26280 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 

2 Various administrative agencies have come to 

the same conclusion when confronted with 

questions regarding their authority to determine the 

constitutionality of statutory provisions. 63 Fed. 

Reg. 6614, 6620 (February 9, 1998) (Department of 

Labor finding that, as the agency given the 

administrative authority to implement a statutory 

provision, it has no authority to question the 

constitutionality of the statute); 56 Fed. Reg. 11653, 

11660 (March 20, 1991) (Federal Trade Commission 

finding that it does not have authority to determine 

the constitutionality of the statutes it enforces); 50 

Fed. Reg. 35418, 35422 (August 30, 1985) (Federal 

Communications Commission finding that 

administrative agencies are not tasked with the duty 

to adjudicate the constitutionality of a federal 

statute, citing Johnson v. Robison, 415 U.S. at 368). 

3 17 U.S.C. § 801(b)(1) calls upon the CRJs to 

‘‘make determinations and adjustments of 

reasonable terms and rates of royalty payments as 

provided in sections 112(e), 114, 115, 116, 118, 119, 

and 1004.’’ (emphasis added). 

asserts that while the private parties 

agree that the general rule should apply 

in this case, the Court held in Thunder 

Basin that the general rule did not apply 

in that case, explaining: ‘‘This rule is not 

mandatory, however, and is perhaps of 

less consequence where, as here, the 

reviewing body is not the agency itself 

but an independent Commission’’ that 

‘‘has addressed constitutional questions 

in previous enforcement proceedings.’’ 

Thunder Basin, 510 U.S. at 215 (1994). 

III.Register’s Determination 

The Register acknowledges the rule 

set forth in Thunder Basin that 

adjudication of the constitutionality of 

congressional enactments is generally 

beyond the jurisdiction of 

administrative agencies. Thunder Basin, 

510 U.S. at 215 (1994) (citing Johnson v. 

Robison, 415 U.S. 361, 368 (1974) 

(adjudication of the constitutionality of 

congressional enactments has generally 

been thought beyond the jurisdiction of 

administrative agencies)); See also 

Motor & Equipment Mfrs. Asso. v. 

Environmental Protection Agency, 627 

F.2d 1095, 1115 (D.C. Cir. 1979).2 The 

parties are in agreement that this general 

rule applies to foreclose the Register and 

the CRJs from determining the 

constitutionality of 17 U.S.C. § 114(f)(5). 

However, in order to determine whether 

the Register or the CRJs do not have the 

authority under the provisions of the 

Copyright Act to determine the 

constitutionality of 17 U.S.C. § 114(f)(5), 

the exceptions to the general rule must 

be considered. 

While the case law regarding 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments is slim, in Thunder Basin, 

the general rule was not found to apply 

because the reviewing body was not the 

agency itself. Rather the Federal Mine 

Safety and Health Review Commission 

was an independent Commission 

established exclusively to adjudicate 

disputed enforcement measures 

undertaken by the Mine Safety and 

Health Administration pursuant to the 

statute in question. The court also 

observed that even if the agency or 

independent Commission were not 

authorized to determine the 

constitutionality of congressional 

enactments, the constitutional claims 

could be meaningfully addressed in the 

Court of Appeals, thus avoiding the 

‘‘serious constitutional question’’ that 

would arise if an agency’s organic 

statute were construed to preclude all 

judicial review of a constitutional claim. 

Id. 

Case law reveals additional 

considerations that are relevant in 

determining whether it is proper to 

apply the general rule against agency 

adjudication of the constitutionality of 

congressional enactments. For instance, 

the general rule ‘‘is subject to Congress’s 

allocation of adjudicative 

responsibility.’’ Riggin v. Office of 

Senate Fair Employment Practices, 61 

F.3d 1563, 1569 (Fed. Cir. 1995) (citing 

Thunder Basin, 510 U.S. at 215 (1994)). 

Additionally, a finding that the agency 

lacks jurisdiction to decide 

constitutional questions is especially 

likely when the constitutional claim 

asks the agency to act contrary to its 

statutory charter. Riggin, 61 F.3d at 

1569; See also Weinberger v. Salfi, 422 

U.S. 749, 765 (1975); Johnson v. 

Robison, 415 at 367; Public Utilities 

Commission v. United States, 355 U.S. 

534, 539 (1958). In the Riggin case, the 

general rule was not applied in part 

because the constitutional issue did not 

require the agency to question its own 

statutory authority or to disregard any 

instructions Congress had given it. 

In the case at hand, the established 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments are not applicable. Nowhere 

in title 17 are either the Register or the 

CRJs allocated any adjudicative 

responsibility to determine the 

constitutionality of statutory provisions. 

Additionally, the CRJs are not the type 

of independent Commission at issue in 

Thunder Basin, which was established 

to review agency actions. While it is 

true that 17 U.S.C. § 802(f)(1) calls upon 

the Register to, in certain circumstances, 

offer either ‘‘an interpretation of any 

material questions of substantive law 

that relate to the construction of 

provisions of this title and arise in the 

course of the proceeding’’ or ‘‘an 

interpretation of those provisions of this 

title that are the subject of the 

proceeding,’’ these provisions address 

interpretation of statutory provisions 

themselves and do not authorize 

determinations as to the 

constitutionality of such provisions. 17 

U.S.C. § 802(f)(1)(A)&(B). Similarly, the 

Register’s authority to review the CRJs’ 

final determinations for errors of law is 

also directed toward material questions 

of substantive law under title 17, not 

toward the constitutionality of such 

provisions. 17 U.S.C. § 802(f)(1)(D). Like 

the Mine Safety and Health 

Administration (‘‘MSHA’’) in Thunder 

Basin, the CRJs are tasked with carrying 

out statutory duties prescribed by 

Congress. However, unlike the 

independent Commission in Thunder 

Basin, which had broad authority to 

review the actions of the MSHA, the 

Register, as indicated above, has a 

narrower authority in these proceedings, 

which allows her only to determine 

issues of substantive law under title 17. 

Finally, unlike the constitutional claim 

in Riggin, a determination by the CRJs 

that 17 U.S.C. § 114(f)(5) is 

unconstitutional would necessarily 

require the CRJs to act contrary to their 

statutory charter, which pointedly 

directs the CRJs to act in accordance 

with the provisions of section 114(f)(5).3

Under that provision, the CRJs may 

allow agreements made pursuant to the 

Webcaster Settlement Acts to be 

admitted into evidence or otherwise 

considered only if both parties to such 

agreements authorize submission of the 

agreements in a CRJ proceeding. 

As neither the Register nor the CRJs 

have any specific authority under 

Chapter 7, or any other provisions of the 

Copyright Act, to determine the 

constitutionality of 17 U.S.C. § 114(f)(5), 

and because no other established 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments are applicable, the Register 

concludes that neither the Register nor 

the CRJs have the authority under the 

Copyright Act to determine the 

constitutionality of 17 U.S.C. § 114(f)(5). 

April 30, 2010 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. 2010–11116 Filed 5–10–10; 8:45 am] 

BILLING CODE 1410–30–S 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Records Schedules; Availability and 

Request for Comments 

AGENCY: National Archives and Records 

Administration (NARA). 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 26281 

ACTION: Notice of availability of 

proposed records schedules; request for 

comments. 

SUMMARY: The National Archives and 

Records Administration (NARA) 

publishes notice at least once monthly 

of certain Federal agency requests for 

records disposition authority (records 

schedules). Once approved by NARA, 

records schedules provide mandatory 

instructions on what happens to records 

when no longer needed for current 

Government business. They authorize 

the preservation of records of 

continuing value in the National 

Archives of the United States and the 

destruction, after a specified period, of 

records lacking administrative, legal, 

research, or other value. Notice is 

published for records schedules in 

which agencies propose to destroy 

records not previously authorized for 

disposal or reduce the retention period 

of records already authorized for 

disposal. NARA invites public 

comments on such records schedules, as 

required by 44 U.S.C. 3303a(a). 

DATES: Requests for copies must be 

received in writing on or before June 10, 

2010. Once the appraisal of the records 

is completed, NARA will send a copy of 

the schedule. NARA staff usually 

prepare appraisal memorandums that 

contain additional information 

concerning the records covered by a 

proposed schedule. These, too, may be 

requested and will be provided once the 

appraisal is completed. Requesters will 

be given 30 days to submit comments. 

ADDRESSES: You may request a copy of 

any records schedule identified in this 

notice by contacting the Life Cycle 

Management Division (NWML) using 

one of the following means: 

Mail: NARA (NWML), 8601 Adelphi 

Road, College Park, MD 20740–6001. 

E-mail: request.schedule@nara.gov. 

Fax: 301–837–3698. 

Requesters must cite the control 

number, which appears in parentheses 

after the name of the agency which 

submitted the schedule, and must 

provide a mailing address. Those who 

desire appraisal reports should so 

indicate in their request. 

FOR FURTHER INFORMATION CONTACT: 

Laurence Brewer, Director, Life Cycle 

Management Division (NWML), 

National Archives and Records 

Administration, 8601 Adelphi Road, 

College Park, MD 20740–6001. 

Telephone: 301–837–1539. E-mail: 

records.mgt@nara.gov. 

SUPPLEMENTARY INFORMATION: Each year 

Federal agencies create billions of 

records on paper, film, magnetic tape, 

and other media. To control this 

accumulation, agency records managers 

prepare schedules proposing retention 

periods for records and submit these 

schedules for NARA’s approval, using 

the Standard Form (SF) 115, Request for 

Records Disposition Authority. These 

schedules provide for the timely transfer 

into the National Archives of 

historically valuable records and 

authorize the disposal of all other 

records after the agency no longer needs 

them to conduct its business. Some 

schedules are comprehensive and cover 

all the records of an agency or one of its 

major subdivisions. Most schedules, 

however, cover records of only one 

office or program or a few series of 

records. Many of these update 

previously approved schedules, and 

some include records proposed as 

permanent. 

The schedules listed in this notice are 

media neutral unless specified 

otherwise. An item in a schedule is 

media neutral when the disposition 

instructions may be applied to records 

regardless of the medium in which the 

records are created and maintained. 

Items included in schedules submitted 

to NARA on or after December 17, 2007, 

are media neutral unless the item is 

limited to a specific medium. (See 36 

CFR 1225.12(e).) 

No Federal records are authorized for 

destruction without the approval of the 

Archivist of the United States. This 

approval is granted only after a 

thorough consideration of their 

administrative use by the agency of 

origin, the rights of the Government and 

of private persons directly affected by 

the Government’s activities, and 

whether or not they have historical or 

other value. 

Besides identifying the Federal 

agencies and any subdivisions 

requesting disposition authority, this 

public notice lists the organizational 

unit(s) accumulating the records or 

indicates agency-wide applicability in 

the case of schedules that cover records 

that may be accumulated throughout an 

agency. This notice provides the control 

number assigned to each schedule, the 

total number of schedule items, and the 

number of temporary items (the records 

proposed for destruction). It also 

includes a brief description of the 

temporary records. The records 

schedule itself contains a full 

description of the records at the file unit 

level as well as their disposition. If 

NARA staff has prepared an appraisal 

memorandum for the schedule, it too 

includes information about the records. 

Further information about the 

disposition process is available on 

request. 

Schedules Pending: 

1. Department of the Army, Agencywide (N1–AU–09–10, 4 items, 4 

temporary items). Policy and procedures 

documents, reports, evaluations, 

requests for information and other 

information relating to the Total Army 

Sponsorship Program. 

2. Department of Defense, Defense 

Security Service (N1–446–09–6, 3 items, 

3 temporary items). Master files of an 

electronic information system used for 

the secure transmission of fingerprints 

and demographic information submitted 

by contractors concerning applicants for 

security clearances. 

3. Department of Education, Federal 

Student Aid (N1–441–09–22, 1 item, 1 

temporary item). Master files of an 

electronic information system used to 

manage student loans and grants. Files 

include such information as name of 

student, type and amount of loan, loan 

period, and balance. 

4. Department of Education, Federal 

Student Aid (N1–441–09–23, 9 items, 9 

temporary items). Master files of 

electronic information systems used to 

process student aid applications and 

payments. Records relate to such 

matters as the application and selection 

process, disbursements of funds, and 

other financial transactions. 

5. Department of Education, Office for 

Civil Rights (N1–441–08–6, 5 items, 4 

temporary items). Case files relating to 

investigating complaints and reviewing 

educational programs in regard to 

compliance with laws prohibiting 

discrimination on the basis of race, 

gender, age, and other considerations. 

Included is an electronic case 

management system. Proposed for 

permanent retention are records 

documenting historically significant 

education discrimination cases. 

6. Department of Education, Office of 

Postsecondary Education (N1–441–09– 

8, 1 item, 1 temporary item). Records 

relating to programs that assist 

educational institutions in providing 

housing and other facilities for students. 

Records include information that relates 

to such matters as applications, 

disbursements of funds, and the 

planning and construction of facilities. 

7. Department of Health and Human 

Services, Centers for Medicare & 

Medicaid Services (N1–440–09–12, 1 

item, 1 temporary item). Master files of 

an electronic information system used 

to account for and manage 

reimbursements provided to Plan 

Sponsors for Medicare-eligible retirees. 

8. Department of Homeland Security, 

Directorate for Management (N1–563– 

09–12, 8 items, 8 temporary items). 

Records relating to the oversight and 

management of grant programs. 

Included are such records as grant 


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26282 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 

program announcements, grant 

guidance reference files, grant 

monitoring review case files, customer 

service correspondence, debarment and 

suspension case files, and grant program 

approval case files. 

9. Department of Justice, Bureau of 

Prisons (N1–129–09–32, 1 item, 1 

temporary item). Master files of an 

electronic information system that 

contains information on inmate work 

assignments. 

10. Department of Justice, Executive 

Office for U.S. Attorneys (N1–60–10–9, 

2 items, 2 temporary items). Inputs and 

master files of an electronic information 

system which contains information used 

in connection with notifying employees 

in the event of an emergency. 

11. Department of Justice, Federal 

Bureau of Investigation (N1–65–09–5, 4 

items, 3 temporary items). Records 

relating to agency equal employment 

opportunity programs, including 

administrative files and records of 

special emphasis programs that focus 

attention on specific employee groups. 

Proposed for permanent retention are 

case files relating to historically 

significant discrimination complaint 

cases. 

12. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

103, 2 items, 2 temporary items). Master 

files and system documentation of an 

electronic information system used to 

automate the tax examination process 

and provide taxpayers with easily 

understood audit reports. 

13. Department of the Treasury, 

Internal Revenue Service (N1–58–09– 

104, 2 items, 2 temporary items). 

Applications for tax credits for 

investments in manufacturing 

equipment used to produce clean 

energy. 

14. Department of Veterans Affairs, 

Veterans Health Administration (N1– 

15–10–4, 5 items, 5 temporary items). 

Records that relate to providing 

prosthetics and sensory aids to military 

veterans. 

15. National Capital Planning 

Commission, Agency-wide (N1–328– 

10–1, 6 items, 5 temporary items). 

Records relating to the agency Web site 

(including Web content), litigation files, 

and a geographic information system 

used for municipal planning and 

management that is no longer being 

created. Proposed for permanent 

retention are electronic records 

contained in an automated system that 

contains information concerning 

projects submitted to the agency for 

approval. 

Dated: May 4, 2010. 

Michael J. Kurtz, 

Assistant Archivist for Records Services— 

Washington, DC. 

[FR Doc. 2010–11029 Filed 5–10–10; 8:45 am] 

BILLING CODE 7515–01–P 

THE NATIONAL FOUNDATION FOR 

THE ARTS AND THE HUMANITIES 

Notice of Proposed Information 

Collection Requests: State Library 

Administrative Agencies Survey, FY 

2011–2013 

AGENCY: Institute of Museum and 

Library Services, The National 

Foundation for the Arts and the 

Humanities. 

ACTION: Notice, request for comments, 

collection of information. 

SUMMARY: The Institute of Museum and 

Library Service (‘‘IMLS’’) as part of its 

continuing effort to reduce paperwork 

and respondent burden, conducts a preclearance consultation program to 

provide the general public and federal 

agencies with an opportunity to 

comment on proposed and/or 

continuing collections of information in 

accordance with the Paperwork 

Reduction Act (44 U.S.C. Chapter 35). 

This pre-clearance consultation program 

helps to ensure that requested data can 

be provided in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the impact of collection requirements on 

respondents can be properly assessed. 

The purpose of this Notice is to solicit 

comments concerning the continuance 

of the State Library Administrative 

Agencies Survey from FY 2011–2013. 

A copy of the proposed information 

collection request can be obtained by 

contacting the individual listed below 

in the ADDRESSES section of this notice. 

DATES: Written comments must be 

submitted to the office listed in the 

ADDRESSES section below on or before 

July 8, 2010. 

The IMLS is particularly interested in 

comments which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g. permitting 

electronic submissions of responses. 

ADDRESSES: For a copy of the documents 

contact: Kim A. Miller, Management 

Analyst, Office of Policy, Planning, 

Research, and Communication, Institute 

of Museum and Library Services, 1800 

M Street, NW., 9th Floor, Washington 

DC 20036. Ms. Miller can be reached by 

Telephone: 202–653–4762, Fax: 202– 

653–4600, or by e-mail at 

kmiller@imls.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Institute of Museum and Library 

Services (IMLS) is an independent 

Federal grant-making agency and is the 

primary source of federal support for the 

Nation’s 123,000 libraries and 17,500 

museums. IMLS provides a variety of 

grant programs to assist the Nation’s 

museums and libraries in improving 

their operations and enhancing their 

services to the public. IMLS is 

responsible for identifying national 

needs for, and trends of, museum and 

library services funded by IMLS; 

reporting on the impact and 

effectiveness of programs conducted 

with funds made available by IMLS in 

addressing such needs; and identifying, 

and disseminating information on, the 

best practices of such programs. (20 

U.S.C. Chapter 72, 20 U.S.C. 9108). 

II. Current Actions 

The State Library Administrative 

Agencies Survey has been conducted by 

the Institute of Museum and Library 

Services under the clearance number 

3137–0072, which expires 9/30/2010. 

State library administrative agencies 

(‘‘StLAs’’) are the official agencies of 

each state charged by state law with the 

extension and development of public 

library services throughout the state. (20 

U.S.C. Chapter 72, 20 U.S.C. 9122.) The 

purpose of this survey is to provide state 

and federal policymakers with 

information about StLAs, including 

their governance, allied operations, 

developmental services to libraries and 

library systems, support of electronic 

information networks and resources, 

number and types of outlets, and direct 

services to the public. 

Agency: Institute of Museum and 

Library Services. 


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