule would arise from contributions made on or after the effective date of the rule, if adopted. As a result, firms would need to have developed and adopted appropriate procedures to track contributions and would need to begin monitoring contributions made by their covered associates on that date. The Commission requests comment on whether firms would require additional time to develop procedures to comply with the proposed rule and, if so, how long of a transition period following the rule's adoption would be necessary? For example, if a transition period is necessary, would 90 days be an appropriate amount of time? Would longer be necessary,
Any interested persons wishing to submit written comments on the proposed rule and rule amendment that are the subject of this Release, or to suggest additional changes or submit comments on other matters that might have an effect on the proposals described above, are requested to do so. Commenters suggesting alternative approaches are encouraged to submit proposed rule text.
We are sensitive to the costs and benefits imposed by our rules, and understand that there would be compliance costs with proposed rule 206(4)-5 and the proposed amendment to rule 204-2.
The proposed rule and rule amendments would address “pay to play” practices by investment advisers that provide, or are seeking to provide, advisory services to government entity clients and to certain covered investment pools in which a government entity invests. The proposed rule would prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees make a contribution to certain elected officials or candidates. The proposed rule would also prohibit an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party for a solicitation of advisory business from any government entity, or for a solicitation of a government entity to invest in certain covered investment pools, on behalf of such adviser. Additionally, the proposed rule would prevent an adviser from coordinating or soliciting from others contributions to certain elected officials or candidates or payments to certain political parties. Our proposed amendment to rule 204-2 would require a registered adviser (or adviser required to be registered) to maintain certain records of the political contributions made by the adviser or certain of its executive or employees.
As discussed extensively throughout this release, we expect that proposed rule 206(4)-5 would yield several important direct and indirect benefits. At its core, the rulemaking addresses practices that undermine the integrity of our markets. Overall, the proposed rule is intended to address pay to play relationships that interfere with the legitimate process by which advisers are chosen based on the merits rather than on their contributions to political officials. The potential for fraud to invade the various, intertwined relationships created by pay to play arrangements is without question. Accordingly, we believe that the proposed rule will achieve its goals of protecting public pension plans, beneficiaries, and other investors from the resulting harms.
Curtailing pay to play practices will help protect public pension plans and investments of the public in government-sponsored savings and retirement plans and programs by addressing situations in which a more qualified adviser may not be selected, potentially leading to inferior management, diminished returns or greater losses. By addressing pay to play practices, we would be leveling the playing field so that the advisers selected to manage retirement funds and other investments for the public are more likely to be selected based on their skills and the quality of their advisory services. These benefits could result in substantial savings and better performance for the public pension
By leveling the playing field among advisers competing for State and local government business, the proposed rule could also eliminate or minimize manipulation of the market for advisory services provided to State and local governments. Payments made to third-party solicitors as part of pay to play practices create artificial barriers to competition for firms that cannot, or will not, make those contributions or payments. They also create increased costs for firms that may feel they have no alternative but to pay to play. Additionally, pay to play practices potentially expose an adviser to other costs, such as liability, defense costs and distraction from its duties. Curtailing pay to play arrangements enables advisory firms, particularly smaller advisory firms, to compete on merit, rather than their ability or willingness to make contributions.
Moreover, the absence of arm's-length negotiations may enable advisers to obtain greater ancillary benefits, such as “soft dollars,” from the advisory relationship, which may be directed for the benefit of the adviser, potentially at the expense of the pension plan, thereby using a pension plan asset for the adviser's own purposes.
Applying the proposed rule to government entity investments in certain pooled investment vehicles or where a pooled investment vehicle is an investment option in a government-sponsored plan or program would extend the same benefits regardless of whether an adviser subject to the proposed rule is providing advice directly to the government entity or is managing assets for the government entity indirectly through a pooled investment vehicle. By addressing distortions in the process by which investment decisions are made regarding public investments, we will provide important protections to public pension plans and their beneficiaries, as well as participants in other important plans or programs sponsored by government entities. Other investors in a pooled investment vehicle also will be better protected from, among other things, the effects of fraud that may result from an adviser's participation in pay to play activities, such as higher advisory fees.
Finally, the proposed amendments to rule 204-2 would benefit the public plans and their beneficiaries and participants in State plans or programs as well as investment advisers that keep the required records. The public pension plans, beneficiaries, and participants would benefit from these amendments because the records required to be kept would provide Commission staff with information to review an adviser's compliance with proposed rule 206(4)-5 and thereby may promote improved compliance. Advisers would benefit from the proposed amendments to the recordkeeping rule as these records would assist the Commission in enforcing the rule against, for example, competitors whose pay to play activities, if not uncovered, could adversely affect the competitive position of a compliant adviser.
The proposed rule and rule amendments would impose costs on advisers that provide advisory services to government clients, though we have tried to minimize the costs associated with an inadvertent violation of proposed rule 206(4)-5 by including an exception for certain returned contributions. The proposed rule would require an adviser with government clients, and an adviser that solicits business from government clients, to incur costs to monitor contributions made by the adviser and its covered associates, and to establish procedures to comply with the proposed rule and rule amendments. The initial and ongoing compliance costs imposed by the proposed rule would vary significantly among firms, depending on a number of factors. These include the number of covered associates of the adviser, the degree to which compliance procedures are automated, the extent to which an adviser has a pre-existing policy under its code of ethics or compliance program,
A large adviser is likely to spend more resources to comply with the rule than a smaller adviser. However, based on staff observations, a large adviser is more likely to have an affiliated broker-dealer that is required to comply with MSRB rules G-37 and G-38.
We anticipate that advisory firms subject to proposed rule 206(4)-5 would develop compliance procedures to monitor the political contributions made by the adviser and its covered associates. We estimate that the costs imposed by the proposed rule would be higher initially, as firms establish and implement procedures and systems to comply with the rule and rule amendments. It is anticipated that compliance expenses would then decline to a relatively constant amount in future years, and annual expenses are likely to be lower for small advisers as the systems and processes should be less complex than for a large adviser.
We estimate that approximately 1,764 investment advisers registered with the Commission may be affected by the proposed rule and rule amendments.
Advisers that are unregistered in reliance on the exemption available under section 203(b)(3) of the Advisers Act [15 U.S.C. 80b-3(b)(3)] would be subject to proposed rule 206(4)-5.
For purposes of this analysis, it is assumed that each exempt advisory firm that would be subject to the proposed rule would likely either be smaller firms or medium firms, in terms of number of covered associates because it is unlikely that an adviser that is limited to fewer than 15 clients would have a large number of advisory personnel that would be covered associates.
Although the time needed to comply with the proposed rule would vary significantly from adviser to adviser, the Commission staff estimates that firms with government clients would spend between 8 hours and 250 hours to establish policies and procedures to comply with the proposed rule. Commission staff further estimates that ongoing compliance with the proposed rule would require between 10 and 1,000 hours, annually. These estimates are derived in part from conversations with industry professionals regarding broker-dealer compliance with rule G-37 and G-38 and representatives of investment advisers that have pay to play policies in place. In addition, advisory firms may incur one-time costs to establish or enhance current systems to assist in their compliance with the proposed rule. These costs would vary widely among firms. Small advisers may not incur any system costs if they determine a system is unnecessary due to the limited number of employees they have or the limited number of government entity clients they have. Large firms likely already have devoted significant resources into automating compliance and reporting and the new rule could result in enhancements to these existing systems. We believe such system costs could range from the tens of thousands of dollars for simple reporting systems, to hundreds of thousands of dollars for complex systems used by the large advisers. As we noted previously, large advisers are more likely to have broker-dealer affiliates that may already have compliance systems in place for MSRB rules G-37 and G-38 that could be used by an adviser.
Initial compliance procedures would likely be designed, and ongoing administration of them performed, by compliance managers and compliance clerks. We estimate that the hourly wage rate for compliance managers is $258, including benefits, and for compliance clerks, $63 per hour, including benefits.
We further anticipate that approximately one-third of advisers that we estimate would be subject to the rule may also engage outside legal services to assist in drafting policies and procedures.
Additionally, we expect that on average approximately five advisers annually will apply to the Commission for an exemption from the proposed rule.
The prohibitions of the proposed rule may also impose other costs on advisers, covered associates, third-party solicitors, and political officials. An adviser that becomes subject to the prohibitions of the proposed rule would no longer be eligible to receive advisory fees from its government client. This could limit the number of advisers able to provide services to potential government entity clients. The adviser, however, may be obligated to provide (uncompensated) advisory services for a reasonable period of time until the government client finds a successor to ensure its withdrawal did not harm the client, or the contractual arrangement between the adviser and the government client might obligate the adviser to continue to perform under the contract at no fee. An adviser that provides uncompensated advisory services to a government client would incur the direct cost of providing uncompensated services, and may incur opportunity costs if the adviser is unable to pursue other business opportunities for a period of time. Advisers to government clients, as well as covered associates of the adviser, also may be less likely to make political contributions to political officials, possibly imposing costs on the officials if they are unable to secure alternate funding. Under the proposed rule, covered associates and executives may face new limitations on the amounts and to whom they can contribute. In addition, these same individuals could be prohibited from soliciting others to contribute or from coordinating contributions to government officials or political parties in certain circumstances. These limitations and prohibitions, including if a firm chose to adopt policies or procedures that are more restrictive than the proposed rule, could be perceived by the individuals subject to them as costs imposed on their ability to express their support for certain candidates for elected office and government officials.
Because the proposed rule would prohibit advisers from compensating third parties to solicit government entities for advisory services, advisers that currently rely on third-party solicitors to obtain government clients may have to bear the expense of hiring and training in-house staff in order to continue their solicitation activities. While third-party solicitors are not subject to the proposed rule, the proposed ban on advisers' use of third-party solicitors may have a substantial negative impact on persons who provide third-party solicitation services, and if their businesses consists solely of soliciting government entities on behalf of investment advisers, the proposed rule could result in these persons instead being employed directly by advisers or shifting the focus of their solicitation activities. In addition, small investment advisers and new investment advisers that do not have the capital to hire employees to obtain government clients may find it difficult to enter the market to provide advisory services to government pension plans or to obtain additional government clients.
We also anticipate that the proposed amendment to rule 204-2 would impose additional costs. The proposed amendments to rule 204-2 would require that SEC-registered advisers maintain certain records of campaign contributions by certain advisory personnel.
The Commission requests comment on the effects of the proposed rule and rule amendments on pension plan beneficiaries, participants in government plans or programs, investors in pooled investment vehicles, investment advisers, the advisory profession as a whole, government entities, third party solicitors, and political action committees. We request data to quantify the costs and value of the benefits associated with the
The proposed amendment to rule 204-2 contains a new “collection of information” requirement within the meaning of the PRA, and the Commission has submitted the proposed amendment to the Office of Management and Budget (“OMB”) for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. The title for the collection of information is “Rule 204-2 under the Advisers Act of 1940.” Rule 204-2 contains a currently approved collection of information number under OMB control number 3235-0278. 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 control number.
Section 204 of the Advisers Act provides that investment advisers registered or required to be registered with the Commission must make and keep certain records for prescribed periods, and make and disseminate certain reports. Rule 204-2 sets forth the requirements for maintaining and preserving specified books and records. This collection of information is mandatory. The Commission staff uses this collection of information in its examination and oversight program, and the information generally is kept confidential.
The current approved collection of information for rule 204-2 is based on an average of 181.15 burden hours each year, per Commission-registered adviser, for a total of 1,954,109 burden hours. The current total burden is based on an estimate of 10,787 registered advisers.
The proposed amendments to rule 204-2 would require every investment adviser registered or required to be registered that provides or seeks to provide advisory services to government entities to maintain certain records of contributions made by the adviser or any of its covered associates. The proposed amendments would require an adviser to make and keep the following records: (i) The names, titles and business and residence addresses of all covered associates of the investment adviser; (ii) all government entities for which the investment adviser or any of its covered associates is providing or seeking to provide investment advisory services, or which are investors or are solicited to invest in any covered investment pool to which the investment adviser provides investment advisory services, as applicable; (iii) all government entities to which the investment adviser has provided investment advisory services, along with any related covered investment pool(s) to which the investment adviser has provided investment advisory services and in which the government entity has invested, as applicable, in the past five years, but not prior to the effective date of the proposed rule; and (iv) all direct or indirect contributions or payments made by the investment adviser or any of its covered associates to an official of a government entity, a political party of a State or political subdivision thereof, or a PAC. An adviser to a covered investment pool in which a government entity invests or is solicited to invest would be treated as though that investment adviser were providing or seeking to provide investment advisory services directly to the government client. The adviser's records of contributions and payments would be required to be listed in chronological order identifying each contributor and recipient, the amounts and dates of each contribution or payment and whether such contribution or payment was subject to the exception for certain returned contributions pursuant to proposed rule 206(4)-5(b)(2). These records would be required to be maintained in the same manner, and for the same period of time, as other books and records under rule 204-2(a). This collection of information would be found at 17 CFR 275.204-2. Advisers that are exempt from Commission registration under section 203(b)(3) of the Advisers Act would not be subject to the recordkeeping requirements.
Commission records indicate that currently there are approximately 11,340 registered investment advisers subject to the collection of information imposed by rule 204-2.
Additionally, we expect advisory firms may incur one-time costs to establish or enhance current systems to
The proposed amendment to rule 206(4)-3 contains a revised “collection of information” requirement within the meaning of the PRA, and the Commission has submitted the proposed amendment to the OMB for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. The title for the collection of information is “Rule 206(4)-3—Cash Payments for Client Solicitations.” Rule 206(4)-3 contains a currently approved collection of information number under OMB control number 3235-0242.
Section 206(4) of the Advisers Act provides that it shall be unlawful for any investment adviser to engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative. Rule 206(4)-3 generally prohibits investment advisers from paying cash fees to solicitors for client referrals unless certain conditions are met. The rule requires that an adviser pay all solicitors' fees pursuant to a written agreement that the adviser is required to retain. This collection of information is mandatory. The Commission staff uses this collection of information in its examination and oversight program, and the information generally is kept confidential.
The current approved collection of information for rule 206(4)-3 is based on an estimate that 20% of the 10,817 Commission-registered advisers (or 2,163 advisers) rely on the rule, at an average of 7.04 burden hours each year, per respondent, for a total of 15,228 burden hours (7.04 × 2,163).
The proposed amendments to rule 206(4)-3 would require every investment adviser that relies on the rule and that provides or seeks to provide advisory services to government entities to also abide by the limitations provided in proposed rule 206(4)-5. This collection of information would be found at 17 CFR 275.206(4)-3. Advisers that are exempt from Commission registration under section 203(b)(3) of the Advisers Act would not be subject to rule 206(4)-3.
Commission records indicate that currently there are approximately 11,340 registered investment advisers,
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments to: (i) Evaluate whether the proposed amendments to the collection of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (ii) evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information; (iii) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) determine whether there are ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
Persons desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Room 3208, Washington, DC 20503, and also should send a copy of their comments to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090 with reference to File No. S7-18-09. Requests for materials submitted to OMB by the Commission with regard to this collection of information should be in writing, refer to File No. S7-18-09, and be submitted to the Securities and Exchange Commission, Office of Investor Education and Advocacy, 100 F Street, NE., Washington, DC 20549-0213. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days after publication of this release.
The Commission has prepared the following Initial Regulatory Flexibility Analysis (“IRFA”) regarding proposed rule 206(4)-5 and the amendments to rules 204-2 and 206(4)-3 in accordance with section 3(a) of the Regulatory Flexibility Act.
Investment advisers that seek to influence the award of advisory contracts by government entities, by making or soliciting political
Proposed rule 206(4)-5, the “pay to play” rule, would prohibit an adviser registered (or required to be registered) with the Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of the Advisers Act, from providing advisory services for compensation to a government client for two years after the adviser, or any of its covered associates, make a contribution to public officials (and candidates) such as State treasurers, comptrollers or other elected executives or administrators who can influence the selection of the adviser.
The Commission is proposing new rule 206(4)-5 and proposing to amend rule 206(4)-3 pursuant to the authority set forth in sections 206(4) and 211(a) of the Advisers Act [15 U.S.C. 80b-6(4) and 80b-11(a)]; to amend rule 204-2 pursuant to the authority set forth in sections 204 and 211 of the Advisers Act [15 U.S.C. 80b-4 and 80b-11]. Section 206(4) gives us authority to prescribe means reasonably designed to prevent fraudulent, deceptive, or manipulative acts or practices. Section 211 gives us authority to classify, by rule, persons and matters within our jurisdiction and to prescribe different requirements for different classes of persons, as necessary or appropriate to the exercise of our authority under the Act. Section 204 gives us authority to prescribe, by rule, such records and reports that an adviser must make, keep for prescribed periods, or disseminate, as necessary or appropriate in the public interest or for the protection of investors.
Under Commission rules, for the purposes of the Advisers Act and the Regulatory Flexibility Act, an investment adviser generally is a small entity if it: (i) Has assets under management having a total value of less than $25 million; (ii) did not have total assets of $5 million or more on the last day of its most recent fiscal year; and (iii) does not control, is not controlled by, and is not under common control with another investment adviser that has assets under management of $25 million or more, or any person (other than a natural person) that had $5 million or more on the last day of its most recent fiscal year.
The Commission estimates that as of July 2009 there are approximately 706 small SEC-registered investment advisers.
The proposed rule would impose certain reporting, recordkeeping and compliance requirements on advisers, including small advisers. The proposed rule imposes a new compliance requirement by: (i) Prohibiting an adviser from providing advisory services for compensation to government clients for two years after the adviser or any of its covered associates makes a contribution to certain elected officials or candidates; (ii) prohibiting an adviser from providing or agreeing to provide, directly or indirectly, payment to any third party engaged to solicit advisory business from any government entity on behalf of the adviser; and (iii) prohibiting an adviser or any of its covered associates from soliciting contributions for an elected official or candidate or payments to a political party of a State or locality where the adviser is providing or seeking to provide advisory services to a government entity.
The proposed rule amendments would impose new recordkeeping requirements by requiring an adviser to maintain certain records about its covered associates, its advisory clients, government entities invested in certain pooled investment vehicles managed by the adviser, and its political contributions as well as the political contributions of its covered associates. An investment adviser that does not provide or seek to provide advisory services to a government entity, or to a covered investment pool in which a government entity invests, would not be subject to the proposed rule and rule amendments.
As noted above, we believe that a limited number of small advisers will have to comply with the proposed rule and rule amendments. Moreover, to the extent small advisers tend to have fewer clients and fewer employees that would be covered associates for purposes of the rule, the proposal should impose lower costs on small advisers as compared to
The Commission believes that there are no other Federal rules that duplicate, overlap, or conflict with the proposed rule amendments. As discussed above, to make clear the relationship between our rules, we propose making a technical amendment to rule 206(4)-3 to specify that solicitation activities involving government entity clients under our proposed rule 206(4)-5 are subject to limitations set forth in that rule.
The Regulatory Flexibility Act directs the Commission to consider significant alternatives that would accomplish the stated objective, while minimizing any significant impact on small entities.
Regarding the first alternative, the Commission is not proposing different compliance or reporting requirements for small advisers as it may be inappropriate under the circumstances. The proposal is designed to reduce or eliminate adviser participation in pay to play, a practice that can distort the process by which investment advisers are selected to manage public pension plans that can harm public pension plan clients and cause advisers to violate their fiduciary obligations. To establish different requirements for small advisers could diminish the protections the proposal would provide to public pension plan clients and their beneficiaries.
Regarding the second alternative, we will continue to consider whether further clarification, consolidation, or simplification of the compliance requirements is feasible or necessary, but we believe that the current proposal is clear. The proposed rule and rule amendments contain an approach to curtailing pay to play practices that is modeled on established MSRB rules that have already been implemented by financial firms of varying sizes. However, we note that we are proposing an amendment to rule 206(4)-3, the cash solicitation rule, to clarify that the requirements of new proposed rule 206(4)-5 apply to solicitation activities involving government clients.
Regarding the third alternative, we consider using performance rather than design standards with respect to pay to play practices of investment advisers to be neither consistent with the objectives for this rulemaking nor sufficient to protect investors in accordance with our statutory mandate of investor protection. Design standards, which we have employed, provide a baseline for advisory conduct as it relates to contributions and other pay to play activities, which is consistent with a rule designed to prohibit pay to play. The use of design standards also is important to ensure consistent application of the rule among investment advisers to which the rule and rule amendments will apply.
Regarding the fourth alternative, exempting small entities could compromise the overall effectiveness of the proposed rule and related rule amendments. Since we intend to extend the benefit of banning pay to play practices to clients of both small and large advisers, it would be inconsistent to specify different requirements for small advisers.
We encourage written comments on matters discussed in this IRFA. In particular, the Commission seeks comment on:
• The number of small entities, particularly small advisers, to which the proposed rule and rule amendments would apply and the effect on those entities, including whether the effects would be economically significant; and
• How to quantify the number of small advisers, including those that are unregistered, that would be subject to the proposed rule and rule amendments.
Commenters are asked to describe the nature of any effect and provide empirical data supporting the extent of the effect.
The Commission is proposing to amend rule 204-2 pursuant to its authority under sections 204 and 211. Section 204 requires the Commission, when engaging in rulemaking pursuant to that authority, to consider whether the rule is “necessary or appropriate in the public interest or for the protection of investors.”
We are proposing to amend rule 204-2 to require an adviser to make and keep a list of its covered associates, the government entities the adviser provides advisory services to or seeks to provide advisory services to, and the contributions made by the firm and its covered associates, as applicable, to government officials and candidates.
The Commission requests comment whether the proposed amendment to rule 204-2, if adopted, would promote efficiency, competition, and capital formation. Commenters are requested to provide empirical data to support their views.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, or “SBREFA,”
We request comment on the potential impact of the proposed new rule and proposed rule amendments on the economy on an annual basis. Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
The Commission is proposing new rule 206(4)-5 and amendments to rule 206(4)-3 of the Advisers Act pursuant to the authority set forth in sections 206(4) and 211(a) of the Investment Advisers Act of 1940 [15 U.S.C. 80b-6(4), 80b-11(a)].
The Commission is proposing amendments to rule 204-2 of the Advisers Act pursuant to the authority set forth in sections 204 and 211(a) of the Advisers Act [15 U.S.C. 80b-4 and 80b-11(a)].
Reporting and recordkeeping requirements; Securities.
For the reasons set out in the preamble, Title 17 Chapter II of the Code of Federal Regulations is proposed to be amended as follows.
1. The authority citation for part 275 continues to read in part as follows:
15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
2. Section 275.204-2 is amended by adding paragraph (a)(18) and by revising paragraph (h)(1) to read as follows:
(a) * * *
(18)(i) Books and records that pertain to § 275.206(4)-5 containing a list or other record of:
(A) The names, titles and business and residence addresses of all covered associates of the investment adviser;
(B) All government entities for which the investment adviser or any of its covered associates is providing or seeking to provide investment advisory services, or which are investors or are solicited to invest in any covered investment pool to which the investment adviser provides investment advisory services, as applicable;
(C) All government entities to which the investment adviser has provided investment advisory services, along with any related covered investment pool(s) to which the investment adviser has provided investment advisory services and in which the government entity has invested, as applicable, in the past five years, but not prior to [effective date of this section]; and
(D) All direct or indirect contributions or payments made by the investment adviser or any of its covered associates to an official of a government entity, a political party of a State or political subdivision thereof, or a political action committee.
(ii) Records relating to the contributions and payments referred to in paragraph (a)(18)(i)(D) of this section must be listed in chronological order and indicate:
(A) The name and title of each contributor;
(B) The name and title (including any city/county/State or other political subdivision) of each recipient of a contribution or payment;
(C) The amount and date of each contribution or payment; and
(D) Whether any such contribution was the subject of the exception for certain returned contributions pursuant to § 275.206(4)-5(b)(2).
(iii) For purposes of this section, the terms “contribution,” “covered associate,” “covered investment pool,” “government entity,” “official,” “payment,” and “solicit” have the same meanings as set forth in § 275.206(4)-5.
(iv) For purposes of this section, an investment adviser to a covered investment pool in which a government entity invests or is solicited to invest shall be treated as though that investment adviser were providing or seeking to provide investment advisory services directly to the government entity.
(h)(1) Any book or other record made, kept, maintained and preserved in compliance with §§ 240.17a-3 and 240.17a-4 of this chapter under the Securities Exchange Act of 1934, or with rules adopted by the Municipal Securities Rulemaking Board, which is substantially the same as the book or other record required to be made, kept, maintained and preserved under this section, shall be deemed to be made, kept, maintained and preserved in compliance with this section.
3. Section 275.206(4)-3 is amended by adding paragraph (e) and removing the authority citation following the section to read as follows:
(e)
4. Section 275.206(4)-5 is added to read as follows:
(a)
(1) For any investment adviser registered (or required to be registered) with the Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of the Advisers Act (15 U.S.C. 80b-3(b)(3)) to provide investment advisory services for compensation to a government entity within two years after a contribution to an official of the government entity is made by the investment adviser or any covered associate of the investment adviser (including a person who becomes a covered associate within two years after the contribution is made); and
(2) For any investment adviser registered (or required to be registered) with the Commission, or unregistered in reliance on the exemption available under section 203(b)(3) of the Advisers
(i) To provide or agree to provide, directly or indirectly, payment to any person to solicit a government entity for investment advisory services on behalf of such investment adviser unless:
(A) Such person is a related person of the investment adviser or, if the related person is a company, an employee of that related person; or
(B) Such person is an executive officer, general partner, managing member (or, in each case, a person with a similar status or function), or employee of the investment adviser; and
(ii) To coordinate, or to solicit any person or political action committee to make, any:
(A) Contribution to an official of a government entity to which the investment adviser is providing or seeking to provide investment advisory services; or
(B) Payment to a political party of a State or locality where the investment adviser is providing or seeking to provide investment advisory services to a government entity.
(b)
(1)
(2) Exception for certain returned contributions.
(i) An investment adviser that is prohibited from providing investment advisory services for compensation pursuant to paragraph (a)(1) of this section as a result of a contribution made by a covered associate of the investment adviser is excepted from such prohibition, subject to paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, upon satisfaction of the following requirements:
(A) The investment adviser must have discovered the contribution which resulted in the prohibition within four months of the date of such contribution;
(B) Such contribution must not have exceeded $250; and
(C) The contributor must obtain a return of the contribution within 60 calendar days of the date of discovery of such contribution by the investment adviser.
(ii) An investment adviser is entitled to no more than two exceptions pursuant to paragraph (b)(2)(i) of this section per 12-month period.
(iii) An investment adviser may not rely on the exception provided in paragraph (b)(2)(i) of this section more than once with respect to contributions by the same covered associate of the investment adviser regardless of the time period.
(c)
(d)
(e)
(1) Whether the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of Advisers Act (15 U.S.C. 80b);
(2) Whether the investment adviser:
(i) Before the contribution resulting in the prohibition was made, adopted and implemented policies and procedures reasonably designed to prevent violations of this section; and
(ii) Prior to or at the time the contribution which resulted in such prohibition was made, had no actual knowledge of the contribution; and
(iii) After learning of the contribution:
(A) Has taken all available steps to cause the contributor involved in making the contribution which resulted in such prohibition to obtain a return of the contribution; and
(B) Has taken such other remedial or preventive measures as may be appropriate under the circumstances;
(3) Whether, at the time of the contribution, the contributor was a covered associate or otherwise an employee of the investment adviser, or was seeking such employment;
(4) The timing and amount of the contribution which resulted in the prohibition;
(5) The nature of the election (
(6) The contributor's apparent intent or motive in making the contribution which resulted in the prohibition, as evidenced by the facts and circumstances surrounding such contribution.
(f)
(1)
(i) The purpose of influencing any election for Federal, State or local office;
(ii) Payment of debt incurred in connection with any such election; or
(iii) Transition or inaugural expenses of the successful candidate for State or local office.
(2)
(i) Any general partner, managing member or executive officer, or other individual with a similar status or function;
(ii) Any employee who solicits a government entity for the investment adviser; and
(iii) Any political action committee controlled by the investment adviser or by any person described in paragraphs (f)(2)(i) and (f)(2)(ii) of this section.
(3)
(4)
(i) Performs, or supervises any person who performs, investment advisory services for the investment adviser;
(ii) Solicits, or supervises any person who solicits, for the investment adviser, including with respect to investors for a covered investment pool; or
(iii) Supervises, directly or indirectly, any person described in paragraph (f)(4)(i) or (f)(4)(ii) of this section.
(5)
(i) Any agency, authority, or instrumentality of the State or political subdivision;
(ii) A plan, program, or pool of assets sponsored or established by the State or political subdivision or any agency, authority or instrumentality thereof; and
(iii) Officers, agents, or employees of the State or political subdivision or any agency, authority or instrumentality thereof, acting in their official capacity.
(6)
(i) Is directly or indirectly responsible for, or can influence the outcome of, the hiring of an investment adviser by a government entity; or
(ii) Has authority to appoint any person who is directly or indirectly responsible for, or can influence the outcome of, the hiring of an investment adviser by a government entity.
(7)
(8)
(9)
(10)
(i) With respect to investment advisory services, to communicate, directly or indirectly, for the purpose of obtaining or retaining a client for, or referring a client to, an investment adviser; and
(ii) With respect to a contribution or payment, to communicate, directly or indirectly, for the purpose of obtaining or arranging a contribution or payment.
(g)
By the Commission.