Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Notices 52499 

instructions; or inquiries for additional 

information should be requested via email to: forms.ice@dhs.gov with ‘‘IEFEmergency Assistance’’ in the subject 

line. 

Dated: October 7, 2009. 

Joseph M. Gerhart, 

Chief, Records Management Branch, U.S. 

Immigration and Customs Enforcement, 

Department of Homeland Security. 

[FR Doc. E9–24563 Filed 10–9–09; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

Electronic Baggage Screening 

Program 

AGENCY: Transportation Security 

Administration, DHS. 

ACTION: Notice of waiver. 

SUMMARY: The Department of Homeland 

Security (DHS) has granted a limited 

nationwide waiver of the buy American 

provision contained in sec. 1605 of the 

American Recovery and Reinvestment 

Act of 2009 (Recovery Act) Public Law 

111–5, 123 Stat. 115, 303 (2009) under 

the authority of sec. 1605(b)(1) (public 

interest exception) provided that at least 

95 percent of the costs of each 

Transportation Security Administration 

(TSA) Electronic Baggage Screening 

Program (EBSP) project will comply 

with sec. 1605(a). 

DATES: This notice is effective October 

13, 2009. 

ADDRESSES: Office of Acquisitions/ 

Acquisitions Policy Office, TSA–25, 

Transportation Security Administration, 

601 South 12th Street, Arlington, VA 

20598–6025. 

FOR FURTHER INFORMATION CONTACT: 

Ronald B. Gallihugh, Office of 

Acquisitions/Acquisitions Policy Office, 

TSA–25, Transportation Security 

Administration, 601 South 12th Street, 

Arlington, VA 20598–6025; telephone 

(571) 227–2402; facsimile (571) 227– 

1372; e-mail ronald.gallihugh@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 17, 2009, the Recovery 

Act was enacted to assist those most 

impacted by the recession by creating 

and preserving jobs and promoting 

economic recovery. The funding was 

specified for multiple areas of national 

interest. TSA received $1 billion to 

invest in the procurement and 

installation of checked baggage 

explosives detection systems and 

checkpoint explosives detection 

equipment to be obligated by September 

30, 2010. Approximately $500 million 

in Recovery Act funding will be 

allocated to facility modification 

projects to be administered through 

TSA’s EBSP. This program directly 

benefits the traveling public, air carriers, 

airport authorities, and our Nation as a 

whole. 

TSA’s EBSP supports the DHS goals 

of protecting our Nation from dangerous 

goods and protecting our Nation’s 

critical transportation infrastructure by 

strengthening screening of checked 

baggage to reduce the probability of a 

successful terrorist or other criminal 

attack to the air transportation system. 

Since December 31, 2002, EBSP has 

been responsible for ensuring 100 

percent screening of checked baggage in 

the United States. The EBSP’s objective 

is to deter, detect, mitigate, and prevent 

transportation of explosives or other 

prohibited items in checked baggage on 

commercial aircraft. One significant way 

EBSP accomplishes its objectives is 

through the construction of Checked 

Baggage Inspection Systems (CBIS). 

These projects form the backbone of 

TSA’s EBSP and represent the highest 

level of baggage screening capability in 

terms of processing efficiency and 

security. TSA has identified twenty-six 

airports across the country with ‘‘shovel 

ready’’ facility modification projects 

that include CBIS construction. These 

projects are dependent on Recovery Act 

funding. Several of these projects, 

however, are on hold and in jeopardy 

because of concerns over compliance 

with sec. 1605(a). 

Section 1605(a) of the Recovery Act, 

the buy American provision, states that 

none of the funds appropriated by the 

Act, including the funds that have been 

dedicated to project awards under 

EBSP, ‘‘may be used for a project for the 

construction, alteration, maintenance, or 

repair of a public building or public 

work unless all of the iron, steel, and 

manufactured goods used in the project 

are produced in the United States.’’ 

Subsections 1605(b) and (c) of the 

Recovery Act authorize the head of a 

Federal department or agency to waive 

the buy American provision by finding 

that: (1) Applying the provision would 

be inconsistent with the public interest; 

(2) the relevant goods are not produced 

in the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality; or (3) the inclusion 

of the goods produced in the United 

States will increase the cost of the 

project by more than 25 percent. If the 

head of the Federal department or 

agency waives the buy American 

provision, then the head of the 

department or agency is required to 

publish a detailed justification in the 

Federal Register. Finally, sec. 1605(d) of 

the Recovery Act states that the buy 

American provision must be applied in 

a manner consistent with the United 

States’ obligations under international 

agreements. 

Public Interest Finding 

The Secretary of Homeland Security 

has determined that it would be 

inconsistent with the public interest— 

and particularly with the Recovery Act’s 

directives to ensure expeditious 

spending of construction funds 

consistent with prudent management, as 

cited above—to apply the buy American 

requirement to an entire CBIS project 

where at least 95 percent of the costs of 

the project will comply with sec. 

1605(a). 

A CBIS is a highly sophisticated 

electromechanical system for screening 

checked baggage. It consists of hundreds 

of mechanical and electrical items. It 

includes a mechanical conveyor system 

or baggage handling system (BHS) that 

transports checked baggage through the 

system. The CBIS also features a 

security screening matrix area where 

baggage is fed through one or more 

Explosion Detection Systems (EDS) or 

Explosive Trace Detection (ETD) 

systems to be analyzed. All of the 

mechanical and electrical items and 

processes that make up the CBIS are 

controlled by a central programmable 

logic controller (PLC) or programmable 

controller. The PLC is essentially a 

computer ‘brain’ used for the 

automation of electro-mechanical 

processes, such as the control of 

machinery on factory assembly lines. 

The PLC controls all aspects of the CBIS 

including conveyor belt speeds, baggage 

tracking and managing the BHS merge 

points or windows. 

CBIS projects are comprised of 

thousands of manufactured goods, such 

as conveyor, conveyor motor drives, 

electrical and communications controls, 

programmable logic controllers, 

electronic tracking devices, high speed 

diverters, vertical sorters, specialty 

fasteners and switches. Not all of these 

items are domestically available. 

Furthermore, in many instances, the 

geographic origin of the equipment is 

not readily ascertainable. While 

arguably the Secretary of Homeland 

Security could have relied on the 

authority under sec. 1605(b)(2) (nonavailability waiver), the burden placed 

on TSA and contractors in sourcing and 

evaluating equipment availability would 

be unduly burdensome, impracticable 

and not in keeping with the Recovery 

Act’s overall goal of expeditious 

spending of recovery funds. 


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52500 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Notices 

In the construction of such a 

sophisticated system as a CBIS, 

complete adherence to the requirements 

of section 1605(a) is impracticable, if 

not impossible. In addition, it has 

become a serious obstacle to ensuring 

that all identified airports will be able 

to sign construction contracts by 

September 30, 2010. Some airport 

authorities have simply been unable or 

unwilling to certify that the 

construction contracts it signs are 

compliant with the buy American 

provisions. The alternative would be for 

the airports and communities to lose 

their Recovery Act assistance, requiring 

TSA to reallocate funds, which is 

inconsistent with the public interest and 

the intent and purpose of the Recovery 

Act. 

DHS has considered the 

disproportionate cost and delay that 

would ensue if a limited waiver is not 

issued. The exercise of ascertaining 

whether compliant products exist or can 

be made to meet these requirements is 

already becoming a demanding and 

time-consuming task far out of 

proportion to the total percentage of 

project costs. On balance, the public 

interest in having these projects 

completed outweighs the Buy American 

requirement; particularly where the 

value of noncompliant goods is 

relatively small when compared to total 

project cost. CBIS projects significantly 

benefit aviation security, baggage 

screening efficiency and the flying 

public in general. Also, these projects 

help stimulate job growth for local 

construction workers, technicians, 

equipment designers, engineers, and 

others who will operate and maintain 

the equipment. 

Therefore, the Secretary granted a 

limited, nationwide public interest 

waiver, having found that it would be 

inconsistent with the public interest— 

and particularly with the Recovery Act’s 

directives—to apply the buy American 

requirement to an entire CBIS project in 

which at least 95 percent of the costs of 

the project will comply with section 

1605. The Secretary determined the five 

percent limit based on research and 

informed professional judgment as to 

the maximum total amount of costs used 

in most CBIS projects. 

Waiver 

Accordingly, the Secretary granted a 

limited, nationwide waiver of the 

requirements of section 1605(a) of the 

Recovery Act, Public Law 111–5, buy 

American requirements, based on the 

public interest authority of section 

1605(b)(1), provided that at least 95 

percent of the costs of each TSA EBSP 

project will comply with section 1605. 

This waiver applies to all eligible EBSP 

projects for which the TSA has awarded 

or will award a project award using 

Recovery Act funds, and where at least 

95 percent of the costs of the project 

will comply with sec. 1605. 

TSA will attempt to obtain 100 

percent compliance with the buy 

American provision on all airport 

projects. This limited nationwide 

waiver is available to airports that 

cannot comply 100 percent with the buy 

American provision because applying 

the provision would be inconsistent 

with the public interest in accordance 

with sec. 1605(b)(1). TSA will ensure 

that on all projects at least 95 percent of 

the costs will comply with section 1605. 

Recipients who wish to use this waiver 

should, in consultation with their 

contractors determine the items to be 

covered by this waiver, must retain 

relevant documentation as to those 

items in their project files, and must 

summarize in reports to TSA the types 

and/or categories of items to which this 

waiver is applied, the total cost of the 

goods covered by the waiver, and the 

calculations by which they determined 

the total cost of materials used in and 

incorporated into the project. 

Issued in Arlington, Virginia, on October 7, 

2009. 

Gale D. Rossides, 

Acting Administrator. 

[FR Doc. E9–24608 Filed 10–9–09; 8:45 am] 

BILLING CODE 9110–05–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

Proposed Appointment to the National 

Indian Gaming Commission 

ACTION: Notice. 

SUMMARY: The Indian Gaming 

Regulatory Act provides for a threeperson National Indian Gaming 

Commission. One member, the 

chairman, is appointed by the President 

with the advice and consent of the 

Senate. Two associate members are 

appointed by the Secretary of the 

Interior. Before appointing members, the 

Secretary is required to provide public 

notice of a proposed appointment and 

allow a comment period. Notice is 

hereby given of the proposed 

appointment of Steffani A. Cochran as 

an associate member of the National 

Indian Gaming Commission for a term 

of 3 years. 

DATES: Comments must be received 

before November 12, 2009. 

ADDRESSES: Comments should be 

submitted to the Director, Office of 

Executive Secretariat, United States 

Department of the Interior, 1849 C 

Street, NW., Mail Stop 7229, 

Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: John 

A. Strylowski, Executive Secretariat, 

United States Department of the 

Interior, 1849 C Street, NW., Mail Stop 

7229, Washington, DC 20240; telephone 

202–208–3071. 

SUPPLEMENTARY INFORMATION: The 

Indian Gaming Regulatory Act, 25 

U.S.C. 2701 et seq., established the 

National Indian Gaming Commission 

(Commission), composed of three fulltime members. 25 U.S.C. 2704(b). 

Commission members serve for a term 

of 3 years. 25 U.S.C. 2705(b)(2)(4)(A). 

The Chairman is appointed by the 

President with the advice and consent 

of the Senate. 25 U.S.C. 2704(b)(1)(B). 

The two associate members are 

appointed by the Secretary of the 

Interior. 25 U.S.C. 2704(b)(1)(B). Before 

appointing an associate member to the 

Commission, the Secretary is required to 

‘‘publish in the Federal Register the 

name and other information the 

Secretary deems pertinent regarding a 

nominee for membership on the 

commission and * * * allow a period of 

not less than thirty days for receipt of 

public comments.’’ 25 U.S.C. 

2704(b)(2)(B). 

The Secretary proposes to appoint 

Steffani A. Cochran as an associate 

member of the Commission for a term of 

3 years. Ms. Cochran is well qualified to 

serve as a member of the Commission, 

by virtue of her broad background in the 

law and her work for both State and 

tribal governments on issues affecting 

Indian tribes. Her extensive legal 

experience includes service in New 

Mexico State government as a Special 

Counsel for Indian Affairs and as an 

Administrative Law Judge for the State 

of Oregon. She has also served tribal 

governments as General Counsel for the 

Pueblo of Pojoaque and as an Associate 

Judge for the Isleta Tribal Court and 

judge pro tem on the Southwest 

Intertribal Court of Appeals. Working at 

different times for tribal and State 

governments, Ms. Cochran has 

participated in negotiations and 

addressed issues of critical importance 

to both constituencies. She is a member 

of the Chickasaw Nation. Ms. Cochran 

does not have any financial interests 

that would make her ineligible to serve 

on the Commission under 25 U.S.C. 

2704(b)(5)(B) or (C). 

Any person wishing to submit 

comments on this proposed 

appointment of Steffani Cochran may 

submit written comments to the address 


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